                       UNITED STATES, Appellee

                                    v.

                   Ivan D. GOINGS, Staff Sergeant
                        U.S. Army, Appellant

                              No. 11-0547

                       Crim. App. No. 20080602

       United States Court of Appeals for the Armed Forces

                       Argued November 13, 2012

                         Decided May 23, 2013

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN, J., and EFFRON, S.J., joined. STUCKY, J., filed
a separate dissenting opinion.


                                 Counsel

For Appellant: Captain Kristin B. McGrory (argued); Lieutenant
Colonel Jonathan F. Potter and Major Jacob D. Bashore (on
brief); Lieutenant Colonel Imogene M. Jamison and Lieutenant
Colonel Peter Kageleiry Jr.

For Appellee: Captain Edward J. Whitford (argued); Lieutenant
Colonel Amber J. Roach and Major Catherine L. Brantley (on
brief); Major LaJohnne A. White and Captain Bradley M. Endicott.

Military Judge:   Gregg Marchessault




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Goings, 11-0547/AR


         Judge RYAN delivered the opinion of the Court.

         Contrary to his pleas, a military judge sitting as a

general court-martial convicted Appellant of one specification

of rape, in violation of Article 120, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 920 (2006), and one specification of

committing an indecent act with another, in violation of Article

134, UCMJ, 10 U.S.C. § 934 (2006).      The adjudged sentence

provided for a dishonorable discharge, confinement for five

years, forfeiture of all pay and allowances, and reduction to

grade E-1.      The convening authority disapproved the adjudged

forfeitures but approved the remainder of the adjudged sentence,

and waived the forfeiture of automatic pay and allowances for

six months.

         Before the United States Army Court of Criminal Appeals

(ACCA), Appellant argued for the first time that his conviction

for committing an indecent act with another under Article 134,

UCMJ, Specification 6 of Charge II (Specification 6), should be

set aside in light of the Supreme Court’s holding in Lawrence v.

Texas, 539 U.S. 558 (2003). 1    Appellant, however, fails to meet


1
    We granted review of the following issues:
    I.   WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO
         THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.
    II. WHETHER SPECIFICATION 6 OF CHARGE II FAILS TO STATE AN
        OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR
        NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134,
        UCMJ.

                                    2
United States v. Goings, 11-0547/AR


his burden of showing that the military judge erred, let alone

plainly and obviously erred, in allowing the conduct described

in Specification 6 to serve as the basis for his indecent act

conviction under Article 134, UCMJ.

     Moreover, while the ACCA misapplied United States v.

Fosler, 70 M.J. 225 (C.A.A.F. 2011), in its consideration of the

Government’s failure to allege the terminal element of Article

134, UCMJ, in the contested specification, review of the record

reveals that Appellant was not prejudiced by this error.    See

United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).

     Accordingly, the conviction and sentence are affirmed.

                             I.   FACTS

     On August 2, 2007, German police searched Appellant’s off-

post apartment pursuant to a search warrant to investigate

claims of sexual assault.   During the search, the police seized,

among other items, a video camera and several 8-millimeter video

recordings.   One of the recordings depicts Appellant and an

unidentified female engaged in consensual sexual activity,

including intercourse, in his off-post apartment.   The recording

was made by an unidentified male who filmed the sexual activity

while in the presence of Appellant and the unidentified female.

While the recording further shows the unidentified male


United States v. Goings, 71 M.J. 334 (C.A.A.F. 2012) (order
granting review).

                                  3
United States v. Goings, 11-0547/AR


physically participating in the sexual activity, this

participation did not form the basis of the specification at

issue.   At trial, the Government conceded that the participants

were aware that they were being recorded and that the sexual

activity was consensual.

     Based on this conduct, the Government charged Appellant

with, among other offenses, committing an indecent act with

another, in violation of Article 134, UCMJ.   The specification

relating to this charge, Specification 6, reads:

     In that SSG Ivan D. Goings . . . did . . . wrongfully
     commit an indecent act with another male and a female
     by allowing the other male to be present and video
     record on a video cassette tape the said SSG Ivan D.
     Goings engaging in sexual intercourse with the female.

     Specification 6 did not allege the terminal element of

Article 134, UCMJ.   However, the Government argued that the

evidence was prejudicial to good order and discipline in its

opening statement, and presented evidence, during its case-in-

chief, as to why the indecent act with another was both

prejudicial to good order and discipline and service

discrediting.   Appellant, in turn, defended against

Specification 6 on the ground that neither clause 1 nor clause 2

of the terminal element had been met, during both his cross-

examination of Government witnesses and closing argument.   At no

time during trial did Appellant raise the argument that he was

not guilty because his conduct was constitutionally protected.

                                 4
United States v. Goings, 11-0547/AR


Instead, his defense was that his conduct was neither

prejudicial to good order and discipline nor service

discrediting.

                          II.    ACCA DECISION

     The ACCA summarily rejected Appellant’s Lawrence claim

without discussion and held that the court-martial’s findings

and sentence, as approved, were correct in law and fact.      United

States v. Goings, No. ARMY 20080602 (A. Ct. Crim. App. May 5,

2011).   On October 14, 2011, this Court vacated the ACCA’s

decision and ordered the case remanded to that court for

consideration in light of United States v. Fosler, 70 M.J. 225

(C.A.A.F. 2011).     United States v. Goings, 70 M.J. 376 (C.A.A.F.

2011) (order granting review and summarily vacating the lower

court’s decision).    Upon reconsideration, the ACCA again held

that the findings and sentence, as approved, were correct in law

and fact.   United States v. Goings, No. ARMY 20080602 (A. Ct.

Crim. App. Feb. 7, 2012).       Specifically, the ACCA found that

Specification 6 “can be reasonably construed to imply” the

terminal element of that charge.         Id. at 2 n.2.

                           III.    DISCUSSION

                                    A.

     Appellant was convicted of indecent acts with another, in

violation of Article 134, UCMJ.       This offense consists of three

elements:   (1) “[t]hat the accused committed a certain wrongful

                                     5
United States v. Goings, 11-0547/AR


act with a certain person; (2) [t]hat the act was indecent; and

(3) [t]hat . . . the conduct . . . was to the prejudice of good

order and discipline . . . or was of a nature to bring discredit

upon the armed forces.”   Manual for Courts-Martial, United

States pt. IV, para. 90.b. (2005 ed.) (MCM). 2   Indecent is

defined as “that form of immorality relating to sexual impurity

which is not only grossly vulgar, obscene, and repugnant to

common propriety, but tends to excite lust and deprave the

morals with respect to sexual relations.”   MCM pt. IV, para.

