UNITED STATES, Appellee
v.
Eric P. MARCUM, Technical Sergeant
No. 02-0944
Crim. App. No. 34216
Argued
Decided
BAKER, J., delivered the opinion
of the
Court, in which GIERKE, EFFRON, AND ERDMANN, JJ., joined.
CRAWFORD, C.J., filed a separate opinion
concurring in the result in part and dissenting in part.
Counsel
For
Appellant: Frank
J. Spinner, Esq. (argued); Colonel Beverly B. Knott, Major
Terry
L. McElyea, and Captain Jennifer K. Martwick (on brief).
For
Appellee: Colonel
LeEllen Coacher (argued); Major Jennifer R. Rider and Lieutenant
Colonel Lance B. Sigmon (on brief); Lieutenant Colonel Robert
V. Combs
and Captain C. Taylor Smith.
Amici
Curiae for
Appellant: Stuart F. Delery, Esq.
(argued); Josh Goldfoot, Esq. and Alison J. Nathan, Esq.
(on
brief) — for The American Civil Liberties Union, et.
al. Eugene R. Fidell, Esq. (on brief) — for Social
Scientists
and Military Experts.
Amicus
Curiae for
Appellee: Colonel Lauren B. Leeker,
Lieutenant Colonel Margaret B. Baines, Captain Matthew J.
MacLean
(on brief) — for the United States Army, Government Appellate Division.
Military
Judge: S.
A. Gabrial
THIS
OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Judge
BAKER delivered the opinion of the Court.
Contrary
to his pleas, Appellant was convicted by officer members of dereliction
of duty
by providing alcohol to individuals under the age of 21, non-forcible
sodomy,
forcible sodomy, assault consummated by a battery, indecent assault,
and three
specifications of committing indecent acts in violation of Articles 92,
125,
128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§
892, 925, 928, and 934 (2000), respectively.
Appellant was sentenced to confinement for 10 years, a
dishonorable
discharge, total forfeitures, and reduction to the lowest enlisted
grade. The convening authority reduced the
confinement to six years, but otherwise approved the findings and
sentence.
The case was reviewed by the Air
Force Court
of Criminal Appeals, which affirmed the findings and sentence. United States v. Marcum,
No. ACM 34216, slip op. (A.F. Ct. Crim. App. July 25, 2002). This Court granted review of the following
issues:
ISSUE I
WHETHER
APPELLANT SUFFERED PREJUDICIAL ERROR WHEN HIS TRIAL DEFENSE COUNSEL
REVEALED
PRIVILEGED COMMUNICATIONS WITHOUT APPELLANT’S PERMISSION DURING THE
SENTENCING
PHASE OF APPELLANT’S TRIAL IN VIOLATION OF M.R.E. 502 AND 511.
ISSUE II
WHETHER
THE MILITARY JUDGE ERRED BY INSTRUCTING THE PANEL THAT THE MAXIMUM
SENTENCE IN
APPELLANT’S CASE WAS LIFE WITHOUT PAROLE WHEN THE PRESIDENT HAD NOT
AUTHORIZED
THAT PUNISHMENT FOR APPELLANT’S OFFENSES.
ISSUE III
WHETHER
APPELLANT’S CONVICTION FOR VIOLATING ARTICLE 125, UCMJ, BY ENGAGING IN
CONSENSUAL SODOMY (CHARGE II, SPECIFICATION 1) MUST BE SET ASIDE IN
LIGHT OF
THE UNITED STATES SUPREME COURT’S HOLDING IN
Addressing these
issues out of order, we hold that Article 125, UCMJ, is constitutional
as
applied to Appellant.
Constitutional
rights generally apply to members of the armed forces unless by their
express
terms, or the express language of the Constitution, they are
inapplicable. However, Appellant’s actions
in the military
context fell outside the zone of autonomy identified by the Supreme
Court as a
protected liberty interest. Among other
things, Appellant was convicted of non-forcible sodomy with a
subordinate
airman within his chain of command. An
Air Force instruction prohibits such sexual conduct between
servicemembers in
differing pay-grades and within the same chain of command.
This instruction provides for potential
criminal sanctions through operation of Article 92.
This instruction evidences that Senior Airman H, Appellant’s
subordinate, was in a military position where
“consent
might not easily be refused.” Lawrence v.
Civilian defense
counsel violated Military Rule of Evidence 502 [hereinafter M.R.E.]
when he
submitted a twenty-page pre-trial statement as a sentencing exhibit
without
Appellant’s consent. This statement was
prepared by Appellant for his defense counsel to use in preparation for
trial. The statement depicts in graphic
detail Appellant’s sexual encounters with six members of his Air Force
unit. Although Appellant’s trial
testimony recounted much of the same information contained within the
statement, we conclude that the timing, tone, and graphic substance of
this
privileged communication prejudiced Appellant during sentencing.
