                          UNITED STATES, Appellee

                                        v.

                  Eric P. MARCUM, Technical Sergeant
                       U.S. Air Force, Appellant

                                  No. 02-0944

                            Crim. App. No. 34216

       United States Court of Appeals for the Armed Forces

                       Argued October 7, 2003

                       Decided August 23, 2004

     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.
United States v. Marcum, No. 02-0944/AF


     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.




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United States v. Marcum, No. 02-0944/AF


                             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 LAWRENCE V.
      TEXAS, 123 S.CT. 2472 (2003).


      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




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United States v. Marcum, No. 02-0944/AF


“consent might not easily be refused.”      Lawrence v. Texas, 539

U.S. 558, 578 (2003).

     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, Nebraska.       His duties included training


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United States v. Marcum, No. 02-0944/AF


and supervising airmen newly assigned to the Operations Training

Flight.

     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)      (E-4).

Specifically, Specification 1 of Charge II alleged that

Appellant “did, at or near Omaha, Nebraska, between on or about

1 September 1998 and on or about 16 October 1998, commit sodomy

with Senior Airman H   by force and without

consent of the said Senior Airman H.”

     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] penis twice.”      When asked

“did you, at any time, use any force, coercion, pressure,


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United States v. Marcum, No. 02-0944/AF


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


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United States v. Marcum, No. 02-0944/AF


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




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United States v. Marcum, No. 02-0944/AF


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 May

21, 2000.   The convening authority approved his sentence except

for the term of confinement on September 6, 2000.

     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 Texas statute

criminalizing same sex sodomy.    Lawrence was argued on March 26,

2003, and decided on June 26, 2003.    Appellant petitioned this

Court for review on September 23, 2002.      This Court granted his

petition on March 10, 2003.    Appellant’s supplemental issue

regarding the Supreme Court’s ruling in Lawrence was granted by

this Court on August 29, 2003.

                              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.




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United States v. Marcum, No. 02-0944/AF


    (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

Lawrence recognized a constitutional liberty interest in sexual

intimacy between consenting adults in private.    Appellant argues

that Article 125 suffers from the same constitutional

deficiencies as the Texas statute in Lawrence because both

statutes criminalize private consensual acts of sodomy between

adults.   Appellant further contends that in light of the Supreme

Court’s rejection of Bowers v. Hardwick, 478 U.S. 186 (1986),

Appellant’s conviction violates the Due Process Clause.    As a

result, Appellant argues that Article 125 is either

unconstitutional on its face or unconstitutional as applied to

his conduct.


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United States v. Marcum, No. 02-0944/AF


        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 Lawrence

within its privacy line of jurisprudence by overruling Bowers

and effectively deciding that private, consensual, sexual

conduct, including sodomy, is a constitutionally protected

liberty interest.     See Lawrence, 539 U.S. at 577.   As with other

fundamental rights, the amici contend that a statute purporting

to criminalize a fundamental right must be narrowly tailored to

accomplish a compelling government interest.     The amici argue

that Article 125 is not narrowly tailored because it reaches,

among other conduct, the private, consensual, off-base, intimate

activity of married military persons and their civilian spouses.

Arguing in the alternative, quoting Lawrence, the amici do not

“dispute that the interests in good order and discipline, and in

national security, are important.      But the importance of those

interests is irrelevant, because there is simply no basis to

conclude that they are even rationally related to Article 125,

let alone sufficiently advanced by that law to justify its

onerous burdens on the ‘full right’ to engage in ‘conduct


∗
 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.

                                  10
United States v. Marcum, No. 02-0944/AF


protected by the substantive guarantee of liberty.’”    Under both

arguments, the amici maintain that the government has no

legitimate or compelling military interest in regulating

Appellant’s private conduct.

     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 Lawrence is a constitutional

question reviewed de novo.   Jacobellis v. Ohio, 378 U.S. 184,

190 (1964).

