UNITED STATES, Appellee

v.

Antonio M. CASTELLANO, Lance Corporal

U.S. Marine Corps, Appellant

No. 12-0684

Crim. App. No. 201100248

United States Court of Appeals for the Armed Forces

Argued January 23, 2013

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 concurring opinion.

Counsel

For Appellee: Major Crista D. Kraics, USMC (argued); Colonel 

Stephen C. Newman, USMC, and Brian K. Keller, Esq. (on brief). 

For Appellant: Captain Michael D. Berry, USMC (argued).

Military Judge: David M. Jones

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Castellano, 12-0684/MC

2

Judge RYAN delivered the opinion of the Court.

A military judge sitting as a general court-martial 

convicted Appellant, consistent with his plea, of one 

specification of adultery, in violation of Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). 

Contrary to his pleas, a panel of members with enlisted 

representation sitting as a general court-martial convicted 

Appellant of one specification of attempted adultery, two 

specifications of indecent conduct, one specification of sodomy,1

and two specifications of assault consummated by a battery,2 in 

violation of Articles 80, 120, 125, and 128, UCMJ, 10 U.S.C. 

§§ 880, 920, 925, and 928, respectively.

The adjudged sentence provided for confinement for a period 

of eighteen months, forfeiture of all pay and allowances, a badconduct discharge, and reduction to E-1. The convening 

authority approved the sentence and ordered all but the punitive 

discharge to be executed.

The United States Navy-Marine Corps Court of Criminal 

Appeals (NMCCA) set aside the findings of guilty as to the two 

 1 Appellant was found not guilty of forcible sodomy, but guilty 

of the lesser included offense (LIO) of sodomy, not involving 

force, in violation of Article 125, UCMJ.

2 Appellant was found not guilty of two specifications of 

aggravated sexual contact, but guilty of the LIO of assault 

consummated by a battery, in violation of Article 128, UCMJ.
United States v. Castellano, 12-0684/MC

3

specifications of assault consummated by a battery, but affirmed 

the remaining findings.3 The NMCCA then conducted a sentence 

reassessment and affirmed the sentence as approved by the 

convening authority. United States v. Castellano, No. 

201100248, slip op. at 9 (N-M. Ct. Crim. App. Jun. 26, 2012).

On October 17, 2012, we granted Appellant’s petition to 

consider the following issue:

IN MILLER v. CALIFORNIA, THE SUPREME COURT HELD THAT

THE TRIER OF FACT MUST DETERMINE WHETHER JUDICIALLYCREATED FACTORS THAT DISTINGUISH BETWEEN

CONSTITUTIONALLY-PROTECTED AND CRIMINAL CONDUCT ARE

SATISFIED. THE FACTORS IDENTIFIED IN UNITED STATES v. 

MARCUM ARE AN EXAMPLE OF SUCH FACTORS BUT THE LOWER

COURT HELD THAT THE MILITARY JUDGE MUST DETERMINE

WHETHER THE MARCUM FACTORS ARE SATISFIED. WHO

DETERMINES WHETHER THEY HAVE BEEN SATISFIED?4

In United States v. Marcum, consistent with the Supreme

Court’s holding in Lawrence v. Texas, 539 U.S. 558 (2003), this 

Court recognized that although “Article 125[, UCMJ,] prohibits 

every kind of unnatural carnal intercourse,” wholly private, 

consensual sexual activity between adults otherwise proscribed 

by Article 125, UCMJ, is constitutionally protected. Marcum, 60 

M.J. 198, 202, 206-07 (C.A.A.F. 2004) (citation omitted). Thus, 

 3 The assault consummated by a battery convictions were set aside 

because the NMCCA concluded that it was prejudicial error for 

the military judge to fail to instruct the members that mistake 

of fact as to consent is a defense to this offense. Castellano, 

No. 201100248, slip op. at 5-6.

4 United States v. Castellano, 71 M.J. 445 (C.A.A.F. 2012) (order 

granting review).
United States v. Castellano, 12-0684/MC

4

by construing Article 125, UCMJ, to reach only those acts of 

sodomy that involve factors that remove sexual activity from the 

scope of Lawrence’s protected interest (Marcum factors5), we 

upheld the statute as constitutional. Id. at 206-07. Today, we 

are not asked to reexamine the delineation between conduct that 

may be criminalized and conduct that may not; rather, we are 

asked to determine whether the existence of a Marcum factor is 

to be decided by the military judge, as a question of law, or by 

the trier of fact.

