Petition for Writ of Certiorari — Moses v. United States

IN THE

Supreme Court of the United States

AIRMAN FIRST CLASS GREGORY S. MOSES,

Petitioner

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

SANDRA K. WHITTINGTON

MAJOR, U.S. AIR FORCE

Counsel of Record

CARLOS L. MCDADE JOHN N. PAGE Ill

COLONEL, U.S. AIR FORCE CAPTAIN, U.S. AIR ForRc!

Counsel for Petitioner Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE Ltt: wk SERVICES AGENCY

112 LUKE AVENUE, SUITE 343

BOLLING AFB, DC 20032-8000

(202) 767-1562

March 2005

QUESTION PRESENTED

Whether petitioner’s conviction for violating Article 125,

UCMS§J, for engaging in consensual sodomy with a child

under the age of 16 years must be set aside in light of this

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

because petitioner was denied due process of law when the

military judge informed him his mistake of fact as to the

child’s age was not a valid defense.

il \

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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STATEMENT OF THR Cae iviccittesscccmnticnpnconmenenaien 4

REASONS FOR GRANTING THE WRIT............ceceeeeeee: 9

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APPENDIX A

(Order of the United States Court of Appeals for the

Armed Forces in United States v. Moses, dated 21

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APPENDIX B

(Order upon request for reconsideration of the United

States Court of Appeals for the Armed Forces in United

States v. Moses, dated February 4, 2005)..................8 2a

APPENDIX C

(Order Granting Review of the United States Court of

Appeals for the Armed Forces in United States v. Moses,

ES BEGG 12, DOT vscssctscnicrcinastecioneceemanaea 3a

APPENDIX D

(Opinion of the United States Air Force Court of

Criminal Appeals in United States v. Moses, dated 12

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APPENDIX E

(Opinion of the United States Navy-Marine Corps Court of

Criminal Appeals in United States v. Sirk, NMCCA

200301084, dated September 27, 2004)... eee 6a

TABLE OF AUTHORITIES

Constitutional Provisions

I l

Decisions of the Supreme Court of the United States

Bolling v. Sharpe, 347 U.S. 497 (1954) ......cccceeeeeeceeeeeeeteeeeeee y

Bousley v.United States, 523 U.S. 614 (1998)... 10

Bowers v. Hardwick, 478 U.S. 186 (1986) ............0.......eeee ee 12

Crane v. Kentucky, 476 U.S. 683 (1986) .00......c cece cece 17

Henderson v. Morgan, 426 U.S. 637 (1976)...........ceecceeeeeeee 10

hee re Winship, 397 U.S. SSE (A9TO) ..ccrnrccerssercasccessencevenssences 18

Lawrence v. Texas, 539 U.S. 558 (2003) .................00008 passim

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Sueith v. O Grandiy, 312 U.S. S29 CUDA ) ccccconcsnscsesesccossssncnves 10

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vi

Military Cases

United States v. Gamble, 27 M.J. 298

i ic SII Sais Sagas ieee e 15,17

United States v. Marcum, 60 M.J. 198

Pipl hcepaal a: UN siddibinasaciieenenasinipeanncicendsasiimiadaie passim

United States v. Schuler, 47 M.J. 561

td 5 IRR Fe Car yer URN Ce SRT ON ace 15

United States v. Schuler, 50 M.J. 254

OR ci I wicca cia ia ae 15

United States v. Scoby, 5 M.J. 160

ese a e: SP nies ndinicincacadaleiepinciacabnpaiiniicinandanibiiitinbcer calcite 11

United States v. Sirk, NUCCA 200301084

(unpub. op. September 27, 2004)... eeeeseeeees 17

United States v. Strode, 43 M.J.29

Fe lRe + WP tnd nidcanttddiepsiibisndavatexesased passim

Federal Statutes

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National Defense Authorization Act, Pub. L. No. 104-106,

Sec. 1'?, 110 Stat. 462 (February 10, 1996)... 1S

Petitioner, Airman First Class Gregory S. Moses,

respectfully prays that a Writ of Certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on December 21, 2004.

OPINIONS BELOW

The order and judgment of the United States Court of

Appeals for the Armed Forces, United States v. Moses,

USCA Dkt. No. 04-0241/AF, is located at Appendix A. The

unpublished opinion of the United States Air Force Court of

Criminal Appeals (No. ACM $30336, November 12, 2003) is

located at Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on December 21, 2004.' The

jurisdiction of this Court is invoked under 28 U.S.C. §

1259(3) and 10 U.S.C. § 867(a)(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment to the

United States Constitution states that "No person shall . . . be

deprived of life, liberty, or property, without due process of

law."

Article 125, Uniform Code of Military Justice (UCMJ),

Section 925 of Title 10, United States Code [hereinafter

Article 125], provides:

(a) Any person subject to this chapter who engages in

' Appendix A, p. la.