90.c.   As further limited by this Court’s decisions in United

States v. Snyder, 1 C.M.A. 423, 4 C.M.R. 15 (1952), and United

States v. Berry, 6 C.M.A. 609, 20 C.M.R. 325 (1956), private

consensual sexual activity is not punishable as an indecent act

absent aggravating circumstances.    Snyder, 1 C.M.A. at 427, 4

C.M.R. at 19; Berry, 6 C.M.A. at 614, 20 C.M.R. at 330.    One

such aggravating circumstance is that the sexual activity is

“open and notorious,” which includes when the participants know

that someone else is present.   United States v. Izquierdo, 51




2
  The videotaping occurred “prior to October 1, 2007, the
effective date of the amendments to the UCMJ and [MCM] made by
the National Defense Authorization Act for Fiscal Year 2006,
Pub. L. No. 109–163, § 552, 119 Stat. 3136, 3256–63 (2006), so
[the offense was] properly charged under Article 134, UCMJ. See
MCM, Punitive Articles Applicable to Sexual Assault Offenses
Committed Prior to 1 October 2007 app. 27 at A27–2 (2008 ed.).”
United States v. Rose, 71 M.J. 138, 140 n.3 (C.A.A.F. 2012).

                                 6
United States v. Goings, 11-0547/AR


M.J. 421, 422 (C.A.A.F. 1999); Berry, 6 C.M.A. at 614, 20 C.M.R.

at 330.

     Appellant does not dispute that the offense of indecent

acts with another, as proscribed under Article 134, UCMJ, and as

limited by this Court’s precedent, is facially constitutional.

Instead, he appears to argue that the statute is

unconstitutional as applied to him, Brief for Appellant at 12-

18, United States v. Goings (C.A.A.F. July 20, 2012) (No. 11-

0547), despite failing to object at trial on this ground. 3   Since

the error Appellant now alleges is constitutional, and in light

of this Court’s (1) “presumption against the waiver of

constitutional rights” and (2) requirement that a waiver

“clearly establish[] . . . an intentional relinquishment of a

known right or privilege,” United States v. Sweeney, 70 M.J.

296, 303-04 (C.A.A.F. 2011) (quoting United States v. Harcrow,

66 M.J. 154, 157 (C.A.A.F. 2008)), we consider the alleged error




3
  From start to finish, the contested issue in the case was
whether Appellant’s conduct met the terminal element of Article
134, UCMJ. Appellant argued that his conduct was insufficient
to meet the terminal element, in part, because, in his view, his
conduct would be constitutionally protected in a non-military
setting. The trier of fact disagreed, and the ACCA concluded
that the evidence was legally sufficient. Goings, No. ARMY
20080602, slip op. at 1. What amounts to an argument that the
Government has not put forth legally sufficient evidence to
support an Article 134, UCMJ, conviction is fundamentally
different from a constitutional argument that, in the military
context, Appellant’s conduct is protected.

                                7
United States v. Goings, 11-0547/AR


forfeited, and not waived.     We therefore review for plain error.

Id. at 304. 4

                                   B.

     We review whether a statute is unconstitutional as applied

de novo.    United States v. Ali, 71 M.J. 256, 265 (C.A.A.F.

2012).     To determine if “a statute is ‘unconstitutional as

applied,’ we conduct a fact-specific inquiry.”     Id.   Upon plain

error review, to prove that Article 134, UCMJ -- a facially

constitutional criminal statute -- is unconstitutional as

applied to him, Appellant must point to particular facts in the

record that plainly demonstrate why his interests should

overcome Congress’ and the President’s determinations that his

conduct be proscribed.     See United States v. Vazquez, 72 M.J.

13, 16-21 (C.A.A.F. 2013); Ali, 71 M.J. at 266.      Appellant fails

to meet this burden.

     There is no question that Appellant’s rights as a member of

the military are not coextensive with those enjoyed by

civilians.      See Parker v. Levy, 417 U.S. 733, 758 (1974)

(upholding the constitutionality of Article 134, UCMJ, and

observing that “[t]he fundamental necessity for obedience, and

the consequent necessity for imposition of discipline, may


4
  “Under plain error review, this Court will grant relief only
where (1) there was error, (2) the error was plain and obvious,
and (3) the error materially prejudiced a substantial right of
the accused.” Sweeney, 70 M.J. at 304.

                                    8
United States v. Goings, 11-0547/AR


render permissible within the military that which would be

constitutionally impermissible outside it”).    And no one asserts

that the interest recognized in Lawrence is somehow exempt from

adaptation to the military environment.   See United States v.

Marcum, 60 M.J. 198, 207 (C.A.A.F. 2004) (in the context of an

as-applied challenge under Lawrence, requiring consideration of

whether there are “additional factors relevant solely in the

military environment that affect the nature and reach of the

Lawrence liberty interest”).   Consonant with his authority to

act as commander-in-chief and his duty to “take care that the

laws be faithfully executed,” U.S. Const. art. II, §§ 2-3, the

President has listed indecent acts with another as a “way[] in

which Article 134, UCMJ, might be charged,” United States v.

Jones, 68 M.J. 465, 472 (2010).   See also United States v.

Miller, 47 M.J. 352, 356 (C.A.A.F. 1997); United States v.

Gonzalez, 42 M.J. 469, 474 (C.A.A.F. 1995).    The commission of

sexual acts in the presence of a third party has been held to be

sufficiently “open and notorious” to constitute an indecent act,

punishable under Article 134, UCMJ, see Izquierdo, 51 M.J. at

422-23 (C.A.A.F. 1999) (“[An] act is ‘open and

notorious’ . . . when the participants know that a third person

is present.” (citing Berry, 6 C.M.A. at 614, 20 C.M.R. at 330)),

and we do not doubt that permitting the filming of those same

acts is also sufficient.   Cf. United States v. Cohen, 63 M.J.

                                  9
United States v. Goings, 11-0547/AR


45, 53 (C.A.A.F. 2006) (holding that Article 31(b) rights

warnings were required when the appellant described his role in

photographing a sexual assault). 5   Congress’ and the President’s

determination to proscribe such acts that are “to the prejudice

of good order and discipline” or “of a nature to bring discredit

upon the armed forces,” Article 134, UCMJ; MCM, pt. IV, para.

90.b. (2005 ed.), no doubt furthers the military’s unique

interest in obedience and discipline, see Levy, 417 U.S. at 758,

which Marcum recognized as affecting the nature and reach of

Lawrence.   See Marcum, 60 M.J. at 206-07.

