United States v. Pope , 63 M.J. 68 ( 2006 )

UNITED STATES, Appellee
v.
Keith E. POPE, Staff Sergeant
U.S. Air Force, Appellant
No. 05-0077
Crim. App. No. 34921
United States Court of Appeals for the Armed Forces
Argued November 8, 2005
Decided April 14, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD and EFFRON, JJ., joined. ERDMANN, J., filed
a dissenting opinion.
Counsel
For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Captain Martin L.
Powell (on brief).
For Appellee: Captain Kimani R. Eason (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs,
Lieutenant Colonel William B. Smith, Major Michelle M. McCluer,
and Major Lane A. Thurgood (on brief).
Military Judge: Sharon A. Shaffer
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Pope, No. 05-0077/AF
Judge BAKER delivered the opinion of the Court.
After a contested general court-martial before members,
Appellant, a recruiter, was convicted of a variety of offenses
relating to inappropriate and unprofessional conduct with
prospective applicants. The findings of guilt included four
specifications of violating a lawful general regulation, one
specification of maltreatment, and two specifications of
assault, in violation of Articles 92, 93, and 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 892, 893, and 928
(2000), respectively. The adjudged and approved sentence
included a bad-conduct discharge, confinement for fifteen
months, forfeiture of all pay and allowances and reduction to
airman basic (E-1). The United States Air Force Court of
Criminal Appeals affirmed in an unpublished decision. United
States v. Pope, No. ACM 34921, 2004 CCA LEXIS 204, 2004 WL
1933210 (A.F. Ct. Crim. App. Aug. 30, 2004). We granted review
of the following three issues upon Appellant’s petition:
I. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT
APPELLANT OF SPECIFICATIONS 2, 3, AND 4 OF CHARGE I
(VIOLATION OF A DIRECTIVE PROHIBITING SEXUAL HARASSMENT)
BEYOND A REASONABLE DOUBT.
II. WHETHER AIR EDUCATION AND TRAINING INSTRUCTION 36-2002,
PARA. 1.1.2.2.5. (PROHIBITING INAPPROPRIATE CONDUCT AND
UNPROFESSIONAL RELATIONSHIPS) BOTH FACIALLY AND AS
APPLIED TO APPELLANT VIOLATES DUE PROCESS AND IS
UNCONSTITUTIONALLY VOID FOR VAGUENESS.
III. WHETHER THE MILITARY JUDGE ERRED WHEN SHE ADMITTED OVER
DEFENSE OBJECTION, A PROSECUTION EXHIBIT OFFERED AS
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SENTENCING AGGRAVATION EVIDENCE THAT ARGUED AIR FORCE
CORE VALUES AND ENDORSED “HARSH ADVERSE ACTION” FOR THOSE
WHO COMMITTED APPELLANT’S OFFENSES.
For the reasons that follow, we hold the evidence was legally
sufficient to support Appellant’s convictions. Further, we hold
that the challenged instruction was not unconstitutionally vague
and that it provided sufficient notice to Appellant that his
conduct was subject to criminal sanction in the context of a
recruiter’s relationship with applicants. Finally, we conclude
that the military judge admitted an impermissible command view
on punishment during presentencing. Consequently, a rehearing
on sentence is authorized.
BACKGROUND
Appellant was a thirty-five-year-old staff sergeant
assigned to the 331st Recruiting Squadron at Maxwell Air Force
Base, Gunter Annex, in Alabama. Appellant completed recruiter
training and graduated from “Recruiter Technical School” on June
1, 2000. In response to a number of incidents of sexual
harassment by Air Force recruiters, each graduating class of
recruiters, including Appellant’s, was briefed about the problem
of sexual misconduct and informed of the consequences if they
engaged in such misconduct. Each recruiter was additionally
given a letter signed by Brigadier General Peter U. Sutton,
Commander of the Air Force Recruiting Service, stating that if
they failed to treat applicants respectfully and professionally,
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they “should not be surprised when, once you are caught, harsh
adverse action follows.”
After completing processing at Maxwell, Appellant was sent
to a recruiting field office in Athens, Georgia.
A. Appellant’s conduct with applicant J.R.B.1
J.R.B. first met Appellant at the recruiting office in
Athens around September 2000 when she was a seventeen-year-old
senior in high school. Appellant initially offered her food and
started taking her information. When J.R.B. told Appellant she
was an artist, Appellant mentioned that he needed some art for
his apartment and stated that he would like to see her artwork.
While J.R.B. did not think Appellant expressly stated that he
wanted her to come to his apartment, she believed that he
implied it. Nothing else unusual happened during this first
encounter.
J.R.B. met with Appellant a second time at a recruiting
fair outside her school cafeteria. Appellant called out her
name and asked that she come to his booth. J.R.B. complied, and
the two discussed whether rules in the Air Force were less
1
The specification on the charge sheet related to J.R.B. was drafted as
follows:
Specification 2: [D]id, at or near Farmington,
Georgia, from on or about 1 September 2000 to on or
about 31 October 2000, violate a lawful general
regulation, to wit: paragraph 1.1.2.2.5.5, Air
Education and Training Command Instruction 36-2002,
dated 18 April 2000, by engaging in verbal conduct of
a sexual nature with J.R.B. that created an
intimidating, hostile or offensive environment.
