              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
            F.D. MITCHELL, K.M. MCDONALD, M.K. JAMISON
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        GREGORY T. MILES
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201300272
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 4 April 2013.
Military Judge: LtCol Eugene H. Robinson, Jr., USMC.
Convening Authority: Commanding General, III Marine
Expeditionary Force, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Col J.R. Woodworth,
USMC.
For Appellant: LT Jared A. Hernandez, JAGC, USN; LT
Jennifer Myers, JAGC, USN.
For Appellee: Maj David N. Roberts, USMC; LCDR Keith B.
Lofland, JAGC, USN.
For Amicus Curiae: Mr. Richard O. Cunningham, Esq.

                            21 August 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

JAMISON, Judge:

     A military judge sitting as a general court-martial
convicted the appellant, contrary to his pleas, of two
specifications each of attempted sodomy, indecent acts, and
adultery in violation of Articles 80, 120, and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 880, 920, and 934. The
military judge sentenced the appellant to reduction to pay grade
E-1, forfeiture of all pay and allowances, confinement for a
period of 12 months, and a bad-conduct discharge. The convening
authority (CA) approved the sentence as adjudged.1

     The appellant raises five assignments of error (AOE). In
his first AOE, the appellant argues that the Government’s
decision to charge him with sodomy and indecent acts represented
an unreasonable multiplication of charges. In his second AOE,
the appellant argues that Article 120(k) is unconstitutionally
vague both facially and as-applied to the facts of his case.
Additionally, the appellant argues that Article 120(k) is
unconstitutionally overbroad. In his third AOE, the appellant
makes a constitutional due process challenge to Article 120(k),
arguing that his sexual conduct was not indecent as a matter of
law. In his fourth and fifth AOE, the appellant argues that
Article 125 is unconstitutionally vague and overbroad, and that
his conviction for attempted sodomy violated his constitutional
due process rights.

     After consideration of the pleadings of the parties, the
Amicus Curiae submission2 and the record of trial, we conclude
that the findings and sentence are correct in law and fact, and
that no error materially prejudicial to the substantial rights
of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                 I. Factual and Procedural Background

     Lance Corporal (LCpl) KS had planned a “girls-night-out”
with one of her close friends, Mrs. BC (BC), for 3 February
2012. LCpl KS worked with BC’s husband, LCpl NC, and had met BC
through him. Mrs. ED (ED), who LCpl KS had met through BC,
rounded out the trio. Because BC and ED lived on installations
geographically separated from Camp Hansen (where LCpl KS
resided), they decided that BC and ED would spend the night in
LCpl KS’s barracks room after a night on the town. One of the
reasons LCpl KS decided to have a “girls-night-out” was to cheer
up BC, who had recently suffered a miscarriage.


1
  At the request of the appellant in his clemency petition, the CA suspended
confinement in excess of six months.
2
  We granted the National Coalition for Sexual Freedom’s motion to file a
brief as Amicus Curiae. NMCCA Court Order of 25 Mar 2014.


                                      2
     On the evening of 3 February 2012, LCpl KS, BC, and ED left
Camp Hansen to go to Kin Town. They stayed in Kin Town for
approximately four hours and all three women had several drinks.
The women returned to Camp Hansen and went to The Palms, an on-
base club. While at The Palms, BC, misplaced her identification
card (ID). The appellant was also at The Palms and helped BC
try to locate her ID. BC eventually found her ID in the
bathroom. The women continued to drink.3 The appellant began
talking to BC and ED, and he exchanged phone numbers with ED.
ED testified that she gave the appellant her phone number
because she was new to Okinawa and wanted to expand her circle
of friends. Both women testified that they told the appellant
that they were married.

     While on the dance floor at The Palms, one of the bouncers
determined that BC was underage and she was escorted out of the
club. BC’s husband was contacted, drove to The Palms, and he
and BC decided that BC should spend the night with ED and LCpl
KS as planned.

     The women walked over to LCpl KS’s barracks and spent some
time in the smoke pit talking with a group of male and female
Marines. LCpl KS consulted the barracks duty non-commissioned
officer to inform him that BC and ED would be spending the night
in her barracks room. Record at 57-58. At approximately 0211
on the morning of 4 February 2012, the appellant began sending a
series of text messages to ED indicating his desire to see her
that night. Prosecution Exhibit 12. ED responded via text that
she was staying in barracks building number 2610 and that she
was outside. Id. At some point, the appellant arrived and
joined the group of Marines. The appellant had changed into his
uniform.

     After spending some time socializing at the smoke pit and
also in the barracks multi-purpose room, the group broke up and
LCpl KS, BC, and ED started walking to LCpl KS’s room. The
appellant followed the three women. All of the women denied
having invited the appellant to LCpl KS’s room. LCpl KS
testified that she was slightly uncomfortable and asked the
appellant if he was going to leave. According to LCpl KS, the
appellant said that he needed a place to sleep and did not want
to walk back to the other side of the installation. LCpl KS

3
  All three women testified that they were intoxicated towards the end of the
night. LCpl KS testified that on a scale from 1 to 10, 10 being passed out
drunk, she estimated she was at level 7. Record at 54. ED estimated her
level of intoxication to be 9.5. Id. at 84. BC estimated her level at 4.
Id. at 109.
                                      3
prepared sleeping bags for the appellant and for herself. LCpl
KS put her sleeping bag beside her bed and placed the other
sleeping bag at the foot of her bed. Earlier that evening, LCpl
KS had decided that she would sleep on the floor while BC and ED
would sleep in her bed.