In light of our
decision on Issue I, we need not decide whether life without parole was
an
authorized punishment for forcible sodomy at the time of Appellant’s
offenses. As a result, we affirm with
respect to the findings, but reverse with respect to the sentence.
I. Issue III
Article 125
Facts
Appellant, a cryptologic linguist,
technical
sergeant (E-6), and the supervising noncommissioned officer in a flight
of
Persian-Farsi speaking intelligence analysts, was
stationed at Offutt Air Force Base,
While off-duty Appellant
socialized with
airmen from his flight at parties.
According to the testimony of multiple members of his unit,
airmen
“often” spent the night at Appellant’s off-base home following these
parties. The charges in this case resulted
from allegations by some of these subordinate airmen that Appellant
engaged in
consensual and nonconsensual sexual activity with them.
Among other offenses, Appellant
was charged
with the forcible sodomy of Senior Airman (SrA)
With regard to the charged
offense, SrA H
testified that after a night of drinking with Appellant he stayed at
Appellant’s apartment and slept on the couch.
SrA H further testified that at some point he woke up to
find
Appellant orally sodomizing him.
Although Appellant testified that he “did not perform oral sex
on [SrA H] at all,” he testified to “kissing [SrA H’s] penis
twice.” When asked “did you, at any time,
use any
force, coercion, pressure, intimidation or violence?”
Appellant responded, “No, sir, I did not and
neither did Airman H.” Moreover,
Appellant testified that the activity that occurred between Appellant
and SrA H was “equally participatory.”
According to SrA H’s
testimony, he did
not say anything to Appellant at the time of the charged incident, but
grabbed
the covers, pulled them up over his torso, and turned away from
Appellant into
the couch. SrA H left the
apartment soon after this incident took place.
SrA H testified that he didn’t protest at the time
because he
didn’t know how Appellant would react.
SrA H also testified that Appellant’s actions made him
scared,
angry, and uncomfortable.
According to SrA H, he
later
confronted Appellant about this incident.
He told Appellant, “I just want to make it clear between us that
this
sort of thing doesn’t ever happen again.”
Nevertheless, SrA H forgave Appellant and continued their
friendship. SrA H testified that
he considered his relationship with Appellant like that of “a father
type son
relationship or big brother, little brother type relationship[.]” Subsequent to this incident, SrA H
explained how he and Appellant salsa danced together and kissed each
other in
the “European custom of men.” SrA H also
told Appellant that he loved him, bought him a t-shirt as
a
souvenir, and sent numerous e-mails to Appellant expressing his
continued
friendship.
Appellant and SrA H also
provided
testimony regarding an incident that occurred prior to the charged
offense. SrA H testified that
during the incident he woke up in the morning and he was on top of
Appellant
with his face near Appellant’s stomach.
Appellant testified, “I was laying
on my side,
actually almost on top of the couch, with my belly on the couch but
turned a
little bit like this towards, with my face towards the rest of the
living
room. Airman H was [on] top of me
with, facing me. Airman H was
moving his pelvis area against my butt which is what woke me up. He had an erection, he had his arm around me,
around the part that was actually touching
the
couch.”
At the time of the charged conduct
in
question, Appellant and SrA H were both subject to Dep’t of the
Air
Force, Instruction 36-2909 (May 1, 1996).
This instruction addresses professional and unprofessional
relationships
within the Air Force. Dep’t of the Air
Force, Instruction 36-2909 is subject to criminal sanction through
operation of
Article 92 (Failure to obey order or regulation). Although
this instruction was not admitted
into evidence at trial, Appellant admitted during cross-examination
that he was
“aware of an Air Force policy” and that through his actions he had
“broken more
than an Air Force policy.”
A panel of officers and enlisted
members
found Appellant “not guilty of forcible sodomy but guilty of
non-forcible
sodomy” in violation of Article 125. He
was convicted on
Subsequent to the trial, action by
the
convening authority, and the Air Force Court of Criminal Appeals’
review in
this case, the Supreme Court granted certiorari in Lawrence v. Texas,
a
case challenging the constitutionality of a
Discussion
A. Article
125 Text
Article 125
states:
(a)
Any person subject to this chapter who
engages in unnatural carnal copulation with another person of the same
or
opposite sex or with an animal is guilty of sodomy.
Penetration, however slight, is sufficient to
complete the offense.
(b)
Any person found guilty of sodomy shall be
punished as a court-martial may direct.
As we stated in United States v. Scoby,
By its terms, Article
125 prohibits every kind of unnatural carnal intercourse, whether
accomplished
by force or fraud, or with consent.