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strict than in the Marines. During the conversation J.R.B.
asked whether her eyebrow ring would be permitted in the Air
Force. Appellant, referring to the eyebrow ring, commented,
“[t]hat’s driving me crazy, that [sic] so sexy.” J.R.B.
reported the incident to her French teacher.
At trial, J.R.B. testified that she did not feel
intimidated by Appellant, but felt extremely uncomfortable and
that after his comments, her “skin was crawling” and she “was
all shaky.” Upon defense counsel questioning, J.R.B. also
testified that Appellant never asked her out on a date.
B. Appellant’s conduct with applicant P.M.B.2
P.M.B. was sixteen years old when she first met Appellant
at the recruiting office in October 2000. Appellant commented
that she was “pretty” and also that she had “a lot going for
[her].” On one occasion when P.M.B. was riding back with
Appellant in his car from an Air Force entrance exam, he again
commented that she was pretty and placed his hand around her
knee area for a couple of seconds. P.M.B. testified that
2
This specification was drafted on the charge sheet as follows:
Specification 3: [D]id, at or near Athens, Georgia,
on divers occasions from on or about 1 October 2000
to on or about 27 December 2000, violate a lawful
general regulation, to wit: paragraph 1.1.2.2.5, Air
Education and Training Command Instruction 36-2002,
dated 18 April 2000, by engaging in verbal and
physical conduct of a sexual nature with P.M.B. that
created an intimidating, hostile or offensive
environment.
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Appellant’s actions could have been done in a conversational
way, but that his actions made her feel uncomfortable and
intimidated.
C. Appellant’s conduct with applicant A.D.R.3
A.D.R. was eighteen years old when she first met Appellant
at the recruiting office in July 2000. A.D.R. testified at
trial that Appellant was professional initially, but then he
started to get uncomfortably personal. Appellant inquired why
A.D.R. did not have a boyfriend and why her past relationships
with boyfriends had failed. Appellant began looking at his
computer, and when A.D.R. asked what he was looking at,
Appellant stated it was a picture, but “not the kind you take
home to your grandmother.” Appellant repeatedly told A.D.R.
that he wanted her to come over to his house at nighttime to
take pictures of her, and A.D.R. testified at trial that as she
got up to leave, Appellant “look[ed] her up and down.” She also
testified that his comments made her “very uncomfortable” and
that she never returned to the recruiting office.
3
This specification was drafted as follows:
Specification 4: [D]id, at or near Athens, Georgia,
from on or about 18 April 2000 to on or about 1
November 2000, violate a lawful general regulation,
to wit: paragraph 1.1.2.2.5.5., Air Education and
Training Command Instruction 36-2002, dated 18 April
2000, by engaging in verbal conduct of a sexual
nature with A.R. that created an intimidating,
hostile, or offensive environment.
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DISCUSSION
A. Sufficiency of the evidence
Regarding his conduct with the three applicants mentioned
above, the Government charged Appellant with violating
paragraphs 1.1.2.2.5. and 1.1.2.2.5.5. of Air Education and
Training Command, Instr. 36-2002, Recruiting Procedures for the
Air Force (Apr. 18, 2000) [hereinafter AETCI 36-2002].4
Appellant renews his argument before this Court that the
evidence was not legally sufficient to support his conviction.
4
The portions of AETCI 36-2002 that are at issue in this case state the
following:
1.1.2.2.5. Recruiting personnel will maintain high standards of
conduct and be totally professional in their
relationships with applicants. Inappropriate conduct
and unprofessional relationships include, but are not
limited to, the following:
1.1.2.2.5.1. Developing or attempting to develop or maintain an
intimate personal relationship with an applicant.
1.1.2.2.5.2. Making sexual advances towards applicants or seeking
or accepting sexual advances from applicants.
1.1.2.2.5.3. Dating or attempting to date any applicant whose
processing has begun and has not been terminated due
to the applicant’s own withdrawal or one of the
grounds of unacceptability outlined elsewhere in this
instruction. . . .
1.1.2.2.5.4. Using grade or position, threats, pressure, or
promise of return of favors or favorable treatment in
an attempt to gain sexual favors from applicants.
1.1.2.2.5.5. Engaging in any verbal or physical conduct of a
sexual nature that creates an intimidating, hostile,
or offensive environment.
1.1.2.2.5.6. Using personal resources to provide applicants with
lodging or transportation.
1.1.2.2.5.7. Accepting an applicant’s personal belongings or
household goods for storage or any other reason.
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In determining whether the evidence is legally sufficient,
we “‘view[] the evidence in the light most favorable to the
prosecution’” and decide whether “‘any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Brown, 55 M.J. 375, 385
(C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). The assessment of the legal sufficiency of the
evidence is limited to the evidence presented at trial. United
States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
The elements of an Article 92, UCMJ, violation for failure
to obey a lawful general order or regulation are: (a) a certain
lawful general order or regulation was in effect; (b) the
accused had a duty to obey that order or regulation; and (c) the
accused violated or failed to obey the order or regulation.
