Lead Opinion
Opinion of the Court
Thе appellant was convicted of two offenses of willfully disobeying the order of a superior commissioned officer and three offenses of failing to obey a lawful general regulation, in violation of Articles 90 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 890 and 892, respectively. The convening authority disapproved all the findings of guilty except those of two of the Article 92 offenses. The approved sentence includes a bad-conduct discharge, forfeiture of $100 and reduction to the lowest enlisted grade. The United States Air Force Court of Military Review affirmed on December 9, 1975. We granted review to consider the appellant’s claims (1) that the wig proscription of paragraph l-12b(4), Air Force Manual 35-KXC1),
I
We consider first the appellant’s challenges to the constitutionality of the regulation. While not questioning the right of the Air Force to prescribe standards for hair length and style, he contends that the wig proscription does not operate to further the Air Force’s announced goal of maintaining a high standard of dress and personal appearance by requiring “neatness, cleanliness, safety and military image.” Instead, it operates only to insure that the hair grooming standards contained in paragraph l-12b(2) can be obeyed in only one way and is thus an arbitrary and unreasonable restriction of a private right. He also contends that the regulation constitutes a denial of equal protection because it permits a baldheaded person and persons with physical disfigurements to wear wigs for cosmetic reasons while performing their duties, but deprives others of that right. Finally, he contends that the regulation is unconstitutionally vague, overbroad and indefinite, and that his conviction pursuant to the regulation denied him due process of law.
We have quite recently considered identical challenges to a hair length regulation in United States v. Young,
II
A canvas of pertinent legal principles will facilitate our review of the appellant’s challenge to the adequacy of the military judge’s instructions to the court panel.
The trial judge is more than a mere referee, and as such he is required to assure that the accused receives a fair trial. Advocacy leaves the proceedings at the juncture of instructing the court members. Irrespective of the desires of counsel, the military judge must bear the primary responsibility for assuring that the jury is instructed on the elements of the offenses raised by the evidеnce as well as potential defenses and other questions of law.
When “the law governing a case is expressed in a statute,” the presiding judge, in his charge to the jury, “should use the language of the statute and,” indeed, may commit “error if [he] employs language which constitutes a [pertinent] departure from the statute.”
Just as the trial judge must fully and completely instruct the jury concerning all theories having support in the evidence, hе must additionally instruct the jury that the accused is presumed
When evidence is adduced during the trial which reasonably raises an affirmative defense, the judge “must” instruct the court panel “that they may not find the accused guilty of the offense . . unless they are convinced beyond a reasonable doubt that the basis of the special defense does not exist . . . .”
The jury must be instructed that where an exception is contained within the criminal statute or regulation, the burden of proof is upon the prosecution also to prove that the accused does not fall within the exceptions contained in the statute.
Ill
The appеllant was convicted of wearing a wig while on duty, in violation of AFM 35-10, which provides as follows:
Wigs or hairpieces will not be worn while on duty or in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration. If under these conditions a wig or hairpiece is worn, it will conform to Air Force standards. (AFM 35-10(Cl), paragraph l-12b(4), 21 September 1973).
A reading of this provision at once discloses that the wearing of wigs and hairpieces is not prohibited under all circumstances. On its face, the regulation provides an exception to the prohibition and its meaning is plain, even if we do not apply the general rule, which is that penal statutes are to be construed strictly against the Government. Barrett v. United States,
To constitute an offense cognizable under the regulation all facts contemplated by its language must be established. It is thus clear that to convict the appellant of violating the regulation the Government was required to prove that on the dates of the alleged offenses the following facts existed;
(1) paragraph l-12b(4), AFM 35-10, was a lawful general regulation;
(2) Air Force standards were set forth in paragraph l-12b(2) of AFM 35-10;
(3) that the appellant wore a wig or hairpiece; and
(4) that when the appellant wore a wig or hairpiece he was (a) on duty or (b) in uniform; and either
(5) that the appellant was not naturally bald; or
(6) was.not physically disfigured; or
(7) that if the accused was bald or physically disfigured, he nevertheless did not wear the wig for cosmetic reasons; or
(8) that in the event the appellant was either bald or physically disfigured and wore the wig for cosmetic reasons, the wig worn by him did not conform to the Air Force standards set forth in the regulation.