                   C.   The Lawrence Decision


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United States v. Marcum, No. 02-0944/AF


     The petitioners in Lawrence challenged the

constitutionality of a Texas statute criminalizing same sex

sodomy.   See 539 U.S. at 562.   This statute provided that “[a]

person commits an offense if he engages in deviate sexual

intercourse with another individual of the same sex.”   Id. at

563 (quoting Texas Penal Code Ann. § 21.061(a) (2003)).    The

Supreme Court determined at the outset that the statute posed a

question of substantive due process:   “whether the petitioners

were free as adults to engage in the private conduct in the

exercise of their liberty under the Due Process Clause of the

Fourteenth Amendment to the Constitution.”   Id. at 564.    The

“pertinent beginning point” for its review, the Supreme Court

stated, was Griswold v. Connecticut, 381 U.S. 479 (1965).     Id.

Griswold addressed the right to a marital zone of privacy in the

context of a Connecticut law proscribing the use of

contraception and counseling regarding contraception.   See 381

U.S. at 482.   This liberty interest was subsequently extended

outside the marital context in Eisenstadt v. Baird, 405 U.S. 438

(1972)(right of individuals, married or unmarried, to have

access to contraceptives) and Carey v. Population Services

Int’l, 431 U.S. 678 (1977)(right to distribute contraception).

See Lawrence, 539 U.S. at 565-66.

     Having framed the question as one of liberty, the Supreme

Court indicated that “[t]o say that the issue in Bowers was


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United States v. Marcum, No. 02-0944/AF


simply the right to engage in certain sexual conduct demeans the

claim the individual put forward[.]”    Id. at 567.   The Supreme

Court also characterized the statutes in Bowers and Lawrence as

seeking

             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.
Id.

      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.”     Id.

at 577-78.

      With respect to the Lawrence petitioners, the Court stated:

             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
             Texas statute furthers no legitimate state



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United States v. Marcum, No. 02-0944/AF


           interest which can justify its intrusion into the
           personal and private life of the individual.

Id. at 578 (citing Planned Parenthood v. Casey, 505 U.S.

833, 847 (1992)).


     While finding the Texas statute unconstitutional, the

Supreme Court stated that “[t]he 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.”   Id.   The Supreme Court did not expressly state

whether or not this text represented an exhaustive or

illustrative list of exceptions to the liberty interest

identified, whether this text was intended to suggest areas

where legislators might affirmatively legislate, or whether this

text was intended to do no more than identify areas not

addressed by the Court.   Nor did the Supreme Court squarely

place its analysis within a traditional framework for

constitutional review.

           (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 Texas


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United States v. Marcum, No. 02-0944/AF


sodomy prohibition unconstitutional because the Due Process

Clause of the Fourteenth Amendment protects a fundamental right

of adults to make decisions regarding private, consensual sexual

conduct, including sodomy.”   As a result, the amici maintain

that Article 125 is unconstitutional because it is not narrowly

tailored to achieve a compelling government interest.

     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 Lawrence.     “Rather, by applying a

‘rational basis standard of review’ to reach their determination

that the Texas statute ‘furthers no legitimate state interest

which can justify its intrusion into the personal and private

life of the individual,’ the Supreme Court reaffirmed that the

right to engage in homosexual sodomy is not a fundamental

right.”

     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 Texas statute furthers no

legitimate state interest[.]”   See Lawrence, 539 U.S. at 578.


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United States v. Marcum, No. 02-0944/AF


This is the counter-weight applied in the rational basis

analysis.   Moreover, the Supreme Court did not apply the

nomenclature associated with strict scrutiny, i.e.,

identification of a compelling state interest and narrow

tailoring of the statute to accomplish that interest.

     On the other hand, the Supreme Court placed Lawrence within

its liberty line of cases resting on the Griswold foundation.

See id. at 564-65.   These cases treated aspects of liberty and

privacy as fundamental rights, thereby, subjecting them to the

compelling interest analysis.   See Griswold, 381 U.S. at 485;

Carey, 431 U.S. at 686.   With regard to the Supreme Court’s use

of language attributed to the rational basis review, Appellant

and the amici argue the Supreme Court is simply stating that the

Texas statute does not even accomplish a legitimate interest,

let alone a compelling one.

