Opposition Brief — Fagg v. United States

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No. 91-2042

In the Supreme Court of the Giuted States

OCTOBER TERM, 1992

Scott P. F AGG, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

Washington. D.C. 20530

(202) 514-2217

BRENDA J. HOLLIS

Lt. Col., AFLSA, USAF

THOMAS E. WAND

Capt., AFLSA, USAF

Appellate Government Counsel

Government Trial and Appellate

Counsel Division

Air Force Legal Services Agency

Bolling Air Force Base

Washington, D.C. 20332-6128

QUESTION PRESENTED

Whether convicting petitioner under Article 125 of the

Uniform Code of Military Justice, 10 U.S.C. 925, for

engaging in sodomy with a 16-year-old girl to whom he

was not married, violated his constitutional right to

privacy.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bellotti v. Baird, 443 U.S. 622 (1979) .............................. 4

Bouie v. City of Columbia, 378 U.S. 347 (1964) Mi cadeianinaves 7

Bowers v. Hardwick, 478 U.S. 186 (1986) ....................... 3

Carey v. Population Services Int'l, 431 U.S. 678 (1977) ... 3, 5,6

Commonwealth v. Balthazar, 318 N.E.2d 478 (Mass.

ah cel tanlAndeUhs bli eiuinkdcsdcsdssueaneedevacessreckveteesc clcdecee, 6

Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) ......... 6

Eddings v. Oklahoma, 455 U.S. 104 (1982) .........cccccc00---. 4

Eisenstadt v. Baird, 405 U.S. 438 (1972) ......................... 3,5

Ginsberg v. New York, 390 U.S. 629 (1968) ...................... 4,5

Griswold v. Connecticut, 381 U.S. 479 (1965) ................... 3

Hinkle v. State, 771 P.2d 232 (Okla. Crim. App. 1989) ..... 8

Marks v. United States, 430 U.S. 188 (1977) ................... 7,8

McCleskey v. Kemp, 481 U.S. 279 (1987) cocccccccccccccccecceceees 9

Miller v. California, 413 U.S. 15 (1973) voccccccccccccccceecceceeee 7

New York v. Ferber, 458 U.S. 747 (1982) ......................... 5

Osborne v. Ohio, 495 U.S. 103 (1990) .........00..00-00----- 4-5

Parker v. Levy, 417 U.S. 733 (1974) c..cccccccccccccccseccocceccesee. 9

People v. Onofre, 415 N.E.2d 936 (N.Y. 1980), cert.

mma, Sk U7, BOT (IGRI) coscccccssncvceneccesscasosesesesscsscess. 6

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .............. 4

Post v. State, 715 P.2d 1105 (Okla. Crim. App. 19886),

cert. denied, 479 U.S. 890 (1986) .........cccccccccccccccccecceceees 8

Prince v. Massachusetts, 321 U.S. 158 (1944) ................. 4

Rose v. Locke, 423 U.S. 48 (1975) cecccccccccccececccceecccececccccce. 7.8

(IIT)

Cases—Continued: Page

Sherrill v. State, 321 S.W.2d 811 (Tenn. 1959) oo 8

Solorio v. United States. 483 U.S. 435 (1987) oo... 7

Splawn v. California, 431 US. 995 (1977) ooo. 7

Stanford vy. Kentucky, 492 U.S. 361 (1989) oo. 4

Stanley v. Georgia, 394 U.S. 557 RINT stiisenstioesinciesciescece 3

State v. Cyr, 198 A. 743 (Me. aie, A 8

State v. Pilcher, 242 N.W.2d 348 (lowa 1976) wo 6

State v. Saunders, 381 A.2d 332 (N.J. 1977) .00.0.............. 6

Taylor v. Freeland & Kronz. 112 S. Ct. 1644 (1992) 7

United States y. Henderson, 34 M.J. 174 (C.M.A. 1992) 3.8

United States v. Lovasco. 431 U.S. 783 (1977) o000 7

United States vy. Scoby, 5 M.J. 160 (C.M.A. 1978)... 8

Wainwright v. Stone, 414 US BO PRMD sencccretactccs 8

Wayte v. United States, 470 US BIS (1985) oc eecccccccese, 9

Constitutions and statutes:

