United States v. Boyett , 1995 CAAF LEXIS 62 ( 1995 )

Opinion

CRAWFORD, Judge:

1. Appellant was convicted by a military judge sitting alone, in accordance with his guilty pleas, of violating Article 133, Uniform Code of Military Justice, 10 USC § 933, for conduct unbecoming an officer and a gentleman. Appellant was sentenced to a dismissal and partial forfeitures, but the convening authority approved the dismissal and reduced the forfeitures by half. Upon review, the en bane Court of Military Review¹ affirmed the findings and the approved sentence. 37 MJ 872 (1993). We granted review on the following issues:

I

WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT WHEN THE AIR FORCE COURT OF MILITARY REVIEW DETERMINED THAT HIS “GUILTY PLEA TO CONDUCT CLEARLY NOT RECOGNIZED AS CRIMINALLY PROSECUTABLE FRATERNIZATION UNDER THE HOLDING IN [UNITED STATES v.] JOHANNS [I], [17 MJ 862 (1983)] MAY STAND.” [UNITED STATES v. BOYETT, 37 MJ 872, 874 (AFCMR 1993).]

II

WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW AND VIOLATED THE POLICY OF STARE DECISIS IN RULING THAT THE FINDINGS OF JOHANNS [I] ARE LIMITED TO THE FACTS OF THAT CASE.

I conclude that appellant was not denied due process of law and that the Court of Military Review did not violate the policy of stare decisis in finding that Johanns I was limited to its facts.

FACTS

2. At trial, appellant moved to dismiss specification 5, charging that he had “engage[d] in an unprofessional close personal social relationship, including sexual intercourse,” between May 15 and June 30, 1990, with an enlisted person who did not work for him. Appellant alleged that under Johanns, specification 5 did not allege criminal conduct. Denying the motion, the military judge maintained that specification 5 involved a factual rather than a legal issue.

3. During the providence inquiry, appellant acknowledged the Air Force custom proscribing intimate relations between enlisted personnel and officers. R. 49. He understood that such relations could be prosecutable.

4. Appellant admitted having sexual intercourse with Airman X on or about 12 occasions. Most of the contact took place off post at his residence. When asked whether others knew about the relationship, he replied that “people had ideas.” It was stipulated that appellant told one noncommissioned officer that if someone saw his relationship, they would think he “played Airman [X] like a puppet.” Thus, even though he did not have a supervisory relationship with her, he admitted people would think he was taking advantage of her. When asked whether he thought his “conduct was unbecoming,” he replied, “I’ve been told.” There was “some concern” that he was “too friendly with the airmen” in his squadron, and this led to discussion with the squadron commander.

5. As part of the providence inquiry, a stipulation of fact was admitted with the consent of appellant and his defense counsel. The stipulation detailed that, during his precommissioning in August 1989 through the Reserve Officers Training Corps, he learned that it was “against” the custom of the service for officers to date enlisted personnel.

6. When he arrived at his duty station on September 20, 1989, he was counseled by his squadron commander that officer-enlisted relationships were improper. In December 1989, apparently after a report to the squadron commander, the commander again talked to appellant and told him “that officers do get court-martialed for improper relations with enlisted personnel.” The commander described a case in which a female officer from that base was court-martialed for engaging in sexual relations with an airman whom she supervised.

WAIVER

7. We cannot dispose of Issues I and II by applying waiver or relying on the fact that appellant was charged under Article 133. Neither invoking the doctrine of waiver nor alleging the offense as conduct unbecoming under Article 133 avoids the granted issues. A guilty plea does not waive the defect of a specification that fails to state an offense. RCM 907(b)(1)(B), Manual for Courts-Martial, United States, 1984. Further, if appellant does not admit sufficient facts pursuant to United States v. Care, 18 USCMA 535, 40 CMR 247 (1969), and RCM 910(e), to make the pleas provident, the Court is required to set aside the conviction. Id.