There is no question that AETCI 36-2002 was in effect at
the time of Appellant’s offenses. The instruction became
effective April 18, 2000, over two months prior to his
interactions with the applicants involved in this case.
Moreover, there is no issue concerning Appellant’s duty to obey
the instruction. AETCI 36-2002 is the primary instruction used
by the Air Force Recruiting Service in providing guidance to
recruiters and listing recruitment procedure. It informs all
recruiters in the field of their duties, and outlines prohibited
conduct with prospective applicants. AETCI 36-2002 expressly
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states that “[f]ailure to observe the prohibitions and mandatory
provisions . . . may result in punishment under Article 92, or
other articles, of the [UCMJ].”
The element in question is whether the evidence proved
beyond a reasonable doubt that Appellant failed to obey AETCI
36-2002.
1. Conduct with J.R.B.
Regarding his conduct with J.R.B., Appellant was found
guilty of violating AETCI 36-2002, paragraph 1.1.2.2.5.5. This
provision proscribes “[e]ngaging in any verbal or physical
conduct of a sexual nature that creates an intimidating,
hostile, or offensive environment.” Appellant argues that
because he never expressly invited J.R.B. over to his apartment,
he cannot be guilty of engaging in verbal conduct of a sexual
nature that creates an offensive environment. We disagree.
Comments need not be expressly or explicitly sexual to be of a
sexual nature. Sexual innuendo, or a recruiter’s implied
invitation to an applicant that latently suggests sexual
activity, may be sexual in nature. Moreover, reasonable triers
of fact could have found that Appellant’s sexually laden
comments to J.R.B. that her eyebrow ring was “driving [him]
crazy,” and that it was “so sexy,” were expressly sexual and
contributed to the creation of the offensive environment.
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2. Conduct with P.M.B.
Regarding Appellant’s interaction with P.M.B., he was
charged with violating paragraph 1.1.2.2.5. of AETCI 36-2002.
That paragraph states that “[r]ecruiting personnel will maintain
high standards of conduct and be totally professional in their
dealings with applicants.” The instruction incorporates an
unexhausted list of prohibited behavior, including making or
accepting sexual advances from applicants, attempting to date
applicants, using threats, promises, or pressure to gain sexual
favors, or engaging in verbal conduct of a sexual nature that
creates an intimidating, hostile, or offensive environment.
In this case, a reasonable member could have found that
Appellant engaged in conduct of a sexual nature with a sixteen-
year-old that was in the position of needing to ride alone with
Appellant in his car. Reasonable triers of fact could have
concluded that by placing his hand on P.M.B.’s knee shortly
after commenting on her appearance, Appellant engaged in conduct
of a sexual nature and created an intimidating or offensive
environment.
3. Conduct with A.D.R.
With respect to A.D.R., Appellant was charged with
violating paragraph 1.1.2.2.5.5. of AETCI 36-2002. Under the
circumstances of this case, a rational trier of fact could
determine that Appellant created an offensive environment by
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implying that he was looking at inappropriate images while he
was conversing with A.D.R.. Based on A.D.R.’s testimony, the
members could also have reasonably concluded that Appellant’s
invitation to A.D.R. to come to his home alone at night to “take
pictures” was anything but a request for an innocent rendezvous,
especially in the context of how A.D.R. stated Appellant looked
at her.
4. Conclusion
Viewing the evidence in the light most favorable to the
prosecution, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that Appellant violated
AETCI 36-2002 with respect to J.R.B., P.M.B, and A.D.R. by
engaging in verbal conduct of a sexual nature that created an
intimidating, hostile, or offensive environment. See Brown, 55
M.J. at 385.
Appellant was in a position where prospective applicants
had a right to expect that they would be treated with dignity
and respect. AETCI 36-2002 requires as much. Applicants expect
a recruiter to evaluate them for their skills, potential, and
ability to contribute to the Air Force, and not for their sexual
appeal.
B. Constitutionality of the instruction
We now turn to Appellant’s constitutional challenge to the
instruction. Appellant argues that subjecting him to criminal
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sanction for violating AETCI 36-2002 infringes upon his due
process rights because the instruction was vague, and he lacked
fair notice that sexually offensive conduct could be subject to
criminal sanction. In addition, he argues that a reasonable
person could not conclude that his particular statements were
unacceptable and could subject him to criminal sanction.
To withstand a challenge on vagueness grounds, a regulation
must provide sufficient notice so that a servicemember can
reasonably understand that his conduct is proscribed. United
States v. Moore, 58 M.J. 466, 469 (C.A.A.F. 2003). See also
United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)
(holding due process requires fair notice that an act is
forbidden and subject to criminal sanction). This Court
recognizes that possible sources of “fair notice” include:
federal law, state law, military case law, military custom and
usage, and military regulations. Id. at 31. Training,
pamphlets, and other materials may also serve as sources of
notice because they may give context to regulations and explain
the differences between permissible and impermissible behavior.
