United States v. Brown , 55 M.J. 375 ( 2001 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Michael C. BROWN, Captain
U.S. Air Force, Appellant
No. 00-0295
Crim. App. No. 32906
United States Court of Appeals for the Armed Forces
Argued October 11, 2000
Decided September 14, 2001
EFFRON, J., delivered the opinion of the Court, in which
SULLIVAN and GIERKE, JJ., joined. SULLIVAN, J., filed a
concurring opinion. CRAWFORD, C.J., and BAKER, J., each filed
an opinion concurring in part and dissenting in part.
Counsel
For Appellant: Major Stephen P. Kelly (argued); Lieutenant Colonel James R.
Wise (on brief); Colonel Jeanne M. Rueth.
For Appellee: Captain James C. Fraser (argued); Colonel Anthony P. Dattilo
and Lieutenant Colonel Ronald A. Rodgers (on brief); Captain Melissa A.
Burke.
Military Judge: Patrick C. Rosenow
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. BROWN, No. 00-0295/AF
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, contrary to his pleas, of one specification
of disrespect toward a superior officer and six specifications
of conduct unbecoming an officer, in violation of Articles 89
and 133, Uniform Code of Military Justice, 10 USC §§ 889 and
933. He was sentenced to dismissal and confinement for 14 days.
The convening authority approved these results, and the Court of
Criminal Appeals affirmed in an unpublished opinion.
On appellant’s petition, we granted review of the following
issues:
I
WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION IN DENYING APPELLANT'S REQUEST
FOR A SPECIAL INSTRUCTION TO ENSURE A PROPER
VERDICT BY A VOTE OF TWO-THIRDS OF THE
MEMBERS.
II
WHETHER THE MILITARY JUDGE ERRED BY
ADMITTING AIR FORCE PAMPHLET 36-2705
("DISCRIMINATION AND SEXUAL HARASSMENT")
WHICH PREJUDICIALLY INVITED THE MEMBERS TO
CONSIDER OFFICIAL "AIR FORCE POLICY" IN
ADJUDGING FINDINGS AND SENTENCE.
III
WHETHER VARIOUS SPECIFICATIONS OF CHARGE II
AND THE ADDITIONAL CHARGE ARE SUPPORTED BY
LEGALLY INSUFFICIENT EVIDENCE.
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We hold that the military judge did not err with respect to
Issue II. With respect to Issue III, concerning the legal
sufficiency of the evidence, we affirm in part and reverse in
part for the reasons set forth below. Issue I is moot in light
of our disposition of Issue III.
I. BACKGROUND
This case involves the relationships among four Air Force
nurses -- appellant, Captain (Capt) TT, Capt LK, and First
Lieutenant (1Lt) VC. At the time of the incidents at issue, the
four nurses were assigned to the 42nd Medical Group, Maxwell Air
Force Base (AFB), Alabama. Appellant was serving in the grade
of captain as an operating room nurse and assistant supervisor
of the operating room. He was married, had one child, and had
served nearly 10 years on active duty, including 6 years of
service as a commissioned officer in the Air Force. Capt TT, a
female nurse with 4 years of service, also worked in the
operating room. Capt TT was a First Lieutenant for most of the
period during which she worked with appellant and was promoted
near the end of the period encompassing the charges. Appellant
was her assistant supervisor throughout most of this period.
Capt LK, a female nurse anesthetist on her first assignment in
the Air Force, worked in the operating room. 1Lt VC, a female
nurse also on her first assignment, initially worked on the
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United States v. BROWN, No. 00-0295/AF
Medical Surgical Floor and subsequently was assigned to the
operating room.
Capt TT met appellant when she was assigned to the
operating room in April 1995. Approximately 10 months later,
she mentioned to the operating room supervisor, Lieutenant
Colonel (Lt Col) B, that appellant had made personal comments
that she considered to be offensive. The record is unclear as
to precisely when Capt TT brought this matter to Lt Col B's
attention. Lt Col B responded by discussing the following
options with Capt TT: he could address the situation in his
supervisory capacity or he could allow Capt TT to handle it by
herself. According to Lt Col B, he offered Capt TT the option
of addressing the matter informally on her own because he
thought that “maybe they were just having a personality
problem.” Neither Capt TT nor Lt Col B treated this as a formal
complaint requiring official action, and neither brought these
concerns to appellant's attention.
In March 1996, appellant had a discussion with Capt TT and
other operating room personnel regarding the procedure for
counting medical instruments. Appellant noted that Capt TT had
made an incorrect count on the previous evening, and reminded
everyone present of the accountability procedure required by
hospital policy. Capt TT, who believed that her counting method
was superior, was embarrassed because appellant singled her out
4
United States v. BROWN, No. 00-0295/AF
for criticism. She became defensive and asked appellant to
discuss the issue in private. The conversation escalated into a
shouting match.
Soon thereafter, on March 22, Capt TT decided to call upon
Lt Col B and provide him with the details of her personal
interactions with appellant over the past 10 months, but he was
not in his office. She then returned to the recovery room and
had a conversation with 1Lt VC, the substance of which is a
matter of dispute. Capt TT testified that 1Lt VC initiated a
conversation about appellant, asking, “How can you stand to work
with him?” 1Lt VC specifically contradicted Capt TT's
recollection. 1Lt VC denied making the remark, and instead
expressed her belief that Capt TT was prompted to approach her
as a result of the dispute over counting medical instruments.
Both agree, however, that they discussed appellant's conduct.
The two nurses then met with Lt Col B and related incidents
during the past year that they viewed as inappropriate. Neither
Capt TT nor 1Lt VC advised Lt Col B, at that time, of the
dispute concerning the medical instruments. Capt TT also had a
separate conversation with Lt Col B during which she advised him
that appellant, an African-American, had accused Lt Col B, a
Caucasian, of racism.
As a result of his conversation with Capt TT and 1Lt VC
about their interaction with appellant, Lt Col B became
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United States v. BROWN, No. 00-0295/AF
concerned that they had raised a sensitive issue for the Air
Force and the Department of Defense that was “out of [his]
league” and that had to be addressed “in light of Air Force
policies on harassment.” He reported his concerns to higher
authorities, which resulted in a formal investigation.
In the meantime, Lt Col B learned of the dispute about
counting medical instruments. He met with appellant on March 28
to discuss that dispute and an unrelated staffing matter. He
did not mention the information he had received from Capt TT and
1Lt VC about their personal interaction with appellant.
According to Lt Col B, appellant remained calm throughout the
conversation. Twenty minutes later, however, appellant returned
and called Lt Col B a racist, complained that Lt Col B was
soliciting lies about him, and threatened to file a complaint
with the Inspector General.1
At about 5:45 a.m. the next morning, appellant asked Lt Col
B if he could go home early because he had worked the previous
night. Lt Col B told him he could not leave at that time.
Appellant returned shortly thereafter and advised Lt Col B that
his wife and child had been in a car accident during the night
and that he needed to go home. Lt Col B again told him he could
1
Lt Col B testified that appellant had been upset with him several months
earlier and threatened to go to the Inspector General because Lt Col B had
delayed his entry into Squadron Officer School. Appellant was first on the
list in terms of seniority, but Lt Col B asked the command to place appellant
last for staffing reasons. Appellant entered the next available class.
6
United States v. BROWN, No. 00-0295/AF
not leave. At this point, appellant became upset and began to
yell at Lt Col B. Lt Col B started to escort appellant to his
office and ordered him to stop talking. Appellant complied.
While waiting for the elevator, appellant said, three times,
“I'm not your nigger boy.” Lt Col B, appellant, and a witness
to this remark then went directly to the Commander’s office
without further incident. When asked by the Commander if Lt Col
B had ever overtly discriminated against him or uttered racial
slurs, appellant replied that Lt Col B had not.
Appellant subsequently was charged with and convicted of
disrespect toward Lt Col B under Article 89 and with conduct
unbecoming an officer under Article 133 for his interaction with
the other nurses. The issues raised by appellant in the present
appeal pertain to the Article 133 charges and do not challenge
his conviction for disrespect to Lt Col B.
APPELLANT'S INTERACTION WITH HIS COLLEAGUES
1. Appellant's Interaction With 1Lt VC
1Lt VC met appellant in February 1995, during a 3-day CPR-
Instructor course she attended shortly after she arrived at the
hospital. According to 1Lt VC, appellant sat next to her on 2
of the 3 days. He made complimentary remarks about her
appearance, and asked her a number of questions, including where
she was from, whether she had a boyfriend, whether she worked
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United States v. BROWN, No. 00-0295/AF
out, how much she weighed, and what type of men she liked.2 She
stated that during these conversations, he touched her hair and
the top of her kneecap.3 Other than moving away from his touch,
she did not manifest concern about his remarks or conduct.
