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

                                  Before
                F.D. MITCHELL, J.A. FISCHER, R.Q. WARD,
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                       CHRISTOPHER A. QUICK
                  SERGEANT (E-5), U.S. MARINE CORPS

                           NMCCA 201300341
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 29 April 2013.
Military Judge: LtCol Chris Thielemann, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, Marine Corps Air Station Miramar, San Diego, CA.
Staff Judge Advocate's Recommendation: LtCol K.C. Harris,
USMC.
For Appellant: Capt David Peters, USMC.
For Appellee: CDR Mary Grace McAlevy, JAGC, USN; Maj David
N. Roberts, USMC; LT Lindsay Geiselman, JAGC, USN.

                            31 October 2014

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

FISCHER, Senior Judge:

     A general court-martial composed of officer and enlisted
members convicted the appellant, contrary to his pleas, of
conspiring to distribute an indecent visual recording,
wrongfully viewing an indecent visual recording, and indecent
conduct in violation of Articles 81, 120c, and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 881, 920c, and 934.1 The

1
  The members acquitted the appellant of three specifications of rape and one
specification of fraternization.
                                      1
members sentenced the appellant to six months of confinement,
reduction to pay grade E-3, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged, and
except for the punitive discharge, ordered the sentence
executed.

     The appellant raises six assignments of error (AOE).2
Having carefully considered the record of trial and the parties’
pleadings, we find that the specification of the Additional
Charge, wrongfully viewing an indecent visual recording, fails
to state an offense. We will set aside the guilty finding and
dismiss the underlying charge and specification and in our
decretal paragraph. Arts. 59(a) and 66(c), UCMJ.

                                 I. Background

      All charges against the appellant in this case stem from a
group sexual encounter that occurred in the barracks on 1 July
2012. Earlier that day, Private First Class (PFC) H remarked to
several fellow Marines that he had not had sex in several
months. Corporal (Cpl) H offered to contact Ms. TR, believing
she would agree to have sex with PFC H. TR accepted Cpl H’s
invitation to come to the barracks and shortly after she
arrived, PFC H and TR engaged in sexual acts in the appellant’s
room. Following PFC H and TR’s sexual encounter, the appellant
and a former Marine, JM, entered the appellant’s room and
simultaneously engaged in sexual acts with TR. During this
sexual encounter, Cpl H used his smart phone to surreptitiously
video record the three of them for a few seconds until TR saw
what he was doing. After the encounter, Cpl H showed the
appellant the video recording and, at the appellant’s request,


2
    The appellant raises the following AOEs:

    I. Article 120c(a)(1) violates the First Amendment because it
    criminalizes a substantial amount of protected speech.
    II. Article 120c(a)(1) violates the Fifth Amendment because it is
    unconstitutionally vague.
    III. The appellant’s conviction for viewing an indecent visual
    recording was not legally and factually sufficient.
    IV. The indecent conduct specification, charged under clauses (1)
    and (2) of Article 134, fails to state an offense because it
    criminalizes conduct entitled to Constitutional protection and
    because Congress specifically superseded this charge in the latest
    version of the UCMJ.
    V. The military judge abused his discretion for failing to dismiss a
    member for actual and implied bias.
    VI. The appellant’s sentence was overly severe given the results in
    companion cases.
                                        2
Cpl H forwarded the video to the appellant. Later that night,
TR contacted military law enforcement and reported the sexual
encounter with the appellant and JM as rape.

     Additional facts necessary for the resolution of each AOE
are developed below.