ARTICLES 133 and 134

8. Alleging an offense under Article 133² rather than specifically alleging fraternization under Article 134³ does not alleviate the Government’s burden of establishing a service custom against fraternization. Para. 59c(2), Part IV, Manual, supra, provides, concerning Article 133:

Whenever the offense charged is the same as a specific offense set forth in this Manual, the elements of proof are the same as those set forth in the paragraph which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.

9. Thus, by electing to charge fraternization under Article 133 rather than Article 134, the Government must also prove the additional element that the act constitutes conduct unbecoming an officer and gentleman. It would not have been necessary to prove this additional element if the offense had been charged under Article 134 as fraternization.

DUE PROCESS STANDARD

10. Appellant alleges a violation of his due process rights because his conduct was not prosecutable and, thus, specification 5 was void for vagueness. Criminal conduct requires an act, generally by the defendant, mens rea, and appropriate notice that the act would be criminal. The notice may not be vague; otherwise, there is a possibility of discriminatory prosecution. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” See, e.g., In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507-08, 92 L.Ed. 682 (1948) (right to reasonable notice of charges); Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932) (due process requires notice of essential elements). In Parker v. Levy, 417 U.S. 733, 752-53, 94 S.Ct. 2547, 2559-60, 41 L.Ed.2d 439 (1974), the Supreme Court remarked that the Court of Military Appeals “has narrowed the very broad reach of the literal language of’ Article 133, “and at the same time has supplied considerable specificity....” The Supreme Court recognized that there may still be “sizable areas of uncertainty as to the coverage of the articles.” Id. at 754, 94 S.Ct. at 2560-61. The Supreme Court asserted that there may be a substantial range of criminal conduct and that

[b]ecause of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs ____

Id. at 756, 94 S.Ct. at 2562.

11. The Court continued:

Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.

Id. at 757, 94 S.Ct. at 2562, quoting United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963) (citations omitted). See also United States v. Dear, 40 MJ 196 (CMA 1994); United States v. Norvell, 26 MJ 477, 480 (CMA 1988).

12. Appellant alleges that Johanns II (20 MJ 155 (CMA), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985)) undercuts the notice requirement. But Johanns II does not have the sweeping impact that appellant alleges.

13. In Johanns I, a majority of the Air Force Court of Military Review found that

as a matter of fact and law the custom of the Air Force against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command nor supervision, unavailable.

17 MJ at 869.

14. In reaching its conclusion in Johanns I, the Court of Military Review began with a historical review of the offense of fraternization. It traced the Air Force history as a part of the United States Army and referred to Air Force standards published in a booklet in 1977. The Court in Johanns I noted that, in this booklet, the Air Force did not even discuss fraternization, while indicating that “close personal friendships ... must not interfere with judgment or duty performance.” Id. at 865-66. It then reviewed the 1970s directive concerning on-post quarters, open mess regulations, and encouragement “to patronize each others clubs as guests.” Id. at 866.

15. The above-stated conclusion of “fact and law” is in effect a finding of fact with a legal conclusion completely dependent on three isolated functional areas: housing, messing, and working environs, while disregarding the historical development behind fraternization. Id. at 865-66. See, e.g., Carter, Fraternization, 113 Mil. L.Rev. 61 (1986). The rationale behind class structures did not change. Thus, there is no reason to overrule Johanns II, after recognizing that there was a factual finding upon which the decision was based. Indeed Chief Judge Everett said in Johanns II:

The court below [.Johanns i] apparently determined that no custom of that service prohibited Captain Johanns’ private sexual relationships with several enlisted women. In the face of this determination by a tribunal which has factfinding powers, it must be assumed that Johanns did not receive notice from an Air Force custom or long-established practice that his amorous activities might transgress Articles 133 and 134____

20 MJ at 160 (footnote omitted).

16. Even in United States v. Appel, 31 MJ 314, 319 (CMA 1990), Chief Judge Everett indicated that the issue concerning fraternization by Appel was whether the accused had “fair notice.” While “a custom is not a subject for judicial notice,” id. at 320, it is appropriate to take judicial notice of service regulations, United States v. Williams, 3 MJ 155 (CMA 1977). See also United States v. Mead, 16 MJ 270 (CMA 1983).