At the time of the CPR course, 1Lt VC and appellant worked
in different sections of the hospital. A year later, in March
1996, she was transferred to appellant’s section of the
hospital, the operating room. According to 1Lt VC, appellant
made several comments that she viewed as inappropriate,
including a statement that her supervisor, Lt Col B, was a
racist.4 She did not respond to him or speak to anyone else
about these comments.
Subsequently, 1Lt VC was approached by another operating
room nurse, Capt TT, who asked her if anyone had made her
uncomfortable. She told Capt TT about appellant’s behavior at
the CPR course the year before and the two then met with Lt Col
B.
2
Appellant was convicted of violating Article 133 by "persistently
direct[ing] comments and questions of a personal or sexual nature" to 1Lt VC,
including: “You have pretty hair," “You have pretty eyes,” “How much do you
weigh?,” “What size are you?,” “What is your phone number?,” “Do you have a
boyfriend?,” “Does your boyfriend live in Montgomery?,” and “What type of men
do you like?”
3
This physical contact resulted in appellant's conviction under Article 133.
4
Appellant was acquitted of the specification of disrespect to a superior
officer that encompassed these comments. Appellant was also acquitted of the
specification of conduct unbecoming an officer and a gentleman that entailed
“inappropriate” comments he made to 1Lt VC after she began working in the
operating room.
8
United States v. BROWN, No. 00-0295/AF
Although 1Lt VC later testified that appellant's behavior
made her feel "uncomfortable" and that she found it
"inappropriate," she did not communicate these feelings to him,
nor did she tell anyone else about appellant's conduct.
According to her testimony, she did not feel that appellant was
attempting to become sexually intimate with her. She added that
appellant's manner of communicating involved standing very close
to people when he talked, and that it was his habit to touch
people when he talked to them. She viewed this as an invasion
of her private space, which made her uncomfortable. She stated
that she had not told anyone about her interaction with
appellant at the CPR course because “I was afraid to. I was new
here. He was a captain; I was just a second lieutenant. I
didn’t see him any more. I had no more contact with him.”
Although 1Lt VC testified that she viewed appellant's style
of communication, which included touching, to be inappropriate,
she emphasized that she did not view his actions towards her as
sexual harassment, as morally unfitting, or as criminal conduct.
She added that in her view, the matter had been blown out of
proportion.
2. Appellant's Interaction with Capt LK
Capt LK arrived at Maxwell AFB in January 1996. Shortly
thereafter, appellant offered to show her around town. A month
9
United States v. BROWN, No. 00-0295/AF
later, Capt LK ran into appellant and his family at a Black
History Festival. The next day, appellant called Capt LK, and
she agreed to join him on a sightseeing tour. On the tour,
which included lunch, appellant asked her what kind of men she
liked. On the trip home, appellant put his hand on Capt LK’s
leg above the right knee. She did not respond, but she asked
him to take her home so she could pick up her daughter at
school. On a subsequent occasion, when they were together
outside the operating room, appellant touched her face with the
back of his hand. Capt LK also testified that appellant made
various comments to her at work, such as telling her he “was
coming over” to her house, she looked fit, and asking her
several times what kind of men she liked.5
Capt LK testified that despite feeling uncomfortable when
appellant put his hand on her knee, she never made him aware of
this. She testified that his offer to go sightseeing did not
offend her because it reflected customary interaction with new
arrivals, nor did she find his comments on fitness to be
inappropriate. Although she found other remarks by appellant to
be inappropriate and unprofessional, she did not tell appellant
5
Appellant was convicted of violating Article 133 by "persistently
direct[ing] comments and questions of a personal or sexual nature" to Capt
LK, including: “I’m coming over tonight,” “What kind of man are you attracted
to?,” “Are you dating anyone?,” “You look fit,” “Would you like to go sight-
seeing?,” and “You don’t need to work out because you look fine.” He was
also convicted of violating Article 133 as a result of touching Capt LK's
knee, and was acquitted of violating Article 133 with respect to touching
Capt LK's face.
10
United States v. BROWN, No. 00-0295/AF
that she had any concerns about his comments, nor did she
communicate any concerns to other officers or the chain of
command. She testified that she believed she could handle any
concerns that she had about appellant by herself. Typically,
she reacted to his remarks by responding in kind. For example,
when he said “I’m coming over,” she replied that she would tell
his wife where “to pick up her stray dog.”
In late March, Capt TT called Capt LK to ask whether
anyone had ever made her feel uncomfortable at work. When she
named appellant, Capt TT informed Capt LK that security police
would be in touch with her.
3. Appellant’s Interaction with Capt TT
When Capt TT arrived at Maxwell AFB in April 1995, she was
the only female nurse assigned to the operating room. She
worked directly with appellant from June 1995 until March 1996.
Capt TT testified that she felt uneasy from the moment she met
him because of the way he looked at her body, although she did
not mention it to appellant or anyone else during this period.
She and appellant had numerous discussions of a personal nature
during the period in which they worked together. In June 1995,
they discussed their families while sitting next to each other
in an operating room. According to Capt TT, appellant asked if
she was happily married, winked in a “sort of joking” fashion,
11
United States v. BROWN, No. 00-0295/AF
and put his hand on top of her thigh, toward the inside. She
did not say anything, but she brushed his hand off, stood up,
and walked away. She testified that she was “a little bit
flabbergasted” by the touch, but not angry.6
Capt TT testified that on a separate occasion in June 1995,
she walked into the operating room lounge while appellant and
several others were talking and eating lunch. According to Capt
TT,
they were talking about Hollywood and about
California and about people having affairs -
- extramarital affairs. And I sat down with
my food, and Captain Brown looked over at me
and said, “Have you ever had an affair?”
And I said, “No, I’m not that kind of girl,
and why are you such a nibby guy?”[7]
She testified that the question embarrassed her and that she
finished her lunch quickly and left the room while the others
continued the conversation.
According to Capt TT, she and appellant subsequently were
engaged in a conversation, in either June or July 1995, that
covered a number of topics, including families and exercise.
During that conversation, appellant, who had previously shown
Capt TT a picture of his daughter, asked to see a picture of
Capt TT’s daughter. After viewing the picture, appellant asked
6
Appellant was convicted of violating Article 133 as a result of this
conduct.
7
Capt TT testified that “nibby” was an “Indiana term” for nosey.
12
United States v. BROWN, No. 00-0295/AF
her a number of questions, including her clothing size, whether
she wore the same size clothing as her daughter, and whether she
worked out. He then commented on her appearance and said that
he could tell she worked out. Capt TT later testified that she
considered his question about her size to be inappropriate, but
she did not express any concern to him at the time.
During this same period, appellant had a number of
conversations with Capt TT during which he put his hand on her
shoulder.8 In August 1995, Capt TT decided to inform appellant
of her discomfort with the touching. She did so in the course
of a casual conversation by raising the topic of sexual
harassment and telling appellant that at her previous base, a
doctor had been “kicked out” of the Air Force for molesting a
patient and sexual harassment. She then told appellant, “By the
way, I don’t like the way you touch me sometimes.” Capt TT
testified that when appellant replied that he did not know this
bothered her, she confirmed that it did and that it made her
uncomfortable.9 Although Capt TT testified that she expressed
her concern to appellant about the touchings, she did not advise
8
Appellant was acquitted of the charge resulting from this contact.
9
According to Capt TT, this conversation took place in the presence of
another male nurse. The other nurse, however, testified that he did not
recall this conversation.
13
United States v. BROWN, No. 00-0295/AF
appellant of any concern she might have had about the remarks he
had made.
Shortly after this conversation, appellant touched Capt
TT’s right buttock while they were standing side-by-side
interviewing a patient. Capt TT initially characterized the
touch as a “soft squeeze,” but agreed on cross-examination that
it was “a touch.” Afterward, appellant softly said he was
sorry. As appellant walked away, she twice said in a lowered
voice, “Don’t do that again.” She could not be certain whether
appellant heard her.10
Capt TT testified that another touching incident occurred
in October 1995. While interviewing a patient together,
appellant reached in front of Capt TT for part of the medical
record and, in the course of doing so, his hand and forearm
brushed her breast. Capt TT backed up and “[g]ave him a really
hateful look” and appellant apologized. She testified that she
thought the contact may have been accidental and acknowledged on
cross-examination that people often worked “elbow to elbow” in
the operating room and that accidental contact could occur.11
10
Appellant was convicted of violating Article 133 as a result of this
contact.
11
The members acquitted appellant of the specification concerning this
incident.
14
United States v. BROWN, No. 00-0295/AF
Capt TT testified about several other conversations with
appellant. On one occasion, Capt TT entered the operating room
lounge while appellant and others were engaged in a discussion
about the sexual practices of the popular entertainer, Madonna:
We were all in the OR [operating room]
lounge, and there was a bunch of people--a
group of people in there again during break.