     Here, Appellant was convicted of “allowing [a third party]

to be present and video record on a video cassette tape

[Appellant] engaging in sexual intercourse with [a] female,” and

legally sufficient evidence was adduced at trial that this

5
  Additionally, that Appellant’s conviction is supported by
legally sufficient evidence is particularly true in light of the
low evidentiary threshold that this Court has applied to Article
134, UCMJ’s terminal element. See United States v. Phillips, 70
M.J. 161, 163 (C.A.A.F. 2011) (“evidence that the public was
actually aware of the conduct is not necessarily required” to
support clause 2 of Article 134, UCMJ’s, terminal element);
United States v. Irvin, 60 M.J. 23, 26 (C.A.A.F. 2004) (finding
a sufficient factual basis to support clause 1 and clause 2 of
Article 134, UCMJ’s, terminal element despite no evidence that
any other servicemembers were aware of, or saw, the child
pornography). To the extent we should revisit the question
whether a more exacting standard of proof should be required to
support the terminal elements of Article 134, UCMJ, we leave
that issue for a case in which it is properly raised and
briefed. See, e.g., United States v. Wilcox, 66 M.J. 442, 448-
49 (C.A.A.F. 2008) (requiring a more exacting standard in the
context of the First Amendment).

                                10
United States v. Goings, 11-0547/AR


conduct was prejudicial to good order and discipline and service

discrediting.   No one disagrees that wholly private and

consensual sexual activity, without more, falls within Lawrence.

But that does not answer the altogether different question

whether permitting a third party to observe and memorialize

one’s sexual activity on videotape is categorically protected as

“wholly private and consensual sexual activity” where the trier

of fact has deemed the conduct to be prejudicial to good order

and discipline in the armed forces and service discrediting.     We

hold that, under the circumstances of this case, it is not.

     In Lawrence, the focal point of the constitutional

protection involved an act of sexual intimacy between two

individuals in a wholly private setting without more.   Lawrence,

539 U.S. at 562-63.   Lawrence did not establish a presumptive

constitutional protection for all offenses arising in the

context of sexual activity.   See Lawrence, 539 U.S. at 578

(noting that “[t]he present case d[id] not involve

minors[,] . . . persons who might be injured or coerced or who

are situated in relationships where consent might not easily be

refused[,] . . . public conduct[,] or prostitution); Marcum, 60

M.J. at 206–07 (recognizing that consideration of military

interests affect the nature and reach of Lawrence); United

States v. Lebowitz, 676 F.3d 1000, 1012 n.5 (11th Cir. 2012)

(holding Lawrence “immaterial” to its analysis because “[e]ven

                                11
United States v. Goings, 11-0547/AR


if Lawrence protected the sexual conduct depicted on the video

tape, . . . the depictions . . . traveled across state lines by

means of computer” and became “publicly traded contraband”).

When the conduct being charged does not fall directly within the

focal point of Lawrence -- sexual conduct between two

individuals in a wholly private setting that was criminal for no

other reason than the act of the sexual conduct itself –- and

where, 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

constitutionally protected rests with the defense at trial.     See

Vazquez, 72 M.J. at 16-21; Ali, 71 M.J. at 266.   Put another

way, to show that a facially constitutional statute is

unconstitutional as applied to a particular individual, the

individual must develop facts at trial that show why his

interest should overcome the determination of Congress and the

President that the conduct be proscribed.   See Vazquez, 72 M.J.

at 16-21; Ali, 71 M.J. at 266.   Here, the defense did not raise

such an issue at trial or develop such facts in a motion

proceeding.   In that context, the military judge did not commit

error, let alone plain and obvious error, in failing to sua

sponte raise a Lawrence issue.




                                 12
United States v. Goings, 11-0547/AR


                                 C.

     We now turn to the question whether Specification 6 fails

to state an offense because it does not allege the terminal

element of Article 134, UCMJ.    As we held in Fosler, a contested

case involving an Article 134, UCMJ, offense, the terminal

element must be pleaded or fairly implied, and the allegation of

the act itself is insufficient to support a fair implication of

the terminal element.   Fosler, 70 M.J. at 229-31.   Yet the ACCA,

on remand for consideration of the issue in light of Fosler,

determined that the error did not prejudice Appellant because

“the charge and its specification can be reasonably construed to

imply [the terminal element].”    Goings, No. ARMY 20080602, slip

op. at 2 n.2.   After examining Specification 6, it is clear that

Fosler foreclosed the line of reasoning upon which the ACCA

based its determination.   Article 134, UCMJ, has two elements:

(1) a predicate act or failure to act, and (2) a terminal

element.   United States v. Medina, 66 M.J. 21, 25 (C.A.A.F.

2008).   The terminal element of an Article 134, UCMJ, offense

may not be “fairly implied” from nothing more than the language

describing the alleged act or failure to act itself. 6   Fosler, 70

M.J. at 230-31.



6
  Moreover, the inclusion of the word “wrongfully” in
Specification 6 “cannot of itself imply the terminal element.”
Fosler, 70 M.J. at 230.

                                 13
United States v. Goings, 11-0547/AR


     This, however, does not end the inquiry as Appellant,

unlike the accused in Fosler, failed to object to the

specification on this ground at trial.     See Humphries, 71 M.J.

at 213.     Because Appellant’s trial occurred before this Court’s

decision in Fosler, we deem his failure to object as forfeiting,

rather than waiving, the underlying right and apply plain error

analysis.    Id. at 211, 213.

     Here, it was plain and obvious error for the Government not

to allege the terminal element.    Id. at 211, 214.   “Having found

plain and obvious error that was forfeited rather than waived,

the remaining question is ‘whether there is a remedy for the

error,’ which ‘will depend on whether the error has prejudiced

the substantial rights of the accused.’”    Id. at 215 (quoting

United States v. Ballan, 71 M.J. 28, 30 (C.A.A.F. 2012)).       In

the context of a defective specification, the prejudice analysis

“demand[s] close review of the trial record.”    Humphries, 71

M.J. at 215.    “[W]e look to the record to determine whether

notice of the missing element is somewhere extant in the trial

record, or whether the element is ‘essentially uncontroverted.’”

Id. at 215-16 (quoting United States v. Cotton, 535 U.S. 625,

633 (2002), and Johnson v. United States, 520 U.S. 461, 470

(1997)).

