United States v. Quick
2014 CCA LEXIS 823
| N.M.C.C.A. | 2014Background
- On 1 July 2012, a group sexual encounter occurred in a Marine barracks room involving the appellant (Sgt. Quick), the victim (TR), and another Marine (JM); a fellow Marine (Cpl H) secretly video recorded part of the encounter through an open window and later sent the recording to the appellant.
- TR reported the encounter to military law enforcement later that night; at trial the appellant was acquitted of rape and fraternization charges but convicted by members of: conspiracy to distribute an indecent visual recording (Article 81), knowingly and wrongfully viewing an indecent visual recording (Article 120c), and indecent conduct (Article 134).
- The members sentenced the appellant to six months confinement, reduction to E-3, and a bad-conduct discharge; the convening authority approved except for the punitive discharge.
- The Navy-Marine Corps Court of Criminal Appeals reviewed six assignments of error raised by the appellant and sua sponte examined whether the Article 120c viewing specification stated an offense.
- The court held the Article 120c specification for viewing an indecent visual recording failed to allege the statutory conduct (viewing a person’s private area itself) and therefore did not state an offense; it set aside that finding and dismissed the charge/specification.
- The court affirmed the remaining convictions for conspiracy and indecent conduct but set aside the sentence and returned the record for a rehearing on sentence because vacating the Article 120c finding materially altered the penalty landscape.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether specification charging "viewing a visual recording of the private area" states an offense under Art. 120c(a)(1) | Statute covers viewing and thus the specification is sufficient | Art. 120c criminalizes viewing the private area itself; recording-related conduct is separately criminalized in paras (2) and (3) | Specification fails to state an offense; viewing a recording is not proscribed by para (1) and charge dismissed |
| Whether Art. 120c(a)(1) is unconstitutionally broad / First Amendment problem (raised in AOE I) | Criminalizing viewing recordings captures protected speech and is overbroad | Statute should be read according to its plain language to avoid overbreadth | Court need not reach merits after concluding specification fails to allege the statutory conduct (not finally reached) |
| Whether conviction for indecent conduct (Art. 134) is preempted or unconstitutional as-applied (Lawrence claim) | Lawrence protects private consensual group sexual conduct; Congress removed "indecent act" from Manual, so Art. 134 shouldn't apply | Art. 134 remains available for conduct not fully covered by other articles; facts showed aggravating/military factors removing the case from wholly private protection | Art. 134 conviction upheld; offense not preempted and as-applied due process claim fails (no plain error) |
| Whether court may reassess sentence on appeal after dismissing one offense | (argued implicitly by appellant re: sentencing disparity) | Dismissal of a significant member of the sentencing landscape precludes reliable reassessment | Sentence vacated and record returned for rehearing on sentence due to dramatic change in penalty landscape |
Key Cases Cited
- United States v. Crafter, 64 M.J. 209 (C.A.A.F.) (standard for whether a specification states an offense)
- United States v. King, 71 M.J. 50 (C.A.A.F.) (use canons of statutory construction when interpreting UCMJ provisions)
- Russello v. United States, 464 U.S. 16 (1983) (expressio unius canon: inclusion in one subsection implies exclusion from another)
- Andrus v. Glover Constr. Co., 446 U.S. 608 (1980) (legislative inclusion/exclusion principle)
- United States v. Marcum, 60 M.J. 198 (C.A.A.F.) (Marcum factors for assessing Lawrence-based challenges in the military)
- United States v. Riley, 58 M.J. 305 (C.A.A.F.) (when appellate courts may or may not reassess sentence after altering findings)
- United States v. Goings, 72 M.J. 202 (C.A.A.F.) (standard for reviewing as-applied constitutional claims and burden when Marcum factors exist)
- United States v. Rice, 71 M.J. 719 (Army Ct. Crim. App.) (construing voyeurism/peeping statutes narrowly; recordings used as evidence of recording conduct)