U.S. v. Castellano, 72 M.J. 217

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments
2. none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented

Military Justice Personnel: Military Judge: Instructions

1. in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments
2. none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. although Article 125, UCMJ, prohibits every kind of unnatural carnal intercourse, wholly private, consensual sexual activity between adults otherwise proscribed by Article 125, UCMJ, is constitutionally protected, absent some other fact
2. Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest), including those that track the aggravating factors that the President has also identified for the purpose of sentencing in the discussion to Article 125, UCMJ (listing as aggravating factors that the act was done with a child or by force and without consent of the other person), are critical to an Article 125, UCMJ, conviction because, in the absence of such additional factors, an act of sodomy may not be criminalized; the existence of the additional factor that makes an act of sodomy criminal must be determined by the trier of fact
3. in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments
4. none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented

Trial Stages: Merits: Guilty Pleas

1. in the context of a guilty plea to sodomy without force, a plea is improvident where there is no discussion of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) between the military judge and the accused; the presence of a Marcum factor is a matter of critical significance because it distinguishes between what is permitted and what is prohibited

Trial Stages: Merits: Instructions › Generally

1. in instructing members on an LIO of sodomy, not involving force, in violation of Article 125, UCMJ, a military judge’s decision to determine that a Marcum (60 MJ 198 (CAAF 2004)) factor (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) existed himself rather than instruct the members that they must determine the existence of a Marcum factor was error, and that this error materially prejudiced appellant’s due process rights under the Fifth and Sixth Amendments
2. none of the Marcum (60 MJ 198 (CAAF 2004)) factors (any factor that removes the sexual conduct from the scope of the protected interest of Lawrence (539 US 558 (2003)), including those additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest) are statutory elements of Article 125, UCMJ; however, in case of sodomy without force, where, but for the presence of a Marcum factor, the act of sodomy would not be subject to criminal sanction, whether a Marcum factor exists is not solely a legal determination left to the military judge’s discretion; where, as here, an otherwise unconstitutional criminal statute is construed in such a way as to limit its reach to conduct that may constitutionally be subject to criminal sanction, the facts under that saving construction have constitutional significance; these facts are critical to a conviction as, absent such facts, the conduct is not criminal; therefore, they must be determined by the trier of fact; and each of the Marcum factors are fact questions in the commonsense meaning of the term; an act of sodomy either does, or does not, involve force, a child, open and notorious or public behavior, or prostitution, and, likewise, an act of sodomy either implicates a unique military interest or it does not; whether a Marcum factor exists is a determination to be made by the trier of fact based on the military judge’s instructions identifying facts or factors that are relevant to the constitutional context presented

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where the members were permitted to find appellant guilty of sodomy without force based on a finding that nothing more than an act of sodomy occurred, this error was not harmless beyond a reasonable doubt