### UNITED STATES NAVY

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

Before F.D. MITCHELL, K.M. MCDONALD, M.K. JAMISON

Appellate Military Judges

UNITED STATES OF AMERICA

v.

GREGORY T. MILES
L ANCE C ORPORAL (E

- 3), U.S. MARINE CORPS

NMCC A 201300272 GENERAL COURT

- MARTIAL

Sentence Adjudged: 4 April 2013. Military Judge: LtCol Eugene H. Robinson, Jr., USMC. Convening Authority: Commanding General, III Marine Expeditionary Force, Okinawa, Japan. Staff Judge Advocate's Recommendation: Co l J.R. Woodworth , USMC

. For Appellant: LT Jared A. Hernandez , JAGC, USN ; LT Jennifer Myers, JAGC, USN

. For Appellee: Maj David N. Roberts, USMC; LCDR Keith B. Lofland, JAGC, USN.
For Amicus Curiae: Mr. Richard O. Cunningham, Esq.

21 August 2014

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

---------------------------------------------------

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

JAMISON, Judge:

A military judge sitting as a general court

- martial
convicted the appellant, contrary to his pleas, of two specifications each of attempted sodomy, indecent acts, and2

adultery in v iolation of Articles 80, 120, and 134, Uniform Co de of Military Justice, 10 U.S.C. §§ 880, 920, and 934

. The military judge sentenced the appellant to reduction to pay grade

E

- 1, forfeiture of all pay and allowances, confinement for a period of 12 months , and a bad

- conduct discharge. The convening
auth ority (CA) approved the sentence as adjudged

. 1

The appellant raises five assignments of error (AOE). In his first AOE, the appellant argues that the Government’s decision to charge him with sodomy and indecent acts represented an unreasonable multiplicat ion of charges. In his second AOE, the appellant argues that Article 120(k) is unconstitutionally vague both facially and as

- applied to the facts of his case. Additionally, the appellant argues that Article 120(k) is unconstitutionally overbroad. In his third AOE, the appellant makes a constitutional due process challenge to Article 120(k)
, arguing that his sexual conduct was not indecent as a matter of law. In his fourth and fifth AOE, the appellant argues that Article 125 is unconstitutionally vague a nd overbroad , and that his conviction for attempted sodomy violated his constitutional due process rights.

After consideration of the pleadings of the parties , the
Amicus Curiae submission 2 and the record of t rial , we conclude that the findings and sen tence are correct in law and fact
, and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.

I. Factual and Procedural Background

Lance Corporal (LCpl) KS had planned a “girls

- night

- out” with one of her close friends, Mrs. BC (BC), for 3 February 2012. LCpl KS worked with BC’s husband, LCpl NC, and had met BC through him. Mrs. ED (ED)
, who LCpl KS had met through BC , rounded out the trio. Because BC and ED lived on installations

ge ographically separated from Camp Hansen (where LCpl KS resided), they decided that BC and ED would spend the night in LCpl KS’s barracks room after a night on the town. One of the reasons LCpl KS decided to have a “girls

- night

- out” was to cheer up BC , who had recently suffered a miscarriage.

1 At the request of the appellant in his clemency petition, the CA suspended
confinement in excess of six months

.

2 We granted the National Coalition for Sexual Freedom’s motion to fi le a
brief as Amicus Curiae. NMCCA Court O rder of 25 Mar 2014.3

On the evening of 3 February 2012, LCpl KS, BC, and ED left Camp Hansen to go to Kin Town. They stayed in Kin Town for approximately four hours and all three women had several drinks. The women returned to Camp Hans en and went to The Palms, an on

base club. While at T he Palms, BC, misplaced her identification card (ID). The appellant was also at The Palms and helped BC try to locate her ID. BC eventually found her ID in the
bathroom. The women continued to drink. 3 The appellant began talking to BC and ED, and he exchanged phone numbers with ED. ED testified that she gave the appellant her phone number because she was new to Okinawa and wanted to expand her circle
of friends. Both women testified that the y told the appellant that they were married.

While on the dance floor at The Palms, one of the bouncers
determined that BC was underage and she was escorted out of the
club

. BC’s husband was contacted , drove to T he Palms , and he
and BC decided that BC should s pend the night with ED and LCpl

KS as planned

.