     At some point, the appellant got out of the sleeping bag
and made his way to the bed. BC testified that she woke up and
the appellant’s hands were down her shorts and that he was
grabbing her buttocks and rubbing her vagina. BC testified that
she went to sleep with a tampon, but when she was awakened by
the appellant’s fondling, the tampon was gone.4

     When BC woke up and realized what was happening, she
hurried down to LCpl TC’s barracks room on the second deck.
LCpl TC was her husband’s best friend. According to LCpl TC, BC
was frantic and asked for his help in getting the appellant out
of LCpl KS’s barracks room. LCpl TC testified that when he
arrived at LCpl KS’s room he saw LCpl KS on the floor asleep in
her sleeping bag; the appellant was awake in the bed stroking
ED’s arm while she appeared to be asleep. Id. at 160. ED
testified that she had no recollection of any sexual acts
committed by the appellant.

     Following BC’s complaint, agents from the Naval Criminal
Investigative Service interrogated the appellant. The appellant
admitted to digitally penetrating ED’s vagina and anus. PE 14.
He also admitted to penetrating BC’s vagina, touching her anus
with his penis, touching her buttocks, and digitally penetrating
her vagina and anus. The appellant also admitted that he tried
to penetrate ED’s and BC’s anuses with his penis, but was unable
to do so because he was unable to achieve an erection.

     The Government preferred the following charges against the
appellant: false official statement; aggravated sexual assault
of BC; abusive sexual contact of BC; wrongful sexual contact of
BC; two specifications of indecent acts with BC and ED; sodomy
of BC and ED; and, adultery with BC and ED.

      Following a trial on the merits, the military judge made
special findings pursuant to RULE FOR COURTS-MARTIAL 918(b), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Id. at 236-43. The
military judge acquitted the appellant of making a false
official statement, aggravated sexual assault, abusive sexual

4
  Subsequent testing of the tampon string revealed touch DNA left that matched
the appellant’s DNA.
                                      4
contact, and wrongful sexual contact. He found the appellant
guilty by exceptions and substitutions of committing indecent
acts with BC and ED. He acquitted the appellant of sodomy, but
found him guilty of the lesser included offense of attempted
sodomy. Finally, the military judge found the appellant guilty
of adultery for wrongfully having sexual intercourse with ED and
BC.

     With regard to his reasoning behind the conviction for
indecent acts under Article 120(k), UCMJ, the military judge
concluded that the acts were indecent because they were “open
and notorious” in that there was a “substantial risk that the
acts could be witnessed by someone else.” Id. at 237.
Additionally, the military judge made special findings as to his
rationale why the appellant’s adulterous conduct was both
service discrediting and prejudicial to good order and
discipline.5

             II. Unreasonable Multiplication of Charges

     The appellant argues that the Government’s decision to
charge him with indecent acts and sodomy represented an
unreasonable multiplication of charges (UMC). We disagree.

     We review UMC claims under an abuse of discretion standard.
United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012)
(citing United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004)
(additional citation omitted). In determining whether UMC
exists, we consider five factors: (1) did the appellant object
at trial; (2) are the charges aimed at distinctly separate
criminal acts; (3) do the charges misrepresent or exaggerate the
acts; (4) do the charges unreasonably increase the appellant’s
punitive exposure; and, (5) is there any evidence of
prosecutorial overreaching or abuse in the drafting of the
charges and specifications? United States v. Quiroz, 57 M.J.
583, 585-86 (N.M.Ct.Crim.App. 2002) (en banc), aff’d, 58 M.J.
183 (C.A.A.F. 2003) (summary disposition).


5
  Specifically, the military judge found that the adulterous conduct was
service discrediting due, inter alia, to its “open and notorious” nature.
Record at 241. The military judge concluded that the adultery was
prejudicial to good order and discipline and service discrediting based on
the following non-exclusive circumstances: the marital status of BC and ED
and their relationship to the Marine Corps; the military status of BC’s and
ED’s respective spouses; the misuse of the barracks to commit adultery; the
fact that other UCMJ violations took place during the adulterous conduct and
the location of this conduct: “in another Marine’s [barrack’s] room and in a
foreign country.” Id.
                                     5
     Because the appellant did not object at trial, the first
Quiroz factor weighs in favor of the Government. The appellant
concedes this. We find that the second and third factors weigh
slightly against the appellant since the two offense were
primarily aimed at different criminal acts -- the sodomy
specifications were aimed at addressing the appellant’s alleged
penile penetration of ED’s and BC’s anuses, whereas the indecent
act specifications alleged separate sexual misconduct by the
appellant to include digital penetration and other sexual acts.
With regard to BC, the appellant was charged with digital
penetration of her vagina and anus, as well as touching BC’s
vagina and buttocks. With regard to ED, the appellant was
charged with penetrating her vagina with his penis and rubbing
her breasts and vagina. Even though there was some overlap
between the sodomy offenses and indecent act offenses, this
charging scheme does not misrepresent or unreasonably exaggerate
the appellant’s criminality. See United States v. Paxton, 64
M.J. 484, 491 (C.A.A.F. 2007) (holding that within the context
of a continuing course of conduct indecent act of touching
breasts and genitals was separately chargeable from offense of
rape and sodomy and did not constitute UMC).