See Brown, 55 M.J. at 384.
1. Notice of criminal sanction
As a threshold matter we note that the instruction as well
as the recruiter school placed Appellant on notice that his
conduct was subject to criminal sanction. Appellant completed a
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recruiter training course in which he was instructed on proper
comportment with applicants and informed of rules prohibiting
sexual misconduct. The Staff Judge Advocate (SJA), Major Robert
Mitchell, testified at trial that he interacted with recruiters
from July 1998 through July 2000 as they came through “Recruiter
Technical School” training, and that he warned applicants,
including Appellant’s June 2000 class, about the consequences of
engaging in misconduct.5 Major Mitchell discussed several high
profile sexual misconduct cases with recruiters in training to
“let them see if they decide not to obey . . . what’s going to
happen.” Upon graduation from training, every recruiter in the
Air Force Recruiting Service was given a folder with a letter
signed by Brigadier General Peter U. Sutton, Commander of the
Air Force Recruiting Service, stating that such misconduct “will
not be tolerated.”6 Major Mitchell testified that the issue was
5
Although Major Mitchell testified on sentencing, his testimony is
nonetheless relevant to our analysis and resolution of the constitutional
issue.
6
Paragraph two of the letter states:
There is an important reason that AFI [Air Force
Instruction] 36-2002 forbids recruiters from engaging
in unprofessional relationships with applicants.
Whether you feel powerful or not, each recruiter is
in what is viewed as an influential position. The
bulk of our applicants are vulnerable young people,
often teenagers. You hold substantial power in their
lives . . . at least in their minds, as well as in
the eyes of their parents. Even in cases where the
facts indicate consensual sexual activity, the
victims often feel like an agent of the Air Force
took advantage of them. You must keep your
relationships with applicants professional -- period!
Paragraph four of the letter states:
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so important that “almost every Commander gave it to them a
second time when they got to their units.” Moreover, the
instruction itself is a source of notice. The instruction
expressly states that failure to observe its prohibitions may
result in punishment under Article 92, UCMJ, and that compliance
is mandatory.
2. Was the regulation vague as applied in context?
Appellant primarily argues that even if he were on notice
as to the general criminal prohibition regarding sexual contact
with applicants, the instructions were too vague to provide him
with fair notice as to what specific types of conduct would be
prohibited. He contends that the vagueness of AETCI 36-2002 is
apparent when compared with other sexual harassment directives
in the armed forces that provide specific examples of prohibited
conduct. For example, Appellant posits Dep’t of the Navy, Sec’y
of the Navy Instr. 5300.26C, Policy on Sexual Harrassment (Oct.
17, 1977) [hereinafter SECNAVINST 5300.26C], discussed in United
States v. Jones, No. NMCM 200000845, 2003 CCA LEXIS 4, at *8-
*16, 2003 WL 131691, at *3-*7 (N-M. Ct. Crim. App. Jan 16, 2003)
Remember, “integrity first” and “service before self”
are two of our core values. These two types of
misconduct violate those principles. The citizens of
this country demand that we treat our applicants
respectfully, equitably, and ethically. This command
and the US Air Force will accept no less. If you
choose to ignore these important rules for the sake
of your own pleasure or esteem, you should not be
surprised when, once you are caught, harsh adverse
action follows.
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United States v. Pope, No. 05-0077/AF
(unpublished), as a proper model of clarity. Unlike AETCI 36-
2002, SECNAVINST 5300.26C provides a detailed summary of the
criteria for sexual harassment. It discusses “the range of
workplace behaviors that may constitute sexual harassment” and
“utilizes a ‘traffic light illustration . . . in which behaviors
are divided up into three zones, corresponding to a traffic
light.’” Jones, 2003 CCA LEXIS 4, at *15, 2003 WL 131691, at *6
(citing SECNAVINST 5300.26C, enc. (2), para. 4). Behavior
falling in the “yellow zone,” which may or may not constitute
sexual harassment, includes violating personal space, whistling,
questions about personal life, lewd and suggestive comments,
repeated requests for dates, and sexually suggestive touching or
gesturing. Jones, 2003 CCA LEXIS 4, at *15-*16, 2003 WL 131691,
at *6.
In another context it may be prudent to have specific
prohibitions illustrated with examples in order to identify
criminal conduct; however, the question here is whether the
regulation is constitutionally vague as applied to a recruiter’s
conduct with applicants. In the context of recruiting, an
instruction as detailed as SECNAVINST 5300.26C is not required.
AETCI 36-2002 is clear that sexual conduct by recruiters with
applicants is prohibited, and recruiters must be “totally
professional in their relationships with applicants.” AETCI 36-
2002, 1.1.2.2.5. It was not necessary for the Air Force
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recruiting instruction to identify every possible nook and
cranny in the line of conduct, for the line is straight and
narrow.