The women walked over to LCpl KS’s barracks and spent some time in the smoke pit talking with a group of male and female
Marines

. LCpl KS consulted the barracks duty non

- commissioned
officer to inform him that BC and ED would be spend ing the night
in her barracks room

. Record at 57

- 58. At approximately 0211

on the morning of 4 February 2012, the appellant began sending a series of text messages to ED indicating his desire to see her that night. P ros ecution E xhibit 12. ED responded via text that she was staying in barracks building number 2610 and that she
was outside. Id . At some point, the appellant arrived and joined the group of Marines. The appellant had changed into his
uniform.

After spen ding some time socializing at the smoke pit and
also in the barracks multi

- purpose room, the group broke up and LCpl KS, BC, and ED started walking to LCpl KS’s room. The appellant followed the three women. All of the women denied having invited the appe llant to LCpl KS’s room. LCpl KS testified that she was slightly uncomfortable and asked the appellant if he was going to leave. According to LCpl KS, the appellant said that he needed a place to sleep and did not want
to walk back to the other side of t he installation. LCpl KS

3 All three women testified that they were intoxicated towards the end of the night. LCpl KS testified that on a scale from 1 to 10, 10 being passed out drunk, she estimated she was at level 7. Record at 54. ED estimated her
level of intoxication to be 9.5. Id . at 84. BC estimated her level at 4.

Id . at 109.4

prepared sleeping bag s for the appellant and for herself. LCpl KS put her sleeping bag beside her bed and placed the other sleeping bag at the foot of her bed. Earlier that evening, LCpl KS had decided that she would sleep on th e floor while BC and ED would sleep in her bed.

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

When BC woke up and realized what was happening, she hurried down to LCpl TC’s barracks room on the sec ond deck. LCpl TC was her husband ’s best friend. According to LCpl TC, BC was frantic and asked for his help in getting the appellant out of LCpl KS’s barracks room. LCpl TC testified that when he
arrived at LCpl KS’s room he saw LCpl KS on the floor as leep in her sleeping bag ; the appellant was awake in the bed stroking

ED ’s arm while she appeared to be asleep. Id . at 160. ED testified that she had no recollection of any sexual acts committed by the appellant.

Following BC’s complaint, agents from t he Naval Criminal Investigative Service interrogated the appellant. The appellant admitted to digitally penetrating ED’s vagina and anus. PE 14. He also admitted to penetrating BC’s vagina
, touching her anus with his penis , touching her buttocks, and di gitally penetrating her vagina and anus. The appellant also admitted that he tried to penetrate ED’s and BC’s anus es with his penis, but was unable
to do so because he was unable to achieve an erection.

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

Followin g a trial on the merits, the military judge made special findings pursuant to R ULE FOR C OURTS

- M ARTIAL 918(b), M ANUAL

FOR C OURTS

- M ARTIAL , U NITED S TATES (2012 ed.)

. Id . at 236

- 43. The military judge acquitted the appellant of making a false
official statem ent, aggravated sexual assault, abusive sexual

4 Subsequent testing of the tampon string revealed touch DNA left that matched the appellant’s DNA.5

contact, and wrongful sexual contact. He found the appellant guilty by exceptions and substitutions of committing indecent acts with BC and ED. He acquitted the appellant of sodomy , but found him guilty of t he lesser included offense of attempted sodomy. Finally, the military judge found the appellant guilty of adultery for wrongfully having sexual intercourse with ED and

BC.

With regard to hi s reasoning behind the conviction for
indecent acts under Articl e 120(k), UCMJ, t he military judge concluded that the acts were indecent because they were “open
and notorious” in that there was a “substantial risk that the acts could be witnessed by someone else.” Id . at 237. Additionally, the military judge made spe cial findings as to his rationale why the appellant’s adulterous conduct was both service discrediting and prejudicial to good order and discipline. 5

II. Unreasonable Multiplication of Charges

The appellant argues that the Government’s decision to

cha rge him with indecent acts and sodomy represented an unreasonable multiplication of charges (UMC). We disagree.

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

- 86 (N.M.Ct.Crim.App. 2002) ( en banc ), aff’d , 58 M.J. 183 (C.A.A.F. 2003) (summary disposition).