                                 II. Discussion

A. Knowingly and Wrongfully Viewing an Indecent Visual Recording

     Although not expressly assigned as error, we first consider
whether the specification under the Additional Charge for
indecent viewing states an offense under Article 120c.3 We find
that it does not.4

      Whether a specification states an offense is a question of
law that is reviewed de novo. United States v. Crafter, 64 M.J.
209, 211 (C.A.A.F. 2006). A specification states an offense
when it alleges every element of the offense, either expressly
or by necessary implication, so as to give the accused notice
and protection against double jeopardy. Id.; RULE FOR COURTS-
MARTIAL 307(c)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
In assessing whether the conduct alleged in the indecent viewing
specification is prohibited by Article 120c, we apply the
traditional canons of statutory construction. United States v.
King, 71 M.J. 50, 52 (C.A.A.F. 2012). Unless ambiguous, the
plain language of a statute will control unless it leads to an
absurd result. Id. (citing United States v. Lewis, 65 M.J. 85,
88 (C.A.A.F. 2007)).

     Article 120c’s prohibition on indecent viewing criminalizes
the knowing and wrongful viewing of “the private area of another
person, without that other person’s consent and under
circumstances in which that other person had a reasonable
expectation of privacy[.]” 10 U.S.C. § 920c(a)(1). The term
“private area” is defined as “the naked or underwear-clad


3
    The Specification under the Additional Charge states:

        In that [the appellant], while on active duty, did, at or near
    San Diego, California, on or about 1 July 2012, knowingly and
    wrongfully view a visual recording of the private area of Ms. [TR],
    without her consent and under the circumstances in which she had a
    reasonable expectation of privacy.
4
  The parties thoroughly addressed Article 120c’s application in AOEs I-III;
therefore we found it unnecessary to specify this issue.
                                        3
genitalia, anus, buttocks, or female areola or nipple.”             10
U.S.C. § 920c(d)(2).

     The indecent viewing specification at issue alleged that
the appellant knowingly and wrongfully viewed “a visual
recording of the private area of [the victim], without her
consent and under the circumstances in which she had a
reasonable expectation of privacy.” Additional Charge Sheet.5
Importantly, the specification did not allege that the appellant
viewed the victim’s “private area.” Rather, it alleged that the
appellant viewed “a visual recording of the [victim’s] private
area.” (emphasis added). We find this distinction significant
because viewing of the “private area” itself, not a visual
recording, is the conduct proscribed by the plain language of
the statute.

     It is axiomatic that when a statute is clear and
unambiguous, the plain meaning controls. But even if there were
some reason to stray from a literal reading of Article 120c, the
canons of statutory construction would still militate against an
interpretation that criminalizes indecent viewing of a visual
recording of a person’s private area.

     To begin with, sections of a statute should be construed in
connection with one another as “a harmonious whole” manifesting
“one general purpose and intent.” Norman J. Singer, Statutes
and Statutory Construction § 46:05 at 154 (6th ed. 2000)
(footnote omitted). “Just as a single word cannot be read in

5
  Regarding this offense, the military judge advised the members of the
following criminal elements:

      In the sole Specification of the Additional Charge, [the appellant] is
      charged with the offense of viewing an indecent visual recording, in
      violation of Article 120c, UCMJ. In order to find him guilty of this
      offense, you must be convinced by legal and competent evidence beyond a
      reasonable doubt:

      One, that on or about 1 July 2012, on board Marine Corps Air Station
      Miramar, California, the accused knowingly and wrongfully viewed a
      visual recording of the private area of Ms. [TR].

      Two, that the accused did so without the consent of [TR].

      Three, that under the circumstances at the time of the charged offense,
      [TR] had a reasonable expectation of privacy.

      And, four, that the accused’s conduct was wrongful.

Record at 1370-71.


                                      4
isolation, nor can a single provision of a statute.” Smith v.
United States, 508 U.S. 223, 233 (1993). Article 120c’s
prohibition of indecent viewing of the private area is just the
first of three related paragraphs. The second paragraph
criminalizes knowingly making a visual recording of “the private
area of another person, without that other person’s consent and
under circumstances in which that other person has a reasonable
expectation of privacy[.]” 10 U.S.C. § 920c(a)(2). The third
paragraph criminalizes knowingly broadcasting or distributing
“any such recording that the person knew or reasonably should
have known was made under the circumstances proscribed in
paragraphs (1) and (2)[.]” 10 U.S.C. § 920c(a)(3).