     Indeed, in response to the Supreme Court’s decision in

Lawrence, some courts have applied the rational basis standard

of review while other courts have applied strict scrutiny.    For

example, the Court of Appeals of Arizona determined that “the

Court applied without explanation the rational basis test,

rather than the strict scrutiny review utilized when fundamental

rights are impinged, to hold the Texas statute

unconstitutional.”   Standhardt v. Superior Court of Arizona, 77

P.3d 451, 457 (Ariz. Ct. App. 2003).   Whereas the court in


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United States v. Marcum, No. 02-0944/AF


Fields v. Palmdale School District, 271 F. Supp. 2d 1217, 1221

n. 7 (C.D. Cal. 2003), concluded, “Many of these fundamental

rights, especially those relating to marital activities and

family relationships, have been classified by the Supreme Court

under a broader ‘right to privacy’ that is implicit in the

Fourteenth Amendment[.]”.

        The focus by the Government and Appellant on the nature of

the Supreme Court’s constitutional test in Lawrence is

understandable.    Utilization of either the rational basis test

or strict scrutiny might well prove dispositive of a facial

challenge to Article 125.    On the one hand, the interests in

military readiness, combat effectiveness, or national security

arguably would qualify as either rational or compelling

governmental interests.    On the other hand, it is less certain

that Article 125 is narrowly tailored to accomplish these

interests.

        The Supreme Court did not expressly state which test it

used.    The Court did place the liberty interest in Lawrence

within the Griswold line of cases.     See Lawrence, 539 U.S. at

564-65.    Griswold and Carey address fundamental rights.

However, the Supreme Court has not determined that all liberty

or privacy interests are fundamental rights.    In Lawrence, the

Court did not expressly identify the liberty interest as a

fundamental right.    Therefore, we will not presume the existence


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United States v. Marcum, No. 02-0944/AF


of such a fundamental right in the military environment when the

Supreme Court declined in the civilian context to expressly

identify such a fundamental right.

     What Lawrence requires is searching constitutional inquiry.

This inquiry may require a court to go beyond a determination as

to whether the activity at issue falls within column A — conduct

of a nature to bring it within the liberty interest identified

in Lawrence, or within column B — factors identified by the

Supreme Court as outside its Lawrence analysis.      The Court’s

analysis reached beyond the immediate facts of the case

presented.    This is reflected by the Court’s decision to rule on

the grounds of due process as opposed to equal protection.

“Were we to hold the statute invalid under the Equal Protection

Clause,” the Supreme Court noted, “some might question whether a

prohibition would be valid if drawn differently, say, to

prohibit the conduct both between same-sex and different-sex

participants.”   539 U.S. at 575.     The Supreme Court also

acknowledged “an emerging awareness that liberty gives

substantial protection to adult persons in deciding how to

conduct their private lives in matters pertaining to sex.”     Id.

at 572.

     At the same time the Court identified factors, which it did

not delimit, that might place conduct outside the Lawrence zone

of liberty.   Thus, the door is held open for lower courts to


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United States v. Marcum, No. 02-0944/AF


address the scope and nature of the right identified in

Lawrence, as well as its limitations, based on contexts and

factors the Supreme Court may not have anticipated or chose not

to address in Lawrence.      In our view, this framework argues for

contextual, as applied analysis, rather than facial review.

This is particularly apparent in the military context.

             (2)   Lawrence in the Military Context

     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 U.S. 163, 194

(1994)(Ginsburg, J., concurring)). “Our citizens in uniform may

not be stripped of basic rights simply because they have doffed

their civilian clothes.”     Goldman v. Weinberger, 475 U.S. 503,

507 (1986)(citations omitted).     As a result, this Court has

consistently applied the Bill of Rights to members of the Armed

Forces, except in cases where the express terms of the

Constitution make such application inapposite.        See United

States v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47

(1960)(“[I]t is apparent that the protections in the Bill of

Rights, except those which are expressly or by necessary

implication inapplicable, are available to members of our armed

forces.”).


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United States v. Marcum, No. 02-0944/AF


     At the same time, these constitutional rights may apply

differently to members of the armed forces than they do to

civilians.   See Parker, 417 U.S. at 743.   “The military is, by

necessity, a specialized society.”    Id.   Thus, when considering

how the First Amendment and Fourth Amendment apply in the

military context, this Court has relied on Supreme Court

civilian precedent, but has also specifically addressed

contextual factors involving military life.    See United States

v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972)(“[T]he

right of free speech in the armed services is not unlimited and

must be brought into balance with the paramount consideration of

providing an effective fighting force for the defense of our

Country.”); see also United States v. McCarthy, 38 M.J. 398

(C.M.A. 1993)(warrantless entry into military barracks room to

effectuate apprehension did not violate Fourth Amendment).    In

light of the military mission, it is clear that servicemembers,

as a general matter, do not share the same autonomy as

civilians.   See Parker, 417 U.S. at 758.