     While up to this point we have left Humphries’ fact-

intensive prejudice analysis to the Courts of Criminal Appeals

                                  14
United States v. Goings, 11-0547/AR


(CCAs), and despite the fact that we would ordinarily return the

record of trial in this case to the Judge Advocate General of

the Army for remand to the ACCA for consideration in light of

Humphries, we undertake it here for two reasons.    First, in

order to resolve Issue I, this Court had to conduct a fact-

intensive analysis of the record to determine whether the

military judge’s failure to raise a Lawrence issue was plain and

obvious error.   Second, it appears that there is some

misperception that, under Humphries, a conclusion that the

government’s error in failing to allege the terminal element was

nonprejudicial may be based on the same flawed logic that we

rejected in Fosler and Humphries.     See United States v. Allbery,

44 M.J. 226, 228 (C.A.A.F. 1996).

     Finding sufficient notice of the terminal element -- and

thus no prejudice –- on such bases as:    (1) witness testimony

describing the act or failure to act that meets Article 134,

UCMJ’s, first element; (2) the government’s identification of

its theory of criminality during its closing argument; (3)

evidence of defense counsel’s general awareness of the terminal

element; or (4) findings instructions that require the panel to

find the terminal element beyond a reasonable doubt in order to

convict, without more, is error under both Fosler and Humphries.

That:   (1) the evidence was legally sufficient to prove the

terminal element; (2) defense counsel demonstrated a general

                                15
United States v. Goings, 11-0547/AR


knowledge of the law, and (3) the government’s theory of

criminal liability was introduced during closing or through

findings instructions do not answer the altogether different

question whether the record sufficiently demonstrates that an

accused was on notice as to which clause or clauses of the

terminal element he needed to defend against.     Humphries, 71

M.J. at 216 n.8.   It is this latter question that determines

whether an appellant was prejudiced.

     In Humphries, we found prejudice where “[n]either the

specification nor the record provide[d] notice of which terminal

element or theory of criminality the Government pursued in

th[at] case.”   Id. at 216. 7   Here, however, we find no prejudice

because the record clearly demonstrates that Appellant (1) was

put on notice that the Government intended to prove that his

conduct was both prejudicial to good order and discipline and

service discrediting and (2) defended himself against those

theories of guilt.

     In its opening statement, the Government stated that it

would call First Sergeant (Sgt) Perkins, who would



7
  We noted that the government failed to (1) mention in its
opening statement “how [a]ppellee’s conduct satisfied either
clause 1 or 2 of the terminal element,” (2) “present any
specific evidence or call a single witness to testify as to why
[a]ppellee’s conduct satisfied” the terminal element, or (3)
make any “attempt to tie any of the evidence or witnesses that
it did call to the Article 134, UCMJ,” charge. Id.

                                  16
United States v. Goings, 11-0547/AR


“testify . . . that these videos and these actions are

prejudicial to good order and discipline.”   During its case-in-

chief, the Government presented the testimony of First Sgt

Perkins, who testified that Appellant’s conduct portrayed in the

videotape was prejudicial to good order and discipline.   On

cross-examination, defense counsel challenged this testimony.

On redirect examination, First Sgt Perkins then testified as to

why the conduct was service discrediting.    Again, this testimony

was challenged by defense counsel on recross-examination.

     Next, the Government presented the testimony of Sergeant

First Class (SFC) Olivarez, who testified that Appellant’s

conduct was both prejudicial to good order and discipline and

service discrediting.   Defense counsel again challenged this

testimony on cross-examination.

     During closing argument, Appellant summed up his vigorous

defense against the terminal element of Article 134, UCMJ,

arguing that the evidence was legally insufficient to prove the

charged offense because there was no evidence that the

unidentified male and female in the recording knew that

Appellant was a servicemember, and, therefore, the conduct could

not (1) “bring[] a bad light on the military,” or (2) “be bad

[for] the unit” or undermine Appellant.   Defense counsel argued

that the Government failed in its attempt to prove the terminal




                                  17
United States v. Goings, 11-0547/AR


element through the testimony of First Sgt Perkins and SFC

Olivarez.

     The evidence, as contained in the trial record,

demonstrates that Appellant was not only provided “notice of

which terminal element or theory of criminality the Government

pursued in this case,” Humphries, 71 M.J. at 216, but vigorously

defended against it.

                          IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                18
United States v. Goings, No. 11-0547/AR


     STUCKY, Judge (dissenting):

     We granted review in this case to determine whether

Lawrence v. Texas, 539 U.S. 558 (2003), and United States v.

Marcum, 60 M.J. 198 (C.A.A.F. 2004), extend a zone of privacy to

the indecent act of which Appellant was convicted, and whether

the same indecent act specification fails to state an offense

because it does not expressly allege or necessarily imply the

terminal element of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2006).   In my opinion, the

record shows that Appellant’s conduct falls within Lawrence’s

privacy interest, and that none of the factors listed in

Lawrence or the military-specific factors suggested in Marcum

disturb this privacy interest.   I believe Appellant has carried

his burden to establish plain error, and would hold that the

conduct forming the basis of his conviction is constitutionally

protected.   Therefore, I need not reach the second issue. 1

                                 I.

     Appellant’s off-post home in Germany was searched pursuant

to a German search warrant issued on unrelated charges.    German

police seized a camcorder and several video cassettes containing

depictions of adults engaged in sexual activity from Appellant’s


1
  If it were otherwise, I would agree with the majority that
Appellant was not prejudiced by the failure to allege the
terminal element.
United States v. Goings, No. 11-0547/AR


home.    Appellant was not charged for many of the videos

depicting sexual conduct between Appellant and various females. 2

       Based upon two of the videos, Appellant was charged with

four specifications (Charge II, Specifications 4–7) of indecent

acts in violation of Article 134, UCMJ.    Specifications 4–6

involved a video wherein Appellant and an unidentified man took

turns filming each other engaging in consensual sexual activity

with an unidentified female. 3   Specification 7 involved a

separate video wherein Appellant and a female German civilian



2
  The Government attempted to introduce some of the uncharged
videos as Rule for Courts-Martial (R.C.M.) 404(b) motive or
intent evidence of Appellant’s desire to film “lustful acts” to
support Specifications 4–6. The military judge did not admit
the videos as R.C.M. 404(b) evidence.
3
    SPECIFICATION 4: In that [Appellant], did, at or near
    Leimen, Germany, between on or about 5 February 2003 and 1
    February 2006, wrongfully commit an indecent act with
    another male and a female by being present, observing and
    video recording on a video cassette tape the other male
    and female engaging in sexual intercourse.

    SPECIFICATION 5: In that [Appellant], did, at or near
    Leimen, Germany, between on or about 5 February 2003 and 1
    February 2006, wrongfully commit an indecent act with
    another male and a female by being present, observing and
    video recording on a video cassette tape the other male
    and female engaging in sexual intercourse.

    SPECIFICATION 6: In that [Appellant], did, at or near
    Leimen, Germany, between on or about 5 February 2003 and 1
    February 2006, wrongfully commit an indecent act with
    another male and a female by allowing the other male to be
    present and video record on a video cassette tape the said
    [Appellant] engaging in sexual intercourse with the
    female.