5

unnatural carnal copulation with another person of the

Same Or Opposite sex or with an animal is guilty of

sodomy. Penetration, however slight, is sufficient to

complete the offense.

Article 125 includes the following basic element and two

sentence-enhancing elements:

(b) Elements.

(1) That the accused engaged in unnatural carnal

copulation with a certain other person or with an

animal.

(Note: Add either or both of the following elements,

if applicable)

- (2) That the act was done with a child under the age

of 16.

c .

(3) That the act was done by force and without the

consent of the other person.

The maximum confinement for a violation of Article 125

in cases not involving force or a minor is 5 years. In cases

involving a child who, at the time of the offense, has attained

the age of 12 but is under the age of 16, the maximum

confinement is 20 years.

Article 120, Uniform Code of Military Justice (UCM3J) ;

Section 920(d)(1) of Title 10, United States Code [hereinafter |

Article 120], provides:

(b) Any person subject to this chapter who, under

circumstances not amounting to rape, commits an act

of sexual intercourse with a person —

3

(1) who is not his or her spouse; and

(2) who has not attained the age of sixteen years,

is guilty of carnal knowledge and shall be

punished as a court-martial may direct.

(d)(1) In a prosecution under subsection (b) [carnal

knowledge], it is an affirmative defense that —

(A) the person with whom the accused committed

the act of sexual intercourse had at the time of the

alleged offense attained the age of twelve years;

and

(B) the accused reasonably believed that the

person had at the time of the alleged offense

attained the age of 16 years.

The maximum confinement for a violation of Article 120

in cases involving a child who has not attained the age of

twelve years is confinement for life without the eligibility of

parole. In cases involving a child who, at the time of the

offense, has attained the age of 12 years, the maximum

confinement is 20 years.

Article 134 (Indecent acts with a child), Uniform Code

of Military Justice (UCMJ), Section 934 of Fitle 10, United

States Code [hereinafter Article 134], includes the following

elements:

(a) That the accused committed a certain act upon or

with the body of a certain person;

(b) That the person was under 16 years of age and not

the spouse of the accused;

(c) That the act of the accused was indecent:

(d) That the accused committed the act with intent to

arouse, appeal to, or gratify the lust, passions, or

sexual desires of the accused, the victim, or both; and

(e) That, under_the circumstances, the conduct of the

accused was to the prejudice of good order and

discipline in the armed forces or was of a nature to

bring discredit upon the armed forces.

The maximum confinement for a violation of Article 134

in cases involving a child under the age of 16 is 7 years. For

a violation of Article 134, indecent acts with another, the

maximum confinement is 5 years. a

STATEMENT OF THE CASE

On January 23, 2003, petitioner was tried by a special

coust-martial composed of a military judge sitting alone at

Cannon Air Force Base, New Mexico. Petitioner pled guilty

to one specification alleging that he had engaged in

consensual sodomy with a child under the age of 16 years in

violation of Article 125, UCMJ.”

During the plea inquiry, the ‘military judge instructed

petitioner as follows:

“Sodomy” is unnatural carnal copulation. Unnatural

carnal copulation occurs when a person takes into his

or her mouth or anus the reproductive sexual organ of

another person, or places his penis into the mouth or

anus of another, penetrates the female sex organ with

* Petitioner was also charged with and pled not guilty to committing an

indecent act upon the body of a female under 16 years of age under

Article 134, UCMJ. The charge and its specification were withdrawn

after arraignment because of a pretrial agreement.

5

his or her mouth, lips, or tongue, or places his sexual

reproductive organ into any opening of the body,

except the sexual reproductive parts of another

person. Penetration of the mouth or anus however

slight is required to establish this offense. An

ejaculation is not required. Neither force nor lack of

consent is required for this offense. Stated

conversely, neither lack of force nor consent are

defenses. It is also no defense that you were ignorant

or misinformed as to the true age of the child or that

the child was of unchaste character. It is the fact of

the child’s age and not your knowledge or belief that

fixes criminal responsibility. Do you understand the

elements and definitions as I have read them to you?

(R. 16) (emphasis added).

Petitioner then admitted that he met C.D.C., a 14-year-old

female, sometime in September or October 2002.

On one occasion when C.D.C. came to visit petitioner in his

dormitory room on Cannon Air Force Base, she voluntarily

performed oral sodomy on petitioner by placing his penis into

her mouth. (R. 19; Pros. Ex. 1). Petitioner explained to the

military judge that he did not know how old C.D.C. was

when the sodomy occurred, but he later found out she was 14

years of age. (R. 20).

(R. 17).

After the military judge accepted petitioner’s plea and

entered a finding of guilty, petitioner elected to make an-

unswom statement in order to present matters in mitigation

and extenuation to the military judge.

statement was conducted in a question and answer format

with petitioner’s trial defense coufisel conducting the

questioning. (R. 55). During petitioner’s unswom statement,

the following exchange regarding C.D.C.’s age occurred:

Q: When you had conversations with [K.S.], who is

Airman White’s friend, and [C.D.C.], what are the

The unswormn

6

general nature of those conversations?