     While the Government does not contest the general

proposition that the Constitution applies to members of the

Armed Forces, it argues that Lawrence only applies to civilian

conduct.   Moreover, with respect to the military, the Government

contends that Congress definitively addressed homosexual sodomy

by enacting 10 U.S.C. § 654 (2000).   According to the


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United States v. Marcum, No. 02-0944/AF


Government, pursuant to Congress’s Article I authority to make

rules and regulations for the Armed Forces, Congress not only

prohibited sodomy through Article 125, but with Article 125 as a

backdrop, determined in 1993 through 10 U.S.C. § 654 that

homosexuality, and, therefore, sodomy was incompatible with

military service.   In enacting § 654, Congress determined that

“[t]he presence in the armed forces of persons who demonstrate a

propensity or intent to engage in homosexual acts would create

an unacceptable risk to the high standards of morale, good order

and discipline, and unit cohesion that are the essence of

military capability.”   10 U.S.C. § 654(a)(15).   Thus, according

to the Government, this Court should apply traditional

principles of deference to Congress’s exercise of its Article I

authority and not apply Lawrence to the military.

     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 Lawrence and at

a time when Bowers served as the operative constitutional

backdrop.   Moreover, the Supreme Court did not accept the

Government’s present characterization of the right as one of


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United States v. Marcum, No. 02-0944/AF


homosexual sodomy.   The Court stated, “To say that the issue in

Bowers was simply the right to engage in certain sexual conduct

demeans the claim the individual put forward[.]”    Lawrence, 539

U.S. at 567.    “The State cannot demean their existence or

control their destiny by making their private sexual conduct a

crime.”   Id. at 578.    Nor did the Supreme Court define the

liberty interest in Lawrence in a manner that on its face would

preclude its application to military members.

     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 Lawrence to Appellant’s conduct.     However, we

conclude that its application must be addressed in context and

not through a facial challenge to Article 125.    This view is

consistent with the principle that facial challenges to criminal

statutes are “best when infrequent” and are “especially to be

discouraged.”   Sabri v. United States, ___ U.S. __, __, 124 S.

Ct. 1941, 1948 (2004).    In the military setting, as this case

demonstrates, an understanding of military culture and mission

cautions against sweeping constitutional pronouncements that may

not account for the nuance of military life.    This conclusion is

also supported by this Court’s general practice of addressing

constitutional questions on an as applied basis where national

security and constitutional rights are both paramount interests.


                                  22
United States v. Marcum, No. 02-0944/AF


Further, because Article 125 addresses both forcible and non-

forcible sodomy, a facial challenge reaches too far.      Clearly,

the Lawrence analysis is not at issue with respect to forcible

sodomy.

        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 Lawrence?       539 U.S. at 578.

Third, are there additional factors relevant solely in the

military environment that affect the nature and reach of the

Lawrence liberty interest?

   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


                                  23
United States v. Marcum, No. 02-0944/AF


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 Lawrence liberty

interest.   Namely, did Appellant’s conduct involve private,

consensual sexual activity between adults?   In the present case,

the members determined Appellant engaged in non-forcible sodomy.

This sodomy occurred off-base in Appellant’s apartment and it

occurred in private.   We will assume without deciding that the

jury verdict of non-forcible sodomy in this case satisfies the

first question of our as applied analysis.

     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 Lawrence.

For instance, did the conduct involve minors?    Did it involve

public conduct or prostitution?    Did it involve persons who




                                  24
United States v. Marcum, No. 02-0944/AF


might be injured or coerced or who are situated in relationships

where consent might not easily be refused?   See id.

     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 (May 1, 1996).


     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

United States v. McCreight, 43 M.J. 483, 485 (C.A.A.F. 1996).