5 Specifically, the military judge found that the adulterous conduct was service discrediting due, inter alia , to its “open and notorious” nature.
Record at 241. T he military judge concluded that the adultery was prejudicial to good order and discipline and service discrediting base d on
the fo llowing non

- exclusive circumstances: the marital status of BC and ED and their relationship to the Marine Corps; the military status of BC’s and ED’s respective spouses; the misuse of the barracks to commit adultery; the
fact that other UCMJ vi olations took place during the adulterous conduct and
the location of this conduct: “in another Marine’s [barrack’s] room and in a foreign country.” Id

.6

Because the appellant did not object at trial, t he first Quiroz factor wei ghs in favor of the Government. The appellant
concedes this. We find that t he second and third factors weigh slightly against the appellant since the two offense were primarily aimed at different criminal acts

-- the sodomy specifications were aimed at addressing the appellant’s alleged penile penetration of ED’s a nd BC’s anus es , whereas the indecent act specifications alleged separate sexual misconduct by the appellant to include digital penetration and other sexual acts. With regard to BC, the appellant was charged with digital penetration of her vagina and anus
, as well as touching BC’s vagina and buttocks. With regard to ED, the appellant was charged with penetrating her vagina with his penis and rubbing her breasts and vagina. Even though there was some overlap between the sodomy offenses and indecent act off enses, this charging scheme does not misrepresent or unreasonably exaggerate the appellant’s criminality. See United States v. Paxton , 64 M.J. 484, 491 ( C.A.A.F. 2007) (holding that within the context
of a continuing course of conduct indecent act of touc hing breasts and genitals was separately chargeable from offense of rape and sodomy and did not constitute UMC).

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

The fifth factor also weighs against the appellant. There is no evidence of prosecutorial overreaching or abuse in the drafting and chargin g of indecent acts and sodomy offenses. On balance, we find that the Quiroz factors weigh against the appellant.7 III. Constitutional Challenges to Article 120(k)

In AOE II and III, the appellant, for the first time on appeal, makes a broad

- based constitutional attack on Article 120(k), UCMJ. In AOE II, he argues that Article 120(k) is void

for

- vagueness and unconstitutionally overbroad. In AOE III,
while unfocuse d, the appellant makes essentially a due process argument that as

- applied to the facts of his case
, his
convictions for indecent acts are unconstitutional. Because his constitutional attacks on Article 120(k) in both AOEs are linked, we consider each argu ment in turn.

We review de novo the appellant’s various const itutional challenges to Article 120(k). United States v. Goings , 72 M.J. 202, 205 (C.A.A.F. 2013). Prior to reaching the merits of his arguments , however, we consider whether the appellant f orfeited his constitutional claims by fail ing to raise them at trial. Under the circumstances of this case, we find that he has and
, accordingly
, we review his claims for plain error. 6 See United
States v. Howard , 72 M.J. 406 (C.A.A.F. 2013) (summary
dis position) (holding that Howard’s Article 120(k) due process claim for having sexual relations in the presence of others was forfeited); see also Goings , 72 M.J. at 205 (concluding that Goings ’ s as

- applied due process challenge to the constitutionality of i ndecent acts under Article 134 was forfeited by his failure to raise the issue and develop facts at trial)

. We turn our attention now to the appellant’s vagueness challenge to Article 120(k)

.

A. Facial Vagueness Challenge to Article 120(k)

The appellant a rgues that Article 120(k) is constitutionally infirm on vagueness grounds. The thrust of his vagueness argument surrounds Congress’s 2007 enactment of Article 120(k). He argues that when Congress enacted the statutory offense of indecent acts in Article 120(k) without the terminal element of the preexisting Article 134 offense, it is

now unclear what actual conduct remains “indecent” and punishable.

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

6 Within the context of our plain error review, we will grant relief “only

where : (1) there was erro r ; (2) the error was plain and obvious ; and , (3) that error materially prejudiced a substantial right of the [appellant].” United States v. Sweeney , 70 M.J. 296, 304 (C.A.A.F. 2011).8

clearly applies [he] may not successfully challenge it for vagueness.” Parker v. Levy , 417 U.S. 733, 756 (1974); see also
United States v. McGuinness , 35 M.J. 149, 152 (C.M.A. 1992) (“If appellant is . . . one to whom the statute clearly applies, he has no standing to challenge successfully the statute under which he is charged” ) ( c itations and internal quotation marks omitted) ) . To determine whether a statute “clearly applies” and provides fair notice of the proscribed conduct , we consider not only the plain language of the statute, but also other sources, including the “[Manual for Courts

- Martial] . . . military case law, military custom and usage, and military regulations

. ”
Unite d States v. Vaughan , 58 M.J. 29, 31 (C.A.A.F. 2003) (citations omitted)

.