Marcum factors, including those that track the aggravating 

factors that the President has also identified for the purpose 

of sentencing in the discussion to Article 125, UCMJ, see Manual

for Courts-Martial, United States pt. IV, para. 51.b.(2)-(4)

(2008 ed.) (MCM) (listing as aggravating factors that the act 

was done with a child or by force and without consent of the 

other person), are critical to an Article 125, UCMJ, conviction 

because, in the absence of such additional factors, an act of 

sodomy may not be criminalized. See United States v. Wilson, 66 

M.J. 39, 41 (C.A.A.F. 2008); Marcum, 60 M.J. at 203–08. 

Therefore, we hold that the existence of the additional factor 

 5 We use this term to refer to any factor that removes the sexual 

conduct from the scope of Lawrence’s protected interest, 

including those “additional factors relevant solely in the 

military environment that affect the nature and reach of the 

Lawrence liberty interest.” Marcum, 60 M.J. at 207.
United States v. Castellano, 12-0684/MC

5

that makes an act of sodomy criminal must be determined by the 

trier of fact.6 See In re Winship, 397 U.S. 358, 364 (1970); cf.

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

In this case, the Marcum factor that the military judge 

identified was not presented to the trier of fact. Rather, the 

members were instructed that they could convict Appellant of 

sodomy if they found nothing more than that the physical act had 

occurred. We hold that the military judge’s decision to 

determine that a Marcum factor existed himself rather than

instruct the members that they must determine the existence of a 

Marcum factor was error, and that this error materially 

prejudiced Appellant’s due process rights under the Fifth and 

Sixth Amendments.

I. FACTS

On September 16, 2009, Appellant, a married man, engaged in 

oral sodomy and sexual intercourse with Lance Corporal (LCpl) B 

at LCpl B’s off-base apartment. LCpl B was a fellow Marine and 

the next-door neighbor of Appellant and his wife. Although both 

Appellant and LCpl B were assigned to the Marine Aviation 

Logistics Squadron 36 (MALS-36), LCpl B stated that she did not 

 6 Of course, nothing we say here alters the military judge’s duty 

to present the law and identify through appropriate instructions 

those facts or factors that may, if found by the trier of fact, 

place the conduct outside the liberty interest identified in

Lawrence and recognized by Marcum. See Rule for Courts-Martial 

(R.C.M.) 920.
United States v. Castellano, 12-0684/MC

6

work with Appellant. Immediately following the incident, LCpl B 

called LCpl Clark, who was also assigned to MALS-36, and 

informed him of what had happened. The following day, LCpl B 

told the Uniform Victim Advocate about the incident. 

Thereafter, LCpl B reported the sexual encounter with Appellant 

to Naval Criminal Investigative Service as forcible rape and 

forcible sodomy.

Among others, a charge of forcible sodomy was referred to a 

court-martial. The specification at issue -- Charge III, 

Specification 2 -- stated that: “Lance Corporal Antonio M. 

Castellano, U.S. Marine Corps, on active duty, did . . . commit 

sodomy with the said [LCpl B], U.S. Marine Corps, by force and 

without consent of [LCpl B].” Appellant pleaded not guilty to 

Charge III, Specification 2.

During an Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing 

held after the close of the defense’s case on the merits, the 

military judge indicated that, with regard to Charge III, 

Specification 2, he would instruct the panel on the LIO of 

sodomy, not involving force, in violation Article 125, UCMJ, 

explaining his belief that Appellant’s conduct had “a military 

connection and that somehow it would therefore be beyond the 

Lawrence [l]iberty interest.” The military judge also indicated 

his intent to put specific findings on the record to address the 

three-part test established in Marcum, 60 M.J. at 206-07. 
United States v. Castellano, 12-0684/MC

7

Defense counsel objected to the military judge’s decision to 

instruct on the LIO, asserting that:

[H]ere none of [the Marcum] factors are present. 

There is a service connection between [Appellant], 

[Appellant’s wife], and [LCpl B]. But it’s the 

defense’s position that that doesn’t –- that that 

conduct still falls underneath the protected liberty 

interest of Lawrence v. Texas . . . .