                               25
United States v. Marcum, No. 02-0944/AF


Indeed, Dep’t of the Air Force Instruction 36-2909 is subject to

criminal sanction through operation of Article 92, UCMJ.     As

both the Supreme Court and this Court have recognized elsewhere,

“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.”   Parker, 417 U.S. at 758.    While

servicemembers clearly retain a liberty interest to engage in

certain intimate sexual conduct, “this right must be tempered in

a military setting based on the mission of the military, the

need for obedience of orders, and civilian supremacy.”     United

States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996).

      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

Lawrence zone of liberty.

      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.


                                26
United States v. Marcum, No. 02-0944/AF


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 U.S.

at 578.   Thus, based on this factor, Appellant’s conduct fell

outside the liberty interest identified by the Supreme Court.

As a result, we need not consider the third step in our Lawrence

analysis.    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.

       Appellant’s conduct was outside the protected liberty

interest recognized in Lawrence; it also was contrary to Article

125.   As a result, Article 125 is constitutional as applied to

Appellant.

               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


                                  27
United States v. Marcum, No. 02-0944/AF


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


                                 28
United States v. Marcum, No. 02-0944/AF


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


                                29
United States v. Marcum, No. 02-0944/AF


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.    United States v. Ankeny, 30 M.J. 10, 10

(C.M.A. 1990).

        “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.”    Ankeny, 30 M.J. at 19 (quoting Manual

for Courts-Martial, United States, 1969, para. 151a (Rev. ed.)).

“A lawyer shall not reveal information relating to the


                                    30
United States v. Marcum, No. 02-0944/AF


representation of a client unless the client gives informed

consent, the disclosure is impliedly authorized in order to

carry out the representation, or the disclosure [is otherwise

permitted by this rule.]”    United States v. Dorman, 58 M.J. 295,

298 (C.A.A.F. 2003)(quoting Model Rules of Prof’l Conduct R.

1.6(a) (2003)(emphasis added)).

     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.”     United States v. Provost, 32 M.J.

98, 99 (C.M.A. 1991).

         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


                                  31
United States v. Marcum, No. 02-0944/AF


(C.M.A. 1991)), this Court will “not allow it to be undercut or

eroded,” United States v. Partyka, 30 M.J. 242, 246 (C.M.A.

1990).    As this Court has previously indicated, “an accused

elects to make an unsworn statement.”   Rosato, 32 M.J at 99.

Thus, regardless of whether the unsworn statement is made by the

accused or presented for the accused by his counsel, the right

to make the unsworn statement is personal to the accused.

     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.


                                 32
United States v. Marcum, No. 02-0944/AF


     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


                                 33
United States v. Marcum, No. 02-0944/AF


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.




                                  34
United States v. Marcum, No. 02-0944/AF


                  Issue II:    Life Without Parole

     Appellant’s sentencing occurred on May 24, 2000.      The

military judge instructed the members that life without parole

was the maximum authorized punishment for Appellant’s offenses.

Appellant was subsequently convicted of various offenses,

including non-forcible sodomy, for which the maximum authorized

confinement was five years.    Appellant’s approved sentence

included, inter alia, a term of confinement for six years.       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.

                            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.




                                  35
United States v. Marcum, No. 02-0944/AF


     CRAWFORD, Chief Judge (dissenting on Issue I and concurring

in result on Issue III):

I.   Defense Counsel’s Release of Appellant’s Unsworn Written
     Statement

     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
United States v. Marcum, No. 02-0944/AF


. . . .”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


1
    Military Rule of Evidence 502(a) [hereinafter M.R.E.].
2
    M.R.E. 511(a).
3
  Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)
(quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
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).

                                     2
United States v. Marcum, No. 02-0944/AF


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.




                                  3
United States v. Marcum, No. 02-0944/AF


     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

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”).




                                 4
United States v. Marcum, No. 02-0944/AF


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


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.

                                  5
United States v. Marcum, No. 02-0944/AF


misconduct, forfeited any right to object to counsel’s use of

the statement.

II.    Appellant’s Conviction of Non-Forcible Sodomy in Light of
       Lawrence v. Texas

       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 Lawrence.    There are factual

distinctions between the petitioners’ offense in Lawrence and

Appellant’s offense in the case at bar.    Because of these

significant differences, I would hold that this is not a

Lawrence case and would reserve for another day the questions of

whether and how Lawrence applies to the military.    The factual

differences between Lawrence and Appellant’s case are striking.