Similarly, the article does not distinguish between an act
committed in
the privacy of one’s home, with no person present other than the sexual
partner, and the same act committed in a public place in front of a
group of
strangers, who fully apprehend in the nature of the act.
5
M.J. 160, 163 (C.M.A. 1978). Thus,
Article 125 forbids sodomy whether it is consensual or forcible,
heterosexual
or homosexual, public or private.
B. Arguments
Appellant
challenges his conviction on the ground that
The amici curiae,* arguing in
support of Appellant’s position, assert that Article 125 is
unconstitutional on
its face. According to the amici, the
Supreme Court placed
The Government
argues that Lawrence is not applicable in the military
environment due
to the distinct and separate character of military life from civilian
life as
recognized by the Supreme Court in Parker v. Levy, 417 U.S. 733
(1974). The Government further argues
that because the Supreme Court did not expressly state that engaging in
homosexual sodomy is a fundamental right,
this Court
should analyze Article 125 using the rational basis standard of review. Utilizing this standard, the Government
contends Article 125 is constitutional because it is rationally related
to a
legitimate state interest. Specifically,
the Government maintains that Article 125 criminalizes conduct that
“create[s]
an unacceptable risk to the high standards of morale, good order and
discipline, and unit cohesion” within the military as recognized by
Congress in
10 U.S.C. § 654(a)(15).
Whether
Appellant’s conviction must be set aside in light of the Supreme
Court’s
holding in
C. The
The petitioners
in
Having framed the
question as one of liberty, the Supreme Court indicated that “[t]o say
that the
issue in Bowers was simply the right to engage in certain
sexual conduct
demeans the claim the individual put forward[.]”
to control a
personal relationship that, whether or not entitled to formal
recognition in
the law, is within the liberty of persons to choose without being
punished as
criminals.
This,
as a general rule, should counsel against attempts by the State, or a
court, to
define the meaning of the relationship or to set its boundaries absent
injury
to a person or abuse of an institution the law protects.
Within this
framework the Supreme Court overruled Bowers:
“The rationale of Bowers does not
withstand careful analysis. . . . Bowers
was not correct when it was decided, and it is not correct today. It ought not to remain binding
precedent.”
With respect to
the
The case does
involve two adults who, with full and mutual consent from each other,
engaged
in sexual practices common to a homosexual lifestyle.
The petitioners are entitled to respect for
their private lives. The State cannot
demean their existence or control their destiny by making their private
sexual
conduct a crime. Their right to liberty
under the Due Process Clause gives them the full right to engage in
their
conduct without intervention of the government.
“It is a promise of the Constitution that there is a realm of
personal
liberty which the government may not enter.”
The
While finding the
(1) Standard
of Constitutional Review
The
amici, in
their primary argument, contend that strict scrutiny should apply to
this
Court’s review of Article 125 because the Article impinges on a
fundamental
constitutional liberty interest. This
follows from the amici’s conclusion that “the Supreme Court overruled Bowers
. . ., and held the
In
contrast, the
Government contends the Supreme Court did not find a fundamental right
to
engage in homosexual sodomy by overruling Bowers because the
Supreme
Court applied the rational basis standard of review in
Although
particular sentences within the Supreme Court’s opinion may be culled
in
support of the Government’s argument, other sentences may be extracted
to
support Appellant’s argument. On the one
hand, the opinion incorporates some of the legal nomenclature typically
associated with the rational basis standard of review.
For example, as the Government notes, the
Supreme Court declared “[t]he
On
the other
hand, the Supreme Court placed
Indeed,
in
response to the Supreme Court’s decision in
The
focus by the
Government and Appellant on the nature of the Supreme Court’s
constitutional
test in
The
Supreme Court
did not expressly state which test it used.
The Court did place the liberty interest in
What
At the same time the Court identified factors,
which it did not delimit, that might place conduct outside the
(2)
The
Supreme Court
and this Court have long recognized that “[m]en and women in the Armed
Forces
do not leave constitutional safeguards and judicial protection behind
when they
enter military service.” United
States v. Mitchell, 39 M.J. 131, 135 (C.M.A. 1994)(quoting
Weiss v. United States, 510
At
the same time, these constitutional rights may apply differently to
members of
the armed forces than they do to civilians.
See Parker, 417
While
the
Government does not contest the general proposition that the
Constitution
applies to members of the Armed Forces, it argues that
The
military landscape, however, is less
certain than the Government suggests.