Moreover, this introductory paragraph of the regulation
incorporates the subordinate paragraphs that follow. The
subordinate paragraphs provide a range of illustrative, but not
exhaustive conduct that would violate the regulation. For
example, recruiters are prohibited from “attempting to date any
applicant” or “making sexual advances towards applicants.” Id.
at 1.1.2.2.5.3; 1.1.2.2.5.2. With such notice, a reasonable
servicemember need not have pondered whether placing his hand on
an applicant’s knee while riding alone with her in a car,
inviting an applicant to his apartment at night to take
pictures, or telling an applicant that her appearance was
“driving [him] crazy” and was “so sexy,” were prohibited.
Given the evolving and innumerable ways in which sexually
offensive conduct may occur in the recruiting context, the Air
Force was not required, as a matter of law, to expressly set
forth all conceivable instances of impermissible conduct. In
our view, the language of AETCI 36-2002 provided ample
discussion of the types of behavior prohibited by the regulation
and a reasonable person would have been on notice that
misconduct of the sort engaged in by Appellant was subject to
criminal sanction.
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3. First Amendment Challenge
Finally, Appellant argues that AETCI 36-2002 impermissibly
curtails a recruiter’s First Amendment rights to expression.
While intimidating, hostile or offensive speech may be tolerated
in civilian society, in the armed forces, other considerations
also come to bear. Restrictions on speech may exist that have
no counterpart in civilian society. Parker v. Levy, 417 U.S.
733, 759 (1974). “‘[T]he right of free speech in the armed
services is not unlimited and must be brought into balance with
the paramount consideration of providing an effective fighting
force for the defense of our Country.’” United States v. Brown,
45 M.J. 389, 396 (C.A.A.F. 1996) (quoting United States v.
Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972)). Proper
relations between recruiters and applicants in the armed forces
are indispensable in attracting young people to serve their
country and in maintaining military discipline. Intimidating,
hostile, or offensive conduct of a sexual nature by recruiters
drives potential applicants away from military service and
undermines the effectiveness of the armed forces.7
C. Admission of the commander’s letter
During the sentencing phase of Appellant’s trial, the
Government moved to admit in aggravation the letter from
7
The record reflects that all three of the applicants involved in this case
dropped out of the recruitment process following their interactions with
Appellant.
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Appellant’s commander, Brigadier General Peter U. Sutton,
Commander of the Air Force Recruiting Service.8 According to the
trial counsel, this exhibit was in support of the anticipated
testimony of the SJA of the Recruiting Service, Major Mitchell.
The theme of the letter as it related to Appellant’s charged
misconduct was that “unprofessional relationships with
applicants . . . will not be tolerated.” After explaining how
such misconduct, specifically sexual misconduct, erodes the
integrity and effectiveness of the recruiting effort, the letter
concluded with the following: “If you choose to ignore these
important rules for the sake of your own pleasure or esteem, you
should not be surprised when, once you are caught, harsh adverse
action follows.”
Trial counsel’s position was that Major Mitchell would
testify that this letter was provided to every recruiter coming
through “Recruiting Technical School,” including Appellant. The
Government’s argument was that the letter demonstrated the
aggravating nature of Appellant’s conduct because he had
knowledge of what standard of conduct was expected of
8
This letter was also discussed above in Part B, and was introduced during
the sentencing phase as a source of notice that Appellant’s conduct was
subject to criminal sanction. However, a different question presented here
is whether the letter should have been admitted on sentencing, in light of
its apparent reference to a command policy, without providing the members
with an instruction as to how the command view should be considered.
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recruiters, and notwithstanding, chose to conduct himself
otherwise.
Defense counsel objected on the basis of Rule for Courts-
Martial (R.C.M.) 403 and argued, among other things, that the
letter impermissibly introduced command policy into the
sentencing process. Defense counsel’s specific concern was the
statement seemingly endorsed “harsh adverse action.” The
military judge disagreed and admitted the letter, concluding
that she discerned “[no] type of policy argument, or policy
statement in the letter like in drug offenses where a Commander
might say ‘You will not remain in the Air Force’. . . . I don’t
see any . . . policy . . . statement that says ‘You’re going to
be kicked out of the Air Force.’”
We review a military judge’s decision to admit evidence on
sentencing for a clear abuse of discretion. United States v.
Manns, 54 M.J. 164, 166 (C.A.A.F. 2004). We have long
recognized “the need in the service for a broad regulatory
authority for the maintenance of discipline.” United States v.
Fowle, 7 C.M.A. 349, 351, 22 C.M.R. 139, 141 (1956); United
States v. Hawthorne, 7 C.M.A. 293, 299, 22 C.M.R. 83, 89 (1956).