The offense of sodomy with which the petitioners in Lawrence

were charged occurred in the context of a consensual, adult

relationship.    The Court noted at the outset of its opinion that

at the time of their arrest, the petitioners in Lawrence were in

Mr. Lawrence’s apartment, engaging in a private, consensual

sexual act.11    The Court reiterated this factual context shortly

thereafter: “The petitioners were adults at the time of the



10
     539 U.S. 558.



                                  6
United States v. Marcum, No. 02-0944/AF


alleged offense.    Their conduct was in private and consensual.”12

At the conclusion of its opinion, the Court once again

emphasized the specific factual context of the petitioners’

acts:

        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

11
     Id. at 564.
12
     Id.
13
     Id. at 578.




                                   7
United States v. Marcum, No. 02-0944/AF


H, as were the petitioners in Lawrence         .   On the contrary,

Appellant’s offense occurred after a night of drinking when

Senior Airman H “crashed” on Appellant’s couch, wearing

only boxer shorts and a T-shirt, and awoke to find Appellant

performing oral sex on him.   Senior Airman H testified

that he did not protest Appellant’s action for fear of how

Appellant would respond.   This event followed two other

incidents of sexual contact between Appellant and Senior Airman

H, which involved touching and dancing, on evenings when

Appellant and Senior Airman H had been out drinking and

socializing.

     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

Lawrence.   Indeed, Appellant’s offense concerned precisely what

the Supreme Court stated Lawrence did not concern: an

individual, Senior Airman H, who might have been coerced,

in a situation where consent might not easily have been refused,

given Senior Airman H’s subordinate professional

position.   Senior Airman H himself expressed his fear of


14
  Id. at 574 (quoting Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. at 833, 851 (1992)).

                                 8
United States v. Marcum, No. 02-0944/AF


rejecting a superior, noncommissioned officer, who was in fact

his supervisor at work.    This case certainly did not involve

“two adults [who acted] with full and mutual consent from each

other.”    In sum, the act for which Appellant was convicted in

specification 1 of Charge II was not the kind of mutual and

intimate act in the context of which the Supreme Court decided

Lawrence.

       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


15
     Article 125, UCMJ, 10 U.S.C. § 925 (2000).
16
     Article 36, UCMJ, 10 U.S.C. § 836 (2000).

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United States v. Marcum, No. 02-0944/AF


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,

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).


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United States v. Marcum, No. 02-0944/AF


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 Lawrence, in which there was no

evidence of force whatsoever, the finding in this case simply


19
     Article 79, UCMJ, 10 U.S.C. § 879 (2000).

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United States v. Marcum, No. 02-0944/AF


showed that the members were not convinced beyond a reasonable

doubt that the act of sodomy was done by force and without

consent – in other words, that the evidence of force was simply

insufficient.20   This finding did not negate the probable cause

of force that supported Appellant’s charge, nor did it establish

consent.    Indeed, Appellant did not, prior to trial, move to

dismiss or amend the forcible sodomy charge for lack of evidence

of force.

     Given this factual context of Appellant’s charge, it is

obvious why this is not a Lawrence case.    The following diagram

demonstrates what this case is truly about.   On the far left is

the purely consensual case as in Lawrence; on the far right is a

case with a conviction for forcible sodomy beyond a reasonable

doubt.   This case falls in the middle because there was probable

cause to believe that Appellant had committed forceful sodomy.

R.C.M. 302(c).

                        Probable
                        Cause



Lawrence                                       Prove Force
                                               beyond
                                               reasonable
                                               doubt


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).

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United States v. Marcum, No. 02-0944/AF


       In short, one does not need to go beyond the facts of this

case and the language of the Lawrence opinion to conclude that

Appellant’s conduct did not fall within the liberty interest set

forth in Lawrence.      Certainly this case is factually

distinguishable from Lawrence because it does not “involve two

adults, who with full and mutual consent from each other,

engaged in sexual practices common to a homosexual lifestyle.”21

Further, Appellant was a senior noncommissioned officer who

supervised and rated the victim.        Thus, the victim was not in a

position where “consent might . . . easily be refused.”22       And

finally, to this date, the parties have not contested probable

cause to believe that Appellant committed forcible sodomy.

       For these reasons, I concur in the result as to Issue III.




21
     Id.
22
     539 U.S. at 578.

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