The fog of constitutional law settles on separate and shared
powers
where neither Congress nor the Supreme Court has spoken authoritatively. Congress has indeed exercised its Article I
authority to address homosexual sodomy in the Armed Forces, but this
occurred
prior to the Supreme Court’s constitutional decision and analysis in
Constitutional
rights identified by the Supreme Court generally apply to members of
the
military unless by text or scope they are plainly inapplicable. Therefore, we consider the application of
Thus, this case presents itself to
us as a
challenge to a discrete criminal conviction based on a discrete set of
facts. The question this Court must ask
is whether Article 125 is constitutional as applied to Appellant’s
conduct. This as-applied analysis requires
consideration of three questions. First,
was the conduct that the accused was found guilty of committing of a
nature to
bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any
behavior or factors identified by the Supreme Court as outside the
analysis in
D. Is
Article 125 Constitutional as Applied to
Appellant?
Appellant was
charged with dereliction of duty, three specifications of forcible
sodomy,
three specifications of indecent assault, and two specifications of
committing
an indecent act. With regard to the
charge addressed on appeal, the members found Appellant “not guilty of
forcible
sodomy, but guilty of non-forcible sodomy.”
As part of Appellant’s contested trial, the following additional
facts
surrounding his conduct were elicited:
The act of sodomy occurred in Appellant’s off-base apartment
during
off-duty hours; no other members of the military were present at the
time of
the conduct; Appellant was an E-6 and the
supervising
noncommissioned officer in his flight.
His duties included training and supervising airmen. SrA H, an E-4, was one of the airmen
Appellant supervised. As a result, SrA H
was subordinate to, and directly within, Appellant’s chain of
command.
The first
question we ask is whether Appellant’s conduct was of a nature to bring
it
within the
The second
question we ask is whether Appellant’s conduct nonetheless encompassed
any of
the behavior or factors that were identified by the Supreme Court as
not
involved in
When evaluating
whether Appellant’s conduct involved persons who might be injured or
coerced or
who were situated in relationships where consent might not easily be
refused,
the nuance of military life is significant.
An Air Force instruction applicable to Appellant at the time of
the
offenses included the following proscriptions.
Unduly familiar
relationships between members in which one member exercises supervisory
or
command authority over the other can easily be or become unprofessional. Similarly, as differences in grade increase,
even in the absence of a command or supervisory relationship, there may
be more
risk that the relationship will be, or be perceived to be
unprofessional
because senior members in military organizations normally exercise
authority or
some direct or indirect organizational influence over more junior
members.
Relationships are
unprofessional, whether pursued on or off-duty, when they detract from
the
authority of superiors or result in, or reasonably create the
appearance of,
favoritism, misuse of office or position, or the abandonment of
organizational
goals for personal interests.
Dep’t. of
the Air Force Instruction, 36-2909 Professional and
Unprofessional Relationships, paras. 2.2, 3.1 (
For these reasons, the military has
consistently regulated relationships between servicemembers based on
certain
differences in grade in an effort to avoid partiality, preferential
treatment,
and the improper use of one’s rank. See
In light of Air
Force Instructions at the time, Appellant might have been charged with
a
violation of Article 92 for failure to follow a lawful order. However, the Government chose to proceed
under Article 125. Nonetheless, the fact
that Appellant’s conduct might have violated Article 92 informs our
analysis as
to whether Appellant’s conduct fell within the
As the
supervising noncommissioned officer, Appellant was in a position of
responsibility and command within his unit with respect to his fellow
airmen. He supervised and rated SrA H. Appellant also testified that
he knew he should not engage in a sexual relationship with someone he
supervised. Under such circumstances,
which Appellant
acknowledged was prohibited by Air Force policy, SrA H, a
subordinate
airman within Appellant’s chain of command, was a person “who might be
coerced”
or who was “situated in [a] relationship[] where consent might not
easily be
refused.” Lawrence, 539
Appellant’s conduct was outside the
protected liberty interest recognized in
II. Issue I: Sentencing Statement
Facts
After the court members announced their findings, the court-martial recessed for the evening. Appellant then went absent without leave (AWOL). After numerous recesses, the court-martial reconvened and proceeded without Appellant. See Rule for Courts-Martial 804(b)(1) [hereinafter R.C.M.]. Trial defense counsel objected to proceeding without Appellant, but ultimately made a sentencing argument to members that included, as a sentencing exhibit, an unsworn statement from Appellant.
The
unsworn statement was a compilation of word processed notes that
Appellant had
prepared for his defense counsel prior to trial. Appellant
submitted an affidavit stating, “I
have examined this document and believe it is covered by the
attorney-client
privilege, which I hereby invoke. At no
time did I authorize my defense counsel to release it to anyone, in
court or
out of court. It was prepared for their
eyes exclusively. They never asked me
for permission to release it or permission to offer it as an unsworn
statement
in court.” Marcum, No. ACM 34216,
slip op at 4.
