U.S. v. Goings, 72 M.J. 202

First Principles: Constitutional Matters: Generally

1. an appellant’s rights as a member of the military are not coextensive with those enjoyed by civilians

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. in a contested case involving an Article 134, UCMJ, offense, the terminal element must be pleaded or fairly implied, and the allegation of the act itself is insufficient to support a fair implication of the terminal element
2. Article 134, UCMJ, has two elements: (1) a predicate act or failure to act, and (2) a terminal element; the terminal element of an Article 134, UCMJ, offense may not be fairly implied from nothing more than the language describing the alleged act or failure to act itself

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

1. the offense of indecent acts with another consists of three elements: (1) that the accused committed a certain wrongful act with a certain person; (2) that the act was indecent; and (3) that the conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces; indecent is defined as that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations
2. private consensual sexual activity is not punishable as an indecent act under Article 134, UCMJ, absent aggravating circumstances; one such aggravating circumstance is that the sexual activity is open and notorious, which includes when the participants know that someone else is present
3. the commission of sexual acts in the presence of a third party has been held to be sufficiently open and notorious to constitute an indecent act, punishable under Article 134, UCMJ, and permitting the filming of those same acts is also sufficient; Congress’ and the President’s determination to proscribe such acts that are to the prejudice of good order and discipline or of a nature to bring discredit upon the armed forces, no doubt furthers the military’s unique interest in obedience and discipline; in this case, where appellant permitted a third party to observe and memorialize his sexual intercourse with a female on videotape, and the trier of fact deemed the conduct to be prejudicial to good order and discipline and service discrediting, such conduct was not constitutionally protected wholly private and consensual sexual activity under Lawrence (539 US 558 (2003)); in Lawrence, the focal point of the constitutional protection involved an act of sexual intimacy between two individuals in a wholly private setting without more; Lawrence did not establish a presumptive constitutional protection for all offenses arising in the context of sexual activity; to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed; in this case, appellant did not raise such an issue at trial or develop such facts in a motion proceeding; in that context, the military judge did not commit error, let alone plain and obvious error, in failing to sua sponte raise a Lawrence issue

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. in a contested case involving an Article 134, UCMJ, offense, the terminal element must be pleaded or fairly implied, and the allegation of the act itself is insufficient to support a fair implication of the terminal element
2. Article 134, UCMJ, has two elements: (1) a predicate act or failure to act, and (2) a terminal element; the terminal element of an Article 134, UCMJ, offense may not be fairly implied from nothing more than the language describing the alleged act or failure to act itself

Trial Stages: Pretrial: Charges and Specifications

1. in a contested case involving an Article 134, UCMJ, offense, the terminal element must be pleaded or fairly implied, and the allegation of the act itself is insufficient to support a fair implication of the terminal element
2. Article 134, UCMJ, has two elements: (1) a predicate act or failure to act, and (2) a terminal element; the terminal element of an Article 134, UCMJ, offense may not be fairly implied from nothing more than the language describing the alleged act or failure to act itself

Trial Stages: Appeals: Harmless / Prejudicial Error

1. finding sufficient notice of the terminal element in an Article 134, UCMJ, specification that did not allege the terminal element - and thus no prejudice – on such bases as: (1) witness testimony describing the act or failure to act that meets Article 134, UCMJ’s, first element; (2) the government’s identification of its theory of criminality during its closing argument; (3) evidence of defense counsel’s general awareness of the terminal element; or (4) findings instructions that require the panel to find the terminal element beyond a reasonable doubt in order to convict, without more, is error; that: (1) the evidence was legally sufficient to prove the terminal element; (2) defense counsel demonstrated a general knowledge of the law, and (3) the government’s theory of criminal liability was introduced during closing or through findings instructions do not answer the altogether different question whether the record sufficiently demonstrates that an accused was on notice as to which clause or clauses of the terminal element he needed to defend against; it is this latter question that determines whether an appellant was prejudiced
2. in this case, where an Article 134, UCMJ, indecent act specification did not allege the terminal element, appellant was not prejudiced because he was put on notice of the terminal element where (1) the government argued that the evidence was prejudicial to good order and discipline in its opening statement, (2) the government presented evidence during its case-in-chief as to why the indecent act with another was both prejudicial to good order and discipline and service discrediting, and (3) appellant defended against the specification on the ground that neither clause 1 nor clause 2 of the terminal element had been met during both his cross-examination of government witnesses and closing argument

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where appellant failed to object at trial that the offense of indecent acts with another, as proscribed under Article 134, UCMJ, was unconstitutional as applied to him, but on appeal alleges constitutional error, in light of (1) the presumption against the waiver of constitutional rights, and (2) the requirement that a waiver clearly establish an intentional relinquishment of a known right or privilege, the alleged error will be considered forfeited, not waived, and it will be reviewed by an appellate court for plain error; under plain error review, the court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused
2. upon plain error review, to prove that Article 134, UCMJ - a facially constitutional criminal statute - is unconstitutional as applied to him, appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed; put another way, to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed
3. in this case, where appellant failed to object at trial to an Article 134, UCMJ, specification on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the underlying constitutional right to notice, and on appeal, plain error analysis must be applied
4. the government’s failure to plead the terminal element in an indecent act offense charged under Article 134, UCMJ, was plain and obvious error

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews whether a statute is unconstitutional as applied de novo
2. to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry
3. upon plain error review, to prove that Article 134, UCMJ - a facially constitutional criminal statute - is unconstitutional as applied to him, appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed; put another way, to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed
4. when the sexual conduct being charged does not fall directly within the focal point of Lawrence (539 US 558 (2003)) - sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself – and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial
5. having found plain and obvious error that was forfeited rather than waived where the government failed to allege the terminal element in an Article 134, UCMJ, specification charged before Fosler (70 MJ 225 (CAAF 2011)), an appellate court must then determine whether there is a remedy for the error, which will depend on whether the error has prejudiced the substantial rights of the accused; in the context of a defective specification, the prejudice analysis demands close review of the trial record; the court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted

Trial Stages: Appeals: Waiver

1. where appellant failed to object at trial that the offense of indecent acts with another, as proscribed under Article 134, UCMJ, was unconstitutional as applied to him, but on appeal alleges constitutional error, in light of (1) the presumption against the waiver of constitutional rights, and (2) the requirement that a waiver clearly establish an intentional relinquishment of a known right or privilege, the alleged error will be considered forfeited, not waived, and it will be reviewed by an appellate court for plain error; under plain error review, the court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused
2. in this case, where appellant failed to object at trial to an Article 134, UCMJ, specification on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the underlying constitutional right to notice, and on appeal, plain error analysis must be applied