     The fourth factor also weighs against the appellant because
the military judge’s findings served to eliminate almost all the
overlap in conduct. The military judge found the appellant
guilty of indecent acts by exceptions and substitutions. With
regard to the specification alleging an indecent act with ED,
the military excepted the following language: “penetrating the
vagina and anus with his penis” and substituted the following:
“digitally penetrating the vagina and anus.” Record at 235.
Thus, any overlap with the sodomy charge was completely
eliminated. Although the specification alleging an indecent act
with BC contained overlap with the attempted sodomy of BC, we do
not believe that the appellant’s punitive exposure was
unreasonably exaggerated. In this case, the military judge was
the sentencing authority. Thus, we conclude that any overlap in
conduct did not subject the appellant to an unreasonable
increase in punitive exposure, because we presume that in
adjudging an appropriate sentence the military judge considered
the charges and specifications in their proper light.

     The fifth factor also weighs against the appellant. There
is no evidence of prosecutorial overreaching or abuse in the
drafting and charging of indecent acts and sodomy offenses. On
balance, we find that the Quiroz factors weigh against the
appellant.


                                6
          III. Constitutional Challenges to Article 120(k)

     In AOE II and III, the appellant, for the first time on
appeal, makes a broad-based constitutional attack on Article
120(k), UCMJ. In AOE II, he argues that Article 120(k) is void-
for-vagueness and unconstitutionally overbroad. In AOE III,
while unfocused, the appellant makes essentially a due process
argument that as-applied to the facts of his case, his
convictions for indecent acts are unconstitutional. Because his
constitutional attacks on Article 120(k) in both AOEs are
linked, we consider each argument in turn.

     We review de novo the appellant’s various constitutional
challenges to Article 120(k). United States v. Goings, 72 M.J.
202, 205 (C.A.A.F. 2013). Prior to reaching the merits of his
arguments, however, we consider whether the appellant forfeited
his constitutional claims by failing to raise them at trial.
Under the circumstances of this case, we find that he has and,
accordingly, we review his claims for plain error.6 See United
States v. Howard, 72 M.J. 406 (C.A.A.F. 2013) (summary
disposition) (holding that Howard’s Article 120(k) due process
claim for having sexual relations in the presence of others was
forfeited); see also Goings, 72 M.J. at 205 (concluding that
Goings’s as-applied due process challenge to the
constitutionality of indecent acts under Article 134 was
forfeited by his failure to raise the issue and develop facts at
trial). We turn our attention now to the appellant’s vagueness
challenge to Article 120(k).

      A. Facial Vagueness Challenge to Article 120(k)

     The appellant argues that Article 120(k) is
constitutionally infirm on vagueness grounds. The thrust of his
vagueness argument surrounds Congress’s 2007 enactment of
Article 120(k). He argues that when Congress enacted the
statutory offense of indecent acts in Article 120(k) without the
terminal element of the preexisting Article 134 offense, it is
now unclear what actual conduct remains “indecent” and
punishable.

     To make a constitutional challenge on facial vagueness
grounds within the military context, an appellant must first
have standing. If the appellant’s “conduct [under the] statute

6
  Within the context of our plain error review, we will grant relief “only
where: (1) there was error; (2) the error was plain and obvious; and, (3)
that error materially prejudiced a substantial right of the [appellant].”
United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011).
                                      7
clearly applies [he] may not successfully challenge it for
vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974); see also
United States v. McGuinness, 35 M.J. 149, 152 (C.M.A. 1992) (“If
appellant is . . . one to whom the statute clearly applies, he
has no standing to challenge successfully the statute under
which he is charged”) (citations and internal quotation marks
omitted)). To determine whether a statute “clearly applies” and
provides fair notice of the proscribed conduct, we consider not
only the plain language of the statute, but also other sources,
including the “[Manual for Courts-Martial] . . . military case
law, military custom and usage, and military regulations.”
United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)
(citations omitted).

     Based on the plain text of Article 120(k), UCMJ, as further
defined in the MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), and
interpreted by our superior court, we find that service members
of ordinary intelligence have “fair notice of what is
prohibited.” United States v. Williams, 553 U.S. 285, 304
(2008). Additionally, we find that Article 120(k) is not so
“standardless that it authorizes or encourages seriously
discriminatory enforcement.” Id. (citations omitted).
Accordingly, we reject the appellant’s facial challenge to
Article 120(k) on vagueness grounds. We move next to the
appellant’s vagueness challenge “as-applied” to the facts of his
case.7

      B. As-Applied Vagueness Challenge to Article 120(k)

     In 2007, Congress significantly overhauled various sexual
crimes within the military. Indecent acts with another,
previously recognized as an offense under Article 134, UMCJ, is
now subject to prosecution under Article 120(k), UCMJ, as an
indecent act. See MCM (2008 ed.), App. 23 at A23-15. Congress
imported the President’s long-standing definition of “indecent”
in ¶ 90c in Part IV of the MCM (2005 ed.) into the statutory
definition of “indecent.”8