This twenty-page single spaced
document was
divided into six sections. Each section
referenced a different male airman with whom Appellant was alleged to
have had
sexual contact. The document described
for his lawyer the nature of his professional and off-duty relationship
with
each airman, including details regarding Appellant’s level of
attraction for
each individual airman as well as graphic descriptions of the charged
and
uncharged sexual contact between Appellant and each airman.
The introduction of this statement
caused the
military judge to ask defense counsel, “I just want to make sure that
that’s
the means by which you would like to present that to the court members
and
you’re not interested in providing that in any other fashion. Is that correct?” Civilian
defense counsel responded: “That’s
correct, Your
Honor. It is rather lengthy and I
believe the impact of the contents of this statement, when each member
of the
court is provided a copy of this and they can read it individually, I
think
that it will carry the impact that it was intended to take.” In subsequent argument, civilian defense
counsel made no reference to the unsworn statement, whereas trial
counsel
referred to the statement when arguing about Appellant’s lack of
contrition.
Appellant
maintains that because he was absent from the proceedings he did not
have the
opportunity to assert his attorney-client privilege prior to defense
counsel
offering the written summary as an unsworn statement.
Appellant also argues that even if the
unsworn statement was intended to benefit him, defense counsel had no
basis to
unilaterally waive the attorney-client privilege. Therefore,
Appellant contends that M.R.E. 502
and 511 were violated because he never waived the attorney-client
privilege nor
authorized his defense counsel to utilize the written summary.
The
Government asserts that Appellant was not denied the opportunity to
assert his
attorney-client privilege because Appellant waived this opportunity by
going
absent without leave. As a result, the
Government contends that defense counsel was implicitly authorized to
disclose
the written summary. The Government also
suggests that Appellant’s unsworn statement does not fall under the
exclusionary rule set forth in M.R.E. 511(a) because defense counsel
introduced
the statement on Appellant’s behalf.
Finally, the Government argues Appellant waived any privilege
that might
have existed with regard to the written summary when he testified to
its
contents during the defense’s case.
Discussion
Whether
Appellant suffered prejudicial error when his trial defense counsel
revealed a
privileged communication during the sentencing phase of trial is a
mixed
question of law and fact reviewed de novo.
“Evidence
of a statement or other disclosure of privileged matter is not
admissible
against the holder of the privilege if disclosure was compelled
erroneously or
was made without an opportunity for the holder of the privilege to
claim the
privilege.” M.R.E.
511(a). “[E]vidence of such a
communication should not be received unless it appears that the
privilege has
been waived by the person or government entitled to the benefit of it
or that
the evidence comes from a person or source not bound by the privilege.”
Military
law is clear that the decision to make an unsworn statement is personal
to the
accused. During the sentencing
proceedings, an accused may “testify, make an unsworn statement, or
both in
extenuation, in mitigation or to rebut matters presented by the prosecution[.]”
R.C.M. 1001(c)(2)(A).
If an accused chooses to make an unsworn
statement, he “may not be cross-examined by the trial counsel upon it
or
examined upon it by the court-martial. . . .
The unsworn statement may be oral, written, or both, and may be
made by
the accused, by counsel, or both.”
R.C.M. 1001(c)(2)(C).
This “right of allocution by a military
member convicted of a criminal offense is a fundamental precept of
military
justice.”
Because
an “accused’s right to make an unsworn
statement ‘is a valuable right . . . [that has] long been recognized by
military custom’ and that has been ‘generally considered unrestricted,’” United States v. Grill, 48 M.J. 131,
132
(C.A.A.F. 1998)(citing United States v. Rosato, 32 M.J. 93, 96
(C.M.A.
1991)), this Court will “not allow it to be undercut or eroded,”
Therefore,
if an accused is absent without leave his right to make an unsworn
statement is
forfeited unless prior to his absence he authorized his counsel to make
a
specific statement on his behalf.
Although defense counsel may refer to evidence presented at
trial during
his sentencing argument, he may not offer an unsworn statement
containing
material subject to the attorney-client privilege without waiver of the
privilege by his client.
Even
though Appellant waived his right to be present during sentencing by
being
voluntarily absent, he did not waive his attorney-client privilege. Appellant’s affidavit demonstrates that
defense counsel never asked Appellant for permission to use the written
summary. Thus, by submitting Appellant’s
written summary as an unsworn statement, defense counsel revealed
material
subject to the attorney-client privilege without receiving an
appropriate
waiver of this privilege from Appellant.
The
harder question in this case, however, is whether Appellant waived his
right to
confidentiality through his trial testimony.