And there was a magazine there--a picture
front magazine cover was of Madonna, ... and
they were talking about--I guess she has a
video and a book, and Madonna--I don't know;
I've not seen it--but that Madonna
masturbates, and they were talking about it.
And Captain Brown looked at me and said, "Do
women masturbate?" And I looked at a person
sitting next to me, and I said, "Not the
girls I know," or something to [sic] that
sort.
Capt TT testified that conversations of a sexual nature were not
unusual at work at that time.
In the fall of 1995, Capt TT was in the operating room
lounge, showing another person a picture of her daughter, when
appellant asked what size pants she wore. According to Capt TT,
she made a "sarcastic" response and asked rhetorically, “Are you
writing another book?” Appellant then replied “I’m sure other
people have told you how nice looking you are.” Capt TT
testified that in response, she “walked him off. Just walked
away.”
In January 1996, Capt TT was having a conversation with Lt
Col B about an upcoming vacation in Florida when appellant asked
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United States v. BROWN, No. 00-0295/AF
whether she liked to go in the ocean and whether she wore a one
or two-piece swimsuit. She asked him why he wanted to know, and
he replied that he guessed she wore a two-piece suit. When
asked about Lt Col B's reaction to these comments, Capt TT said
that Lt Col B "didn’t respond to it at all. Honestly, a lot of
people ignored what Captain Brown said to other people because a
lot of times it was out of line.” Lt Col B testified that he
had no recollection of appellant's comments, although he
acknowledged that the remarks might have been made.
In March 1996, according to Capt TT, appellant approached
her in the medication room and told her about an unpleasant
encounter he had just had with a patient, in which he was
concerned that a female patient was “coming on” to him. He told
Capt TT that the patient commented on how good he looked in his
scrubs and asked if he was going to be the one who took her
panties off. The patient made him uncomfortable, and he asked
another nurse to take over.12 He then asked Capt TT if she had
ever experienced something similar. She testified that she was
“bothered” by this conversation because “he kept talking about
it . . . . [H]e called his pants ‘drawers’ and stuff like that,
and I just didn’t want to hear it, and so I walked away.”13
12
Lt Col B testified that appellant had also informed him of the encounter
with a patient.
13
As a result of this conversation and the various conversations between
appellant and Capt TT over the 10-month period, he was convicted of violating
16
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Prior to the March 1996 dispute between Capt TT and
appellant over the procedure for counting medical instruments,
Capt TT did not voice any objections or otherwise express
concern about appellant’s remarks. With respect to physical
contact, she conveyed her dislike of the touching in August
1995. Following the dispute about the medical instruments, she
complained to Lt Col B. He referred the matter to higher
authorities, which led to an investigation and the Article 133
charges against appellant. At trial, Capt TT testified that her
interaction with appellant routinely made her feel
uncomfortable, angry, or inferior. With respect to his
comments, she testified: “The things that he said, I just -- I
didn’t want to make a scene. I didn’t say anything. I usually
just walked him off.” She also testified: “I didn’t acknowledge
to him it was okay. I think he knew I didn’t like it. [W]hen I
would shrug my shoulder away and get up and walk away from him
during a conversation, I think that was -- I made my point.”
When asked why she had not reported the matter earlier, she
said that although she was aware of Air Force policies on sexual
harassment, including the pamphlet introduced into evidence at
Article 133 by "persistently direct[ing] comments and questions of a personal
or sexual nature" to Capt TT, including: “Have you ever had an affair?,” “You
look like a size 4,” “You have a very good shape and look very good for your
age,” “Do you wear a one piece or two piece swim suit?,” “I bet you wear a
two piece [swim suit],” “A patient told me I look good in my pants.” “Are you
happily married?.” “Do you get along with your husband?,” “Would you like to
go out for lunch?,” and “Do women masturbate?”
17
United States v. BROWN, No. 00-0295/AF
trial, she felt that she got along well with appellant and
wanted to handle the matter herself. Capt TT, who is Caucasian,
also testified that she was afraid of starting a racial issue
and having appellant call her a racist, apparently because he
frequently called their supervisor a racist.14 She summed up her
position by testifying:
I didn’t want to start a fuss. I was new
there. I worked with all men. I didn’t
want to be the new female coming in starting
a fuss. I didn’t want my husband to know
because I thought my husband might want to
go confront him and do something that maybe
he shouldn’t. I didn’t want [Lt Col B] to
know because Captain Brown and [Lt Col B]
were having a problem anyway that Captain
Brown told me was racist [sic]. I didn’t
want to start a racial issue. I thought I
was the only person involved in all this. I
didn’t want to say that he was touching me
or accuse him of anything, thinking that I
was the only person involved. I honestly
thought he would say, “That’s just her word
against mine.” I thought I could take care
of it myself by just letting him know and
pushing him away and letting him know
nonchalantly – I wanted to get along with
him. We did get along well. We – we got
along very well when we worked together as
long as I kept my cool and . . .[Pause.]
There was times [sic] where we had some
disputes, but it wasn’t over the touching.
You know, over personal stuff. It was over
something to do with business. [Pause.] I
didn’t want to tell anyone honestly.
14
Capt TT testified that she and appellant discussed racism frequently.
Appellant was acquitted of the specification of disrespect to a superior that
18
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II. BACKGROUND: CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN
Article 133 prohibits "conduct unbecoming an officer and a
gentleman." In civilian life, this broadly-worded statute would
be subject to challenge as unconstitutionally vague in a
criminal law proceeding. See Parker v. Levy, 417 U.S. 733, 753-
56 (1974). The Supreme Court has held, however, that Article
133 is constitutional as applied to members of the armed forces,
so long as the accused has received "fair warning of the
criminality" of his or her conduct. Id. at 756. In this
regard, the language in the Manual for Courts-Martial has
"narrowed the very broad reach of the literal language of
[Articles 133 and 134 (the General Article)] . . . , and at the
same time has supplied considerable specificity by way of
examples of the conduct which they cover." Id. at 753-54. The
Supreme Court also noted that "further content may be supplied .
. . by less formalized custom and usage." Id. at 754.
The Manual for Courts-Martial notes with respect to the
offense of conduct unbecoming an officer and a gentleman:
There are certain moral attributes common to
the ideal officer and the perfect gentleman
. . . . Not everyone is or can be expected
to meet unrealistically high moral
standards, but there is a limit of tolerance
based on customs of the service and military
necessity below which the personal standards
of an officer, cadet, or midshipman cannot
encompassed comments he made to Capt TT about Lt Col B being a racist.
19
United States v. BROWN, No. 00-0295/AF
fall without seriously compromising the
person's standing as an officer, cadet, or
midshipman or the person's character as a
gentleman. This article prohibits conduct
by a commissioned officer, cadet, or
midshipman which, taking all the
circumstances into consideration, is thus
compromising.
Para. 59c(2), Part IV, Manual for Courts-Martial, United States
(2000 ed.).15 The Manual reflects traditional military law.
Winthrop, in his authoritative treatise, noted with respect to
an earlier version of the statute:
Though it need not amount to a crime, it
must offend so seriously against law,
justice, morality or decorum as to expose to
disgrace, socially or as a man, the
offender, and at the same time must be of
such a nature or committed under such
circumstances as to bring dishonor or
disrepute upon the military profession which
he represents.
. . . [I]f the act, though ungentlemanlike,
be of a trifling character, involving no
material prejudice to individual rights, or
offence against public morals or decorum, it
will not in general properly be viewed as so
affecting the reputation of the officer or
the credit of the service as to be made the
occasion of a prosecution under the Article.
William Winthrop, Military Law and Precedents 711-12 (2d ed.
1920 Reprint) (footnotes omitted). Article 133 is not violated
by conduct that falls short of the attributes of an "ideal
officer and the perfect gentleman" or by "slight deviations
15
All Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.
20
United States v. BROWN, No. 00-0295/AF
constituting indecorum or breaches of etiquette," but by conduct
that exceeds the "limit of tolerance" set "by the custom of the
service to which the officer belongs." James Snedeker, Military
Justice Under the Uniform Code 890 (1953); see generally Keithe
E. Nelson, Conduct Expected of An Officer and a Gentleman:
Ambiguity, 12 A.F. L. Rev. 124 (1970).
III. DISCUSSION
A. CONSIDERATION OF AIR FORCE POLICY ON
DISCRIMINATION AND SEXUAL HARASSMENT
Appellant argues that the military judge erred when he
permitted the Government to introduce into evidence Air Force
Pamphlet (AFP) 36-2705, Discrimination and Sexual Harassment (28
February 1995). We review this ruling for an abuse of
discretion. United States v. McElhaney, 54 M.J. 120, 129 (2000).