A: Just stuff she did, you know, at school, the friends

she didn’t like, what her friends said today, stuff like

that.

Q: And what did you know about — or believe about

her age?

A: Airman White had told me that [K.S.] was 16

about to turn 17.

Q: That is [K.S.]?

A: That is [K.S.]. And I had thought that since I had

heard that they were in the same — in high school

together, that they were the same age.

Q: At any point did you become concerned about

what her real age was?

A: Later on.

Q: And why was that?

A: After I had seen her for the last time, she was

calling a whole bunch of times a night, maybe three

or four times a night. And, you know, the stuff that

she was talking about was just seeming more and

more — less mature I should say. So, 1 had my

suspicions.

Q: Before that happened, had you talk[ed] to

anybody about whether you should continue your

relationship with [C.D.C.]?

A: Airman Dykef[.]

Q: And what was that conversation about?

A: We were just talking about how | was seeing a

girl and pretty much the conversation went back and

forth. And you know I told him that it was a master

sergeant’s daughter, a dependent, and that she was 16,

that I was wondering if I should take the relationship

to the next step.

Q: When you got back from leave, did you have a

conversation with Airman White about [C.D.C.]?

A: Not until after he went and saw the OSI.

Q: Okay. About the age, that’s what I’m getting at,

I’m sorry, I should have made it clear. Did you have

a conversation with him about how old [C.D.C.] was?

A: Yes. After he went and saw OSI, he found out

that she was fourteen and he informed me, and the

next day I went to OSI.

Q: Was that the first time you ever heard that she was

14 years old?

A: That was the first time I heard it.

(R. 56-60).

After receiving the remainder of the evidence presented

in the sentencing phase of the court-martial, the military

judge sentenced petitioner to be discharged from the Air

8

Force with a bad-conduct discharge, to be confined for one

month and to perform hard labor without confinement for

three months. (R. 80).

On appeal of his conviction to the Air Force Court of~

Criminal Appeals, petitioner submitted his case on its merits.

On November 12, 2003, the Air Force Court affirmed the

findings and the sentence. United States v. Moses, ACM

S$30336 (A.F. Ct. Crim. App. 12 November 2003) (App. D, p.

4a). On May 12, 2004, the United States Court of Appeals

for the Armed Forces granted review of the following issue

raised for the first time on appeal:

WHETHER APPELLANT’S PLEA OF GUILTY TO

VIOLATING ARTICLE 125, UCMJ, BY

ENGAGING IN CONSENSUAL SODOMY WITH

SOMEONE HE BELIEVED WAS 16 AT THE TIME

OF THE OFFENSE (CHARGE I AND ITS

SPECIFICATION) MUST BE RENDERED

IMPROVIDENT IN LIGHT OF THE UNITED

STATES SUPREME COURT’S HOLDING IN -

LAWRENCE V. TEXAS, 123 S.CT. 2472 (2003).

(App. C, p. 3a). The court, citing its previous decision in

United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004),

summarily affirmed the petitioner’s conviction on December

21, 2004. (App. A, p. 1a).

On 10 January 2005, petitioner requested reconsideration | '

of the decision of the Court of Appeals for the Armed Forces.

Specifically, petitioner requested that the court address |

whether the mistake of fact defense applies in sodomy cases

involving minors and, if so, whether petitioner raised the

defense during his trial. On February 4, 2005, the Court of

Appeals denied the petition for reconsideration. (App. B, p.

2a).

REASONS FOR GRANTING THE WRIT

This case asks whether there is any rational basis for

denying the affirmative defense of mistake of fact to a

military member who engages in consensual sodomy with a

person he reasonably believes to be 16 years of age. Under

military law, the affirmative defense of a mistake of fact as to

age is available to military members who are accused of

having sexual intercourse with or digitally penetrating a

minor that the accused believes to be at least 16 years of age.

But this legal defense is not available for anyone who

engages in consensual sodomy with that same minor.

Consequently, there are two questions of fundamental

importance to the administration of justice in the United

States Armed Forces that should be answered. First, can the

United States continue to prosecute and punish military

members for engaging in private, consensual sodomy with

another person in light of this Court’s recent decision in

Lawrence v. Texas, 539 U.S. 558 (2003)?

Second, if the answer to the first question is “yes”, then

under a due process analysis, should petitioner have had the

right to assert a mistake-of-fact defense as to age of the

person with whom petitioner is alleged to have had sodomy,

just as he would have had for an allegation of carnal

knowledge with a child under the age of 16 years under

Article 120 and indecent acts with a child under the age of 16

years under Article 134? See United States v. Strode, 43 M.J.