The military judge overruled defense counsel’s objection.

As it relates to Charge III, Specification 2, the military 

judge’s instruction stated that:

Sodomy is unnatural carnal copulation. Unnatural 

carnal copulation occurs when the person penetrates 

the female sex organ with his mouth, lips, or tongue. 

Penetration of the female sex organ, however slight, 

is required to establish this offense.

The military judge then instructed on the elements of “by force” 

and “without consent.”

The military judge further instructed the members that:

Consensual sodomy is a[n LIO] of the offense of sodomy

by force and without consent. . . . [If] you are 

convinced beyond a reasonable doubt that an act of 

sodomy occurred between the accused and [LCpl B], you

may find the accused guilty of . . . consensual 

sodomy. Neither force nor lack of consent are 

required to establish this [LIO].

Nowhere in his discussion of Charge III, Specification 2 did 

the military judge instruct the members on the Marcum

factors.

While the members deliberated, the military judge made 

specific findings on the record with regard to his Marcum
United States v. Castellano, 12-0684/MC

8

determination:

[T]he bottom line in this case was that I thought the 

additional factors that were relevant strictly in a 

military environment which would put this beyond the 

Lawrence liberty interest would be the fact of the 

accused being married to a fellow service member 

living next door principally and therefore that these 

actions between neighbors when all three of these 

individuals belonged to the military had the potential 

to be prejudicial to good order and discipline or 

service discrediting certainly but this [sic] outside 

the Lawrence liberty interest. . . .

And I instructed them on consensual sodomy 

because again I believe that been given [sic] the 

factual scenario of this case, that it takes it 

outside the Lawrence v. Texas scenario liberty 

interest [sic] carved out by the [S]upreme 

[C]ourt . . . .7

Ultimately, the members found Appellant not guilty of 

forcible sodomy, but guilty of the LIO of sodomy, not 

involving force.

 7 We note that the military judge’s explanation as to why 

Appellant’s conduct was not protected dovetails with the 

terminal element of Article 134, UCMJ. But see MCM pt. IV, para 

60.c.(1), (5)(a) (2008 ed.). We are reversing the conviction, 

so this case does not present issues related to either the 

breadth of the savings construction of Article 125, UCMJ, or the 

rational basis for the disparate sentencing scheme in the wake 

of the Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 

111-321, § 2(f)(1)(A), 124 Stat. 3515, 3516 (2010), between 

sodomy and other offenses implicating sexual acts under the 

UCMJ. See Jones v. United States, 529 U.S. 848, 857 (2000); 

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 

(1985); cf. Honorable Walter T. Cox III et al., Report of the 

Commission on Military Justice, 14-15 (Oct. 2009) (recognizing 

that “[t]he new Article 120, combined with the availability of 

Articles 92, 128, and 134, provides an adequate basis to 

prosecute any criminal sexual misconduct”). Unless 

appropriately resolved beforehand by Congress or the President, 

we leave the resolution of those questions for a case in which 

they are preserved, raised, and briefed.
United States v. Castellano, 12-0684/MC

9

II. NMCCA DECISION

Before the NMCCA, as relevant to the issue before this 

Court, Appellant raised two assignments of error:

III. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO 

INSTRUCT THE MEMBERS THAT IT WAS THEIR DUTY AS 

FACTFINDER TO DETERMINE WHETHER APPELLANT’S 

CONSENSUAL SODOMY CHARGE MET THE FACTORS OUTLINED 

IN UNITED STATES v. MARCUM.

IV. A SPECIFICATION IS CONSTITUTIONALLY DEFICIENT IF 

IT DOES NOT ALLEGE ALL OF THE ELEMENTS OF THE 

CHARGED OFFENSE AND FAIRLY INFORM THE ACCUSED OF 

WHICH HE MUST DEFEND. WAS APPELLANT’S FORCIBLE 

SODOMY SPECIFICATION CONSTITUTIONALLY SUFFICIENT 

WHEN IT DID NOT ALLEGE ANY OF THE THEORIES OF 

CRIMINALITY OUTLINED IN UNITED STATES v. MARCUM?

Castellano, No. 201100248, slip op. at 3 n.2. 