At the time of the events that are the subject of the
present case, the Air Force did not have a punitive regulation
proscribing sexual harassment. Conduct amounting to sexual
harassment could be punished as a military offense if it
constituted maltreatment of a subordinate under Article 93,
UCMJ, 10 USC § 893; see para. 17c(2), Part IV, Manual, supra.
The Government, however, chose not to prosecute the present case
under Article 93, and has not argued at trial or on appeal that
21
United States v. BROWN, No. 00-0295/AF
appellant violated regulatory or customary norms regarding
superior-subordinate relationships.
Because the Government chose to prosecute the case under
Article 133 as conduct unbecoming an officer and a gentleman, it
sought to introduce into evidence the Air Force pamphlet setting
forth policy on sexual harassment to show notice of the type of
conduct that was prohibited and to establish a benchmark for
conduct deemed unbecoming an officer and a gentleman in the Air
Force community. As noted in the Government's final brief in
the present appeal, "[t]he pamphlet was relevant in establishing
the standard of conduct expected of Air Force officers," and
introduction of the pamphlet was "necessary to establish that
Appellant was aware that his behavior was impermissible."
Answer to Final Brief at 5, 24.
The pamphlet describes various examples of conduct that may
raise concerns, but does not purport to identify any particular
action as prohibited. Instead, it relies upon the following
definition of sexual harassment to establish notice of the
standard of conduct:
Sexual harassment. A form of sex
discrimination that involves unwelcomed
sexual advances, requests for sexual favors,
and other verbal or physical conduct of a
sexual nature when:
• Submission to or rejection of such conduct
is made either explicitly or implicitly a
22
United States v. BROWN, No. 00-0295/AF
term or condition of a person’s job, pay
or career, or
• Submission to or rejection of such conduct
by a person is used as a basis for career
or employment decisions affecting that
person, or
• Such conduct has the purpose or effect of
unreasonably interfering with an
individual’s work performance or creates
an intimidating, hostile, or offensive
work environment.
AFP 36-2705 at 29. The pamphlet adds that the abuse "need not
result in concrete psychological harm to the victim, but rather
need only be so severe or pervasive that a reasonable person
would perceive, and the victim does perceive, the work
environment as hostile or abusive." In addition, the pamphlet
notes that with respect to military personnel, the term
"'[w]orkplace' is an expansive term. . . and may include conduct
on- or off-duty, 24 hours a day." Id.
The pamphlet provides detailed guidance for dealing with
improper conduct. The guidance emphasizes the preference for
informal resolution at the lowest possible level, but does not
preclude formal actions, including military justice proceedings.
Id. at 6-15.16 The pamphlet does not prohibit personal or sexual
16
Other Air Force regulations note that the military Equal Opportunity and
Treatment Program has primary responsibility for sexual harassment complaints
and that attempts at informal resolution are encouraged before initiating the
formal complaint process. See para. 4.9, AFI 36-2706, Military Equal
Opportunity and Treatment Program (1 December 1996)(the purpose of the
complaint process is to “[e]ncourage early reporting of problems at the
lowest level and promote fair resolution”); para. 3.37, AFI 90-301, Inspector
General Complaints (12 August 1999)(Military Equal Opportunity has primary
responsibility for sexual harassment complaints and all such complaints filed
through IG channels will be immediately referred to MEO); para. 1.10, AFI 71-
23
United States v. BROWN, No. 00-0295/AF
relationships among officers, nor does it establish a general
prohibition against comments of a personal or sexual nature
among officers. Only "unwelcomed" comments which affect
employment or create a hostile work environment are prohibited.
At trial, defense counsel argued that the pamphlet was not
relevant under Mil.R.Evid. 401 and 402, Manual, supra, and that
its probative value was outweighed by the danger of unfair
prejudice under Mil.R.Evid. 403. Counsel asserted that the
pamphlet could not be used in a criminal prosecution because it
was not a punitive regulation and did not accurately define what
legally constitutes sexual harassment. Counsel expressed
additional concern, which is reflected in Granted Issue II, that
the examples in the pamphlet might be viewed as conclusively
establishing sexual harassment, and that any material used in
that fashion would improperly influence the members to
appellant’s detriment.
After considering detailed argument from both parties, the
military judge admitted the pamphlet, finding it relevant to
establish whether appellant’s conduct constituted a violation of
Article 133. He addressed defense concerns about prejudice
through an instruction to the members, in which he advised them
that appellant was not charged with a dereliction of duty by
101, Criminal Investigations (1 December 1999)(unless it involves a specific
criminal offense, like rape, or a person in the grade of Colonel or above,
AFOSI does not investigate complaints of sexual harassment).
24
United States v. BROWN, No. 00-0295/AF
failing to follow the pamphlet, and that if they should decide
that appellant’s behavior contradicted the pamphlet’s guidance,
“it does not automatically follow that his conduct was
unbecoming an officer.”
We agree with the military judge that the pamphlet was
relevant to establish notice of prohibited conduct and the
applicable standard of conduct in the Air Force community. See
United States v. Boyett, 42 M.J. 150 (CMA 1995). Such notice was
particularly important in the present case. As a general
matter, personal interactions among military officers are not
prohibited by law, regulation, policy, or custom. On the
contrary, the unique conditions of military service --
frequently involving long working hours, lengthy deployments for
training and operations, harsh working and living conditions,
and dangerous assignments -- tend to break down the distinctions
between personal and professional associations prevalent in
civilian society. As noted in the pamphlet, for military
personnel, the term "workplace" is an expansive term that may
include "off-duty" conduct, 24 hours a day. AFP 36-2705 at 29.
As a general matter, military officers are not precluded
from engaging in conversations with a fellow officer of the
opposite sex involving the type of comments made in the present
case with respect to physical appearance, social contacts, or
sexual matters absent a pertinent custom or policy placed in
25
United States v. BROWN, No. 00-0295/AF
evidence. This is not particularly remarkable, given the
variety of comments that are likely to be made in conversations
between officers of the opposite sex who may have relationships
ranging from casual acquaintance through dating, courtship, and
marriage.
Under these circumstances, the existence of pamphlets or
other evidence of customs and standards limiting such
communications are of particular importance in providing notice
of the distinction between permissible banter and impermissible
remarks. Cf. United States v. Rogers, 54 M.J. 244, 256 (2000)
(citing an Air Force Instruction as establishing a standard for
dating relationships among officers by limiting the prohibition
to relationships between senior and junior officers within the
same command).
The focus on "unwelcomed" comments in the pamphlet was
relevant in the present case because it provided notice of the
standard for making the critical distinction between permissible
and impermissible speech. Given the wide variety of
personalities and relationships that may exist among officers,
there is likely to be an equally wide variety of reactions to
comments of a personal or sexual nature. The standard in the
pamphlet emphasizes the need to focus on the personal
interactions at issue to determine whether the remarks were
"unwelcomed." In some cases, the comments may be so egregious
26
United States v. BROWN, No. 00-0295/AF
that any reasonable officer would know that they would be
unwelcome. In most cases, however, it is necessary to examine
the nature of the interaction between the parties to the
conversation to determine whether the person making the remarks
had reasonable notice that the comments would be regarded as
unwelcome, particularly when the comments are not overtly sexual
or demeaning, for the standard also requires that the content of
conduct be sexual.
Likewise, given the wide variety of personalities present
in the service, co-workers may be offended from time to time by
the behavior of their colleagues. But offensive conduct does
not necessarily constitute criminal conduct. The pamphlet
appropriately sets a higher standard, requiring that conduct be
so severe or pervasive that it creates a hostile work
environment. By structuring such an analysis, the pamphlet
establishes a standard for distinguishing between permissible
and impermissible speech. Therefore, the pamphlet was
admissible because it fulfilled the requirement under Article
133 to establish a standard of conduct and notice of the
standard.
We recognize that there is a countervailing consideration -
- the danger that introduction into evidence of examples of
proscribed conduct could be used to impermissibly introduce
command policy into the deliberation room, leading the members
27
United States v. BROWN, No. 00-0295/AF
to reach a conclusion based upon the published examples rather
than their application of the relevant standard to the facts of
the case. See, e.g., United States v. Grady, 15 M.J. 275 (CMA
1983). When it is necessary to introduce the custom of the
service to prove an element of an offense, however, it is likely
that the probative value will outweigh the prejudicial effect.
Mil. R. Evid. 403. In some cases, it may be necessary to redact
examples or to provide tailored instructions explaining the
difference between examples and standards of conduct, and
further explaining the manner in which the standards of conduct
apply to the elements of proof. The defense did not request
either step in the present case, and we do not find that the
possibility of confusion was so great that the military judge
was required to redact material or give tailored instructions on
his own motion. Accordingly, we hold that the military judge
did not abuse his discretion by admitting the pamphlet.
