United States v. Jeffers
2002 WL 1401696
C.A.A.F.
2002
Check Treatment
Docket

*1 STATES, Appellee, UNITED JEFFERS, Specialist, D.

Steven Army, Appellant.

No. 00-0286.

Crim.App. 9701201. No.

U.S. Court Forces.

the Armed

Argued Jan. 28, 2002.

Decided June

CRAWFORD, C.J., opinion delivered EFFRON, GIERKE, Court, in which S.J., JJ., BAKER, joined. opinion concurring in filed an the result. Captain Appellant: Terri J. Erisman For Odegard, (argued); H. Lieu- Colonel Adele Chandler, Jr., and Colonel E. Allen tenant (on brief); Major Imogene Wil- M. Jamison Captain E. Steven liam Cassava Haight. Appellee: Bryant

For Steven D. Salata, (argued); T. Colonel Steven Lieuten- Lind, Major T. R. Paul ant Colonel Denise Captain Tami L. Dilla- Cygnarowicz, and (on brief); Captain Mary E. Braisted. hunt Judge delivered Chief CRAWFORD opinion of the Court. panel officers and enlist- court-martial convicted

ed members (two pleas, fading a lawful order *2 specifications), rape, sodomy, Appellant charged violating forcible and his (four adultery specifications), in violations of commander’s no-contact order on two occa- 92, 120, 125, Articles and Uniform Code sions. On P PV1 went Justice, Military §§ 10 USC “confused, appellant’s feeling upset, room 934, respectively. adjudged and The and stayed hurt.” She room from approved provides sentence for a bad-con- ten to fifteen P minutes. PV1 testified that discharge, years, duct confinement for three judgment, in her this visit was not official allowances, pay total forfeiture and and business. She stated that the of her nature E-l. reduction to Criminal official, personal visit both and but it was findings affirmed the and sentence personal, more she doubt that opinion. granted This Court review violating she was CPT DeHaan’s order following issues: being in Appellant room. I. WHETHER THE EVIDENCE IS appellant’s pending PV1 talked about LEGALLY INSUFFICIENT SUP- TO court-martial and I[P] “how needed to save PORT THE OF FINDING GUILTY TO of our Appellant both butts.” never told her FAILURE TO OBEY A LAWFUL OR- to leave the attempted room otherwise (SPECIFICATION DER 1 OF THE AD- have her removed. CHARGE).

DITIONAL II. WHETHER CON- APPELLANT’S Similarly, appellant testified that he was STITUTIONAL AND STATUTORY watching bed television when PV1 P entered RIGHT BE TRIED BY A TO COURT- the room. He informed her that should she MARTIAL PANEL AND HAVE THAT not be there because the commander’s no- PANEL DETERMINE WHETHER Appellant contact order was still in effect. THE GOVERNMENT HAS PROVEN testimony confirmed PV1 P’s earlier she EVERY ESSENTIAL ELEMENT OF “upset” she entered his THE OFFENSE A CHARGED BEYOND During twenty room. the fifteen to minutes REASONABLE DOUBT WAS VIOLAT- room, sitting that PV1 P remained in the on ED THE BECAUSE MILITARY JUDGE part bed the time and RULED THAT THE ORDER GIVEN TO occasions, threatening hurt herself two APPELLANT WAS LAWFUL WITH- military police, did not call the OUT SUBMITTING THE ISSUE TO Charge Quarters VERDICT, (CQ), anyone THE PANEL FOR A AND chain-of-command, THE BECAUSE MILITARY IN- though JUDGE even he took her THE STRUCTED PANEL THAT THE seriously. suicide threat While he under- ORDER WAS AS MATTER LAWFUL stood commander’s no-contact he OF LAW. attempts not think that his unsuccessful below, For the set out reasons we affirm. calm violated coiiversation between and PV1 FACTS Kimble, Sergeant when terminated Staff CQ, discovered PV1 soldier was married stationed (PV1) in Korea. P were He Private her room to leave. having an relationship, extramarital which later, days appel- Three appellant being charged resulted by having lant violated CPT DeHaan’s order adultery, pleaded guilty. Upon to which he Club, Navy social contact with PV1 P at the discovering Company Garrison, Yongsan Republic located on soldiers, (CPT) Commander of both Appellant pleaded guilty Korea. DeHaan, gave appellant “you his commander’s order on this occasion. will not have [P].” social contact providence inquiry into this gave DeHaan similar no-contact order plea, appellant command- PV1 P. contact the two could lawful, er’s order was have was to be contact that was “official explained nature.” the definition of lawful order. on find- States instructing the members Prior to Milldebrandt, judge informed defense States ings, the (1958). However, argues that he give the CMR 139 court intended reasonable DeHaan’s order neither of the offense of diso- CPT the elements members them, con- as a mat- in this instance. While beying an order and inform *3 order, given law, ceding was in fact contact order that the there that a “no social” ter of order, company who was lawful. Defense counsel of the same such an to two members relationship objection proposed engaged to this instruction. in an adulterous had no are good certainly then instructed mem- to maintain could would, informing morale, them he said discipline, bers as as well as the law, matter the order in this unit, appellant that as contends that order, case, there if in fact was showing that CPT DeHaan’s order some objection again order, Trial defense counsel good reasonably to maintain counsel’s to instruction. At trial defense morale, this mili- it no valid discipline, served military judge properly request, the instruct- tary purpose. members that was defense