U.S. Const.:

Amend. V (Due Process fs NORTE RN cic sae 7

Amend. XIV (Equal Protection | ORCI 5

Uniform Code of Military Justice, 10 U.S.C. 80] et seq.:

Art. 120(b), 10 U.S.C. 9200) oo. eescecscsceccseeeeec 2

Art. 125, 10 USC. 9BB oc eccccstececccssesreeccc 2, 3, 8

Art. 183, 10 U.S.C. 988 oo... eeccccssessssessoocc 9

Art. 134, 10 U.S.C. 984 0... cccceescssseessecc 9

OF ee MIM winerssinssecnscpvesstanstviadesetsndesse ous... 4

Be eM yuo satlesenin ntsconingetchasdooiacessciauc. 4

Okla. Stat Ann. (West):

Tit. 10, § 1101(1) (1987 & 1992 Supp.) 0... 4

RUS. ES, GUS EROOB) ccescsaorasestseccarvsersiavvecacss,.., 4

Tit. 2i:

$856 (1983 & Supp. 1992) o.oo eecccccccseeeee 4

$857.2 (1983 & Supp. 1992) 0. 4

In the Supreme Court of the Ginited States

OCTOBER TERM, 1992

No. 91-2042

SCOTT P. Fac. PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals, Pet.

App. la-4a, is reported at 34 M.J. 179. The opinion of

the Air Force Court of Military Review, Pet. App. 5a-

12a, is reported at 33 M.J. 618. The opinion of the

court of military review on remand is unreported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on March 24, 1992. The petition for a writ of

certiorari was filed on June 13. 1992. The jurisdiction

of this Court is invoked under 28 U.S.C. 1259(3).

(1)

STATEMENT

Following a general court-martial at Altus Air

Force Base in Oklahoma, petitioner, a member of the

United States Air Force, was convicted on one count

of carnal knowledge and one count of sodomy, in

violation of Articles 120(b) and 125 of the Uniform

Code of Military Justice (UCMJ), 10 U.S.C. 920(b) and

925. He was sentenced to seven months’ confinement,

a bad conduct discharge, and a reduction in rank to

the lowest enlisted grade. The convening authority

approved the findings and sentence. The Air Force

Court of Military Review initially set aside petition-

er’s conviction for sodomy, affirmed the conviction for

earnal knowledge, and approved the portion of the

sentence that extended to confinement and reduction

in rank. The Judge Advocate General of the Air

Force certified the case for review by the Court of

Military Appeals with regard to the dismissal of

petitioner’s sodomy conviction. The Court of Mili-

tary Appeals reversed the decision dismissing the

sodomy charge, reinstated the original findings and

sentence, and remanded the case to the court of

military review. On remand, the court of military

review affirmed the original findings and sentence.

1. At trial, petitioner pleaded guilty to the two

offenses of which he stands convicted, entered into a

stipulation of fact with the prosecution, and partici-

pated in an inquiry with the trial judge to insure that

his pleas were provident. Tr. 12-25. By his own

account, petitioner was involved with several young

girls in and around Altus, Oklahoma. Petitioner’s

partner in sodomy was a 16-year-old who reported him

to police after he left her for another 16-year-old and

then for a 14-year-old junior high school student, who

was his victim in the carnal knowledge offense. Pet.

App. 3a.

‘

2. In the court of military review, petitioner argued

that Article 125, UCMJ, 10 U.S.C. 925, was unconsti-

tutional as applied to his heterosexual, noncommer-

cial, private acts of sodomy with a consenting 16-year-

old. Pet. App. 6a. A panel of the court of military

review agreed by a divided vote, recognizing, for the

first time by any military appellate court, a constitu-

tional zone of privacy for such activity. Pet. App. 5a.

3. The Court of Military Appeals reversed the

decision of the court of military review, relying on its

decision in a companion case decided the same day,

United States v. Henderson, 34 M.J. 174 (C.M.A.