B. LEGAL SUFFICIENCY OF THE EVIDENCE
In considering whether the evidence in this case is legally
sufficient to sustain appellant’s conviction for conduct
unbecoming an officer and a gentleman, we must “view[] the
evidence in the light most favorable to the prosecution” and
determine whether “any rational trier of fact could have found
28
United States v. BROWN, No. 00-0295/AF
the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In the present case, it was necessary for the Government to
prove beyond a reasonable doubt that appellant committed the
charged acts and that under the circumstances, the acts
constituted conduct unbecoming an officer and a gentleman. As
noted in section III. A., supra, the Government relied upon AFP
36-2705 to establish the applicable standard of conduct. Under
the circumstances of the present case, the Government endeavored
to show that appellant's conduct fell within the pamphlet's
proscriptions; that is: (1) appellant's conduct was
"unwelcomed"; (2) it consisted of verbal and physical conduct of
a sexual nature; and (3) it created an intimidating, hostile, or
offensive work environment that was so severe or pervasive that
a reasonable person would perceive the work environment as
hostile or abusive, and the victim of the abuse perceived it as
such.17 We shall first consider the verbal remarks and then
consider the physical activity.
1. The Allegations Involving Appellant's Remarks
The Government charged appellant with "persistently
direct[ing] comments and questions of a personal or sexual
17
The prosecution did not contend that appellant's conduct violated those
portions of the policy involving unwelcomed sexual advances that are made a
condition of employment or that affect career or employment decisions.
29
United States v. BROWN, No. 00-0295/AF
nature" to three of his fellow nurses. He was not charged with
maltreatment under Article 93, or abuse of a superior-
subordinate relationship under Article 133. In that regard, we
note that the Government preferred a charge of maltreatment
under Article 93 against appellant but did not refer it to
court-martial. According to the prosecution, this decision was
made because “none of the three victims named in the . . .
specifications were . . . subject to the orders of the accused
in this case.”
The prosecution emphasized that the heart of each
specification was the allegation that appellant, a married man,
acted "persistently" in communicating personal or sexual matters
to the other nurses. The term "persistent" in this context
refers to "continuing in a course of action without regard to
opposition or previous failure," Webster's Third New
International Dictionary 1686 (1981), which echoes the policy
set forth in the pamphlet. As noted in Part III. A., supra, the
pamphlet does not establish a general prohibition against
remarks of a personal or sexual nature. Only "unwelcomed"
remarks so severe or pervasive that they create a hostile or
abusive environment are proscribed. The limitation of the
proscription to "unwelcomed" comments is a critical component of
the policy, because it separates speech that will be tolerated
from speech that is prohibited.
30
United States v. BROWN, No. 00-0295/AF
Under the policy in the pamphlet, impermissible speech
could be shown by demonstrating that: (1) appellant’s remarks
were “unwelcomed” and (2) the comments were “so severe or
pervasive” that a reasonable person would perceive that the
remarks created a “hostile or abusive” environment, and the
victim perceived them as such.
The record is clear that none of the nurses with whom
appellant conversed advised him that his remarks were not
welcome. On the contrary, the record reflects that his remarks
usually produced a straightforward response or a response in
kind, but he was never told that the remarks were unwelcomed.
It is noteworthy that Capt TT, who firmly voiced her objections
to his physical contact with her, did not mention any concerns
to him about the tenor of his remarks, either at that time or
thereafter. Likewise, none of his other colleagues or
supervisors advised him that he was engaging in inappropriate
behavior -- even though many of the conversations were observed
by others.
The record reflects a working atmosphere in and around the
operating room and lounge which accepted discussions involving
physical appearance and sexual matters. For example,
appellant's question to Capt TT about extramarital affairs did
not occur in isolation, but in the context of an ongoing
discussion among the personnel in the lounge about extramarital
31
United States v. BROWN, No. 00-0295/AF
affairs in Hollywood. Similarly, his question to Capt TT about
masturbation occurred during a discussion among personnel of
sexually explicit materials produced by a popular entertainer,
including the topic of masturbation. Capt TT testified that
conversations involving sexual topics were commonplace at that
time in the operating room, and she acknowledged that she had
been known to make an off-color joke.
An even more telling example involves appellant's reference
to Capt TT in a two-piece swimsuit. Again, these remarks were
not made in isolation, but occurred in the presence of the
supervisor, Lt Col B. Appellant made the swimsuit comment in
the course of interrupting Capt TT's conversation with Lt Col B.
According to Capt TT, Lt Col B not only failed to express any
concern about the interruption, he said nothing to indicate that
he regarded appellant's remarks as inappropriate, indicating the
degree to which comments about physical appearance were
tolerated.18
Although the standard in the pamphlet does not require a
recipient of sexual remarks to tell the speaker that the remarks
were unwelcome, the recipient’s action or inaction in response
18
While this arguably could show a failure of leadership on the part of Lt
Col B, we note that Lt Col B testified that he did not recall the swimsuit
remark incident, but stated that if he did not think a comment was improper
he would not approach the individual about it. We reach no conclusion as to
whether the incident occurred and, if so, how he responded. We accept Capt
TT's testimony solely for the purposes of considering the legal sufficiency
of the evidence under Jackson, supra.
32
United States v. BROWN, No. 00-0295/AF
to the remarks is relevant to determining whether the speech was
unwelcome and whether it was “so severe or pervasive that a
reasonable person would perceive, and the victim does perceive,
the work environment as hostile or abusive.” The record of the
responses of the recipients in the present case does not support
a finding that appellant’s remarks violated this standard.
We note that disparity in rank or supervisory relationships
may be relevant to a determination as to whether the standards
in the pamphlet have been violated. The mere existence of such
factors, however, does not establish that speech was unwelcome
or that it created a “hostile or abusive” work environment.
Although appellant served in a supervisory position with regard
to 1Lt VC and was superior in rank to Capt TT for most of the
period encompassing the charged offenses, he was not charged
with an abuse of rank offense. In fact, the prosecution dropped
the only charge dealing with an abuse of rank. Moreover, the
prosecution’s case did not rely on disparity in rank to prove
that appellant’s comments violated Air Force standards.
Finally, we note that the record does not support a finding
that appellant’s comments created “an intimidating, hostile, or
offensive work environment.” The pamphlet defines what type of
conduct creates a hostile work environment:
The above definition emphasizes that
workplace conduct, to be actionable as
“abusive environment harassment,[”] need not
33
United States v. BROWN, No. 00-0295/AF
result in concrete psychological harm to the
victim, but rather need only be so severe or
pervasive that a reasonable person would
perceive, and the victim does perceive, the
work environment as hostile or abusive.
AFP 36-2705 at 29.
The subjective component of the standard requires evidence
that the recipient perceived his or her work environment as
hostile or abusive as a result of severe or pervasive conduct.
The testimony of the three nurses falls short of the standard.
1Lt VC testified that appellant’s behavior was inappropriate,
but did not amount to sexual harassment. Capt LK testified that
some of appellant’s comments were inappropriate and made her
uncomfortable, others did not offend her, and that she felt she
could handle the situation herself. Capt TT testified that she
had a good working relationship with appellant. In light of the
fact that the recipients of the charged comments testified that
the verbal conduct was merely inappropriate or unprofessional
and that the situation was manageable, the evidence is legally
insufficient to demonstrate that the victims perceived the work
environment as hostile or abusive according to the standard
relied upon by the Government in the Air Force pamphlet.
The rigorous standard in the pamphlet shows that it is not
merely a civility code for policing the workplace. Only severe
conduct with harsh effects constitutes sexual harassment under
the pamphlet; comments or questions that offend one’s
34
United States v. BROWN, No. 00-0295/AF
sensibilities and make one uncomfortable do not create a hostile
work environment under the standard in the pamphlet.
Appellant's breaches of etiquette may well have warranted
"instruction, counseling or other types of administrative
corrective action," United States v. Wolfson, 36 CMR 722, 731
(ABR 1966), but his comments did not violate the standard relied
upon by the Government at trial to establish the custom of the
Air Force for purposes of Article 133. Accordingly, the
findings of guilty with respect to specification 7 of Charge II
and specification 1 of the Additional Charge will be set aside,
and those specifications will be dismissed. Specification 1 of
Charge II will be modified as described in Section IV, infra.
2. The Allegations Involving Physical Contact
We reach a different conclusion with respect to the
incidents involving physical contact. There is greater latitude
of permissible action with respect to speech than physical
contact because of the manner in which the interplay of words
may be used to establish the parameters of a relationship. In
the circumstances of the relationship between appellant and his
fellow nurses, it was not reasonable for him to assume that they
would consent to physical contact of an intimate nature absent
some communication of receptivity or consent.