If Appellant did not waive his right to confidentiality, this
Court must
decide whether Appellant was prejudiced by the use of the statement
even though
Appellant testified to a great deal of the information contained within
the
statement. “A finding or sentence of
court-martial may not be held incorrect on the ground of an error of
law unless
the error materially prejudices the substantial rights of an accused.” Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2000). Appellant
contends the admission of his written summary prejudiced him during
sentencing
because it inflamed the members and resulted in a more severe sentence
than he
might have otherwise received. Moreover,
Appellant suggests that if he had prepared an unsworn statement for
sentencing
it would have been different than what was ultimately presented by his
defense
counsel.
We
believe Appellant has carried his burden on both counts.
Throughout the written summary, Appellant
graphically described the circumstances surrounding his relationships
with the
victims and denied responsibility for his actions.
Within his description, Appellant provided
numerous sexually explicit details not contained in his trial
testimony, as
well as, comments critical of the victims.
Although Appellant’s trial testimony was graphic, the tone and
substance
of the sentencing statement was more explicit.
Moreover,
trial counsel repeatedly referred to Appellant’s unsworn statement
during his
sentencing argument. Trial counsel
argued, “They are the victims. And when
you read Sergeant Marcum’s statement remember that.
And when you see - when you read how he
attacks the people that came forward to tell what he did, you remember
and ask
yourself, who is the professional in this case?
Sergeant Marcum victimizes those airmen once and then through
the
testimony and through the statement that you have, he is victimizing
those
airmen again. Pay special attention to
his comments concerning Airman [M].”
Further, trial counsel reminded the members, “As you will read
in
Sergeant Marcum’s statement, he can’t even admit to what he has done.” Defense counsel did not refer to the
statement at all during his sentencing argument.
Under
these circumstances, we find that Appellant did not waive his right to
confidentiality through his trial testimony.
Further, Appellant was prejudiced when his trial defense counsel
revealed privileged communications during sentencing without
Appellant’s
permission.
Issue
II: Life Without
Parole
Appellant’s
sentencing occurred on
Decision
The decision of the United States Air Force
Court of Criminal Appeals is affirmed with respect to the findings, but
reversed with respect to the sentence.
The sentence is set aside. The
record of trial is returned to the Judge Advocate General of the Air
Force. A rehearing on sentence is
authorized.
* The
amici curiae referred to in this opinion are represented in the Brief
of Amici
Curiae in support of Appellant on behalf of the American Civil
Liberties Union,
the American Civil Liberties Union of the National Capital Area, Lambda
Legal
Defense and Education Fund, Servicemembers Legal Defense Network, and
Retired
Members of the Military.
CRAWFORD, Chief Judge (dissenting
on Issue I
and concurring in result on Issue III):
I disagree with the majority’s
conclusion
that defense counsel erred in releasing Appellant’s written statement. First, defense counsel’s declaration of
intent to submit the exhibit as Appellant’s unsworn statement
establishes that
the statement was not privileged in the first place. Moreover, even assuming the statement was
privileged, it is clear from the record that Appellant himself waived
the
privilege, as well as impliedly authorized defense counsel to waive the
privilege
and release the statement on Appellant’s behalf. For
these reasons, I respectfully dissent
from the majority’s resolution of Issue I.
A. Attorney-Client
Privilege and Appellant’s Statement
It is well-established that “[a]
client has a
privilege to refuse to disclose and to prevent any other person from
disclosing
confidential communications made for the purpose of facilitating the
rendition
of professional legal services to the client . . . .”1 Moreover,
“[e]vidence of a statement or other
disclosure of privileged matter is not admissible against the holder of
the
privilege if disclosure was compelled erroneously or was made without
an
opportunity for the holder of the privilege to claim the privilege.”2 “The
privilege is intended to encourage ‘full
and frank communication between attorneys and their clients and thereby
promote
broader public interests in the observance of law and the
administration of
justice.’”3
Nevertheless, it is equally
well-established that material is not privileged if it is intended to
be
disclosed to a third party.4 In United
States v. Grill,5
this Court
championed the accused’s right to make an unsworn statement pursuant to
the
Rules for Courts-Martial 1001(c)(2)(C)[hereinafter
R.C.M.]. In keeping with Grill,
the United States Air Force promulgated Air Force Rule 3.1(D) on May 1,
2000,
requiring that the defense give the Government at least three days’
notice of
intent to submit an unsworn statement.
Although this rule has since been repealed, it was in effect at
the time
of Appellant’s court-martial, and, accordingly, defense counsel in this
case
presumably gave the Government the required notice of his intent to
submit an
unsworn statement on Appellant’s behalf.
In making this required disclosure, defense counsel displayed
his and
Appellant’s intent to disclose the statement to a third party and, in
so doing,
established that the statement was not privileged.
This conclusion is further
supported by
Appellant’s own expression of intent as to defense counsel’s use of the
statement. Before Appellant went absent
without leave (AWOL), defense counsel extensively used Appellant’s
statement at
trial to cross-examine Government witnesses.