Based on the plain text of Article 120(k), UCMJ, as further
defined in the M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2012 ed.), and interpreted by our superior court , we find that s ervice members of ordinary intelligence have “fair notice of what is prohibited.” United States v. Williams , 553 U.S. 285, 304 (2008) . Additionally, we find that Article 120(k) is not so “standardless that it authorizes or encourages seriously
discrimina tory enforcement.” Id

. (citations omitted). Accordingly, we reject the appellant’s facial challenge to
Article 120(k) on vagueness grounds. We move next to the appellant’s vagueness challenge “as

- applied” to the facts of his

case. 7

B. As

- Applied Vagueness Challenge to Article 120(k)

In 2007, Congress significantly overhauled various sexual crimes within the military. Indecent acts with another, previously recognized as an offense under Article 134, UMCJ, is now subject to prosecution under Article 120(k) , UCMJ, as an
indecent act. See MCM (2008 e d .), App. 23 at A23

- 15 . Congress imported the President’s long

- standing definition of “ indecent ” in ¶ 90c in Part IV of the MCM (2005 e d .) into the statutory
definition of “ indecent

. ” 8

7 Although AOE II is styled as a constitutional challenge on facial vagu eness grounds, the appellant’s brief contains within the AOE an as

- applied vagueness challenge. Appellant’s Brief of 16 Dec 2013 at 25

- 2 6. We interpret the appellant’s AOE to include an as

- applied vagueness challenge.

8 Article 120(t)(12) provides that “ [t] he term ‘indecent conduct’ means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.”9

The elements of an inde cent act under Article 120(k) are: (a) that the a ccused engaged in certain conduct; and (b) that
the conduct was indecent. MCM (20 08 ed.), Part IV, ¶ 45 b(11)

. The legislative history demonstrates that the term “ indecent ” in Article 120(t)(12) is “ the sam e conduct that has been held to be indecent by military appellate courts ” in the past. See Sex
Crimes and the UCMJ: A Report for the Joint Service Committee on Military Justice, 261 (2005). While the definition of “indecent conduct” in Article 120(t)(12 ), UCMJ, is slightly
different than the definition of “indecent” in MCM (2005 ed .) , P ar t IV, ¶ 90c, the differences are insignificant. 9

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

court is inapplicable. We disagree.

First, our superior court interpreted the President’s definition of “indecent” for purposes of defining sexual activity as opposed to interpreting the terminal element . In United States v. Berry , 20 C.M.R. 325 (C.M.A. 1956) , the Court of Military Appeals held that Article 134, UMCJ, was not “intended to regulate the wholly private moral conduct of an individual[; ] [ however, fornication] committed “openly and notoriously” was punishable under Article 134. 20 C.M.R. at 330 (c iting CJS, Fornication, § 2a, page 119; 1 Am Jur, Adultery, § 13, page 687). Forty

- three years later, the Court of Appeals for the Armed Forces ( CAAF ) re

- affirmed this principle. See United States v. Izquierdo , 51 M.J. 421 , 422 (C.A.A.F. 1999) (stating t hat “[w]e have consistently held that fornication, when committed ‘openly and notoriously,’ is an ‘aggravating
circumstance [] sufficient to state an offense under Article 134.”) (citations omitted) ) . In 2013, the CAAF reiterated this principle by stating the following: “private consensual sexual activity is not punishable as an indecent act absent aggravating
circumstance s [; however a clear ] aggravating circumstance is

9 Se e MCM, Part IV, ¶ 90c (2005 e d.): “ ‘ Indecent’ signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexua l relations.”10

that the sexual activity is open and notorious.” Goings , 72

M.J. at 205.

Second, the CAAF has already analyzed a conviction under Article 120(k) in terms of whether the sexual activity was “open
and notorious.” See Howard , 72 M.J. at 406 (holding that conduct charged under Article 120(k), UMCJ, was not plainly “private” when the sexual a ctivity “occurred while in the presence of two additional servicemembers”); see also United

States v. Elhelou , 72 M.J. 404 (C.A.A.F. 2013) (summary disposition) (finding Elhelou’s pleas provident when the military judge explained that “‘ open and notorious’ sexual activity is punishable as an indecent act, in violation of Article 120(k) ” ) ; cf. United States v. Tunstall , 72 M.J. 191,
196 n.6 (C.A.A.F. 2013) (setting aside an Article 120(k)
conviction but suggesting that notice of the alternative theory “open and notorious” conduct could have sustained the
convicti on ).