35
United States v. BROWN, No. 00-0295/AF
In the present case, it is noteworthy that although the
members convicted appellant of four instances of physical
contact, they acquitted him of three other instances. We take
into consideration the fact that the members, who heard the
testimony and observed the demeanor of the witnesses, viewed the
evidence as distinguishing between permissible and impermissible
contact. The convictions involved intimate contact with members
of the opposite sex that was not incidental, collegial, or
innocuous and did not take place where there was any verbal or
nonverbal indication of consent. Accordingly, we will affirm
appellant's convictions under Article 133 as set forth in
specifications 3 and 6 of Charge II, specification 3 of the
Additional Charge, and the portion of specification 1 of Charge
II concerning physical contact. Because we have dismissed or
modified the only charges affected by Granted Issue I, it is not
necessary to address Issue I in this opinion.
IV. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed in part and reversed in part, as
follows: the findings of guilty are affirmed with respect to
specification 3 of Charge I, specifications 3 and 6 of Charge
II, specification 3 of the Additional Charge, and specification
36
United States v. BROWN, No. 00-0295/AF
1 of Charge II, as modified.19 The findings of guilty with
respect to specification 7 of Charge II and specification 1 of
the Additional Charge are set aside, and those specifications
are dismissed. The sentence is set aside. The record of trial
is returned to the Judge Advocate General of the Air Force. A
rehearing as to sentence may be ordered.
19
Specification 1 of Charge II is modified to read as follows: "Did, at or
near Maxwell Air Force Base, Alabama, on divers occasions from on or about 1
February 1995 to on or about 3 February 1995, wrongfully and dishonorably
touch the hair and knee of [1Lt VC], a woman not his wife, without the
consent of the said [1Lt VC], that, under the circumstances, these acts
constituted conduct unbecoming an officer and a gentleman."
37
United States v. Brown, 00-0295/AF
SULLIVAN, Judge (concurring):
I concur with the excellent opinion of my brother, Judge
Effron. As I have said before, “When the Government makes speech
*
a crime, the judges on appeal must use an exacting ruler.” In
this case, I particularly find disturbing the Additional Charge
(specification one), where over a 10-month period, appellant is
charged with directing 11 questions and comments to Capt TT --
statements like: “You look like a size 4,” “Would you like to go
out for lunch?,” and “Are you happily married?” These
statements were never reported to authorities when they happened,
but were allegedly noted as they happened by Capt TT in a journal
written in her “own little code.” (R. 169). The journal was
used by Capt TT to make her harassment complaint in a memorandum
for record to Lt Col B immediately after appellant had an
unpleasant dispute with Capt TT over the procedure for counting
medical instruments in the operating room. (R. 193, 200-01, 392).
The journal disappeared before trial. (R. 170).
Did appellant commit a crime with each of the questions or
comments? Were there 11 crimes consolidated by the Government
into one charging specification? Or did the cumulative effect of
*
United States v. Brinson, 49 M.J. 360, 361 (1998).
United States v. Brown, No. 00-0295/AF
these 11 statements constitute one crime in the eyes of the jury?
Like Judge Effron, I find that these comments need to be looked
at carefully in the context of when they were spoken in order to
find criminality. Viewing the comments of appellant, I find the
comments may not be appropriate, but in this case, they are not
criminal. A different result might have been obtained if a
strict superior-subordinate relationship was the backdrop for
these comments. But that is not this case, where the
conversations were among professional nurses of more or less
equal rank.
2
United States v. Brown, No. 00-0295/AF
CRAWFORD, Chief Judge (concurring in part and dissenting in
part):
I agree with the majority that the military judge did not
err with respect to Issue II. With regard to Issue I, like the
court below, I find that appellant’s requested instruction was
confusing and erroneous. Accordingly, I would find no abuse of
discretion by the military judge in refusing to give this
instruction. As I find the evidence to be legally sufficient to
support the findings of guilt of the various specifications of
Charge II and the Additional Charge, like the Court of Criminal
Appeals, I would affirm appellant’s convictions and sentence.
At the conclusion of the evidence on findings, civilian
defense counsel asked the military judge for a special
instruction, as follows:
The Government is not required to prove all
of the means or methods alleged in a particular
specification.
At least two-thirds of the members, or ___ of
the members, must agree with each other, however,
that the same means or method alleged in a particular
specification was, in fact, engaged in or employed by
the Accused in allegedly committing the offense
alleged in that particular specification. The two-
thirds of the members need not unanimously agree on
each means or method, but, in order to convict, must
unanimously agree upon at least one such means or
method as one engaged in by the Accused.
United States v. Brown, No. 00-0295/AF
Unless the Government has proven the same
means or method to at least two-thirds of the
members, beyond a reasonable doubt, you must
acquit the Accused of the offense alleged in that
particular specification.
The military judge rejected the defense’s request and
instructed as follows:
If you have doubt about the time or specific
manner alleged but you are satisfied beyond a
reasonable doubt that the offense was committed at a
time or in a particular manner which differs slightly
from the exact time or manner in the Specification,
you may make minor modifications in reaching your
findings by changing the time or manner described in
the Specification, provided you do not change the
nature or identity of the offense. If you discuss
doing that, you can come and ask me for more
suggestions on how to go about doing that.
A military judge has substantial discretion in deciding
which instructions to give. United States v. Damatta-Olivera,
37 M.J. 474, 478 (CMA 1993). See RCM 920(c), Discussion, Manual
for Courts-Martial, United States (1995 ed.).1 The test to
determine whether denial of a requested instruction is error is
whether: (1) the proposed charge is correct; (2) “it is not
substantially covered in the main charge”; and (3) “it is on
such a vital point in the case that the failure to give it
deprived defendant of a defense or seriously impaired its
1
All Manual provisions are cited to the version in effect at the time of
appellant’s court-martial. The current version is unchanged.
2
United States v. Brown, No. 00-0295/AF
effective presentation.” Id., quoting United States v. Winborn,
14 USCMA 277, 282, 34 CMR 57, 62 (1963).
In Schad v. Arizona, 501 U.S. 624, 631 (1991), Justice
Souter, writing for a four-Justice plurality, answered
appellant’s objection:
Our cases reflect a long-established rule of the
criminal law that an indictment need not specify
which overt act, among several named, was the
means by which a crime was committed. In
Andersen v. United States, 170 U.S. 481 (1898),
for example, we sustained a murder conviction
against the challenge that the indictment on
which the verdict was returned was duplicitous in
charging that death occurred through both
shooting and drowning. In holding that “the
Government was not required to make the charge in
the alternative,” id. at 504, we explained that
it was immaterial whether death was caused by one
means or the other. Cf. Borum v. United States,
284 U.S. 596 (1932) (upholding the murder
conviction of three codefendants under a count
that failed to specify which of the three did the
actual killing); St. Clair v. United States, 154
U.S. 134, 145 (1894). This fundamental
proposition is embodied in Federal Rule of
Criminal Procedure 7(c)(1), which provides that
“[i]t may be alleged in a single count that the
means by which the defendant committed the
offense are unknown or that the defendant
committed it by one or more specified means.”
The Supreme Court recently reiterated this point in
Richardson v. United States, 526 U.S. 813, 817 (1999):
... a federal jury need not always decide unanimously
which of several possible sets of underlying brute
facts make up a particular element, say, which of
several possible means the defendant used to commit an
3
United States v. Brown, No. 00-0295/AF
element of the crime. Schad v. Arizona, 501 U.S. 624,
631-632 (1991) (plurality opinion); Andersen v. United
States, 170 U.S. 481, 499-501 (1898). Where, for
example, an element of robbery is force or the threat
of force, some jurors might conclude that the
defendant used a knife to create the threat; others
might conclude he used a gun. But that disagreement -
- a disagreement about means -- would not matter as
long as all 12 jurors unanimously concluded that the
Government had proved the necessary related element,
namely, that the defendant had threatened force. See
McKoy v. North Carolina, 494 U.S. 433, 449 (1990)
(Blackmun, J., concurring).
The Courts of Appeals are in agreement. United States v.
Reeder, 170 F.3d 93, 105 (1st Cir. 1999); Bae v. Peters, 950 F.
2d 469, 480 (7th Cir. 1991); United States v. Kim, 196 F.3d 1079,
1083 (9th Cir. 1999); Williamson v. Ward, 110 F.3d 1508, 1523
(10th Cir. 1997); Sims v. Singletary, 155 F.3d 1297, 1313 (11th
Cir. 1998); United States v. Vidal, 23 M.J. 319, 324 (CMA 1987);
United States v. Garner, 43 M.J. 435, 437 (1996).