In a per curiam opinion, the NMCCA reasoned that because 

“‘[t]he definition of the elements of a criminal offense is 

entrusted to the legislature,’” the factors set out in Marcum, 

60 M.J. at 206-07, are not de facto elements of the offense of 

consensual sodomy. Castellano, No. 201100248, slip op. at 7 

(quoting Liparota v. United States, 471 U.S. 419, 424 (1985)). 

Consistent with this reasoning, the NMCCA held that neither (1) 

allowing the members to go forward on the LIO without 

instructing on the Marcum factors, nor (2) the Government’s 

failure to allege a Marcum factor in Charge III, Specification 

2, constituted error that materially prejudiced Appellant’s 

substantial rights. Accordingly, the NMCCA held that 

assignments of error III and IV did not merit relief. Id. at 8.
United States v. Castellano, 12-0684/MC

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III. DISCUSSION

A.

In Lawrence, the Supreme Court identified a 

constitutionally protected liberty interest in private sexual 

activity between “full[y] and mutual[ly] consent[ing]” adults. 

539 U.S. at 578. At the same time, Lawrence suggested its own 

limits by stressing what facts were not involved in the 

decision: “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.” 

Id. In Marcum, we applied Lawrence in the military context and 

upheld the constitutionality of Article 125, UCMJ, construing it 

to reach only acts of sodomy that involve (1) a factor that

Lawrence identified as not involved in that case, 539 U.S. at 

578, or (2) “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. Thus, Lawrence

identified a constitutionally protected liberty interest and 

defined its scope, and Marcum answered whether and how that 

interest applies in the military context.

Following Marcum, then, despite Article 125, UCMJ’s broad 

language -- “prohibit[ing] every kind of unnatural carnal 

intercourse,” 60 M.J. at 202 (citation omitted) –- the article
United States v. Castellano, 12-0684/MC

11

does not reach “an act of sodomy in private between consenting 

adults . . . absent some other fact.” Wilson, 66 M.J. at 41 

(citing Lawrence, 539 U.S. at 578). The issue before us today 

does not require that we reassess Marcum’s line of demarcation

between criminal and constitutionally protected sodomy. 

Instead, we must determine whether the existence of the Marcum

factor must be determined by the trier of fact. We conclude 

that it must.

B.

The lower court assumed, and the Government argues, that 

whether an act of sodomy involves a Marcum factor must be a 

question of law, to be decided by the military judge, since the 

Marcum factors are not elements of the offense of sodomy as 

defined by Congress. Castellano, No. 201100248, slip op. at 7; 

Brief for Appellee at 21, United States v. Castellano, No. 12-

0684 (C.A.A.F. Dec. 28, 2012). We agree that none of the Marcum

factors are statutory elements of Article 125, UCMJ. See

Article 125, UCMJ (“Any person subject to this chapter who 

engages in unnatural carnal copulation with another person of 

the same or opposite sex . . . is guilty of sodomy.”); see also

Liparota, 471 U.S. at 424 (“The definition of the elements of a 

criminal offense is entrusted to the legislature, particularly 

in the case of federal crimes, which are solely the creatures of 

statute.”). However, in cases such as this, where, but for the 
United States v. Castellano, 12-0684/MC

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presence of a Marcum factor, the act of sodomy would not be 

subject to criminal sanction, we disagree that whether a Marcum

factor exists is solely a legal determination left to the 

military judge’s discretion. See In re Winship, 397 U.S. at 364 

(“[W]e explicitly hold that the Due Process Clause protects the 

accused against conviction except upon proof beyond a reasonable 

doubt of every fact necessary to constitute the crime with which 

he is charged.”).

First, we note that two of the Marcum factors, force and 

sexual activity with a child, were identified by the President 

as warranting additional penalties long before either Lawrence

or Marcum were decided. MCM ch. 25 para. 127c, ch. 28 para. 

204(a) (1969 rev. ed.) (providing for increased maximum 

punishments). While only Congress may define the elements of a 

criminal offense, Liparota, 471 U.S. at 424, there is no 

question that the President may identify factors that warrant an 

increase in the maximum punishment. See Article 56, UCMJ, 10 

U.S.C. § 856 (“The punishment which a court-martial may direct 

for an offense may not exceed such limits as the President may 

prescribe for that offense.”); see also Loving v. United States, 

517 U.S. 748, 768, 773 (1996) (holding that Congress has the 

power to “delegate authority to the President to define the 

aggravating factors that permit imposition of a statutory 

penalty,” and that “the President, acting in his constitutional 
United States v. Castellano, 12-0684/MC

13

office of Commander in Chief, ha[s] undoubted competency to 

prescribe [aggravating] factors without further guidance”). 