7
  Although AOE II is styled as a constitutional challenge on facial vagueness
grounds, the appellant’s brief contains within the AOE an as-applied
vagueness challenge. Appellant’s Brief of 16 Dec 2013 at 25-26. We
interpret the appellant’s AOE to include an as-applied vagueness challenge.
8
  Article 120(t)(12) provides that “[t]he term ‘indecent conduct’ means that
form of immorality relating to sexual impurity which is grossly vulgar,
obscene, and repugnant to common propriety, and tends to excite sexual desire
or deprave morals with respect to sexual relations.”


                                      8
     The elements of an indecent act under Article 120(k) are:
(a) that the accused engaged in certain conduct; and (b) that
the conduct was indecent. MCM (2008 ed.), Part IV, ¶ 45b(11).
The legislative history demonstrates that the term “indecent” in
Article 120(t)(12) is “the same conduct that has been held to be
indecent by military appellate courts” in the past. See Sex
Crimes and the UCMJ: A Report for the Joint Service Committee
on Military Justice, 261 (2005). While the definition of
“indecent conduct” in Article 120(t)(12), UCMJ, is slightly
different than the definition of “indecent” in MCM (2005 ed.),
Part IV, ¶ 90c, the differences are insignificant.9

     In this case, the military judge convicted the appellant of
indecent acts under Article 120(k) on the theory that it was
committed in an “open and notorious” manner. Record at 237.
The appellant does not take issue with our superior court’s
prior cases that interpreted indecent acts under Article 134;
however, he argues that when Congress enacted Article 120(k)
without adding the terminal element from the Article 134, UCMJ,
version of indecent acts, the statutory offense of committing an
indecent act lost its preexisting legal standard. From this the
appellant argues that the preexisting case law of our superior
court is inapplicable. We disagree.

     First, our superior court interpreted the President’s
definition of “indecent” for purposes of defining sexual
activity as opposed to interpreting the terminal element. In
United States v. Berry, 20 C.M.R. 325 (C.M.A. 1956), the Court
of Military Appeals held that Article 134, UMCJ, was not
“intended to regulate the wholly private moral conduct of an
individual[;] [however, fornication] committed “openly and
notoriously” was punishable under Article 134. 20 C.M.R. at 330
(citing CJS, Fornication, § 2a, page 119; 1 Am Jur, Adultery, §
13, page 687). Forty-three years later, the Court of Appeals
for the Armed Forces (CAAF) re-affirmed this principle. See
United States v. Izquierdo, 51 M.J. 421, 422 (C.A.A.F. 1999)
(stating that “[w]e have consistently held that fornication,
when committed ‘openly and notoriously,’ is an ‘aggravating
circumstance[] sufficient to state an offense under Article
134.”) (citations omitted)). In 2013, the CAAF reiterated this
principle by stating the following: “private consensual sexual
activity is not punishable as an indecent act absent aggravating
circumstances[; however a clear] aggravating circumstance is

9
  See MCM, Part IV, ¶ 90c (2005 ed.): “‘Indecent’ signifies 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.”
                                      9
that the sexual activity is open and notorious.”    Goings, 72
M.J. at 205.

     Second, the CAAF has already analyzed a conviction under
Article 120(k) in terms of whether the sexual activity was “open
and notorious.” See Howard, 72 M.J. at 406 (holding that
conduct charged under Article 120(k), UMCJ, was not plainly
“private” when the sexual activity “occurred while in the
presence of two additional servicemembers”); see also United
States v. Elhelou, 72 M.J. 404 (C.A.A.F. 2013) (summary
disposition) (finding Elhelou’s pleas provident when the
military judge explained that “‘open and notorious’ sexual
activity is punishable as an indecent act, in violation of
Article 120(k)”); cf. United States v. Tunstall, 72 M.J. 191,
196 n.6 (C.A.A.F. 2013) (setting aside an Article 120(k)
conviction but suggesting that notice of the alternative theory
“open and notorious” conduct could have sustained the
conviction).

     We find no reason why sexual activity committed in an “open
and notorious” manner that is clearly applicable to indecent
acts under Article 134 should not apply with equal force within
the context of charged sexual activity under Article 120(k).

     To propound his vagueness claim, the appellant provides
various hypotheticals that may subject a would-be accused to a
charge of indecent acts. For example, the appellant argues that
a hypothetical CA’s strongly held religious beliefs may cause
him to charge a hypothetical accused with committing an indecent
act under Article 120(k) for having premarital sex. Appellant’s
Brief at 22-23. Even if the appellant’s hypotheticals seek to
test the outer limits of the statutory definition of indecent
acts, this matter “is addressed, not by the doctrine of
vagueness, but by the requirement of proof beyond a reasonable
doubt.” Williams, 553 U.S. at 306 (citing In re Winship, 397
U.S. 358, 363 (1970)). Because the appellant’s conduct --
sexual activity conducted “openly and notoriously” -- is, and
has long been, proscribed conduct under military law, he “cannot
complain of the vagueness of the law as applied to the conduct
of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 20
(2010) (citation and internal quotation marks omitted).