It is equally clear that failure of the prosecution to prove the facts necessary to make out the offense of failure to obey the prohibition in AFM 35-10 would require an аcquittal. For it is axiomatic that to overcome the presumption of innocence, “that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law,’ ” (
Our dissenting colleague reminds us that previous decisions of this Court dictate different conclusions concerning the burden of proof which we announce herein. Thus, in United States v. Gohagen,
While previous opinions of the Supreme Court recognized the long-standing assumption that proof beyond a reasonable doubt is constitutionally required, for a conviction, Winship stated the prоsecutor’s burden more graphically as including proof of “the existence of every fact necessary to constitute the crime charged” and announced that as a matter of due process, the accused is constitutionally protected from conviction without such proof. Said the Court:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In subsequent decisions, the Court has left no doubt concerning the extent of the govеrnment’s burden of proof. In Mullaney v. Wilbur,
Mullaney surely held that á State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuаsion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the*337 Due Process Clause.432 U.S. at 215 ,97 S.Ct. at 2330 .
That this Court, in United States v. Gohagen, supra, placed reliance upon Morrison v. California,
IV
With the above principles in mind, we proceed to consider the evidence adduced by the parties and the instructions given by the military judge to the panel members. The Government presented evidence that the appellant wore a wig or hairpiece on the dates alleged in the specifications and that, prior to the preferral of charges, he wrote his commander explaining that he wore the wig to create a facade of short hair while maintaining his naturally longer hair which he preferred during nonduty hours. The appellant presented as his only witness a Dr. Lockman, who testified that he had examined a scar on the appellant’s scalp the day оf the trial and that in his opinion the scar constituted a “physical disfigurement.” He further stated that, though the test for determining whether the scar constituted disfigurement was necessarily a subjective one, “I think that if I saw that and Sergeant Verdi was a patient of mine, there would not be the slightest hesitation and I would say that was a physical disfigurement.” Based upon the testimony of Dr. Lockman, the appellant’s attorney requested the military judge to instruct the jury that the Government had the burden of proving that the appellant did not come within the exception to the prohibition against the wearing of wigs. Without otherwise ruling upon the request, the judge stated that he would instruct the jury that the prosecution had the burden of proving all the elements of the offense. He then instructed the panel concerning the facts the Government was required to prove, as follows:
In Specification 1 of Charge II, the accused is charged with the offense of fail*338 ure to obey a lawful general regulation in violation of Article 92 of the Uniform Code of Military Justice. Under that charge there are three specifications and the elements of the offense are the same with respect to each of the offenses alleged under that charge.
The elements of those offenses are:
That there was in effect a certain lawful general regulation in the following terms: that is paragraph l-12b(4), Air Force Manual 35-10, dated 21 September 1973, which prohibited and (sic) unlawful wearing of a wig;
Secondly, that the accused had a duty to obey that regulation; and finally
That at the time and place alleged, the accused violated that regulation by, in the first instance, Specification 1, on or about 8 October 1974, violated the lawful general regulation by wrongfully and unlawfully wearing a wig:
In the case of the second Specification, on 15 October 1974, by wrongfully and unlawfully wearing a wig; and
In Specification 3, on 17 October 1974, by wrongfully and unlawfully wearing a wig.
The place in each instance is alleged as Lackland Air Force Base, Texas.
The judge also instructed the panel that he had determined as a matter of law that AFM 35-10 was a lawful general regulation. He further instructed them concerning the presumption of innocence and of reasonable doubt by fully explaining the meaning of those principles.