29 (C.A.A.F. 1995) (holding that the accused should have

been able to assert a mistake-of-fact defense for indecent acts

with a minor).

This Court has recognized that the Due Process Clause of

the Fifth Amendment has an equal protection component,

which is a concept that stems from the American ideal of

10

fairness. Bolling v. Sharpe, 347 U.S. 497 (1954). In the end,

there is no rational basis for allowing one military accused to

assert a mistake-of-fact defense as to the minor’s age when

he has sexual intercourse with or digitally penetrates the

minor, while denying another accused that same legal

defense because the sexual act was consensual sodomy.

Such issues are of fundamental importance to those who

serve in the armed forces and this Court should review this

matter.

Petitioner’s conviction should be set aside in light of

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

(2003) because petitioner was denied due process of the law

under the Fifth Amendment.

Although petitioner pled guilty to the offense, his plea

was not provident because it was not voluntary and

intelligent. This Court has long held that a guilty plea is not

voluntary if an accused "has such an_ incomplete

understanding of the charge that his plea cannot stand as an

intelligent admission of guilt." Henderson v. Morgan, 426

U.S. 637, 645 n.13 (1976). “[A] plea does not qualify as

intelligent unless a criminal defendant first receives ‘real

notice of the true nature of the charge against him, the first

and most universally recognized requirement of due

process.”” Bousley v. United States, 523 U.S. 614, 618

(1998) (quoting Smith v. O’Grady, 312 U.S. 329, 334

(1941)). Such notice is all the more critical when a decision

of this Court places conduct “beyond the power of the

criminal law-making authority to proscribe” and there is “a

significant risk that a defendant stands convicted of an act

that the law does not make criminal.” Bousley, 523 U.S. at

620 (citations omitted).

Under Article 125, a military member who is convicted

of private, consensual oral sodomy with a child over the age

of 12 but under the age of 16 faces a potential maximum

punishment that includes up to 20 years imprisonment and a

dishonorable discharge. MCM, Part IV, 4 51(e)(2). The 20-

year period of confinement represents a 15-year increase over

the maximum confinement time for the offense of sodomy

with a person who has attained the age of 16 years.

By its express terms, Article 125 prohibits all oral and

anal sex, heterosexual or homosexual, even between husband

and wife, whether accomplished by force or with consent.

See United States v. Scoby, 5 M.J. 160 (C.M.A. 1978).

Additionally, Article 125 “does not distinguish between an

act committed in the privacy of one’s home, with no person

present other than the sexual partner, and the same act

committed in a public place in front of a group of strangers,

who fully apprehend the nature of the act.” /d. at 163.

The specification of Charge I in petitioner’s case alleged

the following violation of Article 125, UCM3J:

In that AIRMAN FIRST CLASS GREGORY SCOTT

MOSES, United States Air Force, 27th Logistics

Readiness Squadron, Cannon Air Force Base, New

Mexico, did, at or near Cannon Air Force Base,

between on or about | September 2002 and on or

about 31 October 2002 commit sodomy with [C.D.C.]

a child under the age of 16 years.

Here, a conviction under Article 125 requires proof of

two elements: that the accused engaged in unnatural carnal

copulation and that the act was done with a child under the

age of 16. See Manual for Courts-Martial, United States

(MCM), Part IV, § 51(b)(1) and (2). The Manual for Courts-

Martial offers the following definition of unnatural carnal

copulation:

It is unnatural carnal copulation for a person to take

'?

—

into that person’s mouth or anus the sexual organ of

another person ... or to place that person’s sexual

organ in the mouth or anus of another person ...

MCM, Part IV, 4 51(c) (2002 ed.).

In Lawrence v. Texas, 539 U.S. 558 (2003), this Court

struck down a Texas statue that made criminal the act of

sodomy between members of the same sex. In overruling its

previous decision in Bowers v. Hardwick, 478 U.S. 186

(1986), this Court held that the petitioners’ right to liberty

under the Due Process Clause gives them the full right to

engage in private sexual conduct, to include sodomy, without

government intervention. Lawrence, 539 U.S. at 578.

This Court also recognized a distinction between private,

consensual sodomy between adults and those cases involving

minors, force, coercion, public conduct, or prostitution. /d. at

578. Under such circumstances, it is presumed, the right to

such a liberty under the Due Process Clause could be

curtailed.

The Court of Appeals for the Armed Forces recently

addressed the application of Lawrence in the military context

in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In

resolving the question of how Lawrence impacts Article 125,

the Court of Appeals settled on an analysis that consists of

the following 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 Curt?

Second, did the conduct encompass any behavior or

factors identified by the Supreme Court as outside the

analysis in Lawrence?

13

Third, are there 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 citations omitted).

