69 M.J. 549
USCG CCA
2010

UNITED STATES v. Andrеw L. DALY Boatswain‘s Mate First Class (E-6), U.S. Coast Guard

CGCMS 24437 Docket No. 001-62-10

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS Washington, D.C.

14 June 2010

C.G.Ct.Crim.App. 2010

CORRECTED

Special Court-Martial convened by Commander, Coast Guard Group Port Angeles. Article 39(a), UCMJ, session at Seattle, Washington, on 1 March 2010.

Military Judge: CDR Richard E. Batson, USCG

Trial Counsel: LCDR Marianne M. Gelakoska, USCG

Assistant Trial Counsel: LCDR Anthony R. Owens, USCG

Civilian Defense Counsel: Mr. Stephen H. Carpenter, Jr.

Military Defense Counsel: LT Natasha T. Bode, JAGC, USN

Appellate Government Counsel: LT Herbert C. Pell, USCGR CAPT Stephen P. McCleary, USCG

BEFORE MCCLELLAND, TOUSLEY & MCTAGUE Appellate Military Judges

McCLELLAND, Chief Judge:

This is a Government appeal under Article 62, Uniform Code of Military Justice (UCMJ). On 5 March 2010, the military judge dismissed the single charge under Article 134, UCMJ, and its four specifications. The Government requested reconsideration on 17 March 2010, which the military judge summarily denied on 26 March 2010. The Government gave notice of appeal on 29 March 2010. On 17 May 2010, the Government filed with this Court the record of trial, which had been authenticated on 2 May 2010. The Government filed its brief on 7 June 2010.

Under Article 62, we act only with respect to matters of law, which we review de novo. Having considered the Governmеnt‘s brief and the record, we affirm.

Proceedings Below

Appellee was charged under Article 134, UCMJ, the “general article,” which makes punishable “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital“. As originally charged, each of the four specifications alleged an offense occurring between March 2008 and July 2009 in the following form:

... did on between or about (date) and on or about (date), violate a lawful general order, to wit: Commandant Instruction M1000.6A, Personnel Manual, paragraph 8.H.2.f., by wrongfully engaging in romantic relationships with subordinate members of his command, to wit: (one or more sexual acts) with (named female E-2 or E-3), then knowing that said (same named female) was subordinate to the said Boatswain‘s Mate First Class Daly, and that such conduct was prejudicial to the good order and discipline in the armed forces.

On 4 February 2010, subsequent to two R.C.M. 802 conferences at which the discussion included the form of the charges and the doctrine of preemption, the specifications were amended by deleting from each the clause alleging violation of a lawful general order. (Appellate Ex. XIII at 4.) The specifications as amended were in the following form:

... did on between or about (date) and on or about (date), wrongfully engaging [sic] in romantic relationships ‍‌​‌​​​​‌‌​​‌​‌‌​​​​​‌‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​‌​​‍with subordinate members of his command, to wit: (one or more sexual acts) with (named female E-2 or E-3), then knowing that said (same named female) was subordinate to the said Boatswain‘s Mate First Class Daly, and that such conduct was prejudicial to the good order and discipline in the armed forces.

Appellee moved to dismiss Charge I and its four specifications for failure to state an offense and for violating his Fifth Amendment right to due process and his First Amendment right to freedom of association.1 The motion was argued at an Article 39(a), UCMJ, session on 1 March 2010.2 Appellee‘s arguments were based on 8.H. of the Coast Guard Personnel Mаnual,

COMDTINST M1000.6A (PERSMAN).3 This portion of the Personnel Manual, entitled “Interpersonal Relationships within the Coast Guard,” offers wide-ranging guidance on various kinds of relationships among personnel and their various effects, good and bad, on work environment, professional development, good order and discipline, and other matters. Rеlevant to this case, it creates three categories: acceptable relationships, unacceptable relationships and conduct, and prohibited relationships and conduct.4

PERSMAN paragraph 8.H.2.g sets forth three types of relationships or conduct and explicitly prohibits them, and goes on, “This provision is a punitive general regulation, applicable to all personnel subject to the Uniform Code of Military Justice without further implementation. A violation of this provision is punishable in accordance with the UCMJ.”