Appellant voiced no objection to defense counsel’s use of the
statement
in this manner, and we may therefore reasonably assume that Appellant
gave the
statement to defense counsel with the full knowledge and intent that
the
statement would, in a manner left to defense counsel’s discretion, be
released
at trial. Having done so in the first
place, Appellant cannot now claim that attorney-client privilege should
have
prevented the statement’s release.
B. Appellant’s
Waiver of the Statement’s Privilege
Even assuming the statement was privileged,
it is well established that an accused may waive the attorney-client
privilege. If an accused “testif[ies] voluntarily concerning a privileged
matter or
communication . . . [the accused] waive[s] a privilege to which he or
she may
be entitled pertaining to the confidential matter or communication.”6 Accordingly,
I would hold that when Appellant
“voluntarily testifies about a significant part of the matters
contained in”
the released statement, he waived any future challenge to the
statement’s
release on the grounds that defense counsel violated the
attorney-client
privilege.7 In
this vein, as noted above, the record is clear that defense counsel
further
used the statement’s content in his cross-examination of Government
witnesses. Appellant was present at
these points in the trial, yet voiced no objections to defense
counsel’s use of
the “privileged” statement.
Even assuming Appellant did not himself
waive the attorney-client privilege, “[e]xcept to the extent that the
client’s
instructions or special circumstances limit that authority, a lawyer is
impliedly authorized to make disclosures about a client when
appropriate in
carrying out the representation.”8 The
facts of the instant case present exactly one such
circumstance. As the lower court aptly
noted in its unpublished opinion, “[A]fter he went AWOL, the appellant
left his
trial counsel with the unquestionably difficult position of having to
decide
what, if anything, to offer as an unsworn statement during the
sentencing party
of the appellant’s court-martial.”9
Facing this circumstance, trial defense counsel certainly had
the
implied authority to submit on Appellant’s behalf otherwise privileged
matters
in an effort to defend Appellant as successfully as possible. Additionally, Appellant, by his own
misconduct, forfeited any right to object to counsel’s use of the
statement.
II. Appellant’s Conviction of
Non-Forcible Sodomy in Light of
As to Issue III, I agree with the
majority’s conclusion that Appellant’s conviction should not be
reversed under Lawrence
v. Texas.10 But
I
disagree with the majority’s assumption that Appellant’s conduct falls
within
the protected liberty interest enunciated in
The
present case does not involve minors. It
does not involve persons who might be injured or coerced or who are
situated in
relationships where consent might not easily be refused.
It does not involve public conduct or
prostitution. It does not involve
whether the government must give formal recognition to any relationship
that
homosexual persons seek to enter. The
case does involve two adults who, with full and mutual consent from
each other,
engaged in sexual practices common to a homosexual lifestyle.13
Indeed,
the nature of the petitioners’ relationship as described by the Court
was
central to the Court’s conclusion that the State may not curtail the
petitioners’ “’intimate and personal choices [which are] central to
[their]
personal dignity and autonomy.’”14
The facts surrounding Appellant’s offense
are strikingly different. Appellant, a
noncommissioned officer, was convicted, in pertinent part, of
non-forcible
sodomy with Senior Airman H, whom Appellant supervised in his
work
unit. Appellant was not involved in a
romantic relationship with Senior Airman H, as were the
petitioners in
Clearly, Appellant’s offense occurred in
the context of a casual relationship with a subordinate airman who
testified
that he was too frightened to protest.
This is a far cry from the consensual adult relationship, born
of
intimate and personal choice, which characterized the petitioners’
behavior in
An enumerated punitive Article within the
UCMJ, Article 125 provides:
(a)
Any person subject to this chapter who engages in unnatural carnal
copulation
with another person of the same or opposite sex or with an animal is
guilty of
sodomy. Penetration, however slight, is
sufficient to complete the offense.
(b)
Any person found guilty of sodomy shall be punished as a court-martial
may direct.15
Article
36 authorizes the President to prescribe “modes of proof[]
for cases arising under” the punitive Articles “which shall . . . apply
the
principles of law and the rules of evidence[.]”16 Thus,
although Article 125 outlines the
general parameters of the sodomy offense in the military, the charge
and
findings in each case describe the specific manner in which Article 125
was
violated, pursuant to Article 36.