1992). Pet. App. la-2a. Henderson acknowledged that

this Court has accorded constitutional protection to a

number of interests in the name of privacy. 34 M.J. at

176. Nonetheless, Henderson followed the reasoning

of Bowers v. Hardwick, 478 U.S. 186 (1986), in

upholding Article 125, UCMJ, 10 U.S.C. 925. 34 M.J.

at 177.

ARGUMENT

1. Petitioner contends that his sodomy conviction

violates his constitutional right to privacy.

Petitioner bases his argument on decisions of this

Court such as Griswold v. Connecticut, 381 U.S. 479

(1965), Stanley v. Georgia, 394 U.S. 557 (1969), Eisen-

stadt v. Baird, 405 U.S. 438 (1972), and Carey v.

Population Services Ini’l, 431 U.S. 678 (1977). His

claim does not warrant review by this Court. !

' The Court of Military Appeals noted that “[iJn reality, it

would appear that sodomy had little bearing on sentence.” Pet.

App. 3a. That observation is correct. Petitioner did not in the

military courts, and does not in this Court, contest his convic-

tion for the more serious offense of carnal knowledge commit-

ted with a 14-year-old, which carries a maximum punishment

that includes 15 years’ imprisonment and a dishonorable dis-

charge. /bid. He was sentenced to seven months’ confinement,

a. Petitioner overlooks the fact that he was an

adult, PX 5, but his 16-year-old partner was a minor,

see Okla. Stat. Ann. tit. 10, § 110101) (West 1987 &

Supp. 1992); Okla. Stat. Ann. tit. 15, § 18 (West 1983)

(“Minors, except as otherwise defined by law, are

persons under eighteen (18) years of age.”). That fact

is highly significant. It is universally accepted that

“vouth is more than a chronological fact. It is a time

and condition of life when a person may be most

susceptible to influence and to psychological damage.”

BRddings v. Oklahoma, 455 U.S. 104, 115 (1982). As

Justice Brennan has noted, “the simple truth derived

from communal experience that juveniles as a class

have not the level of maturation and responsibility

that we presume in adults and consider desirable for

full participation in the rights and duties of modern

life.” Stanford v. Kentucky, 492 U.S. 861, 395 (1989)

(dissenting opinion). See also, e.g., Ginsberg v. New

York, 390 U.S. 629 (1968); Bellotti v. Baird, 443 U.S.

622, 635 (1979) (plurality opinion); Prince v. Mas-

sachusetts, 321 U.S. 158 (1944); Pierce v. Society of

Sisters, 268 U.S. 510, 535 (1925).

Society has long attempted to protect minors from

the adverse consequences of their immaturity by

means such as laws prohibiting adults from contribut-

ing to the delinquency of a minor, Okla. Stat. Ann. tit.

21, §§ 856, 857.2 (West 1988 & Supp. 1992), or pro-

hibiting the use of children in sexual activity, 18

U.S.C. 2251-2252, 2256. This Court has also upheld

such laws over constitutional challenges. See

a bad conduct discharge, and a reduction in rank to the lowest

enlisted grade. When the court of military review originally

reversed petitioner’s sodomy conviction, the court left in place

the seven-month term of imprisonment and the reduction in

rank; the court found inappropriate only the bad conduct

discharge. See Pet. App. 10a-11a.

Osborne v. Ohio, 495 U.S. 103 (1990); New York v.

Ferber, 458 U.S. 747 (1982) (both upholding child

pornography statutes); Ginsberg v. New York, supra

(upholding statute prohibiting distribution of pornog-

raphy to minors).

None of this Court’s decisions is to the contrary.

The privacy right recognized in Griswold was clearly

grounded in the status of the institution of marriage.”

Petitioner and his schoolgirl partner were not

married, so Griswold does not aid him. Eisenstadt

held invalid under the Equal Protection Clause a

state law barring the distribution of contraceptives to

unmarried adults, but it did not address the issue of

state regulation of conduct toward minors. 405 U.S.

at 445, 453-455. This Court in Carey held uncon-

stitutional a state law prohibiting the distribution of

contraceptives to minors, but that ruling does not

assist petitioner. A four-Justice plurality believed

that the state law implicated a minor’s interest in

avoiding an unwanted child. 431 U.S. at 691-699.