There is also no question that these aggravating factors, 

although not elements, must be pleaded in the specification, 

instructed upon to the members, and determined by the trier of 

fact. See Apprendi, 530 U.S. at 490.

Second, in the context of a guilty plea, we held that a

plea was improvident where there was no discussion of the Marcum

factors between the military judge and the accused, noting that 

the presence of a Marcum factor is “a matter of ‘critical 

significance’” because it “distin[guishes] between what is 

permitted and what is prohibited.” Hartman, 69 M.J. at 468 

(quoting United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F. 

2003)) (holding that the guilty plea was improvident because the 

military judge’s “inquiry did not reflect consideration of the 

Marcum framework”). Where, as here, the record supports a 

decision that the act of sodomy was private and was neither “by 

force” nor “without consent,” it is altogether unclear why 

establishing the presence of a Marcum factor is somehow less 

critical to an Article 125, UCMJ, conviction simply because 

Appellant contested the charge. See Hartman, 69 M.J. at 468; 

see also United States v. Sims, 57 M.J. 419, 422 (C.A.A.F. 2002) 

(holding that a guilty plea to the offense of indecent acts was 

improvident because the plea failed to demonstrate that the 
United States v. Castellano, 12-0684/MC

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sexual conduct was “open and notorious”).

Third, committing the determination whether a Marcum factor 

exists to the trier of fact is consistent with the Supreme 

Court’s and this Court’s treatment of judicially created 

standards that distinguish criminal conduct from that which is 

constitutionally protected in different contexts. See Miller v. 

California, 413 U.S. 15, 24 (1973) (establishing the “basic 

guidelines for the trier of fact” to distinguish obscenity from 

constitutionally protected speech) (emphasis added). For 

example, in the Article 134, UCMJ, context we have construed the 

enumerated offense of indecent acts with another,8 MCM pt. IV, 

para. 90.b. (2005 ed.), not to reach the “wholly private moral 

conduct of an individual,” but have treated “open and notorious” 

sexual acts as outside the private sphere. United States v.

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

United States v. Snyder, 1 C.M.A. 423, 427, 4 C.M.R. 15, 19 

(1952)); see also United States v. Izquierdo, 51 M.J. 421, 423 

(C.A.A.F. 1999) (addressing whether there was legally sufficient 

 8 Prior to October 1, 2007, indecent acts with another was

properly charged under Article 134, UCMJ. See MCM, Punitive 

Articles Applicable to Sexual Offenses Committed Prior to 1 

October 2007 app. 27 at A27–3 (2012 ed.). Similar sexual 

conduct committed during the period between October 1, 2007, and 

June 27, 2012, was charged as an indecent act under Article 

120(k), UCMJ. See MCM, Punitive Articles Applicable to Sexual 

Offenses Committed During the Period 1 October 2007 through 27 

June 2012 app. 28 at A28–2 (2012 ed.).
United States v. Castellano, 12-0684/MC

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evidence for the members to find that the conduct was “open and 

notorious”). Whether consensual sexual activity between adults 

is subject to criminal sanction because it is “open and 

notorious” -- i.e., public as opposed to private under this 

Court’s case law -- is a factual determination committed to the 

trier of fact. See United States v. Goings, __ M.J. __, __ (9-

10) (C.A.A.F. 2013); Izquierdo, 51 M.J. at 423; see also Sims, 

57 M.J. at 422 (guilty plea context).

Fourth, there is no question that where, as here, an 

otherwise unconstitutional criminal statute is construed in such 

a way as to limit its reach to conduct that may constitutionally 

be subject to criminal sanction, the facts under that “saving 

construction” have constitutional significance. These facts are 

critical to a conviction as, absent such facts, the conduct is 

not criminal. Cf. Skilling v. United States, 130 S. Ct. 2896, 

2933-34 (2010) (construing 18 U.S.C. § 1346’s statutory term --

“a scheme or artifice to deprive another of the intangible right 

of honest services” –- to “encompass only bribery and kickback 

schemes” in order to avoid a void-for-vagueness concern, and 

concluding that appellant did not violate § 1346 because the 

government did not allege a bribery or kickback scheme). 