     We are therefore acutely cognizant of the fact that Article
120c is not silent on the issue of visual recordings. Rather,
Congress used clear and unambiguous language to expressly
proscribe the making of and broadcasting of indecent visual
recordings, as such recordings are expressly articulated in the
second and third paragraphs of the statute. Consequently, the
absence of any similarly clear proscription on the viewing of
indecent visual recordings is significant. See Russello v.
United States, 464 U.S. 16, 23 (1983) (“[Where] Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.”) (citations and internal quotation
marks omitted).

     Under the canon of construction that “to express or include
one thing implies the exclusion of the other,” Black’s Law
Dictionary 620 (8th ed. 2004) (defining “expressio unius est
exclusio alterius”), the express proscription of the making or
broadcasting of indecent visual recordings implies that the
viewing of indecent visual recordings is not proscribed. See
Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)
(“[w]here Congress explicitly enumerates certain exceptions to a
general prohibition, additional exceptions are not to be
implied, in the absence of evidence of a contrary legislative
intent.”) (citation and footnote omitted); see also People v.
Nichols, 474 P.2d 673, 680-81 (Cal. 1970) (applying the maxim of
expressio unius est exclusio alterius to conclude that the
statutory proscription on arson did not include the burning of a
car).

     We also note that criminalizing the mere viewing of
indecent visual recordings, as opposed to making and
broadcasting such recordings, would entail a statute of

                                5
exceptionally broad reach. If Congress had intended this
statute to have such a broad reach, we would expect that intent
to be clear on its face. It cannot be supposed that the
legislature would, through silence, criminalize a class of
conduct that is even broader than the conduct proscribed by the
express provisions of the statute.

     Moreover, whenever possible, we eschew interpretations that
render statutes constitutionally infirm. Crowell v. Benson, 285
U.S. 22, 62 (1932); see also Singer, supra, § 45:11 at 68-69.
Interpreting Article 120c to criminalize the mere viewing of a
recording of indecent material would raise serious concerns
about the statute’s constitutionality under the First
Amendment’s overbreadth doctrine.6 A more constitutionally
defensible interpretation is that Article 120c criminalizes the
three things it proscribes on its face: indecent viewing of the
private area itself, making an indecent visual recording of the
private area, and broadcasting an indecent visual recording of
the private area.

     Similar statutes prohibiting voyeurism or the surreptitious
viewing, photographing, or recording of a person’s private areas
without their consent and when the person has a reasonable
expectation of privacy from such activity have been narrowly
construed. See United States v. Alexander, 574 F.3d 484, 490
(8th Cir. 2009) (upholding search warrant issued on suspicion
that appellant recorded his sexual encounters without his
partners’ knowledge and implying that, although the
surreptitiously taken photographs were not themselves
contraband, they were evidence of the criminal act of
surreptitious recording); United States v. Rice, 71 M.J. 719,
726 (Army Ct.Crim.App. 2012) (addressing Article 120c’s
predecessor, Article 120(k), UCMJ, 10 U.S.C. § 920 (2007) as a
“peeping” statute and setting aside appellant’s pleas of guilty
because he “never articulated the facts necessary to establish
that he observed or recorded another person’s genitalia . . .”);
State v. Boyd, 137 Wn. App. 910, 920 (Wash. Ct. App. 2007)
(appellant convicted of peering up and taking pictures up the
victims’ skirts, but the pictures were used as evidence of his
voyeurism and not separately prosecuted).