PERSMAN paragraph 8.H.2.f describes several circumstances of “romantic” relationships5 and calls them unacceptable, including where the parties “have a supervisor and subordinate relationship (including periodic supervision of duty section or watchstanding personnel)” and where they “are assigned to the same small shore unit (less than 60 members)“. Paragraph 8.H.2.d.3.c says that resolution of an unacceptable rеlationship is “normally administrative.” PERSMAN section 8.H.6, “Resolving Unacceptable Relationships,” discusses many administrative approaches to addressing unacceptable relationships, including “a direct order to terminate a relationship,” paragraph 8.H.6.c, and “direct[ion] to end a relationship,” paragraph 8.H.6.d. It concludes with paragraph 8.H.6.g, “Disciplinary Action“: “Non-judicial punishment or courts-martial may address fraternization or other unlawful or prohibited relationships or conduct.”

Before the military judge, the Government alleged (Appellate Ex. IX at 8), and Appellee acknowledged the possibility (Appellate Ex. VII аt 4, 6), that Appellee‘s conduct was “unacceptable” in that he and each of his sexual partners were assigned to the same small shore unit having less than sixty members. However, Appellee argued that PERSMAN 8.H. made it clear that this conduct was not prohibited, only unacceptable, and that he could not be prоsecuted for the conduct, but could only suffer administrative consequences for it. The Government responded that the qualified statement in PERSMAN paragraph 8.H.2.d.3.c, that resolution of an unacceptable relationship is normally administrative, leaves open the possibility of prosecution in a non-normal case, and, the Government asserted, the facts of this case were not normal.

The military judge ruled that the terms of the Personnel Manual clearly provide that conduct such as Appellee‘s alleged conduct subject a member to administrative but not criminal resolution, and declared that qualifying this policy with the word “normally” was “insufficient to show that an accused is on notice that his conduct is subject to criminal sanction.” (Appellate Ex. XIII at 10.) Therefore, “there was no due process ‘fair notice’ that the accused‘s conduct was made subject to criminal sanction.” (Appellate Ex. XIII at 11.) Accordingly, he granted the motion to dismiss.

In its request for reconsideration, the Government pointed out that an order to terminate a relationship, noted by the military judge as a possible administrative avenue to address an unacceptable relationship under PERSMAN section 8.H.6, would open up the possibility of prosecution if the order were not obeyed, i.e. if the relationship were not terminated. From this, the Government urged the military judge to acknowledge that criminal sanctions are available under certain circumstances for unacceptable relationships. The Government further contended that the facts and circumstances as revealed in an investigation indicated that Appellee “could -- and did -- understand that his unacceptable relationship with subordinate members of his command might violate the U.C.M.J.” (Appellate Ex. XIV at 13.) Therefore, the Government argued, ‍‌​‌​​​​‌‌​​‌​‌‌​​​​​‌‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​‌​​‍he “had notice satisfying the requirements of due process of law.” (Id.)

The Government also urged, in favor of reconsideration, that notice that conduct is wrongful can be found in military custom, citing United States v. Vaughan, 58 M.J. 29, 31-33 (C.A.A.F. 2003). The military judgе had observed that fair notice that an act is a crime may be found in military custom and usage, among other sources, citing Vaughan. The Government argued that the Coast Guard‘s established custom that certain relationships are unacceptable, of which Appellee was aware, subjected his relationships to criminаl sanction, and that, contrary to the military judge‘s ruling, the word “normally” did allow for exceptions where criminal sanctions could be brought to bear.

As part of its motion for reconsideration, the Government requested an opportunity to present evidence and oral argument. As already noted, the military judge rejected the Government‘s request for reconsideration.

Discussion

Before this Court, the Government renews its arguments that Appellee was aware that his conduct could subject him to criminal sanctions and that custom can provide notice of wrongfulness, and further argues that the absence of words making a regulation punitive does not preclude reference to the regulation in determining whether certain conduct may be prosecuted under Article 134. As it did below, the Government emphasizes the serious prejudice to good order and discipline that resulted from Appellee‘s conduct, implying that the prejudice to good order and discipline was so great that it tended to prove the criminality of that conduct.