Justice White was the fifth vote to invalidate the

statute, and he concurred only in the result, on the

ground that the statute did not “measurably

contribute[] to the deterrent purposes which the

State advances as justification for the restriction.”

* Griswold identified the petitioners as persons who “gave

information, instruction, and medical advice to married

persons as to the means of preventing conception.” 381 U.S. at

480. The Court asked, “Would we allow the police to search the

sacred precincts of marital bedroonis for telltale signs of the

use of contraceptives?,” and answered: “The very idea is

repulsive to the notions of privacy surrounding the marriage

relationship.” Jd. at 485-486 (emphasis added). Griswold

concluded: “Marriage is a coming together for better or for

worse. hopefully enduring, and intimate to the degree of being

sacred, * * * [I]t is an association for as noble a purpose as any

involved in our prior decisions.” /d. at 486 (emphasis added).

Id. at 702. In fact, five Members of the Court either

dissented from the plurality’s conclusion or went so

far as to label “frivolous” the claim that “a minor has

the constitutional right to put contraceptives to their

intended use, notwithstanding the combined objection

of both parents and the State.” /d. at 703 (opinion of

White, J.); 7d. at 702 (Burger, C.J., dissenting); 7d. at

703-710 (opinion of Powell, J.); id. at 713 (opinion of

Stevens, J.); id. at 717-719 (Rehnquist, J., dissenting).

b. Amicus Navy-Marine Corps Appellate Defense

Division claims that the ruling below conflicts with

various lower court decisions holding unconstitu-

tional state sodomy laws as applied to the private

consensual heterosexual acts of unmarried adults.

Navy-Marine Corps Amicus Br. 2-3 & n.3. Each lower

court decision holding such a state law invalid under

those circumstances, however, made clear that its

ruling was limited to conduct between adults. In

addition, several of the decisions explicitly acknowl-

edged that the State has the power to outlaw sexual

conduct between an adult and a minor.* Accordingly,

there is no conflict among the lower courts on the

question presented by this case.

2. Petitioner argues that he lacked notice that he

could be court-martialed for his conduct, and that

3 See State v. Pilcher, 242 N.W.2d 348, 356, 359, 360 (Iowa

1976); Commonwealth v. Balthazar, 318 N.E.2d 478, 481 & n.3

(Mass. 1974); People v. Onofre, 415 N.E.2d 936, 940-941 (N.Y.

1980) (noting the absence of “the elements of force or of in-

volvement of minors which might constitute compulsion of un-

willing participants or of those too young to make an informed

choice”), cert. denied, 451 U.S. 987 (1981); Commonwealth v.

Bonadio, 415 A.2d 47, 49 (Pa. 1980) (noting that “[tJhe state

clearly has a proper role to perform * * * in protecting minors

from being sexually used by adults”); State v. Saunders, 381

A.2d 333, 340 & n.6 (N.J. 1977).

prosecuting him for the conduct at issue here violated

the equal protection component of the Due Process

Clause. Pet. 10-13. Petitioner, however, has not

properly preserved those claims. Petitioner did not

raise those claims at trial when he pleaded guilty, nor

did he assert them in either military appellate court.

Accordingly, he cannot raise those claims for the

first time in this Court. See, e.g., Taylor v. Freeland

& Kronz, 112 S. Ct. 1644, 1649 (1992); Solorio v.

United States, 483 U.S. 435, 451 n.18 (1987); United

States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). In any

event, petitioner’s claims lack merit.

Petitioner relies on Bouie v. City of Columbia, 378

U.S. 347 (1964), and Marks v. United States, 430 U.S.

188 (1977), see Pet. 10-11, but neither decision aids

him. Bouie and Marks forbid the retroactive applica-

tion of an unforeseeable judicial expansion of the

substantive scope of a criminal statute to reach con-

duct that a person could not reasonably have believed

was criminal at the time he committed it. See Rose v.