     We have found no legal support to apply the expansive
reading to the plain language of Article 120c that the
Government advocates for here. Consequently, we find the


6
    The appellant addresses these concerns at length in his first AOE.
                                        6
specification of the Additional Charge fails to state an
offense.7

B. Indecent Conduct

     In AOE IV, the appellant, for the first time on appeal,
argues that his conviction for indecent conduct under Article
134, UCMJ fails to state an offense in light of the Supreme
Court’s holding in Lawrence v. Texas, 539 U.S. 558 (2003) and
that Congress specifically superseded the charge of indecent
conduct in the latest version of the UCMJ. Essentially, the
appellant makes a due process challenge that his conviction for
indecent conduct is unconstitutional as applied to the facts of
his case.

     We review de novo the appellant’s constitutional challenge
to Article 134. United States v. Goings, 72 M.J. 202, 205
(C.A.A.F. 2013). However, the appellant failed to raise this
claim and develop facts at trial, and therefore we review for
plain error. Id. In 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) (citation omitted).

        1. Indecent Acts and the 2012 Edition of the UCMJ

      In 2007, the Article 134, UCMJ offense of “indecent acts
with another” became subject to prosecution under Article
120(k), UCMJ as an “indecent act.” See MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2008 ed.), App. 23 at A23-15. In 2012, Congress
created Article 120c, UCMJ to encompass the offenses in the 2007
version of Article 120(k); however, Article 120c was only
“intended to criminalize non-consensual sexual misconduct that
ordinarily subjects an accused to sex offender registration.”
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 23 at A23-16.
The 2012 edition of the Manual does not specifically include an
“indecent act” charge under Article 120c or 134, UCMJ.8


7
    Accordingly, we need not further address AOEs I-III.
8
  In this case, the military judge’s instruction to the members on the
definition of indecent conduct was “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.” Record at 1370. This instruction mirrors the
definition of indecent conduct under Article 120(t)(12), UCMJ (2008 ed.).


                                        7
     The appellant argues that once Congress enacted Article
120c, indecent conduct was no longer an offense because it is
not listed as a specific offense under the 2012 edition of the
UCMJ and, thus, “Congress did not intend to criminalize private,
consensual, group sex under the 2012 UCMJ.” Appellant’s Brief
of 27 Jan 2014 at 58. We disagree.

     Article 134, UCMJ, provides an avenue for the Government to
charge offenses not specifically listed in the Manual. MCM
(2012 ed.), Part IV at ¶ 60c(6)(c). However, the preemption
doctrine prohibits application of Article 134 to conduct covered
by other Articles in the Manual. Id. at ¶ 60c(5)(a). To
trigger the preemption doctrine, “‘it must be shown that
Congress intended the other punitive article to cover a class of
offenses in a complete way.’” United States v. Anderson, 68
M.J. 378, 387 (C.A.A.F. 2010) (quoting United States v. Kick, 7
M.J. 82, 85 (C.M.A. 1979); MCM (2012 ed.), Part IV, ¶ 60c(1)
(stating Article 134, UCMJ “makes punishable acts in three
categories of offenses not specifically covered in any other
article of the code”). Congress must “indicate through direct
legislative language or express legislative history that
particular actions or facts are limited to the express language
of an enumerated article, and may not be charged under Article
134, UCMJ.” Anderson, 68 M.J. at 387.

     Because Article 120c was only “intended to criminalize non-
consensual sexual misconduct that ordinarily subjects an accused
to sex offender registration”9 and Congress did not enact an
Article criminalizing indecent acts in the 2012 edition of the
Manual, we find this offense properly charged under Article 134.

     Here, the appellant has not demonstrated that the 2012
Congressional amendment to Article 120 preempted the use of
Article 134 to criminalize indecent conduct that is prejudicial
to good order and discipline or as conduct of a nature to bring
discredit upon the armed forces.

        2. As-Applied Due Process Challenge to Indecent Conduct
           Charge

     The appellant next argues that because his charges
represented a private, consensual sexual encounter between three
parties, and because no aggravating factors were listed in the



9
    MCM (2012 ed.), App. 23 at A23-16.


                                         8
specification, and no Marcum factors10 were instructed on by the
military judge, his conviction for indecent conduct cannot
stand. We disagree.