ed the duress supra recently observed in As appellant’s failure to his commander’s 277, v. “[sjtarting with States at United May 7. order on Womack, (1989), took 29 MJ 88 approach involv- somewhat to issues different DISCUSSION order, examining the ing the of an breadth specific issue than the the- conduct at rather Appellant now asserts that CPT De- order, Wy- oretical limits of the as did (1) overbroad, to him Haan’s order Wilson, song USC- v.] [12 States [United light Wysong, v. 9 of United States USCMA (1961)].” 165, Compare, MA 165 30 CMR (2) illegal, be CMR (order Wilson, indulge in e.g., supra “not to ability cause it inhibited overbroad), beverages” alcoholic held to be prepare a defense. See (CMA Blye, v. States 37 MJ United (1964). Aycock, 15 USCMA 35 CMR that., 1993)(order any “not to drink alcoholic bever- appellant Additionally, argues there ages” under circumstances of held valid finding evidence to sustain the insufficient case). specification CPT appellant order on DeHaan’s because Wysong, supra, Unlike the order compelled disobey felt his commander’s prevented all of the order breadth P’s prevent directive suicide. duty, line De- speech, except in the II, Finally, regal'd to Issue definite, im- specific, and Haan’s order was argues that United States by at portantly, uncontested defense — denied, U.S.-, cert. Furthermore, absolutely there no trial.1 dispositive L.Ed.2d 269 is not because appellant’s ability communi- restriction on Here, law. that case involved a P, clerk, company cate with PV1 according to was a there factual officialbusiness. raised as to the order issue whether issued by company “reasonably commander Similarly, the order to have no social necessary,” and that factual be contact with PV1 inhibit longed to the members. ability prepare defense. See Nieves, Ay-

Appellant does not contest CPT DeHaan’s States relies, cock, order, authority issue on which a no-contact case order, face, majority an order he claim its of this Court condemned does such Aycock access to the witnesses purpose. no valid See denied testimony concerning judge responded informing defense counsel CPT DeHaan's purpose and only. extent of his no-contact stipulation that he consider a written would interrupted and defense counsel announced to stipulation into No such written was introduced will that "the defense evidence. to the lawfulness of the order.” prior against Forces,” him to commencement of his the land naval not the Manual court-martial. 15 at CMR drafters of the Discussion section RCM 801(e)(5). Const., I, Nothing § in CPT DeHaaris order art. cl. 14. interpreted restricting majority could been as continues to follow the lead of P, potential holding access to PV1 the Manual that the wit- drafters law- him, against long meeting disobeyed ness so as fulness of a order is not an ele- official There ment business. are no of a criminal offense but a developed trial, through by military judge facts law to either mo- be decided alone. tions, objections testimony, I again disagree that showed must and would hold that it CPT DeHaaris order is an interfered with an at- the offense of disobedience torney-client impaired UCMJ, of lawful de- orders under Article preparation. fense counsel’s trial which should have been mem- *4 New, in bers this- case. See States v. Finally, testing legal sufficiency for (2001)(Sullivan, J., 114-28 concur- Virginia, under Jackson 443 U.S. result). ring in the 99 S.Ct. L.Ed.2d Congress repeatedly chosen to make conclude that a “rational trier of fact could the of a lawfulness certain act element of the [diso found essential elements of military a criminal offense beying beyond order] CPT DeHaaris a rea military jury the the sonable of length doubt.” The room, requests. accused so Lawful- coupled remained usually ness in is these circumstances a fact that the contact between question general- of fact and law. See and PV1 P ended noncommis Gaudin, ly 515 U.S. sioned officer discovered PV1 512-15, 115 S.Ct. her, 132 L.Ed.2d 444 room and removed are consistent with (1995). Examples are: specification’s allegation social, contact with PV1 P on Article 84 UCMJ unlawful enlistment, ap- pointment, separation violation of commander’s 90(2) Article lawful UCMJ command 91(2) “Questions applicability of the Article UCMJ lawful order of a rule of 92(1) general Article UCMJ lawful order undisputed law to an set of facts are normal- regulation ly questions Similarly, legality 92(2) of law. of UCMJ lawful order 94(a)(1) Article UCMJ lawful military authority normally question an act is law.” RCM 94(a)(2) lawful UCMJ civil authority 801(e)(5) Discussion, Manual Courts- Article 97 UCMJ unlawful detention Article 119 UCMJ Mils (2000 Martial, ed.),2 United States cited Article 128 UCMJ unlawful force New, raised no Article UCMJ 130 131(1) unlawful entry Article UCMJ lawful oath legal challenge or factual to CPT DeHaaris Nonetheless, order at trial. he now belated- majority’s pronouncement broad “ ly that this insists is one of those rare in- law,” question ‘lawfulness’ is 57 MJ at legality stances act is not a lawfulness, suggests law but is one of fact. We dis- offenses, common to all these should also be agree and hold that the disagree. I jury. removed from “ ‘[Lawfulness’ err. is Nevertheless, I would affirm law.” atMJ overwhelming conviction. There was evi- Army United States dence the lawfulness of the order Court of Criminal is affirmed. Moreover, appellant pleaded case. a second violation this same Judge (concurring Senior (R. order was lawful. 79- result): 80) Finally, dispute there was no as to the view, fact, my Congress In who lawfulness of this order at trial. “make[s] Regulation Rules for the Government and offered provision appellant's 2. This Manual effect at time of court-martial. is identical one in Phanphil, generally United States 197) see (R. Clearly, harm this was States, Neder v. less error under 6M.J. 1827, 144 L.Ed.2d