Therefore, they must be determined by the trier of fact. Cf.

Apprendi, 530 U.S. at 490; Smith v. United States, 431 U.S. 291, 

309 (1977) (holding that whether material satisfies the Miller
United States v. Castellano, 12-0684/MC

16

obscenity standard is a “fact question[] for the jury, to be 

judged in light of the jurors’ understanding of contemporary 

community standards”).9

For all of these reasons, we hold that whether a Marcum

factor exists is a determination to be made by the trier of fact

based on the military judge’s instructions identifying facts or 

factors that are relevant to the constitutional context 

presented. Accordingly, here, the military judge’s decision to 

determine the existence of the Marcum factor himself, and his 

failure to appropriately instruct the members, violated 

Appellant’s right to due process.10 See In re Winship, 397 U.S. 

at 364; cf. Apprendi, 530 U.S. at 490. Because the members were 

permitted to find Appellant guilty based on a finding that

nothing more than an act of sodomy occurred, this error was not 

harmless beyond a reasonable doubt.

 9 Moreover we recognize each of the Marcum factors as “fact”

questions in the commonsense meaning of the term; an act of 

sodomy either does, or does not, involve force, a child, “open 

and notorious” or public behavior, or prostitution, and, 

likewise, an act of sodomy either implicates a unique military 

interest or it does not.

10 Of course, nothing we say here precludes an accused from: (1) 

challenging the sufficiency of the evidence supporting a 

conviction for consensual sodomy, see R.C.M. 917; (2) making out 

an as-applied challenge on the basis that 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); or (3) moving to dismiss the consensual 

sodomy charges under R.C.M. 907(b)(1)(B). The resolution of 

those legal issues is left to the sound discretion of the 

military judge and appellate review.
United States v. Castellano, 12-0684/MC

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IV. DECISION

Because Appellant’s Article 125, UCMJ, conviction rests on 

a factual circumstance that was not determined by the trier of 

fact, the decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is reversed as to Specification 2, Charge 

III. The findings of guilty of Specification 2 and Charge III 

and the sentence are set aside. The remaining findings are 

affirmed. The record of trial is returned to the Judge Advocate

General of the Navy. A rehearing on the affected charge and the 

sentence is authorized.
United States v. Castellano, 12-0684/MC

STUCKY, Judge (concurring)

I agree with the majority that “the military judge’s 

decision to determine that a Marcum factor existed himself 

rather than instruct the members that they must determine the 

existence of a Marcum factor was error,” and agree that the 

error materially prejudiced Appellant’s due process rights. 

United States v. Castellano, ___ M.J. ___ (5) (C.A.A.F. 2013)

(referring to factors delineated in United States v. Marcum, 60 

M.J. 198, 206–07 (C.A.A.F. 2004)). However, for the reasons set 

out in my dissent in United States v. Goings, ___ M.J. ___ (9–

14) (C.A.A.F. 2013) (Stucky, J., dissenting), I believe that the 

majority mischaracterizes Lawrence v. Texas, 539 U.S. 558 

(2003).

I also disagree with the majority’s use of the “open and 

notorious” standard as a metric for indecency. Castellano, ___ 

M.J. at ___ (14–16 n.9); see also Goings, ___ M.J. at ___ (13–

14) (Stucky, J., dissenting). I do not believe that the broad

holding of United States v. Berry, 6 C.M.A. 609, 20 C.M.R. 325 

(1956), remains good law after Lawrence. Similarly, I question

the majority’s suggestion that the type of “public conduct” the 

Supreme Court envisioned as a possible exception to the liberty 

interest in Lawrence is equivalent to the conduct this Court 

deemed “open and notorious” prior to Lawrence. Castellano ___ 

M.J. at ___ (15, 16 n.9); Lawrence, 539 U.S. at 578; Goings, ___ 
United States v. Castellano, 12-0684/MC

2

M.J. at ___ (10–14) (Stucky, J., dissenting); see also Berry, 6 

C.M.A. at 614, 20 C.M.R. at 330 (holding that an act is “open 

and notorious” if the participants know that a third person is 

present).

I therefore concur.