Certainly, the modes of proof described in the charge and
findings of an
Article 125 case may differ substantially from case to case. For this reason, I will consider Article 125
only to the extent it proscribes the conduct for which Appellant was
charged
and convicted, as described in the charge and findings under
specification 1 of
Charge II.17
Unlike the petitioners in Lawrence,
who were both charged with, and convicted of, consensual sodomy without
any
evidence of force, Appellant was charged with three specifications of
sodomy
“by force and without consent” under Article 125 (Charge II). These charges were based on probable cause
that Appellant committed the general offense described in Article 125
with the
added element of force.18
Congress has dictated that even if an accused is found not
guilty of the
offense as charged, the accused may, in the alternative, be found
guilty “of an
offense necessarily included in the offense charged[.]”19 Accordingly,
the military judge instructed
the members on the lesser included offenses available for each of the
three
specifications under the forcible sodomy charge, including non-forcible
sodomy,
attempted forcible sodomy, assault with the
intent to
commit sodomy, indecent assault, and assault consummated by a battery. The members ultimately convicted Appellant of
non-forcible sodomy (specification 1), forcible sodomy as charged
(specification 2), and assault consummated by a battery (specification
3).
In reference to specification 1,
which
Appellant challenges on appeal, the judge instructed the members on the
lesser-included offense of non-forcible sodomy specifically as follows:
The
offense charged, forcible sodomy, and the lesser included offense of
non-forcible sodomy differ primarily in that the offense charged
requires, as
an essential element, that you be convinced beyond a reasonable
doubt that
the act of sodomy was done by force and without consent of Senior
Airman H, whereas, the lesser included offense does not include such an
element.
(Emphasis
added.) As noted above, the members
found Appellant guilty of this lesser-included offense, instead of the
specification as charged. Appellant now
argues that this conviction of non-forcible sodomy was essentially a
conviction
of consensual sodomy. On the contrary, I
would conclude that although the finding of non-forcible sodomy was not
a
conviction of the charged offense of forcible sodomy, neither did it
establish
consent. Unlike
Given this factual context of Appellant’s
charge, it is obvious why this is not a
Probable
Cause
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beyond
reasonable
doubt
In short, one does not need to go beyond
the facts of this case and the language of the
For these reasons, I concur in the result
as to Issue III.
FOOTNOTES:
1
Military Rule of Evidence 502(a) [hereinafter
M.R.E.].
3
Swidler & Berlin v. United States, 524
4
See, e.g., Cavallaro v. United States, 284 F.3d 230,
246-47 (1st
Cir. 2002)(“Generally, disclosing
attorney-client communications to a third party undermines the
privilege.”).
5
48 M.J. 131 (C.A.A.F. 1998).
6 M.R.E. 510(b). See
also United States v. Smith,
33 M.J. 114, 118 (C.M.A. 1991)(observing that “an accused who testifies
about
matters discussed in a privileged communication, rather than disclosing
an
actual portion of the privileged communication, waives the privilege”).
7
United States v. Marcum, No. ACM
34216, slip
op. at 5 (A.F. Ct. Crim. App. 2002)(presenting
a
finding of fact in accordance with Article 66(c)).
8
ABA Model Rules of Prof’l Conduct Rule 1.6 cmt 5 (2004 ed.)(mirrored
by Air Force Rule of Prof’l Conduct 1.6); see also United
States v.
Province, 45 M.J. 359, 362 (C.A.A.F. 1996)(holding that counsel’s
disclosure of information relinquished to him by the client was
“impliedly
authorized” by the client); Stephen A. Salzburg et al., Federal
Rules of
Evidence Manual § 501.02[5][k][ii] (8th ed. 2002); John Henry
Wigmore, Evidence
in Trials at Common Law § 2326 at 633 (McNaughton ed. 1961). This implied authority is consistent with
counsel’s duty to act at all times in a client’s best interest. See United States v. Godshalk,
44 M.J. 487, 492 (C.A.A.F. 1996)(noting that
some
disclosures by an attorney do not breach the attorney-client privilege
if the
attorney is acting in the client’s best interest).
9
Marcum, No. ACM 34216, slip op. at 6.
14
15 Article 125,
UCMJ, 10 U.S.C. § 925 (2000).
16 Article 36,
UCMJ, 10 U.S.C. § 836 (2000).
17 See Parker v. Levy,
417 U.S. 733, 760
(1974)(noting the Court’s repeated reluctance to strike down a statute
in its
entirety when there are a number of situations to which it might
otherwise be
constitutionally applied).
18 See R.C.M. 307(b)(2) (outlining
the prerequisites for bringing the charges against an accused); United
States v. Miller, 33 M.J. 235, 237 (C.M.A. 1991)(finding that
R.C.M.
307(b)(2) implicitly requires probable cause to support charges against
an
accused).
19 Article 79,
UCMJ, 10 U.S.C. § 879 (2000).
20 See Ex Parte Taylor,
101 S.W.3d 434, 447 n.3
(Tex. Crim. App. 2002) (Hervey, J., dissenting)(distinguishing
a general verdict of acquittal from a verdict of not guilty due to
insufficient
evidence).