“A policy directive may be promulgated to improve discipline;
however, it must not be used as leverage to compel a certain
result in the trial itself.” Fowle, 7 C.M.A. at 351, 22 C.M.R.
at 141. Thus, we have condemned references to command policies
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or views “which in effect bring[] the commander into the
deliberation room.” United States v. Grady, 15 M.J. 275, 276
(C.M.A. 1983). Such a practice invades the province of the
sentencing authority by raising the spectre of command
influence. Id.In this case, the military judge’s rationale for concluding
that no impermissible command policy was being introduced, while
partially accurate, did not reach far enough. While the letter
does not suggest that one convicted of this type of misconduct
should be punitively separated, “‘the appearance of improperly
influencing the court-martial proceedings’” is troubling because
it conveys the command’s view that harsh action should be taken
against an accused. Id. (quoting Hawthorne, 7 C.M.A. at 297,
22 C.M.R. at 87). It is just such an appearance that we have
cautioned against in the past. Id. “A trial must be kept free
from substantial doubt with respect to fairness and
impartiality.” Id. at 276; Fowle, 7 C.M.A. at 352, 22 C.M.R. at
142. Moreover, the letter was admitted without the benefit of
an instruction to the members as to how such a view should be
considered. Consequently, consistent with this Court’s
practice, we are not convinced beyond a reasonable doubt that
these members were not influenced by the letter. United States
v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986).
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DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed with respect to the findings but
reversed as to the sentence. The sentence is set aside. The
record of trial is returned to the Judge Advocate General of the
Air Force. A rehearing on the sentence is authorized.
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ERDMANN, Judge (dissenting):
The majority holds that paragraph 1.1.2.2.5.5. of Air
Education and Training Command, Instr. 36-2002, Recruiting
Procedures for the Air Force (Apr. 18, 2000) [hereinafter AETCI
36-2002] is not unconstitutionally vague and therefore does not
violate Pope’s constitutional right to due process. Because I
find that the language in this instruction prohibiting “verbal
or physical conduct of a sexual nature that creates an
intimidating, hostile, or offensive environment[]” failed to put
Pope on notice that the conduct in which he engaged would
subject him to criminal sanctions and failed to provide adequate
enforcement standards, I respectfully dissent. As I would find
the language in the instruction unconstitutionally void for
vagueness, I would set aside the findings for Specifications 2,
3, and 4 of Charge I and the sentence.1
AETCI 36-2002 provides:
1.1.2.2.5. Recruiting personnel will
maintain high standards of conduct and be
totally professional in their relationships
with applicants. Inappropriate conduct and
unprofessional relationships include, but
are not limited to, the following:
. . . .
1.1.2.2.5.5. Engaging in any verbal or
physical conduct of a sexual nature that
1
Because I would reverse on Issue II, I would not reach the
remaining issues.
United States v. Pope, 05-0077/AF
creates an intimidating, hostile, or
offensive environment.2
“No person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend. V.
“It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient
definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357 (1983). The
same facets of a statute usually raise concerns of
both fair notice and adequate enforcement standards.
Hence the analysis of these two concerns tends to
overlap. The Supreme Court, however, while recently
recognizing the second concern as more important,
continues to treat each as an element to be analyzed
separately. See id. at 357-58.
The degree of specificity which the Constitution
demands depends on the nature of the statute.
Criminal statutes must be more precise than civil
statutes because the consequences of vagueness are
more severe. . . . Finally, the Constitution demands
2
Specification 3 of Charge I alleges that Pope violated
paragraph 1.1.2.2.5. of the instruction while Specifications 2
and 4 of Charge I allege that Pope violated paragraph
1.1.2.2.5.5. of the instruction. However all the specifications
were treated as if they charged a violation of paragraph
1.1.2.2.5.5. All of the specifications charge him with
“engaging in verbal conduct of a sexual nature with [the victim]
that created an intimidating, hostile, or offensive
environment.” The military judge’s instructions to the members
stated that to find Pope guilty they had to find that he
violated paragraph 1.1.2.2.5.5.
2
United States v. Pope, 05-0077/AF
more clarity of laws which threaten to inhibit
constitutionally protected conduct, especially conduct
protected by the First Amendment.
United States v. Gaudreau, 860 F.2d 357, 359-60 (10th Cir. 1988)
(footnotes omitted).3
This court has recognized that a regulation is void for
vagueness if it does not provide sufficient notice for a
servicemember to reasonably understand that his conduct is
proscribed. United States v. Moore, 58 M.J. 466, 469 (C.A.A.F.
2003).4 Paragraph 1.1.2.2.5.5. of AETCI 36-2002 fails on both
the “notice” and “adequate enforcement standards” grounds. The
broad language in the instruction does not enable ordinary
people to understand what conduct is prohibited. Other
administrative and criminal provisions addressing this type of
conduct recognize a need for further definition. Further, AETCI
3
In Parker v. Levy, 417 U.S. 733, 756 (1974), the Supreme Court
stated: “Because of the factors differentiating military
society from civilian society, we hold that the proper standard
for review for a vagueness challenge to the articles of the
[Uniform Code of Military Justice (UCMJ)] is the standard which
applies to criminal statutes regulating economic affairs.” Pope
does not challenge an article of the UCMJ, but rather an Air
Education and Training Command (AETC) instruction adopted by an
executive branch agency. The deference that the Supreme Court
granted to Congress in regulating conduct in the military should
not apply to an instruction adopted by a military commander
which has criminal consequences.