The Court of Appeals further elaborated on the second

question of the analysis, addressing factors identified by this

Court as not involved in Lawrence. Specifically, the Court of

Appeals indicated that the second question concerned

conduct that involved minors, public conduct or prostitution,

or persons who might be injured or coerced or who are

situated in relationships where consent might not easily be

refused. /d. at 207.

In this case, petitioner was charged with sodomy with

C.D.C, a child under the age of 16 years. The only factor that

could take the instant case outside the liberty interest

identified in Lawrence—and therefore within one of the

exceptions set out by Marcum—is the fact that C.D.C. was a

child under the age of 16 years at the time of the offense.

But, as petitioner told the military judge, he honestly believed

that C.D.C was 16 years old at the time of the sodomy.

Based on this belief and the facts to which petitioner

admitted during the plea inquiry, if petitioner had sexual

intercourse with C.D.C. and had been charged with carnal

knowledge under Article 120, he would have had available to

him a mistake-of-fact defense. Similarly, if petitioner had

digitally penetrated C.D.C. and been charged with indecent

acts with a minor under Article 134, a mistake-of-fact

defense would have been available as well. See, e.g., United

States v. Strode, 43 M.J. 29 (C.A.A.F. 1995). But because

petitioner and C.D.C. engaged in oral sodomy, according to

the current state of the law, petitioner has no such defense,

even though if C.D.C’s age were as petitioner believed,

petitioner would have been engaging in constitutionally

14

protected behavior. This raises the counter-intuitive situation

where, if petitioner had decided to have sexual intercourse

with or digitally penetrate C.D.C., he would have had an

affirmative defense available to him. Yet because he

engaged in oral sodomy he faced a maximum punishment of

20 years in confinement.

Previously, the justification for treating sodomy, carnal

knowledge, and indecent acts with a minor differently in

terms of the availability of a mistake-of-fact defense as to age

was that sodomy was a “strict liability” offense, ostensibly

because it was immoral. See Strode, 43 M.J. at 31. In light

of this Court’s decision in Lawrence, however, such a

standard is no longer defensible. If the alleged victim’s

Status as a minor is the only factor taking sodomy outside the

liberty interest articulated by this Court, as is the case here,

there should be no distinction between how the government

treats sodomy, carnal knowledge, and indecent acts with a

minor. Consequently, petitioner was denied due process

because he was deprived of the affirmative defense of a

reasonable mistake of fact as to the age of his consensual

partner.

This Court has recognized that the unique character of the

military may justify different applications of certain

constitutional protections. Parker v. Levy, 417 U.S. 733

(1974). When one examines the disparity in the applicable

law, even scrutinized under a rational basis analysis,

however, certain provisions simply do not pass muster.

Article 120, carnal knowledge, permits a mistake-of-fact

defense as to age. Accordingly, a military member may have

sexual intercourse with a child he reasonably believes to be

16 years of age without criminal consequence. On the other

hand, that same military member cannot engage in sodomy—

even oral to genital—and receive the same due process

protections. Interestingly, a mistake-of-fact defense is

;

:

;

ACE NS tan ss all al

15

available for Article 125 sodomy offenses when sodomy is

committed by force and without consent. See United States

v. Gamble, 27 M.J. 298 (C.M.A. 1988); U.S. v. Strode. 43

MJ. 29 (C.A.A.F. 1995).

The mistake-of-fact defense in carnal knowledge cases

was specifically permitted by Congress. Prior to a 1996

amendment to the Manual for Courts-Martial., military courts

applied the Federal rule that it is "no defense that the accused

is ignorant or misinformed as to the true age of the female[.]"

Manual for Courts-Martial, United States (1995 ed.), Part IV,

Para. 45c(2). Prior to the amendment. military courts had

consistently held that the mistake-of-fact defense did not

apply to either carnal knowledge or indecent acts leading up

to carnal knowledge with a child under the age of 16. U.S. v.

Strode, 43 MJ. 29, 32 (C.A.A.F. 1995). In fact. military

courts declined to apply the affirmative defense even while

the proposed change to Article 120 was pending (U.S. v.

Schuler, 47 MJ. 561 (NMCCA 1997)) or in the instance

where an appeal continued following approval of the

amendment. (U.S. v. Schuler, 50 M.J. 254 (C.A.A.F. 1999)).

The 1996 amendment created an affirmative defense.

commonly called "reasonable mistake as to the age of the

victim.” Pub. L. No. 104-106, Sec. 1113, 110 Stat. 462

(enacted Feb. 10, 1996). This defense therefore was

appropriately raised if the alleged victim was at least 12 years

old and there is evidence that the accused reasonably

believed he or she was at least 16 years old.