     Because   he did not raise his constitutional vagueness claim
at trial, he   forfeited his claim and he has not come close to
establishing   error, let along plain and obvious error.
Accordingly,   we reject the appellant’s as-applied vagueness


                                 10
challenge and move next to the appellant’s constitutional
overbreadth challenge.

    C. Overbreadth Challenge to Article 120(k)

     Next, the appellant argues that Article 120(k) is
unconstitutionally overbroad. We disagree.

     The overbreadth doctrine articulated by the Supreme Court
is an outgrowth of the First Amendment. See Williams, 553 U.S.
at 292. A statute is overbroad if “it prohibits a substantial
amount of protected speech . . . relative to [its] plainly
legitimate sweep.” Id. (citations omitted). The Supreme Court
has severely limited the overbreadth doctrine’s applicability
and “employed it with hesitation, and then ‘only as a last
resort.’” New York v. Ferber, 458 U.S. 747, 769 (1982) (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). Additionally,
the general rule of the overbreadth doctrine holds that a person
“may not challenge [the] statute on the ground that it may
conceivably be applied unconstitutionally to others in
situations not before the Court.” Id. at 767 (citations
omitted). Finally, application of First Amendment principles
outlined within the Court’s overbreadth doctrine sufficient for
standing “must be accorded a good deal less weight in the
military context.” Levy, 417 U.S. at 760.

     We believe that there is a wide range of indecent conduct
that can be applied to Article 120(k) that is within the
statute’s “plainly legitimate sweep.” Broadrick, 413 U.S. at
615. The appellant does not contest this fact. Instead, he
argues that Article 120(k) is susceptible to situations in which
the statute proscribes “both protected and criminal conduct.”
Appellant’s Brief at 29. Additionally, he argues that once
Congress enacted Article 120(k) and moved it from Article 134,
this eliminated the preexisting requirement to prove the
terminal element and now Article 120(k) is susceptible to an
interpretation in which “any conduct [is] deemed indecent.” Id.
at 30. The appellant’s arguments appear to confuse the
overbreadth and vagueness doctrines. The overbreadth doctrine
primarily exists to restrict overbroad laws that “deter or
‘chill’ constitutionally protected speech.” Virginia v. Hicks,
539 U.S. 113, 119 (2003). The appellant does not explain how
Article 120(k) deters protected speech. See Id. at 124 (stating
that “[r]arely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed
to speech or to conduct necessarily associated with speech (such
and picketing or demonstrating”)). Even assuming the

                               11
appellant’s argument, “[t]he ‘mere fact that [the appellant] can
conceive of some impermissible applications of [Article 120(k)]
is not sufficient to render it susceptible to an overbreadth
challenge.’” Williams, 533 U.S. at 303 (quoting Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
800 (1984)).

     Because the appellant’s challenge concerns “conduct and not
merely speech,” Broadrick, 413 U.S. at 615, and his potential
hypotheticals are not applicable to the facts of his case, we
find that the appellant lacks standing to challenge Article
120(k) on overbreadth grounds. See Levy, 417 U.S. at 760-61
(suggesting that although some conduct “may lurk on the fringes”
of Article 133 and 134 that could be “protected by the First
Amendment” that is an insufficient reason to extend standing
within the military context to Captain Levy’s conduct (“urging
enlisted personnel to refuse to obey orders which might send
them into combat”) because the conduct was unprotected “under
the most expansive notions of the First Amendment”).

     Assuming arguendo that the appellant has standing to
challenge Article 120(k), UCMJ, on overbreadth grounds, we find
the appellant’s hypotheticals unpersuasive because even if true,
his hypotheticals concern only conduct and are at best
insubstantial when “judged in relation to [Article 120(k)’s]
plainly legitimate sweep.” Broadrick, 413 U.S. at 615.
Accordingly, we reject the appellant’s constitutional
overbreadth challenge and hold that even assuming he has
standing that challenge Article 120(k), he has failed in his
burden to establish plain error. We move next to consider the
appellant’s as-applied due process challenge to Article 120(k).

    D. As-Applied Due Process Challenge to Article 120(k)

     The appellant argues that, because his conduct represented
a consensual “threesome,” modern mores and contemporary
community standards do not consider such conduct either “vulgar,
obscene, or repugnant to common propriety.” Appellant’s Brief
at 32-34. We disagree with his premise and argument. We begin
with his premise.

     Because he was acquitted of the more serious offenses of
aggravated sexual contact, abusive sexual contact, and wrongful
sexual contact, he extrapolates from that verdict that the
sexual acts he committed with BC, the 19-year-old spouse of a
Lance Corporal, and ED, the 18-year-old spouse of another fellow
Marine, were, in fact, consensual. This is not necessarily so

                               12
because “acquittal on criminal charges does not prove that the
defendant is innocent; it merely proves the existence of a
reasonable doubt as to his guilt.” United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 361 (1984).

