United States v. Orellana

62 M.J. 595, 2005 CCA LEXIS 367, 2005 WL 3211844
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 29, 2005
DocketNMCCA 200201634
StatusPublished
Cited by2 cases

This text of 62 M.J. 595 (United States v. Orellana) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Orellana, 62 M.J. 595, 2005 CCA LEXIS 367, 2005 WL 3211844 (afcca 2005).

Opinion

DIAZ, Judge:

A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of conspiracy to commit adultery, false official statement, assault consummated by battery, obstructing justice, and three specifications of adultery, in violation of Articles 81, 107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 928, and 934. The military judge sentenced the appellant to confinement for 48 months, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence but, in accordance with the terms of the pretrial agreement, suspended all confinement in excess of 18 months and waived automatic forfeitures.

The appellant has raised two assignments of error. He first argues that his conviction for adultery under the first specification of Charge III is unconstitutional based on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).1 He next asserts that his plea to making a false official statement was improvident. We have carefully reviewed the record of trial, the appellant’s assignments of error, the Government’s response, and the appellant’s reply. Following that review (and except as noted below), we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the appellant’s substantial rights was committed. Arts. 59(a) and 66(c), 10 U.S.C. §§ 859(a) and 866(c), UCMJ. We specifically hold that Lawrence v. Texas does not bar the prosecution of adultery under the UCMJ.

Background

The appellant admitted the following facts . during the military judge’s providence inquiry:

The appellant was a 23-year-old married Marine noncommissioned officer living aboard Marine Corps Base, Camp Pendleton, California. In October 2000, the appellant approached Ms. “E” (a 19-year-old civilian with no ties to the military) and Ms. E’s friend, Ms. “V” (the 14-year-old stepdaughter of a Marine staff noncommissioned officer) near a small exchange on board the base. The appellant introduced himself and eventually befriended the two females.

The appellant had sexual intercourse with Ms. E at least five times during the month of October 2000.2 On each such occasion, the [597]*597two would rendezvous at the appellant’s base quarters while his wife and children were out of town. The appellant admitted that his conduct was service discrediting because “if a civilian person was aware that [he] as a Marine, a noncommissioned officer, was married and [was] having intercourse with [Ms. E] at [his] residence with [his] wife not being home or present, that ... might lower their opinion of the Marine Corps[.]” Record at 39. See also Prosecution Exhibit 1 at 1-2.

Approximately 4 months after his multiple trysts with Ms. E, the appellant invited the 14-year-old Ms. V back to his quarters, where the two had sexual intercourse. The following month (March 2001), he invited Corporal (Cpl) Daniel J. Villanueva to join him on a double date with Ms. E and Ms. V. The appellant and Cpl Villanueva ultimately intended to have sexual intercourse with the two females.

The appellant and Cpl Villanueva picked up the females and drove around before stopping in a parking lot near a local beach. The appellant had sexual intercourse with Ms. E in the back of his car while Cpl Villanueva and Ms. V waited nearby. When the appellant was done, Cpl Villanueva and Ms. V climbed in the car and had sexual intercourse.

In April 2001, the appellant’s wife began to suspect his infidelity. In an effort to cover his tracks, the appellant called Ms. V on 21 April 2001, and urged her (if asked) to deny the acts described above.3 Ms. Vs mother taped this conversation.

Cpl Villanueva’s wife also suspected her husband’s infidelity, and both she and the appellant’s wife placed telephone calls to the home of Ms. V and confronted her family. On 24 April 2001, the appellant and his wife began arguing in their quarters over the appellant’s infidelity. The appellant’s wife struck him in the head. The appellant responded by pushing his wife and punching her on the side of her head with his closed fist. At some point, the police responded to the altercation.

Finally, on 21 May 2001, Naval Criminal Investigative Service Special Agent (SA) Kenneth Proffitt interviewed the appellant regarding his misconduct. SA Proffitt advised the appellant of his Article 31, UCMJ, 10 U.S.C. § 831, rights and then questioned him. During the interview, the appellant denied that he knew Ms. V or that he had ever had sex with her. He also denied going to the beach with Ms. V. SA Proffitt then played the recording of the appellant’s telephone conversation with Ms. V, at which point the appellant corrected his false statement.

Adultery

In his first assignment of error, the appellant asserts that his conviction for “private, consensual, heterosexual adultery with an adult [Ms. E]” violates the appellant’s constitutional right to privacy. Appellant’s Brief at 3. Specifically, he relies on the decision of the U.S. Supreme Court in Lawrence, which struck down a Texas statute that criminalized “same sex” sodomy. Finding that the case involved “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle,” the Supreme Court concluded that the petitioners in Lawrence had a substantive due process right to “engage in their conduct without intervention of the government” because the Texas statute “further[ed] no legitimate state interest which [could] justify its intrusion into the personal and private life of the individual.” Lawrence, 539 U.S. at 578, 123 S.Ct. 2472.

Following Lawrence, the Court of Appeals for the Armed Forces (CAAF) rejected a generalized constitutional attack on the military’s sodomy statute (Article 125, UCMJ, 10 U.S.C. § 925). United States v. Marcum, 60 M.J. 198 (C.A.A.F.2004). Instead, CAAF determined that military courts must apply a contextual, “as-applied” analysis, to deter[598]*598mine if a prosecution under Article 125, UCMJ, passes constitutional muster. To that end, a court must consider three questions:

First, was the conduct that the accused was found 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 there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence

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Related

United States v. Henderson
Navy-Marine Corps Court of Criminal Appeals, 2015
United States v. Taylor
62 M.J. 636 (Air Force Court of Criminal Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
62 M.J. 595, 2005 CCA LEXIS 367, 2005 WL 3211844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-orellana-afcca-2005.