Military courts have also taken affirmative steps to

establish a mistake-of-fact defense in the absence of a federal

Statute. In U.S. v. Strode, the Court of Appeals for the Armed

Forces established a mistake-of-fact defense to the offense of

indecent acts with a minor under Article 134. The court

based its reasoning on the distinction between indecent acts

upon a child under 16 that lead up to offenses such as carnal

16

knowledge, and those that do not. Specifically, the court

stated that the mistake-of-fact defense is permissible for '

indecent acts when the conduct does not lead up to an offense

for which the mistake-of-fact defense is not available, i.e. |

carnal knowledge and sodomy. 43 M.J. at 32 (emphasis ee

- added). The Court held that “[mlistake of fact is available to

a military accused who is charged with committing indecent

acts with a child under the age of 16 if he had an honest and

reasonable belief as to the age of the person and if the acts

would otherwise be lawful were the prosecutrix age 16 or

older.” /d. at 33. In essence, the lower court judicially

created an affirmative defense that was not otherwise

provided for under Article 134 for indecent acts.

Under this reasoning, petitioner argues that such a judicial

interpretation should also apply here as well. His conduct

with the alleged victim was private, consensual, and—but for -

the age of the child—consistent with the protected liberty

interest established in Lawrence. As such, a mistake-of-fact

defense should be permitted. -

The Court of Appeals declined to address the issue of the

mistake-of-fact defense in this case. This avoidance is

particularly disappointing when one examines its rationale in

Strode. \n distinguishing between indecent acts and carnal

knowledge, the Court noted that the mistake-of-fact defense

was available for indecent acts precisely because the age of

the alleged victim enhanced the maximum possible

punishment for indecent acts, unlike carnal knowledge which

did not. However, since the 1996 amendment to Article 120,

carnal knowledge also has a sentence enhancement based

upon the age of the alleged victim. Further, Article 125

includes a sentence enhancing provision for sodomy with a

child under the age of 16. Using this rationale, offenses

under Article 125 should be permitted the same affirmative

defense as that provided for both carnal knowledge and

indecent acts with a minor.

——— QL"

17

As the law stands, no consideration is afforded a military

member's honest and reasonable belief that an alleged

sodomy victim is 16 years of age or older. Conversely, in

prosecutions under Article 120 or Article 134, such an honest

and reasonable belief, if proven, absolves military members

of any criminal liability. And as the Navy-Marine Court of

Criminal Appeals has noted, “an honest and mistaken belief

as to a female's age can negate criminality with respect to

carnal knowledge, yet if the same accused and the same

female were to engage in sodomy during the same tryst, the

accused could be sentenced to 20 years of confinement. ... as

absurd the result, that is the law. We must apply it.” United

States v. Sirk, NMCCA 200301084, unpub. op. September

27, 2004 at p.2. (Appendix E, p. 8a).

Petitioner respectfully submits that it is this very

inconsistency that necessitates a correction by this Court.

Article 125 already permits a mistake-of-fact defense for

forcible sodomy. See United States v. Gamble, 27 M.J. 298

(C.M.A. 1988). Because sodomy with a minor under Article

125 should no longer be viewed as a “strict liability”

offense—especially as it relates to offenses such as carnal

knowledge and indecent acts with a minor—there is no

rational basis for allowing a mistake-of-fact defense as to one

sentence-enhancing element (force) and not another (age).

This Court has held that the right to present a defense is

fundamental. The right gives an accused the opportunity “to

offer the testimony of witnesses, and to compel their

attendance. . . [which] is in plain terms the right to present a

defense, the right to present the defendant’s version of the

facts ... to the jury.” Webb v. Texas, 409 U.S. 95, 98 (1972).

Furthermore, an essential component of procedural fairness is

an opportunity to be heard. That opportunity would be an

empty one if the State were permitted to exclude competent,

reliable evidence. Crane v. Kentucky, 476 U.S. 683, 690

18

(1986). “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.” Jn Re Winship, 397 U.S. 358, 364

(1970).

- In this case, petitioner believed that C.D.C. was at least

16 years of age at the time they engaged in sodomy. The

current state of the law, however, is such that a mistake-of-

fact defense does not apply to Article 125 as it does to Article

120 and Article 134. The only difference between carnal

knowledge, indecent acts with a minor, and sodomy with a

minor is the type of sexual act. If petitioner had engaged in

sexual intercourse or committed an indecent act, the military

judge would have rejected his plea based on his mistake-of-

fact defense. There is no rational basis for denying a

mistake-of-fact defense for one offense—consensual

sodomy—while permitting it for the others. Because such a

result violates petitioner’s constitutional right to equal

protection and due process, this Court should grant review of

this important issue.

CONCLUSION

For the foregoing reasons, petitioner respectfully requests

that this Court grant his petition for a Writ of Certiorari.

March 2005

19

Respectfully submitted,

SANDRA K. WHITTINGTON

Major, United States Air Force

Counsel of Record

JOHN N. PAGE III

Captain, United States Air Force

Counsel for Petitioner

CARLOS L. McDADE

Colonel, United States Air Force

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Services Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20032-8000

(202) 767-1562

la

Appendix A

UNITED STATES, Appellee

v.