      Viewed in this context, the appellant’s constitutional due
process attack loses some of its intellectual vigor. Based on
our review of the record, we find ample evidence that the
appellant’s sexual acts with BC and ED do not support the type
of wholly private consensual three-way sexual liaison he
attempts to portray. Both ED and BC testified that they were
not willing participants in the appellant’s strawman “consensual
threesome.” Rather, the facts support that the appellant
committed consecutive sexual activity first with BC and then
ED.10

     Even if we were to accept the appellant’s underlying
premise, his analysis fails to consider that even viewed in the
most favorable light to him, this was not a wholly private and
discreet sexual liaison. It was committed in another Marine’s
barracks room while that Marine was sleeping on the floor. It
was committed overseas with two married dependent spouses whose
husbands were also stationed on Okinawa. See Levy, 417 U.S. at
758 (stating that “[t]he fundamental necessity for obedience,
and the consequent necessity for imposition of discipline, may
render permissible within the military that which would be
constitutionally impermissible outside it”); United States v.
Priest, 45 C.M.R. 338, 344 (C.M.A. 1972) (emphasizing that
within the military, restrictions exist “that have no
counterpart in the civilian community”).

     We find that the appellant’s conduct was clearly committed
in an “open and notorious” manner based on the presence of LCpl
KS, a non-participant in the appellant’s sexual activity.
Additionally, the appellant’s conduct created a substantial risk
it could having been witnessed by others; as to its aftermath,
LCpl TC (the best friend of BC’s husband) entered LCpl KS’s
barracks room at BC’s insistence, and witnessed the appellant,
his trousers undone, stroking ED’s arm.11 Record at 161-62.

10
  As part of his interrogation, the appellant stated the following:   “[ED]
woke up while I was trying to have sex with [BC].” PE 20 at 2.
11
  When BC hurried down to get LCpl TC, he went up to LCpl KS’s room and
confronted the appellant, saying: “what the f*** are you doing?” Record at
167. While he did not remember the appellant’s reply, LCpl TC responded, “I
don’t care. Get the f*** out of here.” Id.


                                     13
     Because the appellant did not raise his constitutional due
process claim at trial, he forfeited his claim and he falls far
short of establishing error, let alone plain and obvious error.
Accordingly, we reject the appellant’s due process challenge.

            IV. Constitutional Challenges to Article 125

     In AOEs IV and V, the appellant, for the first time on
appeal, makes a broad-based constitutional attack on Article
125, UCMJ. In AOE IV, he argues that Article 125 is void-for-
vagueness on its face and unconstitutionally overbroad.
Additionally, within AOE IV, he argues that we should revisit
our superior court’s holding in United States v. Marcum12 based
on recent changes in the law. In AOE V, the appellant makes a
constitutional vagueness argument as-applied to the facts of his
case. Because his constitutional attacks are linked and at
times conflated, we consider each argument in turn.

     Similar to our constitutional analysis in Part III of our
opinion, we review de novo the appellant’s constitutional
challenges to Article 125. Marcum, 60 M.J. at 202. Because the
appellant raises his constitutional claims for the first time on
appeal, our scope of review is limited to a plain error review.
See Goings, 72 M.J. at 205. Accordingly, we will analyze the
appellant’s constitutional challenges to Article 125 beginning
with his constitutional overbreadth argument.

     A.   Overbreadth Challenge to Article 125

     We reject the appellant’s constitutional overbreadth
challenge to Article 125 for the same reasons we rejected his
similar challenge Article 120(k); he lacks standing. See Part
III C, supra. Because his conduct of attempted sodomy fits
squarely within the constitutional parameters of Article 125,
see Part IV C, infra, he has no standing to argue that the
statute “may conceivably be applied unconstitutionally to
others, in other situations not before the Court.” Broadrick,
413 U.S. at 610 (citations omitted).

12
  In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the CAAF
considered Marcum’s constitutional due process challenge to Article 125,
UCMJ, in light of Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the
Supreme Court declared the Texas sodomy law unconstitutional on due process
grounds having found a liberty interest for “two adults who, with full and
mutual consent from each other, [to] engage[] in sexual practices common to a
homosexual lifestyle." Lawrence, 539 U.S. at 578. In Marcum, the CAAF
conducted a highly contextualized analysis of Article 125 and concluded that
it was constitutional on due process grounds “as applied to [Marcum].”
Marcum, 60 M.J. at 208.
                                     14
     Additionally, the appellant cannot demonstrate plain error
because he fails to demonstrate how his conduct warrants the
“strong medicine” sufficient to invalidate Article 125 on
overbreadth grounds. See Hicks, 539 U.S. at 124 (“[r]arely, if
ever, will an overbreadth challenge succeed against a law or
regulation that is not specifically addressed to speech or to
conduct necessarily associated with speech (such and picketing
or demonstrating”)). Because the appellant has failed to meet
his burden of establishing plain error, we hold that he
forfeited his constitutional challenge to Article 125 on
overbreadth grounds.

    B. Facial Vagueness Challenge to Article 125

     The appellant challenges the constitutionality of Article
125, UCMJ, as void-for-vagueness, both facially and as-applied.
He argues that the statute is constitutionally vague because it
fails to provide notice of what conduct is prohibited and it
fails to provide standards for law enforcement officials.
Appellant’s Brief at 44. Additionally, he argues that because
of various changes in the law, we should revisit our superior
court’s holding in Marcum, 60 M.J. at 198, to the extent that it
upheld the constitutionality of Article 125, UCMJ. We disagree
with the appellant’s argument and his analysis and we address
these arguments in turn.