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

To propound his vagueness claim, the appellant provides various hypotheticals that may subject a would

- be accused to a charge of indecent acts. For example, the appellant argues that a hypothetical CA ’s strongly held religious beliefs may cause him to charge a hypothetical accused with committing an indecent act under Article 120(k) for having premarital sex. Appellant’s
Brief at 22

- 2 3. Even if the appellant’s hypothetical s seek to

test the outer l imits of the statutory definition of indecent

acts , this matter “is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable
doubt.” Williams , 553 U.S. at 306 (citing In re Winship , 397 U.S. 358, 363 (1970)). B ecau se the appellant’s conduct

-- sexual activity conducted “openly and notoriously”

-- is, and has long been, proscribed conduct under military law, he “cannot complain of the vagueness of the law as applied to the conduct
of others.” Holder v. Humanitarian Law Project , 561 U.S. 1, 20 (2010) ( citation and internal quot ation marks omitted )

.

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

- applied vagueness11

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

C. Overbreadth Challenge to Article 120(k)

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

The o verbreadth doctrine articulated by the Supreme Court is an outgrowth of the First Amendment. See Williams , 553 U.S. at 292. A statute is overbroad if “it prohibits a substantial amount of protected speech . . . rel ative to [its] plainly legitimate sweep.” Id . (citations omitted). The Supreme Court has severely limited the o verbreadth doctrine’s applicability
and “ employed it with hesitation, and then ‘ only as a last

resort. ’ ” New York v. Ferber , 458 U.S. 747, 769 (1982) (quoting
Broadrick v. Oklahoma , 413 U.S. 601, 613 (1973)). Additionally, the general rule of the overbreadth doctrine holds that a person “may not challenge [the] statute on the ground that it may conceivably be applied unconstitutionally to other s in
situations not before the Court.” Id . at 767 (citations omitted) . Finally, application of First Amendment principles
outlined within the Court’s overbreadth doctrine sufficient for standing “must be accorded a good deal less weight in the military c ontext.” Levy , 417 U.S. at 760.

We believe that there is a wide range of indecent conduct that can be applied to Article 120(k) that is within the statute’s “plainly legitimate sweep.” Broadrick , 413 U.S. at 615. The appellant does not contest this fac t. Instead , he argues that Article 120(k) is susceptible to situations in which the statute proscribes “both protected and criminal conduct.” Appellant’s Brief at 29. Additionally, he argues that once Congress enacted Article 120(k) and moved it from Ar ticle 134, this eliminated the preexisting requirement to prove the terminal element and now Article 120(k) is susceptible to an interpretation in which “any conduct [is] deemed indecent.” Id

. at 30. The appellant’s arguments appear to confuse the

o verbr eadth and vagueness doctrines. The o verbreadth doctrine primarily exists to restrict overbroad laws that “deter or ‘chill’ constitutionally protected speech.” Virginia v. Hicks
, 539 U.S. 113, 119 (2003). The appellant does not explain how Article 120(k) deters protected speech. See Id . at 124 (stating that “[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such and picketing or demonstrating”) ) . Even assuming the12

appellant’s argument, “ [ t ] he ‘ mere fact that [the appellant] can conceive of some impermissible applications of [Article 120(k)] is not sufficient to render it susceptible to an overbreadth challenge. ’ ” Williams , 53 3 U.S. at 303 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 800 (1984)).

Because the appellant’s challenge concerns “conduct and not merely speech,” Broadrick , 413 U.S. at 615, and his potential hypotheticals are not applicable to the facts of his case, we find that the appellant lacks standing to challenge Article 120(k) on overbreadth grounds. See Levy , 417 U.S. at 760

- 61 (suggesting that although some conduct “may lurk on the fringes”
of Article 133 and 134 th at could be “protected by the First
Amendment ” that is an insufficient reason to extend standing within the military context to Captain Levy’s conduct (“urging enlisted personnel to refuse to obey orders which might sen d them into combat”) because t he cond uct was unprotected “under the most expansive notions of the First Amendment”).