Gregory S. MOSES, Airman First Class

U.S. Air Force, Appellant

No. 04-0241

Crim. App. No. $30336

United States Court of Appeals for the Armed Forces

Decided December 21, 2004

\

ORDER:

On further consideration of the granted issue (60 M.J. 44)

in light of United States v. Marcum, 60 M.J. 198 (C.A.A.F.

2004) it is by the Court, this 21° day of December. 2004.

ORDERED:

That the decision of the United States Air Force C ourt of

Criminal Appeals is affirmed.

2a

Appendix B

UNITED STATES, Appellee

v.

Gregory S. MOSES, Airman First Class

U.S. Air Force, Appellant

\

No. 04-0241

Crim. App. No. $30336

United States Court of Appeals for the Armed Forces

Decided February 4, 2005

ORDER:

On consideration of Appellant's motion to submit

petition for reconsideration out of time and petition for

reconsideration’ of this Court’s order dated December 21,

2004, it is, by the Court, this 4" day of February, 2005,

ORDERED:

That said motion to submit petition for reconsideration

out of time is hereby granted; and

That said petition for reconsideration is hereby denied.

' Appellant petitioned for reconsideration, asking the court to address

whether the mistake-of-fact defense applies in alleged sodomy cases,

such as Appellant’s, where the accused mistakenly believes the alleged

victim is at least sixteen (16) years of age and, if so, whether this defense

was raised by Appellant during his providency inquiry.

4

Ja

Appendix C

UNITED STATES, Appellee

v.

Gregory S. MOSES, Airman First Class

U.S. Air Force, Appellant

No. 04-0241

Crim. App. No. $30336

United States Court of Appeals for the Armed Forces

Order Granting Review May 12, 2004

On consideration of the petition for grant of review of the

decision of the Unites States Air Force Court of Criminal

Appeals, it is, by the Court, this 12" day of May, 2004,

ORDERED:

That said Petition is hereby granted on the following

issue:

WHETHER APPELLANT’S PLEA OF GUILTY TO

VIOLATIONS OF ARTICLE 125, UCMJ, BY ENGAGING

IN CONSENSUAL SODOMY WITH SOMEONE HE

BELIEVED WAS 16 AT THE TIME OF THE OFFENSE

(CHARGE I AND ITS SPECIFICATION) MUST BE

RENDERED IMPROVIDENT IN LIGHT OF THE UNITED

STATES SURPREME COURT’S HOLDING IN

LAWRENCE V. TEXAS, 123 S.Ct. 2472 (2003).

No briefs will be filed under Rule 25.

4a

Appendix D

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class GREGORY S. MOSES

United States Air Force

ACM 830336

12 November 2003

Sentence adjudged 23 January 2003 by SPCM convened at

Cannon Air Force Base, New Mexico. Military Judge: Kurt

D. Schuman (sitting alone).

Approved sentence: Bad-conduct discharge, confinement for

1 month, and hard labor without confinement for 3 months.

Appellate Counsel for Appellant: Colonel Beverly B. Knott,

Major Terry .L. McElyea, and Captain Sandra K.

Whittington.

Appellate Counsel for the United States: Colonel LeEllen

Coacher.

Before

PRATT, ORR, W.E., and GENT

Appellate Military Judges

PER CURIAM:

The approved findings and sentence are correct in law

and fact, and no error prejudicial to the substantial rights of

the appellant occurred. Article 66(c), UCMJ. 10 U.S.C.

§866(c); United States v. Reed, 54 M.J. 37. 4] (C.A.A.F.

2000). Accordingly, the approved findings and sentence are

AFFIRMED.

OFFICIAL

FELICIA M. BUTLER. TSgt, USAF

Chief Court Administrator

6a

Appendix E

UNITED STATES NAVY-MARINE CORPS COURT

OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant MICHAEL T. SIRK

United States Marine Corps

NMCCA 200301084

September 27, 2004, Decided

Sentence adjudged 4 April 2002. Military Judge: M.H. Sitler.

Review pursuant to Article 66(c), UCMJ, of General Court-

Martial convened by Commanding General, 2d Marine

Division, Camp Lejeune, NC.

DISPOSITION: Affirmed.

COUNSEL: LT COLIN KISOR, JAGC, USNR, Appellate

Defense Counsel.

Capt GLEN HINES, USMC, Appellate Government Counsel.

JUDGES: BEFORE: Charles Wm. DORMAN, W.L.

RITTER, M.J. SUSZAN.