Locke, 423 U.S. 48, 53 (1975); Splawn v. California,

431 U.S. 595, 601 (1977) (Bowie held “that the ele-

ments of a statutory offense may not be so changéd by

judicial interpretation as to deny to accused defen-

dants fair warning of the crime prohibited”).4 No “fair

* Bouie held that due process barred the conviction of two

black college students for their refusal to leave an “all-white”

lunch counter, where the “narrow and precise,” 378 U.S. at

352, state criminal trespass statute under which they were

convicted on its face prohibited only the entry onto the

property of another in violation of previously given notice, id.

at 549 n.1, and where, prior to the conduct at issue, that statute

never had been construed to cover the refusal to leave the

property of another, id. at 350. Marks held that the new stan-

dard for determining the constitutionality of obscene materials

that was adopted in Miller v. California, 413 U.S. 15 (1973),

warning” coneern is present in this case, because

petitioner had adequate notice that he could be

prosecuted for the actions at issue here.

Article 125 of the UCMJ, 10 U.S.C. 925, prohibits

sodomy, which is defined in part as the “unnatural

carnal_copulation with another person of the same or

opposite sex.” In United States v. Scoby, 5 M.J. 160,

164-166 (1978), the Court of Military Appeals indicated

that a servicemember could be prosecuted under

Article 125, UCMJ, 10 U.S.C. 925, for sodomy com-

mitted in either a public or private location, and this

Court in Rose v. Locke upheld a state law treating

sodomy as a form of “unnatural copulation,” 423 U.S.

at 52 (quoting Sherrill v. State, 321 S.W.2d 811, 812

(Tenn. 1959), quoting from State v. Cyr, 198 A. 743

(Me. 1938)). See also United States v. Henderson, 34

M.J. at 176 (“oral copulation has been openly and

expressly prohibited in the armed forces of the

United States since time immemorial”); cf. Wain-

wright v. Stone, 414 U.S. 21 (1973) (upholding state

sodomy law over vagueness challenge). Petitioner

therefore had adequate notice that his conduct could

be punished under the UCMJ.

Petitioner maintains that the government violated

equal protection principles by prosecuting him under

the UCMJ knowing that he could not be prosecuted in

the Oklahoma state courts for the conduct in ques-

tion. That claim also lacks merit, for several reasons.

To begin with, petitioner’s argument rests on a false

premise. The state decisions he cites to support his

claim that he could not be prosecuted in the Oklahoma

courts, Hinkle v. State, 771 P.2d 232 (Okla. Crim. App.

1989), and Post v. State, 715 P.2d 1105 (Okla. Crim.

could not be retroactively applied to conduct that occurred

prior to the decision in Miller. 430 U.S. at 196-197.

teen aiaaleaereeeeiel

App. 1986), cert. denied, 479 U.S. 890 (1986), involved

conduct between adults, not between an adult and a

minor, which was the case here.

In addition, there is no unfairness in prosecuting a

person under the UCM for conduct that is not a

crime under state law. It is not uncommon for federal

law to outlaw conduct that is not a crime under state

law, or even under federal law applicable only to civil-

ians. See, e.g., Parker v. Levy, 417 U.S. 733 (1974)

‘upholding the constitutionality of Arts. 133 and 134.

UCMJ, 10 U.S.C. 933 and 934, which outlaw “conduct

unbecoming an officer and a gentleman” and “all dis-

orders and neglects to the prejudice of good order and

discipline in the armed forces”). Congress could rea-

sonably believe that it is valuable to have a uniform

code of conduct governing the actions of servicemem-

bers, rather than rely on the different laws of the

various States.

Finally, insofar as petitioner suggests that he was

unfairly prosecuted, he has not alleged or proved that

he was singled out on the basis of an invidious charac-

teristic, such as race or religion, as settled equal pro-

tection principles require. See, e.g., McCleskey v.

Kemp, 481 U.S. 279, 292 (1987); Wayte v. United

States, 470 U.S. 598 (1985). At bottom. petitioner’s

equal protection claim is not materially different

from his privacy claim, and also warrants no further

review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.