No. 06-0906/AF. U.S. v. Samir S. CHRISTIAN. CCA 35905. Review granted on the following issues:
WHETHER APPELLANT'S CONVICTION FOR VIOLATING ARTICLE 125, UCMJ, BY ENGAGING IN SODOMY WITH RJM MUST BE SET ASIDE IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003), AND UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F. 2006).
WHETHER APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF CHARGE III WAS IMPROVIDENT BECAUSE THE MISTAKE OF FACT DEFENSE APPLIES TO THE OFFENSE OF KNOWINGLY VIDEOTAPING A MINOR ENGAGED IN ORAL SODOMY.
No briefs will be filed under Rule 25.
No. 06-0932/NA. U.S. v. Javan R. GAINOUS. CCA 200300953. Review granted on the following issues specified by the Court:
WHETHER THE DICTA IN UNITED STATES v. ZACHARY, 63 M.J. 438, 442 (C.A.A.F. 2006), INDICATING THAT THE DEFENSE OF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE CRIME OF SODOMY WITH A CHILD, OVERRULED UNITED STATES v. STRODE, 43 M.J. 29, 31 (C.A.A.F. 1995) (STATING THAT DEFENSE OF MISTAKE OF FACT AS TO AGE WAS NOT AVAILABLE TO STRICT LIABILITY OFFENSE OF SODOMY).
IF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE OFFENSE OF SODOMY WITH A CHILD, WHETHER APPELLANT'S GUILTY PLEA TO THAT OFFENSE WAS PROVIDENT.
No briefs will be filed under Rule 25.
These appear to be trailer cases to United States v. Wilson, No. 06-0870/AR. Wilson case was previously argued on April 30, 2007. Additional briefs were ordered on the issue of whether the defense of mistake of fact as to age is available with respect to a charge of sodomy with a child under the age of 16 under Article 125, UCMJ.
As you probably will recall, Zachary was the case in which a unanimous court held that mistake of fact as to age was a defense to indecent acts with a minor--the LIO of carnal knowledge. But in the court's opinion, Chief Judge Gierke said that the mistake of fact as to age defense also applied to sodomy. The pronouncement was clearly dictum and now hopefully CAAF will say so. I am not sure why they did not decide this case last term.
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