     To succeed on a facial vagueness claim, one must
demonstrate that the statute in question is vague “‘not in the
sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in
the sense that no standard of conduct is specified at all.’”
Levy, 417 U.S. at 755 (quoting Coates v. City of Cincinnati, 402
U.S. 611, 614 (1971)). In fact, if there is a “‘substantial
range of conduct’ to which an article of the Uniform Code
clearly applies, the article’s definition of the offense is not
fatally deficient, even though an area of uncertainty may
remain.” United States v. Scoby, 5 M.J. 160, 162-63 (C.M.A.
1978) (quoting Levy, 417 U.S. at 754-58)).

     In Scoby, the CAAF’s predecessor court analyzed Article 125
and held that it was not unconstitutionally vague on its face.
Scoby, 5 M.J. at 163; accord United States v. Henderson, 32 M.J.
941, 945 (N.M.C.M.R. 1991). In addition to the text of the
statute, notice of proscribed conduct may be established
“[t]hrough law, regulations, and interpretive material.” Scoby,
5 M.J. at 162; see Vaughan, 58 M.J. at 31 (holding that “fair
notice” for purposes of evaluating vagueness claims may include

                               15
the Manual, “military case law, military custom and usage, and
military regulations”); see also Article 137, UCMJ (requiring
explanation of the UCMJ’s punitive articles to every enlisted
member upon “initial entrance on active duty;”, following
completion of “six months of active duty”; and, “when the member
reenlists”).

     Based on the plain language of Article 125, and the
holdings of our superior court, we find that service members of
ordinary intelligence have “fair notice of what is prohibited.”
Williams, 553 U.S. at 304. Additionally, we find that Article
125 is not so “standardless that it authorizes or encourages
seriously discriminatory enforcement.” Id. (citations omitted).

     We reject the appellant’s facial challenge because if the
statute in question does not infringe on “First Amendment
freedoms . . . the vagueness claim must be evaluated as the
statute is applied to the facts of th[e] case [in question].”
Chapman v. United States, 500 U.S. 453, 467 (1991) (citing
United States v. Powell, 423 U.S. 87, 92 (1975)); see also
United States v. Mazurie, 419 U.S. 544, 550 (1975) (stating that
“[i]t is well established that vagueness challenges to statutes
which do not involve First Amendment freedoms must be examined
in the light of the facts of the case at hand”) (citation
omitted)). Accordingly, we reject the appellant’s facial
challenge to Article 125 on vagueness grounds. We move next to
the appellant’s vagueness challenge “as-applied” to the facts of
his case.

     C.   As-Applied Vagueness Challenge to Article 125

     In this case, the military judge convicted the appellant of
attempted sodomy.13 Based on the military judge’s special
findings, it was clear that the attempted sodomy, indecent acts
and adultery were committed in an “open and notorious” manner.
Record at 239. Not only was ED present when the appellant
attempted to sodomize BC and vice versa, but also LCpl KS was in
the same room on the floor right next to the bed.

     Because the appellant engaged in conduct that was clearly
proscribed, he “‘cannot complain of the vagueness of the law as

13
  Although the appellant was acquitted of sodomy   under Article 125, the
military judge convicted him of attempted sodomy   finding that the appellant
had the specific intent to commit sodomy with BC   and ED, but due to an
“unexpected intervening circumstance” was unable   to complete the offense of
sodomy. Record at 239.


                                     16
applied to the conduct of others.’” Humanitarian Law Project,
561 U.S. at 20 (quoting Hoffman Estates v. Flipside, Hoffman
Estates Inc., 455 U.S. 489, 495 (1982)). “That rule makes no
exception for conduct in the form of speech.” Id. (citing Levy,
417 U.S. at 755-57). Accordingly, we conclude that the
appellant has no standing to challenge the constitutionality of
Article 125, UCMJ, on an as-applied vagueness grounds. Assuming
arguendo that the appellant does have standing, we find the
appellant’s as-applied vagueness argument unpersuasive.

     D. As-Applied Due Process Challenge to Article 125

     As part of his void-for-vagueness challenge, the appellant
argues that the CAAF’s holding in Marcum should be revisited
based on recent changes in the law.14 Appellant’s Brief at 42.
We disagree.

     First, the appellant’s argument mischaracterizes Marcum,
because Marcum did not analyze Article 125 in terms of
vagueness. Marcum analyzed Article 125 within the context of
whether enforcement of the statute interfered with the zone of
liberty interest that the Supreme Court created in Lawrence v.
Texas, 539 U.S. 558 (2003). Marcum, 60 M.J. at 204-05. The
holding in Lawrence had nothing to do with a challenge on
vagueness grounds. Based on the appellant’s argument that we
revisit Marcum based on intervening changes in the law, we
believe this argument is more appropriately recast as a
constitutional due process argument.