                                  2
United States v. Goings, No. 11-0547/AR


engaged in sexual conduct. 4   Before trial, upon defense counsel’s

motion, the military judge severed and dismissed Specification

7.   The military judge acquitted Appellant of Specifications 4

and 5, but convicted him of the specification at issue in this

appeal -- Specification 6.

                                       II.

     Although Appellant’s main theory at trial was that his

conduct was neither prejudicial to good order and discipline nor

service discrediting, he did refer to his conduct as

“constitutionally protected activity” more than once. 5     However,

I agree with the majority that plain error review is appropriate

in this case as Appellant did not make a specific objection on

Lawrence or Marcum grounds such that he clearly preserved the

issue.   I disagree with the majority’s interpretation of

Lawrence, and the conclusion that Appellant has not carried his

burden to establish plain error.       Appellant has pointed to




4
  SPECIFICATION 7: In that [Appellant], did, at or near
Heidelberg, Germany, on or about 1 July 2007, wrongfully commit
an indecent act with P.B. by video recording on a video cassette
tape the naked genital area of P.B.
5
  At trial, Appellant referenced the protected status of his
conduct in the civilian world, stating that “sexual intercourse
in the presence of another person is not a crime outside of the
military.” Defense counsel also asked a witness “how is
allowing yourself to be videotaped by a third party while you
are having a [sic] constitutionally protected activity”
prejudicial to good order and discipline?



                                   3
United States v. Goings, No. 11-0547/AR


particular facts in the record indicating that his conduct is

constitutionally protected under Lawrence and Marcum.

                                      A.

       In Lawrence, the Supreme Court addressed the validity of a

Texas anti-sodomy statute that made it a crime for “two persons

of the same sex to engage in certain intimate sexual conduct.”

539 U.S. at 562.    Citing earlier privacy precedents like

Griswold v. Connecticut, 381 U.S. 479 (1965); Carey v.

Population Servs. Int’l, 431 U.S. 678 (1977); and Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), Justice

Kennedy, speaking for the Court, reaffirmed the idea that there

is a liberty interest protected by the Due Process Clause of the

Fourteenth Amendment.    Lawrence, 539 U.S. at 564–78.    The Court

held that this liberty interest did, in fact, protect privacy

rights involving “the most private human conduct, sexual

behavior, and in the most private of places, the home.”      Id. at

567.    The Court suggested some limits on this liberty interest,

noting that Lawrence did not involve minors, persons who might

be injured or coerced, persons situated in a relationship where

consent might not easily be refused, public conduct, or

prostitution.    Id. at 578.

       Recognizing that constitutional rights may apply

differently to members of the armed forces, Parker v. Levy, 417

U.S. 733, 759 (1974); see also United States v. Barberi, 71 M.J.


                                  4
United States v. Goings, No. 11-0547/AR


127, 131 (C.A.A.F. 2012), this Court modified the constitutional

protections outlined in Lawrence.      Marcum, 60 M.J. at 208.   In

Marcum, the appellant was convicted of non-forcible sodomy with

a subordinate.   60 M.J. at 200.   This Court held that despite

Lawrence, Article 125, UCMJ, was constitutional as applied to

Marcum.   Id. at 205.   To reach that conclusion, this Court

applied a three-part test for addressing the application of

Lawrence in the military context:

     1.   Was the conduct of a nature to bring it within the
          liberty interest identified by the Supreme Court?

     2.   Did the conduct encompass any behavior or factors
          identified by the Supreme Court as an exception to
          the liberty interest?

     3.   Are there additional military factors that affect
          the nature and reach of the Lawrence liberty
          interest?

Id. at 206–07.   This Court found that Marcum’s conduct was of a

nature to bring it within the Lawrence liberty interest because

it involved private, consensual sexual activity between adults,

but held that an applicable Air Force instruction and the nature

of superior-subordinate relationships took his conduct outside

of the Lawrence liberty interest.      Id. at 207–08.   Because a

subordinate within the appellant’s chain of command is a person

“‘who might be coerced’” or is “‘situated in [a] relationship[]

where consent might not easily be refused,’” this Court decided

the case on the second part of the test and did not discuss what




                                   5
United States v. Goings, No. 11-0547/AR


the additional military factors contemplated in part three might

entail.     Id. at 208 (alteration in original) (quoting Lawrence,

539 U.S. at 578).

                                  B.

       As a threshold matter, I agree that Appellant’s rights as a

military member are not coextensive with those enjoyed by

civilians.    Parker, 417 U.S. at 758–59; Marcum, 60 M.J. at 205.

Furthermore, I agree that Lawrence does not protect all sexual

conduct, but the majority mischaracterizes the reach of

Lawrence.    Contrary to what the majority suggests, Lawrence does

not turn on interpretations of “indecency,” the type of sexual

activity adults decide to engage in, or the presence of only two

consenting adults.    United States v. Goings, ___ M.J. ___ (9–12)

(C.A.A.F. 2013).

       Rather, as evidenced throughout the opinion, Lawrence

turned on the freedom of adults to engage in “private conduct in

the exercise of their liberty under the Due Process Clause,”

“the right to make certain decisions regarding sexual

conduct . . . beyond the marital relationship,” and the

“emerging awareness that liberty gives substantial protection to

adult persons in deciding how to conduct their private lives in

matters pertaining to sex.”    Lawrence, 539 U.S. at 564, 565,

572.




                                  6
United States v. Goings, No. 11-0547/AR


     The majority relies on pre-Lawrence and Marcum

determinations of what constitutes “indecent” conduct and what

can be considered prejudicial to good order and discipline or

service discrediting conduct to:       (1) find that the military

judge correctly found that the facts were legally sufficient to

uphold a conviction for indecent acts; and (2) hold that “the

military judge did not commit error, let alone plain and obvious

error, in failing to sua sponte raise a Lawrence issue.”

Goings, ___ M.J. at ___ (11–12).       However, whether the facts are

legally sufficient to sustain a conviction, whether the military

judge failed to sua sponte raise a Lawrence issue, or whether

Congress and the President may proscribe certain types of

indecent conduct are not the issues before this Court.       We are

tasked with determining, de novo, whether Appellant has carried

his burden to establish that Lawrence extends a zone of

protection to his conduct -- regardless of whether the Manual

for Courts-Martial, United States (MCM) considers it indecent.

Therefore, it is necessary to consider what is required to

establish plain error, and the effect of Lawrence on what may

have previously been considered constitutional legislation and

judicial precedents.

                              III.

     Under a plain error analysis, this Court has held that the

“Appellant has the burden of demonstrating that:       (1) there was


                                   7
United States v. Goings, No. 11-0547/AR


error; (2) the error was plain or obvious; and (3) the error

materially prejudiced a substantial right of the accused.”