4
While the majority relies in part on the conclusion that a
reasonable member could have found that Pope’s conduct resulted
in sexual conduct that created an intimidating or offensive
environment, that is simply not the correct test in a
constitutional void for vagueness analysis. United States v.
Pope, 62 M.J. __ (10-12) (C.A.A.F. 2006).
3
United States v. Pope, 05-0077/AF
36-2002 fails to provide any standards to guide those charged
with enforcement of the instruction which encourages arbitrary
or discriminatory enforcement.
In order to be prohibited under the language of paragraph
1.1.2.2.5.5., AETCI 36-2002, it is not enough that the conduct
is of a sexual nature, it must also create an intimidating,
hostile or offensive environment. While the instruction does
limit the scope of the prohibition to a recruiter’s relationship
with an applicant, it does not further define “conduct of a
sexual nature”. It also fails to define or further explain what
constitutes an “intimidating, hostile, or offensive
environment”. The “conduct of a sexual nature” and
“intimidating, hostile, or offensive environment” language is
familiar to those who deal with sexual harassment issues in both
the civilian and military context, as it comes from the
definition of “sexual harassment” adopted by the Equal
Opportunity Employment Commission (EEOC):
Unwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature constitute sexual
harassment when (1) submission to such
conduct is made either explicitly or
implicitly a term or condition of an
individual’s employment, (2) submission to
or rejection of such conduct by an
individual is used as the basis for
employment decisions affecting such
individual, or (3) such conduct has the
purpose or effect of unreasonably
interfering with an individual’s work
4
United States v. Pope, 05-0077/AF
performance or creating an intimidating,
hostile, or offensive working environment.
29 C.F.R. § 1604.11(a) (2005). However, in sharp contrast to
AETCI 36-2002, the EEOC regulation is accompanied by extensive
policy guidance as to what constitutes “conduct of a sexual
nature” and a “hostile” environment. See EEOC Notice No. N-915-
050, Policy Guidance on Current Issues of Sexual Harassment
(Mar. 19, 1990) [hereinafter EEOC Policy Guidance]. The EEOC
Policy Guidance notes that “[u]nless the conduct is quite
severe, a single incident or isolated incidents of offensive
sexual conduct or remarks generally do not create an abusive
environment.”5 Id. at para. C(2)
The EEOC Policy Materials also adopts an objective
“reasonable person” standard to evaluate when harassment is
sufficiently pervasive or severe to constitute a hostile
environment and whether challenged conduct is of a sexual
nature. Id. at para. C(1). It is constitutionally troublesome
that the EEOC regulation provides more definition than does
AETCI 36-2002, yet the EEOC regulation does not subject an
individual to criminal sanctions as AETCI 36-2002 does.
It is also instructive to compare the language of AETCI 36-
2002 to policies and regulations adopted by the Air Force and
5
The EEOC Policy Guidance also notes, “sexual flirtation or
innuendo, even vulgar language that is trivial or merely
annoying, would probably not establish a hostile environment.”
Id. at para. C.
5
United States v. Pope, 05-0077/AF
other branches of the armed forces that are derived from the
EEOC definition.6 Similar to AETCI 36-2002, these service
regulations can provide the basis for criminal sanctions under
Article 92, UCMJ, 10 U.S.C. § 892 (2000). Unlike AETCI 36-2002,
however, these service regulations provide further explanation
and guidance as to what type of conduct is prohibited and what
type of conduct is allowed under the regulation.
The military has generally adopted a standard that not only
utilizes the “objective reasonable person” standard similar to
the EEOC, it also has added the subjective viewpoint of the
victim.7 Dep’t of Defense Dir. 1350.2, Military Equal
Opportunity (MEO) Program E2.1.15.3 (Aug. 18, 1995) [hereinafter
DoD Directive 1350.2] defines “sexual harassment” using the EEOC
language and provides that the conduct must be “so severe or
pervasive that a reasonable person would perceive, and the
victim does perceive, the work environment as hostile or
offensive.” The directive goes on to define the “[w]orkplace”
environment as including conduct, “on or off duty, [twenty-four]
hours a day.” Id. The Air Force has also adopted this same
6
See J. Richard Chema, Arresting “Tailhook”: The Prosecution of
Sexual Harassment in the Military, 140 Mil. L. Rev. 1, 7-8
(1993).
7
For a discussion as to the difficulty in adopting the EEOC
language into the military context, see Michael F. Noone,
Chimera or Jackalope? Department of Defense Efforts to Apply
Civilian Sexual Harassment Criteria to the Military, 6 Duke J.
Gender L. & Pol’y 151 (1999).
6
United States v. Pope, 05-0077/AF
standard in Dep’t of the Air Force, Instr. 36-2706, Military
Equal Opportunity Program (July 29, 2004) and Dep’t of the Air
Force, Pamphlet 36-2705, Discrimination and Sexual Harassment
(Feb. 28, 1995). The lack of definition and enforcement
guidance in AETCI 36-2002 is inconsistent with general Air Force
policy.