Assuming arguendo that the appellant has standing to challenge Article 120(k), UCMJ, on overbreadth grounds, we find the appellant’s hypothetical s unpersuasive because even if true, his hypotheticals concern only conduct and are at best insubstantial when “judged in relation to [Article 120(k)’s] plainly legitimate sweep.” Broadrick , 413 U.S. at 615. Accordingly, we reject the appellant’s constitutional

overbreadth challeng e and hold that even assuming he has standing that challenge Article 120(k), he has failed in his burden to establish plain error. We move next to consider the appellant’s as

- applied due process challenge to Article 120(k).

D. As

- Applied Due Process Ch allenge to Article 120(k)

The appellant argues that, because his conduct represented a consensual “threesome,” modern mores and contemporary community standards do not consider such conduct either “vulgar, obscene, or repugnant to common propriety.” Appe llant’s Brief
at 32

- 34. We disagree with his premise and argument. We begin with his premise.

Because he was acquitted of the more serious offenses of aggravated sexual contact, abusive sexual contact, and wrongful sexual contact, he extrapolates from that verdict that the
sexual acts he committed with BC, the 19

- year

- old spouse of a Lance Corporal, and ED, the 18

- year

- old spouse of another fellow Marine, were, in fact, consensual. This is not necessarily so13

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

Viewed in this context, the appellant’s constitutional due

process attack loses some of its intellectual vigor. Based on our review of the record, we find ample evidence that the appellant’s sexual acts with BC and ED do not support the type of wholly private consensual three

- way sexual liaison he attempts to portray. Both ED and BC testified that they were not willing participants in the appellant’s strawman “consensual threesome.” Rather, the facts support that the appellant committed consecutive sexual activity first with BC and then

ED. 10

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

We find that the appellant’s conduct was clearly committed in an “open and notorious” manner based on the presence of LCpl

KS , a non

- participant in the appellant’s sexual activity. Additionally, the appellant’s conduct created a substantial risk it could having been witnessed by others; as to its aftermath, LCpl TC (the best friend of BC’s husband) entered LCpl KS’s
barracks room at BC’s insistence
, and witnessed the appellant, his trousers undone, stroking ED’s arm. 11 Record at 161

- 62.

10 As part of his interrogation, the appellant stated the following: “[ED] woke up while I was trying to have sex with [ BC ] .” PE 20 at 2.

11 When BC hurried down to get LCpl TC, he went up to LCpl KS’s room and
confronted the appellant , sayi ng : “what the f*** are you doing?” Record at 167. While he did not remember the appellant’s reply, LCpl TC responded , “I
don’t care

. G et the f*** out of here.” Id

.14

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

Acco rdingly, we reject the appellant’s due process challenge.

IV. Constitutional Challenges to Article 125

In AOE s IV and V , the appellant, for the first time on appeal, makes a broad

- based constitutional attack on Article
12 5 , UCMJ. In AOE IV , he argues that Article 12 5 is void

- for

va gueness on its face and unconstitutionally overbroad. Additionally, within AOE IV, he argues that we should revisit our superior court’s holding in United States v. Marcum 12 based on recent changes in the law. In AOE V , the appellant makes a
constitutiona l vagueness argument as

- applied to the facts of his

case. Because his constitutional attacks are linked and at
times conflated , we consider each argument in turn.

Similar to our constitutional analysis in Part II I of our opinion, we review de novo the appellant’s constitutional challenges to Article 125. Marcum , 60 M.J. at 202. Because the appellant raises his constitutional claims for the first time on appeal, our scope of review is limited to a plain error review.

See Goings , 72 M.J. at 205. Accor dingly, we will analyze the appellant’s constitutional challenges to Article 125 beginning with his constitutional overbreadth argument.

A. O verbreadth Challenge to Article 125

We reject the appellant’s constitutional overbreadth challenge to Art icle 125 for the same reasons we rejected his similar challenge Article 120(k); he lacks standing. See Part

II I C, supra . Because his conduct of attempted sodomy fits squarely within the constitutional parameters of Article 125,

see Part IV C, infra , he has no standing to argue that the statute “may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick
, 413 U.S. at 610 (citations omitted).