United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012)

(citation and internal quotation marks omitted). 6   Under Lawrence

and Marcum, which were both decided before Appellant’s court-

martial, to establish error all Appellant must show is that his

conduct was:   (1) private consensual sexual activity between

adults, (2) that does not fall outside of the Lawrence liberty

interest, and (3) is not affected by additional military

factors.   Lawrence, 539 U.S. at 578; Marcum, 60 M.J. at 206–07.

If Appellant establishes that his conduct is protected, that

nothing takes it outside of the liberty interest, and that no

unique military factors affect the liberty interest, then

Appellant has established that he was convicted of

constitutionally protected conduct which is plain and obvious

6
  The Supreme Court’s plain error doctrine contains a fourth
prong -- “if the above three prongs are satisfied, the court of
appeals has the discretion to remedy the error -- discretion
which ought to be exercised only if the error seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Puckett v. United States, 556 U.S. 129,
135 (2009) (alteration in original) (citation and internal
quotation marks omitted). I have long maintained that this
Court should apply the fourth prong in line with the Supreme
Court’s plain error analysis. See United States v. Humphries,
71 M.J. 209, 221 (C.A.A.F. 2012) (Stucky, J., dissenting);
United States v. Tunstall, ___ M.J. ___ (2) (C.A.A.F. 2013)
(Stucky, J., concurring in part and in the result). However,
applying the fourth prong to this case would not change the
outcome as a conviction for constitutionally protected conduct
is both prejudicial and clearly affects the fairness and
integrity of judicial proceedings.

                                 8
United States v. Goings, No. 11-0547/AR


error that materially prejudices his substantial rights.

Article 59(a), Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 859(a) (2006); see also United States v. Knowles, 29

F.3d 947, 951 (5th Cir. 1994) (“basing a conviction on an

unconstitutional statute is both ‘plain’ and ‘error’”).

                                A.

     The video at issue depicts private consensual sexual

activity between adults.   The Government did not allege that the

individuals in the video were minors, and it is apparent from

the video that they were not.   The Government also conceded that

there was no evidence of coercion or lack of consent, and that

the video shows that the participants consented to the activity.

     The acts were also “private” under the Supreme Court’s

conception of privacy under the Fourteenth Amendment. 7   Lawrence

contemplates that the term “private” encompasses:   (1) the

location of the acts; and (2) the personal decisions that each

consenting adult makes regarding his own sexual conduct. 8


7
  The Fourteenth Amendment’s zone of “privacy” is the basis for
the liberty interest and is distinct from “public conduct” that
falls outside of the Lawrence liberty interest. Lawrence, 539
U.S. at 578. For example, Fourteenth Amendment “privacy”
protects an individual’s right to engage in consensual sexual
activity in his home, but, under Lawrence, the same activity is
not protected in a public park because it would be “public
conduct.” Whether Appellant’s conduct can be considered “public
conduct” is discussed below.
8
  This conception is echoed in other Supreme Court privacy
precedent. See, e.g., Griswold, 381 U.S. at 484–85 (discussing

                                 9
United States v. Goings, No. 11-0547/AR


Lawrence, 539 U.S. at 567 (“the most private human conduct,

sexual behavior . . . in the most private of places, the

home. . . . adults may choose to enter upon this relationship in

the confines of their homes and their own private lives”).    The

record establishes that the video was filmed consensually, by

adults, in a private place -- Appellant’s home.    I would hold

that Appellant’s acts are of a nature to bring them under the

Lawrence liberty interest.

                                B.

     The next question is whether Appellant’s conduct somehow

falls out of the liberty interest.   Lawrence, 539 U.S. at 578.

The record establishes this case does not involve any of the

conditions expressly listed in Lawrence that the Supreme Court

suggested would take Appellant’s conduct out of the liberty

interest.   Appellant’s conduct did not involve injury to a

person, abuse of an institution the law protects, minors,

injured or coerced persons, persons in a situation where consent

might not be easily refused, or prostitution. 9   Id. at 567, 578.



the application of various zones of privacy to the home); Carey,
431 U.S. at 684 (“[O]ne aspect of the ‘liberty’ protected by the
Due Process Clause of the Fourteenth Amendment is ‘a right of
personal privacy, or a guarantee of certain areas or zones of
privacy.’ This right of personal privacy includes ‘the interest
in independence in making certain kinds of important
decisions.’”) (citations omitted).
9
  “Public conduct” is also expressly listed as a factor that may
remove conduct from the liberty interest. Lawrence, 539 U.S. at

                                10
United States v. Goings, No. 11-0547/AR


However, the majority holds that “permitting a third-party to

observe and memorialize one’s sexual activity on videotape” is

outside of the Lawrence liberty interest -- apparently because

it was not “wholly private,” 10 it was “open and notorious” and

therefore indecent, because “the trier of fact has deemed the

conduct to be prejudicial to good order and discipline in the

armed forces and service discrediting,” or some combination of

the three.   Goings, ___ M.J. at ___ (9–12).

     The problem with this holding is that a military judge’s

determination that Appellant’s conduct is legally sufficient to

sustain a conviction for indecent acts under Article 134, UCMJ,

cannot be used to determine whether Appellant’s conduct is

constitutionally protected, given the differing natures of the

two inquiries. 11   Compare Jackson v. Virginia, 433 U.S. 308, 319

(1979) (“the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any



578. Whether Appellant’s conduct was “public” is discussed
below.
10
  The majority suggests that Appellant’s conduct must be wholly
private, Goings, ___ M.J. at ___ (11), but it is unclear whether
this is something beyond Lawrence’s conception of privacy as
neither Lawrence nor Marcum contains that phrase.
11
  While legal sufficiency is not an appropriate metric to
determine constitutionality, I recognize that the reverse is not
necessarily true. In other words, the constitutionally
protected status of conduct may affect legal sufficiency, but
not vice versa. See United States v. Wilcox, 66 M.J. 442
(C.A.A.F. 2008).

                                  11
United States v. Goings, No. 11-0547/AR


rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt”), with Lawrence, 539

U.S. at 563–64 (“The question before the Court is the validity

of a Texas statute . . . .     We conclude the case should be

resolved by determining 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 . . . .”).    This is especially true where the law has

recently changed and we are evaluating the constitutionality of

an as applied challenge to a statute as a matter of first

impression. 12   In this case, it does not matter that Congress,

the President, and military courts have previously indicated

that conduct like Appellant’s was legally sufficient to sustain

a conviction; what matters is whether Appellant has established

that his conduct is constitutionally protected under the current

state of the law.    He has.