Accordingly, two-thirds of the members of the court-martial
adjudicating appellant’s guilt or innocence had to agree that
appellant committed the underlying offense. Two-thirds of the
members did not have to agree on the method by which appellant
committed his misconduct. As the proposed instruction did not
comport with the law and was also confusing, the military judge
did not abuse his discretion in denying the defense counsel’s
request that he give it.
4
United States v. Brown, No. 00-0295/AF
Issue III questions the legal sufficiency of the evidence.
In the case of legal sufficiency of the evidence, the standard
of review is “whether, considering the evidence in the light
most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Turner, 25 M.J. 324 (CMA 1987); see
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Further, “[i]n
resolving legal-sufficiency questions, this Court is bound to
draw every reasonable inference from the evidence of record in
favor of the prosecution.” United States v. Blocker, 32 M.J. 281,
284 (CMA 1991); see United States v. McGinty, 38 M.J. 131 (CMA
1993)(determination that one witness is more believable than
another is sufficient).
In order to maintain a finding of conduct unbecoming an
officer and gentleman, it must generally be shown (1) that “the
accused did or omitted to do certain acts” and (2) that, “under
the circumstances, these acts or omissions constituted conduct
unbecoming an officer and gentleman.” Para. 59b, Part IV,
Manual, supra. As the Manual explains:
Conduct violative of this article is action or
behavior in an official capacity which, in
dishonoring or disgracing the person as an
officer, seriously compromises the officer’s
character as a gentleman, or action or behavior
in an unofficial or private capacity which, in
5
United States v. Brown, No. 00-0295/AF
dishonoring or disgracing the officer personally,
seriously compromises the person’s standing as an
officer. There are certain moral attributes
common to the ideal officer and the perfect
gentleman, a lack of which is indicated by acts
of dishonesty, unfair dealing, indecency,
indecorum, lawlessness, injustice, or cruelty.
Not everyone is or can be expected to meet
unrealistically high moral standards, but there
is a limit of tolerance based on customs of the
service and military necessity below which the
personal standards of an officer, cadet, or
midshipman cannot fall without seriously
compromising the person’s standing as an officer,
cadet, or midshipman or the person’s character as
a gentleman. This article prohibits conduct by a
commissioned officer, cadet, or midshipman which,
taking all the circumstances into consideration,
is thus compromising.
Para. 59c(2), Part IV, Manual, supra (emphasis added). Clearly,
when viewed in its entirety, appellant’s behavior exemplifies a
standard against which a charge of conduct unbecoming an officer
can be measured.
As this Court has said on prior occasions, we assess
criminality under Article 133 by looking at whether the conduct
charged is dishonorable and compromising, not whether it
otherwise amounts to a crime. See United States v. Giordano, 15
USCMA 163, 168, 35 CMR 135, 140 (1964); United States v. Rogers,
54 M.J. 244 (2000). I disagree with the majority’s piecemeal
assessment of appellant’s remarks to his three female co-
workers, instead of examining the totality of his relationship
6
United States v. Brown, No. 00-0295/AF
with these three officers and his sustained pattern of
inappropriate comments.
The majority errs by concluding that unless appellant’s
remarks were “unwelcomed,” as required by Air Force policy, his
language was not a violation of Article 133.2 While none of the
three officer victims ever looked appellant in the eyes after he
made one of his sexually suggestive remarks and said, “Your
comment is unwelcome,” that lack of a rebuke is not
determinative of the issue. When one looks at the various
comments that appellant made to his three nursing co-workers,3 I
find a predatory pattern of comments that are so pervasive as to
2
Following his admission of Prosecution Exhibit 1, AFP 36-2705, which we all
agree was properly admitted, the military judge gave the following cautionary
instruction: “If you find that the accused did engage in the alleged conduct
and that his conduct was contrary to the provisions of Prosecution Exhibit 1,
it does not automatically follow that his conduct was unbecoming an officer.
Prosecution Exhibit 1 is simply one piece of evidence for you to consider in
determining if the accused’s conduct, should you determine that it occurred,
was unbecoming an officer.” Unfortunately, it appears that the majority
finds that Pros. Ex. 1 is the only piece of evidence that is determinative of
whether or not appellant’s conduct was unbecoming an officer and a gentleman.
3
“Specification 1, Charge II: In that CAPTAIN MICHAEL C. BROWN, United
States Air Force, 42d Medical Operations Squadron, Maxwell Air Force Base,
Alabama, a married man, did, at or near Maxwell Air Force Base, Alabama, on
divers occasions from on or about 1 February 1995 to on or about 3 February
1995, wrongfully and dishonorably persistently direct comments and questions
of a personal or sexual nature to First Lieutenant [VC], to wit: “You have
pretty hair,” “You have pretty eyes,” “How much do you weigh?,” “What size
are you?,” “What is your phone number?,” Do you have a boyfriend?,” “Does
your boyfriend live in Montgomery?,” and “What type men do you like?,” or
words to that effect.... that, under the circumstances, these comments [and]
questions ... constituted conduct unbecoming an officer and gentleman.”
“Specification 7, Charge II - In that CAPTAIN MICHAEL C. BROWN, United States
Air Force, 42d Medical Operations Squadron, Maxwell Air Force Base, Alabama,
a married man, did, at or near Maxwell Air Force Base, Alabama, on divers
7
United States v. Brown, No. 00-0295/AF
compromise appellant’s standing with his colleagues as an Air
Force officer, as well as creating an abusive work environment.
As Capt TT, one of the victims, said in response to questioning:
“There was often times that he said things that were
inappropriate....” Another victim, 1Lt VC, sums up the
situation best. When asked about appellant’s remarks to her,
she responded: “I don’t think it would be appropriate for
anyone to ask those type of questions, if you’re in the Air
Force or not.” Taking the evidence in the light most favorable
to the prosecution, I have no trouble finding that the triers of
fact in this case could have found all the essential elements of
occasions from on or about 12 February 1996 to on or about 29 March 1996,
wrongfully and dishonorably persistently direct comments and questions of a
personal or sexual nature to Captain [LK], to wit: “I’m coming over tonight,”
“What kind of man are you attracted to?,” “Are you dating anyone?,” “You look
fit,” “Would you like to go sight-seeing?,” and “You don’t need to work out
because you look fine,” or words to that effect, that, under the
circumstances, these comments and questions constituted conduct unbecoming an
officer and gentleman.”
“Specification 1, Additional Charge: In that CAPTAIN MICHAEL C. BROWN,
United States Air Force, 42d Medical Operations Squadron, Maxwell Air Force
Base, Alabama, a married man, did, at or near Maxwell Air Force Base,
Alabama, on divers occasions from on or about 1 June 1995 to on or about 29
March 1996, wrongfully and dishonorably persistently direct comments and
questions of a personal or sexual nature to Captain [TT], a married woman not
his wife, to wit: “Have you ever had an affair?,” “You look like a size 4,”
“You have a very good shape and look very good for your age,” “Do you wear a
one piece or two piece swim suit?,” “I bet you wear a two piece [swimsuit],”
“A patient told me I look good in my pants,” “Are you happily married,” “Do
you get along with your husband,” “Would you like to go out for lunch?,”
“Would you like to come over to my house?,” and “Do women masturbate?,” or
words to that effect, that, under the circumstances, these comments and
questions constituted conduct unbecoming an officer and gentleman.”
8
United States v. Brown, No. 00-0295/AF
the crime beyond a reasonable doubt. Accordingly, I would
affirm the findings and sentence.
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United States v. Brown, 00-0295/AF
BAKER, Judge (concurring in part and dissenting in part):
I concur with the majority's handling of Issues I and
II. On Issue III, I agree with the majority that this is a
close case whose resolution revolves around the application
of Jackson v. Virginia, 443 U.S. 307 (1979), to specific
facts. However, I disagree with the majority opinion’s
conclusion and, therefore, dissent on Issue III. For the
reasons that follow, I would affirm the court below with
respect to the charges of verbal harassment, as well as
those involving physical contact.
The Government has charged appellant with conduct
unbecoming an officer based on persistent verbal comments
in violation of Air Force policy on sexual harassment. As
a result, the majority’s analysis rightly hinges on whether
or not appellant was on notice that his verbal conduct was
unwelcome. Air Force policy defines sexual harassment as
[a] form of sex discrimination that involves
unwelcomed sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature when:
* * *
• Such conduct has the purpose or effect of
unreasonably interfering with an individual’s
work performance or creates an intimidating,
hostile, or offensive work environment.
AFP 36-2705 at 29 (28 February 1995). The policy directive
also states: “Sexual harassment isn’t about sex or healthy
personal relationships. It is an expression of power by
United States v. Brown, 00-0295/AF
one individual over another that can be personally
devastating to the recipient and others.” Id. at 19.