12 In United States v. Marcum , 60 M.J. 198 (C.A.A.F. 200 4 ), the CAAF
considered Marcum’ s constitutional due process challenge to Article 125, UCMJ, in light of Lawrence v. Texas , 539 U.S. 558 (2003). In Lawrence , the Supreme Court declared the Texas sodomy law unconstitutional on due process grounds having found a liberty interest for “two adults who, with full and mutual consent from each other, [to] engage[] in sexual practices common to a homosexual lifestyle." Lawrence , 539 U.S. at 578. In Marcum , the CAAF conducted a highly contextualized analysis of Article 125 and concluded that
it was constitutional on due process grounds “as applied to [Marcum].”

Marcum , 60 M.J. at 208.15

Additionally, the appellant cannot demonstrate plain error
beca use he fails to demonstrate how his conduct warrants the “strong medicine” sufficient to invalidate Article 125 on

o verbreadth grounds. See Hicks , 5 39 U.S. at 124 ( “[r]arely, if ever, will an o verbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such and picketing or demonstrating”) )

. Because the appellant has failed to meet his burden of establishing plain error, we hold that he
forfeited his constitutional challenge to Article 125 on

o verbreadth grounds.

B. Facial Vagueness Challenge to Article 125

The appellant challenges the constitutionality of Article 125, UCMJ, as void

- for

- vagueness, both facially and as

- applied. He argues that the statute i s constitutionally vague because it fails to provide notice of what conduct is prohibited and it fails to provide standards for law enforcement officials. Appellant’s Brief at 44. Additionally, he argues that because

of various changes in the law, we sho uld revisit our superior court’s holding in Marcum , 60 M.J. at 198, to the extent that it upheld the constitutionality of Article 125, UCMJ. We disagree with the appellant’s argument and his analysis and we address these arguments in turn.

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

- 63 (C.M.A. 1978) (quoting Levy , 417 U.S. at 754

- 58) )

.

In Scoby , the CAAF’s predecessor court analyzed Article 125

and held that it was not unconstitutionally vague on its face. Scoby , 5 M.J. at 163; accord United States v. Henderson , 32 M.J. 941, 945 (N.M.C.M.R. 1991). In addition to the text of the statute, notice of proscribed conduct may be established “[t]hrough law, regulat ions, and interpretive material.” Scoby , 5 M.J. at 162; see Vaughan , 58 M.J. at 31 (holding that “fair notice” for purposes of evaluating vagueness claims may include16

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

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

. (citations omitted).

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

. Accordingly, we reject the appellant’s facial

challe nge to Article 125 on vagueness grounds. We move next to the appellant’s vagueness challenge “as

- applied” to the facts of
his case.

C. As

- Applied Vagueness Challenge to Article 125

In this case
, the military judge convicted the appellant of attempted s odomy

. 13 Based on the military judge’s special findings, it was clear that the attempted sodomy, indecent acts and adultery were committed in an “open and notorious” manner.
Record at 23 9 . Not only was ED present when the appellant attempted to sodomize BC and vice versa, but also LCpl KS was in
the same room on the floor right next to the bed.

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

13 Although the appellant was acquitted of sodomy under Article 125, the military judge convicted him of attempted sodomy finding that the appellant had the specif ic intent to commit sodomy with BC and ED, but due to an “unexpected intervening circumstance” was unable to complete the offense of sodomy. Record at 239.17

applied to the conduct of others. ’ ” H umanitarian Law Project
, 561 U.S. at 20 (quoting Hoffman Estates v. Flipside, Hoffman

Estates Inc. , 455 U.S. 489, 495 (1982) ). “That rule makes no exception for conduct in the form of speech.” Id . (citing Levy , 417 U.S. at 755

- 57). Accordingly, we concl ude that the appellant has no standing to challenge the constitutionality of Article 125, UCMJ, on an as

- applied vagueness grounds. Assuming arguendo that the appellant does have standing, we find the appellant’s as

- applied vagueness argument unpersuasive

.

D. As

- Applied Due Process Challenge to Article 125

As part of his void

- for

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

First, the appellant’s argument mischaracterize s Marcum , because Marcum did not analyze Article 125 in terms of

vagueness. Marcum analyzed Article 125 within the contex t of
whether enforcement of the statute interfered with the zone of liberty interest that the Supreme Court created in Lawrence v.

Texas , 539 U.S. 558 (2003). Marcum , 60 M.J. at 204

- 05. T he holding in Lawrence had nothing to do with a challenge on vagueness grounds. Based on the appellant’s argument that we
revisit Marcum based on inte rvening changes in the law, we believe this argument is more appropriately recast as a constitutional due process argument.