     Appellant was convicted of an indecent act which requires:

(1) that the accused committed a wrongful act; (2) that was

indecent; and (3) under the circumstances was prejudicial to

good order and discipline or service discrediting.     MCM pt. IV,


12
  Indeed, the majority recognizes this point early in the
opinion. Goings, ___ M.J. at ___ (7 n.3) (“What amounts to an
argument that the Government has not put forth legally
sufficient evidence to support an Article 134, UCMJ, conviction
is fundamentally different from a constitutional argument that,
in the military context, Appellant’s conduct is protected.”).

                                  12
United States v. Goings, No. 11-0547/AR


para. 90.b. (2005 ed.).   “Indecent” is defined as “that form of

immorality relating to sexual impurity which is not only grossly

vulgar, obscene, and repugnant to common propriety, but tends to

excite lust and deprave the morals with respect to sexual

relations.”   Id. at para. 90.c.

     Before Lawrence, this Court’s predecessor held that “open

and notorious” fornication is indecent.     See United States v.

Berry, 6 C.M.A. 609, 614, 20 C.M.R. 325, 330 (1956) (finding

indecency where the accused and a fellow servicemember

simultaneously had sex with different women in the same hotel

room and switched women the next morning).    Since Berry, this

Court has applied the “open and notorious” standard to find

violations of indecent acts under Article 134.    See, e.g.,

United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F. 1999)

(finding indecency where the accused had sexual intercourse in

his barracks room where his two roommates were sleeping).      The

majority relies upon these cases to argue that Appellant’s

conduct is “open and notorious” and therefore “indecent” and

prejudicial to good order and discipline or service

discrediting.   Goings, ___ at ___ (6–9).    It ignores any effect

that Lawrence may have had on Berry’s “open and notorious”

standard for indecency, and seems to hold that either the

presence of a third person during sexual activity, or the act of

videotaping sexual activity, even for private use, equals


                                   13
United States v. Goings, No. 11-0547/AR


“public conduct” under Lawrence, or provides a separate basis to

take Appellant’s conduct outside of Lawrence.

     I do not believe that Berry remains good law after

Lawrence, at least to the extent that it categorically forbids

“open and notorious” private, consensual, sexual conduct without

any connection to the military other than the accused being a

member of the military. 13   I am also convinced that whatever

“public conduct” means under Lawrence, it does not include

adults consensually engaging in sexual activity inside a home.

Furthermore, recognizing that the list of unprotected conduct in

Lawrence is non-exclusive, I can find no support for the

majority’s suggestion that either the involvement of a third

person, privately videotaping consensual sexual activity, or the

combination of the two brings Appellant outside of the liberty

interest. 14


13
  Even if part of Berry somehow survives Lawrence, it is not
dispositive in this case, as Berry and its progeny are
distinguishable. In those cases, the acts in question were all
somehow connected to other military personnel, military duties,
or military locations.
14
  The only cases I can find which address Lawrence in the
context of group sexual encounters or videos involve minors and
are therefore already constitutionally unprotected. See, e.g.,
People v. Allen, No. A106272, 2005 Cal. App. Unpub. LEXIS 2135,
2005 WL 552470 (Cal. App. 1st Dist. Mar. 9, 2005); United States
v. Machado, No. ACM 35908, 2006 CCA LEXIS 132, 2006 WL 1512106
(A.F. Ct. Crim. App. May 31, 2006). It does not appear that
civilian jurisdictions have seen fit to charge or convict adults
of such private, consensual conduct after Lawrence. Indeed, the
only other cases the majority cites to show that Lawrence does

                                  14
United States v. Goings, No. 11-0547/AR


     Lawrence discusses sexual activity between two persons but

does not limit the liberty interest to such activity. 15    Rather,

it describes the liberty interest as a personal decision that

consenting adults may make.   539 U.S. at 564, 567, 570, 572.     It

is not appropriate or feasible for this or any court to

determine whether to countenance certain types of consensual

relationships or conduct, absent harm to persons or to an

institution the law protects, or without a clear connection to

the military as discussed below.     Indeed, Lawrence expressly

counsels against such determinations.    Id. at 567 (“[The liberty

interest], 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.”).

     Similarly, nothing in Lawrence indicates that private

videotaping of sexual activity is unprotected.    This is



not protect all sexual activity involve child pornography or
nonconsensual photography of sexual activities. Goings, ___
M.J. at ___ (9–10, 11) (citing United States v. Lebowitz, 676
F.3d 1000, 1012 n.5 (11th Cir. 2012); United States v. Cohen, 63
M.J. 45 (C.A.A.F. 2006)). I doubt that the dearth of such cases
indicates that no consenting adults are engaging in such
activities.
15
  If Lawrence only intended to protect the right of two
homosexuals in a defined personal relationship to engage in
certain sexual conduct it could have been decided on equal
protection grounds -- something the Court expressly refused to
do. 539 U.S. at 574–75.


                                15
United States v. Goings, No. 11-0547/AR


especially true where the videotapes were filmed in a home for

private use only. 16   There is nothing in the record to indicate

that the video was intended to be anything but for private use,

or that Appellant had a commercial intent in filming the video.

The record establishes that the video was created years before

it was found in Appellant’s home, and that Appellant neither

distributed the video nor even converted it to a medium which

would make distribution feasible.      At trial, defense counsel

referred to it as a private video, the Government did not

contest defense counsel’s characterization of the video as

private, and members of Appellant’s unit testified that nobody

had seen it or knew about it.    Furthermore, the Government

introduced no evidence of commercial intent or distribution, and

even admitted in closing argument that there was no evidence

that Appellant had shown anybody the videos.




16
  I agree with the majority that in some cases videotaping
sexual activity may have bearing on whether the conduct is
“public” or nonconsensual such that conduct may not be protected
by Lawrence. But such a factor is not relevant where, as here,
it is clear that all parties consented to the videotaping, it
was done in a private location, and there is no evidence the
tapes were distributed. Nonconsensual distribution after a
video was made consensually is a separate matter. To this end,
nearly every jurisdiction, including the military, has made
nonconsensual distribution a separate offense. See Article
120c(a), UCMJ, 10 U.S.C. § 920c(a) (2012).

                                  16
United States v. Goings, No. 11-0547/AR


     Additionally, there is no law indicating that recording

sexual acts is a punishable offense under Article 134, UCMJ. 17

As noted above, aside from limited exceptions, it is not the

province of this Court to determine what types of private sexual

activities are appropriate.    See Lawrence, 539 U.S. at 571 (“Our

obligation is to define the liberty of all, not to mandate our

own moral code.”) (citations and internal quotation marks

omitted).    Therefore, I would find that the record establishes

that nothing takes the sexual activity outside of Lawrence in

this case.

                                      C.