17. Under the Levy standard, there is sufficient information in this record to conclude that there was adequate notice to appellant of his potential criminality. His precommissioning education emphasized that there was a custom against officers “dating” enlisted persons regardless of a supervisory relationship. This was fortified when he was counseled twice by his squadron commander about potential disciplinary action for such activity.

18. While we are not required to do so, even applying the recent standard enunciated in Posters ‘N’ Things, Ltd. v. United States, -U.S.-,-, 114 S.Ct. 1747, 1754, 128 L.Ed.2d 539 (1994), one can conclude that “ordinary people can understand what conduct is prohibited.” See also Staples v. United States, — U.S. -, -, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994) (criminal prohibition not vague if individual can “choose between good and evil”), citing Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952).

Stare decisis

Appellant alleges that the Court of Military Review in this case violated the policy of stare decisis in overruling Johanns I.

19. Stare decisis is important for stability. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991). The doctrine also fosters public confidence in the judicial system and strengthens reliance upon the judicial branch of the government. Id. This reliance is even more important in cases involved with economic questions. See, e.g., Swift & Co. v. Wickham, 382 U.S. 111, 133-35, 86 S.Ct. 258, 270-71, 15 L.Ed.2d 194 (1965) (Douglas, J., dissenting); B. Cardozo, The Nature of the Judicial Process 149 (1921); H. Hart, The Concept of Law 156 (1961). The doctrine is not simply based upon nostalgia but is meant to strengthen our judicial system. Under the doctrine of stare decisis a decision should not be overruled without examining intervening events, reasonable expectations of servicemembers, and the risk of undermining public confidence in the law. Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 151-55, 101 S.Ct. 1032, 1035-37, 67 L.Ed.2d 132 (1981) (Stevens, J., concurring).

20. But the doctrine does not apply when a statute,⁴ executive order,⁵ or other basis⁶ for a decision changes. In this instance, the Court of Military Review found that the factual basis for the decision in Johanns I had changed. Thus, in this case, the decision below is consistent with the doctrine of stare decisis.⁷

21. Because the court below implicitly overrules Johanns I, we will examine the intervening events, reasonable expectations of servicemembers, and the risk of undermining public confidence in the law.

22. Before we examine intervening events following Johanns I, we will look at the historical development of the proscription against fraternization in the armed forces. The proscription against improper relationships between servicemembers of different ranks, now commonly referred to as fraternization, descended from the Roman ranks.⁸ Military organizations are made up of people who carry out various missions. These individuals must respect and trust one another. Actual or apparent partiality, preferential treatment, or improper use of rank prejudices good order, discipline, and high unit morale. This was recognized in Johanns I:

Anyone who believes that a leader can mechanically assign a “friend” to unpopular or hazardous duty is unrealistic. Axiomatically, the troops will be highly aware of the duties assigned to an enlisted person^) with whom an officer habitually associates or consorts. That is the prejudice to good order and discipline which the line between ranks is meant to prevent; and an officer and a gentleman will endeavor to keep oneself [sic] on the appropriate side of that line.

17 MJ at 872 (Snyder, J., concurring in part and dissenting in part).

23. In his concurring opinion in this case Judge James points out that what individuals do within “technical functional ‘communities’ ” does not undermine the relationship that must exist between officers and enlisted members. 37 MJ at 881.

24. Intervening Events. Following Johanns I there have been significant changes in the structure and organization of the armed forces which serve to reinforce the historical proscription against improper relationships between servieemembers of different ranks. The emphasis today is toward jointness: joint commands, joint task forces, and uniformity as to the treatment of relationships among servieemembers not only of different ranks but also of different branches of the armed forces. Indicative of the emphasis on jointness is the enhanced position of the Chairman of the Joint Chiefs of Staff—10 USC §§ 151 and 153 (1986). All of these factors are significant intervening events since Johanns I.

25. Additionally, the old Air Force regulation concerning professional relationships indicated relationships between Air Force members were “normally matters of individual judgment.” Para. 7c, Air Force Regulation (AFR) 30-1, Professional Relationships at 20 (4 May 1983). However, paragraph 2a, AFR 35-62, Policy on Fraternization and Professional Relationships (16 Apr. 1990), is much more stringent.