In any event, Marcum specifically analyzed the “ Lawrence zone of liberty” 15 within the military context and held that

Lawrence comp elled an as

- applied, contextual analysis. Id . at
203

- 05; s ee also United States v. Castellano , 72 M.J. 217, 223 (C.A.A.F. 2013) (holding that Marcum factors, which remove sexual activity from Lawrence protected interest scope, must be determined by the tr ier of fact).

14 Specifically, he cites the repeal of 10 U.S.C. § 654 in 2010 as a basis for why the holding i n Marcum should be revisited. Appellant’s Brief at 42.

15 By quoting Lawrence , the CAAF articulated this zone of liberty as setting contextual boundaries, and as such an as

- applied analysis was required : “the present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.” Marcum , 60 M.J. at 203 (quoting Lawrence , 539 U.S. at 578).

Con trary to the appellant’s apparent argument, Lawrence did not hold that sodomy was a fundamental constitutional right. Id . at 205.18

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

The appellant’s argument that “times have changed,” and that the repeal of 10 U.S.C. § 654 constitutes an intervening event and special justification for revisit ing Marcum , is
without merit

. The CAAF did not rely on 10 U.S.C. § 654 for its holding in Marcum

. 16

Having rejected the appellant’s invitation to revisit

Marcum , we move next to conduct a de novo fact

- specific analysis of the appellant’s conduct to ascertain whether his conduct falls within the protected liberty interest established by the
three

- pronged analysis outlined in Marcum :

First, was the conduct that the acc used was guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence ? Third, are t here additional factors relevant solely in the military environment

that affect the nature and reach of the Lawrence liberty interest?

Marcum , 60 M.J. at 206

- 07 (internal citation omitted).

In considering the first Marcum step, we note that althoug h the Government charged the appellant with various sexual offenses based on a theory of non

- consent, it did not charge the appellant with forcible sodomy. This finding, however, does not necessarily support the appellant’s underlying premise that his

sex ual acts with ED and BC represented a freely entered into

16 “Nor, given our determination that Appellant's conduct fell outside the liberty interest identified in Lawrence , need w e decide what impact, if any,
10 U.S.C. § 654 would have on the constitutionality of Article 125 as applied in other settings.” Marcum , 60 M.J. at 208.19

sexual liaison between three willing and consenting adults. In fact, our review of the record suggests a contrary conclusion

. “Unlike Lawrence , in which there was no evidence of force whatsoever,” id

. at 214 (Crawford, C.J., concurring in the result), the facts in this case do not support the appellant’s argument of a consensual and free

- wheeling rhapsody of sexual expression. In any event, we find that the attempted sodomy that the appellant enga ged in

-- regardless of whether one may arguably characterize the activity as consensual

-- fell outside
the “ Lawrence zone of liberty.” Id. at 208.

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

- 07.

Based on the military judge’s special findings, it was clear that the attempted sodomy, indecent acts
, and adultery were committed in an “open and notoriou s” manner. Record at
23 7

. LCpl KS, who had previously received permission for ED and BC to spend the night in her room, was on the floor in her barracks room right next to the bed as the appellant attempted
to sodomize BC and ED. Because the appellant’s conduct, attempted sodomy, was committed in an open and notorious manner, the appellant’s conduct was outside Lawrence’s protected liberty
interest. See Lawrence , 539 U.S. at 578 (finding the Texas sodomy statute unconstitutional, but declining to identi fy sodomy as a fundamental right and identifying situations involving “public conduct” as outside of the zone of liberty); cf. Goings , 72 M.J. at 207 (finding no plain error and rejecting

Lawrence claim within the context of indecent acts under Article
134 , UCMJ, because conduct was “open and notorious”). Accordingly, as

- applied to the appellant’s conduct, Article 125
is constitutional. 17

17 In addition to the appellant’s attempted sodomy having been attempted in an “open and notorious” ma nner, we find several Marcum factors, unique to the military environment that militates against any constitutional protection. First, both BC and ED were married to other Marines. Second, the conduct took place in LCpl KS’s barracks room in a foreign cou ntry. Third, the military judge found that the appellant’s adulterous conduct was prejudicial to good order and discipline and also service discrediting. Record at 242.20 V. Conclusion

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

Chief Judge MITCHELL and Judg e MCDONALD concur.

For the Court

R.H. TROIDL
Clerk of Court