OPINION BY: CHARLES WILLIAM DORMAN

7a

OPINION: DORMAN. Chief Judge:

Pursuant to his pleas, the appellant was convicted by

general court-martial of the following offenses: consensual

sodomy, indecent acts, and indecent language -- all with the

same 14-year-old female, and fraternization with the females’

Marine boyfriend. The appellant's crimes violated Articles 92,

125, and 134, Uniform Code of Military Justice, /0 U.S.C. § §

892, 925, and 934. The military judge sentenced the appellant

to confinement for 48 months, forfeiture of all pay and

allowances, reduction to pay grade E-1, and a bad-conduct

discharge. The convening authority approved the sentence

and, except for the bad-conduct discharge, ordered the

sentence executed.

The appellant has raised three assignments of error in his

appeal before this court. He asserts that the military judge

erred in advising that the appellant's mistaken belief as to the

female's age was not a defense to sodomy, that the approved

sentence is inappropriately severe, and that he has been

denied a timely review of his conviction.

We have carefully considered the record of trial, the

appellant's three assignments of error, and the Government's

response. We conclude that the findings and the sentence 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.

Mistake of Fact

At trial the parties stipulated that the appellant did not

know the real age of the female, and that she had told the

appellant that she was 17 years old. In advising the appellant

of the elements of sodomy, the military judge also informed

the appellant: "It is no defense that you were ignorant or

misinformed as to the true age of the child. It is the fact of the

child's age and not your knowledge or belief that fixes

criminal responsibility." Record at 33. The appellant argues

that this advice was legally incorrect in light of Lawrence vy.

Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472

(2003).

The appellant also argues that, since mistake of fact as to

the "victim's" age in carnal knowledge is an affirmative

defense, an absurd result obtains when considering the

maximum punishments that may be imposed for the two

different crimes of carnal knowledge and sodomy. An honest

and mistaken belief as to a female's age can negate criminality

with respect to carnal knowledge, yet if the same accused and

the same female were to engage in sodomy during the same

tryst, the accused could be sentenced to 20 years of

confinement. See Art 120(d), UCMJ, and MANUAL FOR

COURTS-MARTIAL, UNITED STATES (2000 ed.), Part

IV, P 5l.e(2). As reasonable and well-crafted as is the

appellant's argument, and as absurd the result, that is the law.

We must apply it. See United States v. Nelson, 53 / J. 319,

323 (C.A.A.F. 2000)(noting that it is up to the legislative

branch rather than the judicial branch of government to

change the law in the area of public policy.)

We are also guided by decisions of our superior court,

which we must also follow. In United States v. Marcum, 60

M.J. 198 (C_A.A.F. 2004), the constitutionality of Article 125

was upheld. Applying Marcum to the facts of the case before

us, there is no constitutional issue concerning the appellant's

conviction for sodomy. Additionally, in United States v.

Strode, 43 M.J. 29 (C.A.A.F. 1995) the court noted that the

defense of mistake of fact concerning the victim's age "is not .

. . available to . . . sodomy." Jd. at 3]. In our view however,

an honest and reasonable belief as to the victim's age "may

serve aS a mitigating circumstance under the sentencing

rules." Jd. at 32.

Sentence Appropriateness

In determining the appropriateness of a sentence we are to

afford the appellant individualized consideration under the

law. Specifically, we must review the appropriateness of the -

9a

sentence based upon the “nature and seriousness of the

offense and the character of the offender." United States v.

Snelling, 14 M.J. 267, 268 (C.M.A. 1982)(quoting United

States v. Mamaluy, 10 C.M.A. 102, 27 C.M.R. 176, 180-81

(C.M.A. 1959)). Without question this requires a balancing of

the offense against the character of the offender. We have

conducted that balancing in this case. We are cognizant of the

appellant's honorable and lengthy service, as reflected by the

evidence presented during the sentencing phase of his court-

martial -- to include four separate awards of the Good-

Conduct Medal, and noteworthy fitness reports. We are also

cognizant of the criminal activities he engaged in, activities

which were not only morally repugnant, but in which he also

used his position as a Marine Staff Noncommissioned Officer

to commit. Balancing all these factors, we conclude that the

approved sentence is appropriate for this offender in light of

his very serious offenses.

Speedy Review

In his third assignment of error, the appellant seeks relief

based solely upon the length of time from the date of trial until

review is completed before this court. Assuming the appellant

is accurate with his count in days of delay as of 31 March

2004, as of 31 August 2004 it has been 890 days since the

appellant's court-martial. Under the facts of this case, we

decline to grant relief based upon this length of delay. We

have been presented with no evidence that the appellant

requested the convening authority to take a speedier action.

Additionally, the appellant has made no attempt to

demonstrate any-prejudice as a result of this delay. See

generally United States v. Tardif, 57 MJ. 219 (CA.A.F.

2002). Furthermore, where we have thoroughly reviewed the

appellant's conviction while he is still confined, and having

found no errors materially prejudicial to his substantial rights,

to grant relief on delay alone would be granting a windfall.

10a

Conclusion

The findings and sentence as approved by the convening

authority are affirmed.

Senior Judge RITTER and Judge SUSZAN concur.