26. Reasonable expectations. As demonstrated by the fact in this case and in a number of cases that have distinguished Johanns I, overruling it does not undermine the expectations of servieemembers even in the Air Force. The administration by a service of published opinions, policy proclamations, and regulations, as well as training, has an impact on the expectations of servicemembers. As Judge James asserted, the “published opinions of The Judge Advocate General [of the Air Force] suggest the vitality ... of the general custom against fraternization” in the Air Force. 37 MJ at 880 n. 12. As was demonstrated in this case, appellant was well aware of what behavior would constitute improper relationships among the ranks.

27. Public confidence in the law. Foremost, public confidence in the law would be undermined if national security was jeopardized as a result of improper relationships. Again as Judge James stated:

Fraternization remains an issue because it bears on leadership, discipline, and command. We are a community mainly of good soldiers who do not conduct themselves such that leadership, discipline, and command are impaired. Our views of our service are reflected in our views on what is and is not acceptable behavior. The Johanns [I] majority, however, looked simplistically to erosion of caste distinctions and diagnosed the end of the custom prematurely, after only a superficial examination.

37 MJ at 880-81.

28. Overruling Johanns I strengthens prior cases as to the responsibility of a military officer and is consistent with the historical development of fraternization as well as with intervening developments. We noted in United States v. Frazier, 34 MJ 194, 198 (CMA 1992), “that one critically important responsibility of a military officer is to inspire the trust and respect of the enlisted soldiers who must obey his orders and follow his leadership.” See also United States v. Hartwig, 39 MJ 125 (CMA 1994); United States v. Maderia, 38 MJ 494 (CMA 1994); United States v. Moore, 38 MJ 490 (CMA 1994).

The decision of the United States Air Force Court of Military Review is affirmed.

1 . See 41 MJ 213, 229 n. * (1994).

2 . The elements of a violation of Article 133, Uniform Code of Military Justice, 10 USC § 933, are as follows:

(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 for Courts-Martial, United States, 1984.

3 . The elements of fraternization charged under Article 134, UCMJ, 10 USC § 934, would be as follows:

(1) That the accused was a commissioned or warrant officer;

(2) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;

(3) That the accused then knew the person(s) to be (an) enlisted member(s);

(4) That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and

(5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Para. 83b, Part IV, Manual, supra. This paragraph constitutes explicit notice to servicemembers that fraternization is an offense.

4 . Amendment to Article 2, UCMJ, 10 USC § 802, was designed to legislatively overrule United States v. Russo, 1 MJ 134 (CMA 1975), and United States v. Catlow, 23 USCMA 142, 48 CMR 758 (1974). See S.Rep. No. 197, 96th Cong., 1st Sess. 121-23 (1979), reprinted in 1979 U.S.Code Cong. & Admin. News 1826-28. See also United States v. Clardy, 13 MJ 308 (CMA 1982).

5 . United States v. Kossman, 38 MJ 258 (CMA 1993) , overruled United States v. Burton, 21 USC-MA 112, 44 CMR 166 (1971).

6 . United States v. Johnston, 41 MJ 13 (CMA 1994) , overruled United States v. Arguello, 29 MJ 198 (CMA 1989). United States v. Teters, 37 MJ 370 (CMA 1993), cert. denied, — U.S.-, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994), overruled United States v. Baker, 14 MJ 361 (CMA 1983).

The denial of eight petitions for reconsideration left a number of decisions without precedential effect. See, e.g., United States v. Davis, 9 MJ 254-64 (CMA 1980).

7 . The decision by the court below, as with most decisions, have their bases in the Constitution, Uniform Code, Manual for Courts-Martial, and case law. Because of these bases, a higher court, such as this Court, may review decisions of a court below.

8 . B. Ayala, Three Books on the Law of War and on the Duties Connected with War and on Military Discipline (Book The Third) 175, 180 (J. Bate trans.) (Reprinted 1964) (Roman law recognized that undue familiarily would have an adverse effect on discipline). See also W. Winthrop, Military Law and Precedents 716 (2d ed. 1920 Reprint).