It appears that the Government‘s theory in this case was that the Personnel Manual, by disapproving of conduct it labeled unacceptable, made it “wrongful” such that, when combined with prejudice to good order and discipline, the conduct could be made a crime under Article 134. We reject this theory. It is certainly true that a word of criminality such as “wrongfully” is essential to an adequate specification. See Rule for Courts-Martial 307(c)(3) Discussion (G)(ii), MCM. However, there is more to criminality than the mere word “wrongfully.” Wrongful in the sense of disapproved is not enough. For conduct to be wrongful for the purpose of Article 134 requires notice that the conduct is criminal. Put another way, in order to be prosecuted under Article 134, UCMJ, a servicemember must be on fair notice that his or her conduct was punishable. United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998) (citing Parker v. Levy, 417 U.S. 733, 756 (1974)); accord United States v. Rogers, 54 M.J. 244, 256 (C.A.A.F. 2000); United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003); United States v. Saunders, 59 M.J. 1, 6 (C.A.A.F. 2003).

The Government acknowledges that due process requires fair notice that an act is forbidden and subject to criminal sanction, and correctly points out that such notice can be gleaned, inter alia, from military custom, citing Vaughan, 58 M.J. at 31-33 and Rogers, 54 M.J. at 256-57. “A breach of a custom of the service may result in a violation ‍‌​‌​​​​‌‌​​‌​‌‌​​​​​‌‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​‌​​‍of clause 1 of Article 134.” MCM, Pt. IV, ¶ 60c(2)(b).

In this case, resort to custom is futile because custom has been supplanted by PERSMAN 8.H.6 8.H. specifies “prohibited” relationships and conduct, which inсur criminal liability. Other specified relationships and conduct, called “unacceptable,” are likely to lead to administrative sanctions. By negative inference, unacceptable relationships and conduct apparently do not incur criminal liability in themselves.

The Government makes much of the qualified statement in PERSMAN 8.H.2.d.3.c that the resolution of an unacceptable relationship is “normally” administrative, arguing that criminal liability is therefore not foreclosed. If the issuer of PERSMAN 8.H. intended to give notice of criminality of unacceptable relationships, this was not the best way to do it.7 Rather, in effect, 8.H. appears to give serviсemembers notice of the noncriminality of unacceptable relationships for the purpose of Article 134.

To confirm this impression, we undertake further scrutiny of PERSMAN 8.H. Notably, Paragraph 8.H.5.b provides:

Personnel finding themselves involved in or contemplating unacceptable relationships should report the situation and seеk early resolution from their supervisor, commanding officer, officer in charge, command enlisted advisor, or Coast Guard chaplain. Any potential conflict with Coast Guard policy should be addressed promptly. Commands are expected to assist members in understanding Coast Guard policy requirements and resolving conflicts. Bringing an unacceptable relationship to early Command attention will increase the opportunity for early, positive resolution.

The phrase “Personnel finding themselves involved in or contemplating unacceptable relationships” acknowledges the common human phenomenon of “falling in love,” which can happen regardless of a person‘s professional intentions and often cannot be controlled at inception. The later material in section 8.H.6 offers various alternative resolutions of unacceptable relationships. The overall policy appears clearly to аvoid criminalization in favor of practical solutions as far as possible. This is understandable, as criminalization, or even uncertainty, would create an enormous incentive to hide such relationships, allowing their many detriments to good order and discipline to blossom, as well as possibly incurring loss of productivity of the parties, who would have to divert some attention to keeping their secret. It would also risk the downfall of otherwise valuable servicemembers whose value to the service might have continued if a solution had been found. It seems eminently reasonable that 8.H. should create a noncriminal “safe harbor,” readily understandable to servicemembers, for persons “finding themselves involved in or contemplating unacceptable relationships.”

Accordingly, we interpret PERSMAN 8.H. as giving servicemembers notice of the noncriminality of unacceptable relationships for the purpose of Article 134. If we did otherwise, we would destroy the “safe harbor.”

