United States v. Castellano
2013 CAAF LEXIS 568
| C.A.A.F. | 2013Background
- Appellant was convicted at general court-martial of adultery by a military judge and by a panel on multiple specifications.
- NMCCA affirmed most findings but set aside two assault-by-battery specifications and conducted a sentence reassessment.
- Castellano sought review to resolve whether Marcum factors determining criminalized sodomy must be decided by the military judge or the trier of fact.
- The military judge instructed on LIO sodomy without Marcum-factor guidance and, post-deliberation, made Marcum findings on the record.
- The majority held that the Marcum factor existence is a fact question for the trier of fact, not solely a legal question for the judge, and that the judge’s determinations prejudiced due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who determines Marcum factors? | Castellano: trier of fact must determine Marcum factors. | Government: Marcum factors are not elements and may be legal determinations by the judge. | Marcum factor existence must be determined by the trier of fact. |
| Effect of error on conviction and sentence | Judge’s error prejudiced due process; statue safeguarding invalid if not fact-determined. | Any error was harmless beyond a reasonable doubt or not reversible otherwise. | Due-process prejudice found; Specification 2 reversed; sentence set aside; rehearing authorized. |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (privacy and liberty interest in private, consensual adult sexual activity)
- United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004) (defines Marcum factors to distinguish criminal conduct from protected activity in military context)
- In re Winship, 397 U.S. 358 (U.S. 1970) (due process requires proof beyond a reasonable doubt of every element/factor)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing punishment must be proven beyond a reasonable doubt)
- Miller v. California, 413 U.S. 15 (U.S. 1973) (guidelines distinguishing obscenity from protected speech; trier of fact standards)
- United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (Marcum framework applied to Article 125 context)
- United States v. Berry, 6 USCMA 609 (C.M.R. 1956) (open and notorious standard before Lawrence; pre-Lawrence context)