     Assuming arguendo that we accept the appellant's underlying
premise that the sexual encounter between the appellant, TR, and
JM was consensual,11 this was not a wholly private and discreet
sexual liaison. Legally sufficient evidence was adduced at
trial that this conduct was prejudicial to good order and
discipline and service discrediting. The sexual activity took
place in an unlocked barracks room and two other service members
were present during at least a portion of the sexual encounter.
Moreover, one of the room’s windows was left open throughout the
encounter and Cpl H video recorded the conduct through the open
window. See Marcum, 60 M.J. at 207 (quoting Parker v. Levy, 417
U.S. 733, 758 (1974)) (“The 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.”).

     The appellant’s argument that this was a wholly private
exchange without aggravating factors is untenable. We find that
the same factors the members considered in finding the
appellant’s conduct was prejudicial to good order and discipline
and service discrediting constituted the aggravating factors
that took this case out of the wholly private setting envisioned
in Lawrence. “[W]here, as here, the predicate sexual conduct is
criminal because of some additional factor (in this case, the
violation of clauses 1 and 2 of Article 134, UCMJ), the burden
of demonstrating that such conduct should nonetheless be


10
  United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).   Those factors
include:

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

Id. at 206-07 (internal citation omitted).
11
  Simply because the appellant was acquitted of the alleged forcible sexual
acts does not dictate that the sexual encounter was consensual. See United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984) (“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.”).
                                      9
constitutionally protected rests with the defense at trial.”
Goings, 72 M.J. at 207 (citation omitted).

     The appellant’s argument that the military judge was
required to instruct on the Marcum factors pursuant to United
States v. Castellano also fails under the circumstances of this
case. 72 M.J. 217, 221 (C.A.A.F. 2013) (holding in cases,
“where, but for the presence of a Marcum factor, the act of
[consensual] sodomy would not be subject to criminal sanction,”
the trier of fact must determine whether a Marcum factor
exists); see also United States v. Howard, 72 M.J. 406 (C.A.A.F.
2013) (summary disposition) (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 in the unlocked barracks room of two other
servicemembers who were reasonably likely to unintentionally
observe the sexual activity” and “therefore the failure of the
military judge to raise a Lawrence issue sua sponte was not
plain error”).

     In sum, the appellant   falls far short of establishing
error, let alone plain and   obvious error. Accordingly, we
reject the appellant’s due   process challenge to his conviction
for indecent conduct under   Article 134, UCMJ.

                   III. Sentence Reassessment

     Because of our action on the findings and the principles
outlined in United States v. Moffeit, 63 M.J. 40 (C.A.A.F.
2006), United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998),
and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986),
conducting a reassessment of the sentence would not be an
appropriate option within the context of this case. “A
‘dramatic change in the penalty landscape’ gravitates away from
the ability to reassess” a sentence. United States v. Buber, 62
M.J. 476, 479 (C.A.A.F. 2006) (quoting United States v. Riley,
58 M.J. 305, 312 (C.A.A.F. 2003)).

     We find that there has been a dramatic change in the
penalty landscape and do not believe that an appellate court can
reliably determine what sentence the members would have imposed.
Riley, 58 M.J. at 312.

                         IV. Conclusion

     The findings of guilty to the Additional Charge and its
specification are set aside and the Additional Charge and its

                                 10
specification are dismissed. The remaining findings of guilty
are affirmed. The sentence is set aside. We return the record
to the Judge Advocate General for remand to an appropriate CA
with a rehearing on the sentence authorized.12 Following post-
trial processing the record will be returned to the Court for
completion of appellate review. Boudreaux v. U.S. Navy-Marine
Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989).

     Chief Judge MITCHELL and Senior Judge WARD concur.


                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




12
  Due to our action relative to the sentence, AOE VI, relating to sentence
disparity in companion cases, is presently moot. We find no merit to and
summarily dismiss AOE V concerning the alleged bias of a panel member.
United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992).
                                     11