     In any event, Marcum specifically analyzed the “Lawrence
zone of liberty”15 within the military context and held that
Lawrence compelled an as-applied, contextual analysis. Id. at
203-05; see also United States v. Castellano, 72 M.J. 217, 223
(C.A.A.F. 2013) (holding that Marcum factors, which remove
sexual activity from Lawrence protected interest scope, must be
determined by the trier of fact).

14
  Specifically, he cites the repeal of 10 U.S.C. § 654 in 2010 as a basis for
why the holding in Marcum should be revisited. Appellant’s Brief at 42.
15
  By quoting Lawrence, the CAAF articulated this zone of liberty as setting
contextual boundaries, and as such an as-applied analysis was required: “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.” Marcum, 60 M.J. at 203 (quoting Lawrence, 539 U.S. at 578).
Contrary to the appellant’s apparent argument, Lawrence did not hold that
sodomy was a fundamental constitutional right. Id. at 205.


                                     17
     “Under the doctrine of stare decisis a decision should not
be overruled without examining intervening events, reasonable
expectations of servicemembers, and the risk of undermining
public confidence in the law.” United States v. Boyett, 42 M.J.
150, 154 (C.A.A.F. 1995) (citation omitted). The Supreme Court
notes that “[e]ven in constitutional cases, the doctrine carries
such persuasive force that we have always required a departure
from precedent to be supported by some special justification.”
United States v. International Business Machines Corp., 517 U.S.
843, 856 (1996) (citations and internal quotation marks
omitted). No such special justification applies here.

     The appellant’s argument that “times have changed,” and
that the repeal of 10 U.S.C. § 654 constitutes an intervening
event and special justification for revisiting Marcum, is
without merit. The CAAF did not rely on 10 U.S.C. § 654 for its
holding in Marcum.16

     Having rejected the appellant’s invitation to revisit
Marcum, we move next to conduct a de novo fact-specific analysis
of the appellant’s conduct to ascertain whether his conduct
falls within the protected liberty interest established by the
three-pronged analysis outlined in Marcum:

     First, was the conduct that the accused was 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 Lawrence? Third, are there additional
     factors relevant solely in the military environment
     that affect the nature and reach of the Lawrence
     liberty interest?

Marcum, 60 M.J. at 206-07 (internal citation omitted).

     In considering the first Marcum step, we note that although
the Government charged the appellant with various sexual
offenses based on a theory of non-consent, it did not charge the
appellant with forcible sodomy. This finding, however, does not
necessarily support the appellant’s underlying premise that his
sexual acts with ED and BC represented a freely entered into

16
  “Nor, given our determination that Appellant's conduct fell outside the
liberty interest identified in Lawrence, need we decide what impact, if any,
10 U.S.C. § 654 would have on the constitutionality of Article 125 as applied
in other settings.” Marcum, 60 M.J. at 208.


                                     18
sexual liaison between three willing and consenting adults. In
fact, our review of the record suggests a contrary conclusion.
“Unlike Lawrence, in which there was no evidence of force
whatsoever,” id. at 214 (Crawford, C.J., concurring in the
result), the facts in this case do not support the appellant’s
argument of a consensual and free-wheeling rhapsody of sexual
expression. In any event, we find that the attempted sodomy
that the appellant engaged in -- regardless of whether one may
arguably characterize the activity as consensual -- fell outside
the “Lawrence zone of liberty.” Id. at 208.

     Assuming arguendo that the military judge’s verdict compels
the conclusion that the appellant’s attempted sodomy satisfies
the first step in the Marcum analysis and brings the conduct
within the Lawrence zone of liberty interest, we analyze the
next step in the Marcum tripartite analysis. Under the
circumstances of this case, we find an “aggravating
circumstance” that brings the appellant’s conduct “outside the
analysis in Lawrence.” Id. at 206-07.

     Based on the military judge’s special findings, it was
clear that the attempted sodomy, indecent acts, and adultery
were committed in an “open and notorious” manner. Record at
237. LCpl KS, who had previously received permission for ED and
BC to spend the night in her room, was on the floor in her
barracks room right next to the bed as the appellant attempted
to sodomize BC and ED. Because the appellant’s conduct,
attempted sodomy, was committed in an open and notorious manner,
the appellant’s conduct was outside Lawrence’s protected liberty
interest. See Lawrence, 539 U.S. at 578 (finding the Texas
sodomy statute unconstitutional, but declining to identify
sodomy as a fundamental right and identifying situations
involving “public conduct” as outside of the zone of liberty);
cf. Goings, 72 M.J. at 207 (finding no plain error and rejecting
Lawrence claim within the context of indecent acts under Article
134, UCMJ, because conduct was “open and notorious”).
Accordingly, as-applied to the appellant’s conduct, Article 125
is constitutional.17




17
  In addition to the appellant’s attempted sodomy having been attempted in an
“open and notorious” manner, we find several Marcum factors, unique to the
military environment that militates against any constitutional protection.
First, both BC and ED were married to other Marines. Second, the conduct
took place in LCpl KS’s barracks room in a foreign country. Third, the
military judge found that the appellant’s adulterous conduct was prejudicial
to good order and discipline and also service discrediting. Record at 242.
                                     19
                          V. Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

    Chief Judge MITCHELL and Judge MCDONALD concur.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                               20