The current Navy regulation on sexual harassment, Dep’t of
the Navy, Sec’y of the Navy Instr. 5300.26D, Policy on Sexual
Harassment (Jan. 3, 2006), contains the same prohibitions as the
EEOC regulation quoted above, but goes even further than DoD
Directive 1350.2 in providing guidance as to that language. It
includes a definition of the “reasonable person standard” as an
“objective test used to determine if behavior meets the legal
test for sexual harassment,” along with a three-page discussion
of the “range of behaviors which constitute sexual harassment”
that includes the traffic light illustration described by the
majority. Id. at enc. (1) and (2). The Army also has
regulation which contains a version of the EEOC definition and
provides examples of different categories of sexual harassment
including verbal conduct, nonverbal conduct, and physical
contact. See Dep’t of the Army, Reg. 600-20, Personnel-General,
Army Command Policy Ch. 7 (Feb. 1, 2006). In contrast, AETC has
not developed any further definition or explanation of the same
terms used in the instruction in question.
7
United States v. Pope, 05-0077/AF
The EEOC and the branches of the armed forces have
determined that the “conduct of a sexual nature” and “hostile
environment” language requires further definition and
explanation in order to be understood by those to whom the
language is applied. If persons who are subject to the EEOC and
other military service policies and regulations on sexual
harassment require further definition and explanation to know
what conduct is prohibited in those contexts, there is no reason
that a “person of ordinary intelligence” who is subject to AETCI
36-2002 would not also need those additional definitions and
explanations.
In addition to the lack of definition, there is no guidance
in AETCI 36-2002 as to what standard is to be applied by those
who enforce the instruction. For example, questions such as
should an objective or subjective standard be used and should
the incident be viewed through the eyes of the victim or a
reasonable person are left unanswered. With no standards to
rely upon, those who initiate criminal sanctions for violation
of AETCI 36-2002 must necessarily do so in an arbitrary manner.
See City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing
Kolender v. Lawson, 461 U.S. 352, 358 (1983)).
I agree with the majority that sexual harassment should not
be tolerated in the recruiting context –- just as it should not
be tolerated in any military context. But if AETC intends, as
8
United States v. Pope, 05-0077/AF
the majority holds, to have a zero tolerance policy for sexual
harassment that differs from the sexual harassment policy
utilized by the rest of the Air Force, the other services and
the EEOC, their instruction should make that clear. I disagree
with the majority that in the context of recruiting a lack of
definitions and standards for conduct that constitutes a sexual
harassment criminal offense is acceptable.8
I do not reach a conclusion as to whether Pope’s actions
violated the language of the instruction. The question before
this court is whether the instruction was adequate to inform him
what conduct would be prohibited and whether the instruction
provides adequate enforcement standards. Which definitions and
standards are utilized is crucial to determining whether Pope’s
conduct violated the instruction. Under the commonly accepted
definitions and standards of the EEOC and other service
regulations, Pope’s conduct may not have violated the
instruction. Under the vague standard affirmed by the majority,
his conduct did violate the instruction. This conflict
illustrates the problems presented where there is a lack of
notice and inadequate enforcement standards.
8
While the majority recognizes that it might be prudent in other
contexts to provide further guidance in order to identify
potential criminal conduct, it concludes that it is somehow not
necessary in a recruiting context.
9
United States v. Pope, 05-0077/AF
The majority finds that the language of the instruction,
along with the directions against misconduct given to Pope
during his recruiter training, were sufficient to provide Pope
with notice that his behavior would subject him to criminal
sanctions. Pope, 62 M.J. at __ (13).9 Generally, unless a
statute infringes on First Amendment rights, it will be
evaluated “in light of the facts of the case at hand.” United
States v. Mazurie, 419 U.S. 544, 550 (1975). Pope raises First
Amendment concerns in his brief that should limit the analysis
to the language of the statute.10 However, even if the statute
were evaluated “in light of the facts of the case at hand”, at
best Pope was informed that nonspecific misconduct could result
in harsh consequences. The record does not reflect that he was
informed at any time during his training as to what constitutes
“conduct of a sexual nature”, or what constitutes an
“intimidating, hostile, or offensive environment” under AETCI
36-2002.
Pope could not have known whether his conduct would fall
under AETCI 36-2002 without being aware of the definitions and
9
This finding addresses only the “notice” prong of the vagueness
analysis and does not impact the “adequate enforcement standard”
prong.
10
See United States v. Harriss, 347 U.S. 612, 617 (1954) (in
reviewing the definiteness of a criminal statute the Court was
“not concerned with the sufficiency of the information as a
criminal pleading” but with “the statute on its face”).
10
United States v. Pope, 05-0077/AF
the standards to be applied. Similarly, with no further
definitions and standards, those charged with enforcement of the
regulation have no guidance to ensure uniform enforcement that
results in arbitrary enforcement of the instruction. The lack
of definitions and standards does not create more certainty, it
creates the very ambiguity that the void for vagueness doctrine
is designed to address. As I find the language of AETCI 36-
2002, paragraph 1.1.2.2.5.5., to be unconstitutionally void for
vagueness, I would set aside the findings for Specifications 2,
3, and 4 of Charge I and the sentence.
11