Having been placed on notice by Air Force policy as to what
behavior was expected, was appellant on notice that his
verbal and physical contact with 1Lt VC, Capt LK, and Capt
TT was unwelcome?
I agree with the Chief Judge. In certain
circumstances, a relationship may be of a nature that a
comment or touching should be presumed to be unwelcome and
contrary to service custom, even where the recipient is
silent.1 This is particularly likely to be the case where
there is a difference in pay-grade between the recipient
and protagonist of an unwelcome communication, or where
there is a supervisory relationship between the two. 1Lt
VC’s testimony illustrates why recipients of unwelcome
remarks may not overtly manifest their disapproval. Asked
whether she had told anybody about appellant’s touching
during the CPR course, 1Lt VC responded: “No, I didn’t. I
was afraid to. I was new here. He was a captain; I was
1
For all the reasons we have seen play out in this court-martial, the
pamphlet also exhorts: “To help combat discrimination and sexual
harassment in your work environment, never ignore the problem, speak up
and seek help.” AFP 36-2705 at 11. The pamphlet also contemplates any
number of resolutions short of court-martial. Certainly, a court-
martial is no substitute for good leadership.
2
United States v. Brown, 00-0295/AF
just a second lieutenant. I didn’t see him any more. I
had no more contact with him. That’s why.” Again, when
asked whether she had ever conveyed to appellant her view
that his comments were unprofessional, 1Lt VC responded
“No, I didn’t. . . . I wanted – really, I didn’t want to
get involved, and he was my assistant supervisor, and I
didn’t feel comfortable reporting it.”
Capt TT’s testimony provides similar insight. Asked
how appellant’s actions made her feel, Capt TT responded:
“Inferior. Like I was – I felt like I was a little
lieutenant that was being touched by the captain that
shouldn’t have been.” When asked why she did not say
anything until March of 1996, Capt TT responded: “I didn’t
want to start a fuss. I was new there. I worked with all
men. I didn’t want to be the new female coming in starting
a fuss. I didn’t want my husband to know because I thought
my husband might want to go confront him and do something
that he maybe shouldn’t.”
Notwithstanding the majority opinion’s conclusion that
“the standard in the pamphlet does not require a recipient
of sexual remarks to tell the speaker that the remarks were
unwelcome,” _MJ at (32), I disagree with the opinion’s
conclusion that appellant was “never told the remarks were
3
United States v. Brown, 00-0295/AF
unwelcome” and, therefore, was not on notice the remarks
were unwelcome.2
Appellant’s additional conduct, and the reaction of
1Lt VC and Capts TT and LK to it should have fairly put
appellant on notice that his verbal conduct was unwelcome.
The Air Force pamphlet, if not the general norms of
society, military or civilian, should have already put
appellant on notice that this particular conduct was wrong
and unbecoming an officer.
With respect to 1Lt VC, the majority opinion states
that in response to appellant's verbal communication,
appellant "touched her hair and the top of her kneecap.
Other than moving away from his touch, she did not manifest
concern about his remarks or conduct." __ MJ at (8)
(emphasis added). What this text and the record make clear
is that 1Lt VC made appellant aware that his remarks were
unwelcome. She moved away.3 Nowhere in the Air Force
2
The majority opinion concludes that “[t]he record is clear that none
of the nurses with whom appellant conversed advised him that his
remarks were not welcome. On the contrary, the record reflects that
his remarks usually produced a straightforward response or a response
in kind, but he was never told that the remarks were unwelcome.” __ MJ
at (31).
3
1Lt VC’s specific testimony was as follows: “Q: And when you claim
Captain Brown touched your hair, did you move your head away from him
so he couldn't do it any longer? A: I remember doing that. I have a
tendency – I just don’t like people touching my hair, and when someone
comes up to touch my hair, I – I know I move my head because I’ve done
that before. Q: And when you claim Captain Brown touched your knee,
you moved your knee away from his hand, correct? A: Correct.”
4
United States v. Brown, 00-0295/AF
policy on sexual harassment does it require the victim of
an offensive touch or word to specify in a given context
which particular words or touchings were unwelcome. A
reasonable person would understand that moving away in
response to physical and/or verbal contact is a signal that
such contact is unwelcome.
The verbal charges pertaining to Capts TT and LK are
closer cases, in part, because officers of the same grade
should share fewer inhibitions about communicating their
views to each other. Restated, a reasonable person might
well interpret silence differently when the person who is
silent is an officer on an equal footing rather than an
officer of subordinate grade. In addition, when given an
apparent opening to communicate her disapproval, Capt TT
did not do so, as when appellant made the swimsuit comment
in front to Lt Col B.
Nonetheless, applying the test for legal sufficiency
expounded in Jackson, when viewed in a light most favorable
to the Government, the evidence is such that a reasonable
factfinder could have found all of the essential elements
of proof beyond a reasonable doubt, and in particular, that
appellant’s comments were unwelcome and that he knew they
were. Moreover, the Jackson standard of review is
particularly applicable where the demeanor of witnesses is
5
United States v. Brown, 00-0295/AF
important in establishing credibility and critical
testimonial phrases may be cryptic to the appellate eye.
In response to appellant’s comment regarding how nice
looking she was, Capt TT responded, “I walked him off.
Just walked away.” (Emphasis added.) Again, Capt TT
stated, “The things that he said, I just – I didn’t’ want
to make a scene. I didn’t say anything. I usually just
walked him off. . . . I didn’t acknowledge to him it was
okay. I think he knew I didn’t like it. I – when I would
shrug my shoulder away and get up and walk away from him
during a conversation, I think that was – I made my point.”
(Emphasis added.)
Capt LK also communicated to appellant that his
remarks and physical touching were unwelcome. When
appellant said to Capt LK that he would come over to her
house, she responded “Well, what is your wife’s name
because I will call her and tell her where to pick up her
stray dog because I don’t pick up strays.” (Emphasis
added.) When appellant touched the back of his hand to
Capt LK’s cheek, she immediately walked away and backed up
from him. Only if we view appellant’s statements as
individual, isolated communications, without relation to
what has gone before or what comes after, can it be said
under Jackson that 1Lt VC, Capt TT, and Capt LK failed to
6
United States v. Brown, 00-0295/AF
signal to appellant that his comments were unwelcome. But
they were not isolated. A reasonable person, and a
reasonable factfinder, could conclude that they were
pervasive and they interfered with the work environment of
1Lt VC and Capts TT and LK.
Moreover, in the case of Capt TT, there was also a
disparity in grade with appellant during much of the time-
period in question. Capt TT was not promoted to Captain
until March 1996. And as was made clear when the
differences in instrument counting methodology were
discussed, appellant remained Capt TT’s assistant
supervisor throughout the events in question.
Rightly wary of criminalizing the day-to-day fabric of
life, the majority describes the wide range of comments
that are likely to be made between officers in the Air
Force. The opinion illustrates this point with reference
to a wide range of contexts involving interaction between
officers. But the contexts are all social (casual
acquaintance through dating, courtship, and marriage),
where one might reasonably expect some discussion of sex or
sexual innuendo. This is a case about whether comments
made in the workplace –- an operating room -- as part of a
professional relationship involving two officers of junior
grade with whom appellant had a supervisory function, were
7
United States v. Brown, 00-0295/AF
unwelcome, and if they were unwelcome, whether appellant’s
actions amounted to conduct unbecoming an officer.
Moreover, while the majority opinion cites to Air
Force restrictions on dating between officers to illustrate
the depth of relationships tolerated and accepted between
officers of different grades, those same regulations also
address more broadly unprofessional relationships between
officers. The per se rule with respect to dating is
limited to the same chain of command; however, the
prohibition on unprofessional relationships extends to all
personnel. AFI 36-2909 (1 May 1999), the successor to the
Instruction cited in United States v. Rogers, 54 M.J. 244
(2001), states in paragraph 3.3:
Dating and Close Friendships. Dating, courtship, and
close friendships between men and women are subject to
the same policy considerations as are other
relationships. Like any personal relationship, they
become matters of official concern when they adversely
affect morale, discipline, unit cohesion, respect for
authority, or mission accomplishment. Members must
recognize that these relationships can adversely
affect morale and discipline, even when the members
are not in the same chain of command or unit. The
formation of such relationships between superiors and
subordinates within the same chain of command or
supervision is prohibited[.]
Like foxhole whispers, office banter is good for
morale and unit cohesion. Likewise, humor can serve to
promote mission accomplishment in the field, as well as in
the operating room. However, sexual harassment is not a
8
United States v. Brown, 00-0295/AF
component of esprit de corps or unit morale. Officers
should not confuse the two, particularly in the duty
setting and particularly where the officer is on notice
both as to expected behavior and that his remarks are
unwelcome.
9