     Finding that Appellant’s actions are of a nature to bring

them within Lawrence, and that nothing exists that takes them

outside of that liberty interest, the next inquiry is whether


17
  This is supported by the fact Appellant was not charged for a
number of videos found in his house depicting sexual conduct,
and the fact the military judge saw fit to acquit him of two
specifications involving videotaping of sexual conduct.
Furthermore, the 2008 MCM expanded the definition of indecent
conduct to include observing or making sexually related images
or videos without the other person’s consent and contrary to
their reasonable expectation of privacy, but did not criminalize
consensual recording. See Article 120(t)(12), UCMJ, 10 U.S.C. §
920(t)(12) (repealed 2011) (emphasis added). Similarly, the
2012 MCM did not criminalize consensual recording. Article
120c(a), UCMJ, 10 U.S.C. § 920c(a) (2012). There is military
case law suggesting that photographing or filming sexual acts is
punishable under Article 134, UCMJ. See, e.g., Cohen, 63 M.J.
at 53. However, all of the cases involve lack of consent,
surreptitious recording, or underage participants and are thus
clearly distinguishable from this case.


                                 17
United States v. Goings, No. 11-0547/AR


the circumstances of this case trigger the military-specific

factors envisioned by Marcum. 18

     The record establishes that there is no evidence that the

unidentified participants were in the military, connected to the

military, knew Appellant was in the military, or that anybody in

the military knew about the video.      Defense counsel elicited

testimony from a member of Appellant’s unit that there was no

indication that another military member was involved in the

video, and that no military members knew about the video.

Additionally, defense counsel submitted that the other male in

the video was not in the service based upon his appearance, and

pointed out that the Government had not presented any evidence

indicating that the unidentified participants were in the

military, or knew that the accused was in the military.      The

Government did not respond or attempt to introduce any such

evidence beyond suggesting that the video was connected to the

military because Appellant is in the military.      Appellant’s

status as a military member alone is insufficient to fulfill the

third prong of Marcum and foreclose constitutional protection.


18
  The third prong of Marcum asks if there are additional
military factors that affect the nature and reach of the
Lawrence liberty interest. 60 M.J. at 207. This Court has not
squarely addressed what type of military factors or connections
would be sufficient to take conduct outside of the liberty
interest, or whether these factors encompass anything beyond
conduct or situations that are already covered by first and
second prongs of Lawrence.

                                   18
United States v. Goings, No. 11-0547/AR


Otherwise, Lawrence would be a dead letter as regards the

military.

     The majority suggests that “Congress’ and the President’s

determination to proscribe such acts that are ‘to the prejudice

of good order and discipline’ or ‘of a nature to bring discredit

upon the armed forces,’ . . . no doubt furthers the military’s

unique interest in obedience and discipline . . . .”    Goings,

___ M.J. at ___ (10) (citations omitted).    I agree that if the

third prong of Marcum means anything beyond the second prong, it

is something akin to the terminal elements of Article 134, UCMJ

-- i.e., the legitimate interest in protecting the command and

discipline capabilities of the military and protecting the

reputation of the military.   However, where the record

establishes no military connection at all, much less a

connection to command or disciplinary function, a

servicemember’s constitutional rights should not be determined

based on attenuated reputational concerns.    Our First Amendment

jurisprudence supports this holding:

    Article 134, UCMJ, does not make every “irregular or
    improper act” a court-martial offense and does not
    reach conduct that is only indirectly or remotely
    prejudicial to good order and discipline. MCM pt. IV,
    para. 60.c.(2)(a); see also William Winthrop, Military
    Law and Precedents 723–24 (2d ed. 1920 reprint)
    (commenting on Article 62 of the American Articles of
    War, the predecessor to Article 134, UCMJ, and stating
    that to be punishable, acts prejudicial to good order
    and discipline “must have been committed under such
    circumstances as to have directly offended against the


                                19
United States v. Goings, No. 11-0547/AR


     government and discipline of the military state”). If
     it were otherwise, the forces of narrowing
     interpretation that saved Article 134, UCMJ, from
     constitutional challenge in Parker v. Levy would fail.

Wilcox, 66 M.J. at 447.    The Fourteenth Amendment privacy

interest here is directly analogous to the First Amendment free

speech interests in Wilcox and this Court should require a

similar connection to the military to trigger the third prong of

Marcum -- a direct and palpable connection between the conduct

and the military mission or military environment. 19   Id. at 448.

Appellant has established there was no direct and palpable

connection between his conduct and the military mission or

military environment.     Therefore there is no “additional

factor[] relevant solely in the military environment that

affect[s] the nature and reach of the Lawrence liberty

interest.”   Marcum, 60 M.J. at 206.    Appellant’s conduct is

constitutionally protected. 20



19
  Wilcox analyzed the legal sufficiency of an Article 134, UCMJ,
conviction for service discrediting speech; whereas this case is
addressing the constitutionality of a statute as applied. 66
M.J. at 448. As noted above, these are two separate inquiries.
However, it does not seem logical to require a more exacting
standard -- direct and palpable connection to the military -- in
the context of legal sufficiency, which is a very low threshold
for the Government to meet, but not require the same standard in
the context of determining constitutional rights. See United
States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006) (recognizing the
low bar to establish legal sufficiency).
20
  This does not conflict with our holding in United States v.
Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011). Phillips analyzed
what is legally sufficient to establish the terminal element of

                                  20
United States v. Goings, No. 11-0547/AR


                                  IV.

     The record establishes that Appellant’s conduct was private

consensual activity between adults, that did not fall outside of

the Lawrence liberty interest, and was not affected by

additional military factors.   Therefore, Appellant has

established he was convicted of constitutionally protected

conduct -- a plain and obvious error which materially prejudices

his substantial rights.   I cannot think of a more compelling

demonstration that Appellant’s interests “overcome Congress’ and

the President’s determinations that his conduct be proscribed.”

Goings, ___ M.J. at ___ (8); see also United States v. Stephens,

67 M.J. 233, 235 (C.A.A.F. 2009) (“Of course, a rule or other

provision of the Manual for Courts-Martial cannot sanction a

violation of Appellant’s constitutional rights.”); United States

v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992) (recognizing that the

military, like the federal and state systems, has hierarchical

sources of rights, and that the highest source is the

Constitution of the United States).     I would reverse Appellant’s

conviction as to the indecent acts charge.




Article 134, UCMJ, in a child pornography prosecution. This is
not a legal sufficiency case, it is a case analyzing the
constitutionality of a statute, and child pornography stands
upon a different constitutional basis. In any event, Phillips
recognized that constitutionally protected conduct may be
different even in the context of analyzing legal sufficiency.
Id. at 166.

                                21