This is not to say that such a relationship cannot become the basis of a charge under the UCMJ. For example, if, as contemplated by PERSMAN paragraphs 8.H.6.c and 8.H.6.d, a person were ordered to terminate a relationship, violation of that order could be charged under Article 92, which makes punishable violations of orders and derelictions of duty.8 Similarly, if Appellee had a duty to avoid unacceptable relationships, dereliction of that duty could be charged under Article 92. (This possibility of criminal liability, based not purely on “unacceptable relationship” ‍‌​‌​​​​‌‌​​‌​‌‌​​​​​‌‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​‌​​‍but on one or more additional factors, might be the reason the word “normally” was used.)

The Government argues vigorously that nonpunitive regulations can give notice of criminality and therefore provide the basis of a charge under the general article, citing Vaughan and Rogers. The argument misses the mark here because in those cases, the directives lacked the indicia of a punitive regulation but did not negate criminality, whereas here, the directive givеs notice of noncriminality. Similarly, the argument that custom can suffice to give notice of criminality is unavailing because custom cannot criminalize conduct of which a directive negates criminality. See MCM, Pt. IV, ¶ 60c(2)(b) (“No custom may be contrary to existing law or regulation.“).

In short, we hold that an unacceptable relatiоnship, without more, does not support criminal liability under Article 134. Accordingly, we affirm the military judge‘s ruling.9

The Government argues that the military judge erred in failing to grant the Government an evidentiary hearing on the motion for reconsideration. Aside from evidence of prejudice to good order and discipline, which would not be relevant on the question of fair notice оf criminality, the proposed evidence apparently would tend to show that Appellee knew his conduct was inappropriate. We agree with the military judge that the issue he was deciding was an issue of law. Since we hold that PERSMAN 8.H. negates criminality of unacceptable relationships for the purpose оf Article 134, Appellee‘s knowledge is irrelevant.10

The Government‘s appeal is denied.

Judges TOUSLEY and MCTAGUE concur.

For the Court,

Amber K. Riffe

Deputy Clerk of the Court

Notes

1
The military judge did not consider the First Amendment issue, and neither do we.
2
The Article 39(a) session appeared to be an arraignment session. At the usual point for the arraignment, the military judge said, “Petty Officer Daly, at this point I‘m going to ask you how you plead to the Charges and Specifications thereunder. But before we do that, any motion to dismiss ... should be made at this time.” This was arguably not an arraignment. See United States v. Edmond, 37 M.J. 787 (C.G.C.M.R. 1993) at fn 1.
3
Both parties and the military judge invoked PERSMAN 8.H. Without saying so, clearly the military judge took judicial notice of it. We do so as well. A copy of it is attached to this opinion as an appendix.
4
In addition, 8.H.4 affirms the criminal offense of fraternization as defined in Manual for Courts-Martiаl (MCM), United States (2008 ed.), Pt. IV, ¶ 83.
5
Although “romantic” is not defined, it surely includes sexual activity.
6
See MCM, Pt. IV, ¶ 60c(2)(b), noting, “Many customs of the service are now set forth in regulations of the various armed forces.” PERSMAN Paragraphs 8.H.1.d and 8.H.1.e explicitly acknowledge custom as background for what follows. Specific customs are described later in 8.H.
7
As the directive is ambiguous on the point, regulatory history might have been useful.
8
There would be no reason to allege ‍‌​‌​​​​‌‌​​‌​‌‌​​​​​‌‌​​​​​​‌​‌‌​​‌​​​​​‌‌‌‌​‌​​‍violation of such an order under Article 134, and the preemption doctrine, MCM, Pt. IV, ¶ 60c(5)(a), provides encouragement not to do so.
9
To the extent that the military judge‘s ruling precluded all prosecution based on an unacceptable relationship, it went too far, as our discussion above makes clear.
10
While it could be argued that Appellee‘s knowledge would rebut his argument that prosecution (as applied to him) would violate the right to due process, there is nothing about the evidence of his knowledge, as proffered by the Government, that indicates he knew his conduct could subject him to criminal prosecution as opposed to administrative sanctions.