The military judge never read or quoted the language of the wig regulation in its entirety
The Government argues that entitlemеnt to the requested instructions would follow only if the appellant had given more testimony that he wore the wig for cosmetic reasons to cover physical disfigurement or baldness and that, in their view, it is clear that the appellant was not wearing the wig for cosmetic reasons since he had previously written a statement to the effect that he wore the wig for other reasons. But this argument overlooks the duty of the trial judge to instruct concerning the government’s burden of proving that the accused’s conduct comes within the prohibitions of a statute containing criminal sanctions. The holding of the Supreme Court in In re Winship, supra,
Under these circumstances, we hold that the panel members were not properly instructed by the judge concerning the government’s burden of proof and that he should have instructed the panel in accordance with the request made by appellant. Prejudice is apparent.
The decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
Notes
. Air Force Manual 35-10, 1 December 1972, has been superseded by Air Force Regulation 35-10, 25 February 1975, which permits reserve personnel to wear short hair wigs while performing active duty. However, the charges against Verdi, a reservist, arose prior to the amendment. We therefore resolve the issues presented in this review on the provisions of AFM 35-10.
. On July 2, 1976, we entered an order holding that United States v. Young,
. AR 600-20, para. 5-39.
. The wig prohibition provision of the police regulation sustained in Kelley v. Johnson,
. Stevenson v. United States,
. 75 Am.Jur.2d, Trial § 604. See United States v. Meador,
. 75 Am.Jur.2d, Trial § 609. See State v. Rutten,
. Terminal Association v. Fitzjohn,
. 10 U.S.C. § 892.
. Taylor v. Kentucky,
. Article 51(c), Uniform Code of Military Justice, 10 U.S.C. 851(c).
. Id.; In re Winship,
. Patterson v. New York,
. Paragraph 214, Manual, supra ; Mullaney v. Wilbur, supra; United States v. Meador, supra.
. United States v. Vuitch,
. See para. 214, Manual, supra, which provides, inter alia, “[t]hat the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the Government, both with respect to those elements of the offense which must be established in every case and with respect to issues involving special defenses which are raised by the evidence.”
. United States v. Williams,
. Id.
. In re Winship, supra. See Patterson v. New York, supra; Cool v. United States,
. United States v. Jenkins, 22 U.S.C.M.A. 365,
. The difference between the language of the New York statute in Patterson (“except that in any prosecution under this subdivision, it is an affirmative defense . . . ”) and the language of para. l-12b(4), AFM 35-10, supra, (“except for cosmetic reasons to cover natural baldness or physical disfiguration”) is sufficient even to preclude application оf the burden of production to the accused. See Mullaney v. Wilbur, supra,
. See
. See also United States v. Vuitch, supra,
. The military judge did place AFM 35-10 as a government exhibit before the court. This did. not, however, relieve the judge of the duty to personally instruct the panel in the language of the regulation. Nor did the reading of the regulation by both counsel do so. Taylor v. Kentucky, supra, at 1936-37.
. The standards referred to in AFM 35-10(0), para. l-12b(4), are contained in Table 1-1 of the Manual (which is contained in the attached appendix).
Concurrence in Part
(concurring in part and dissenting in part):
I agree with the majority that the hairstyle regulation is constitutionally valid. I disagree, however, with the conclusion that the trial judge’s instructions were fatally flawed.
A number of statements in the principal opinion appear to be incompatible with previous decisions of this Court. For exаmple, it is stated, in effect, that all the provisions of the regulation should be instructed upon by the judge, otherwise “the danger is great that the jury will misinterpret the applicable law.”
In United States v. Boone,
In United States v. Gohagen,
The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without*342 subjecting the accused to hardship or oppression. .
For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance . . . or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. . . . The list is not exhaustive. Other instances may have arisen or may develop, in the future where the balance of cоnvenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. One can do no more than adumbrate them; sharper definition must await the specific case as it arises.
Applying Morrison to the facts of Gohagen, this Court said:
Having established possession by accused of a hypodermic syringe and needle, the prosecution had established a prima facie case. See Manual for Courts-Martial, United States, 1951, paragraph 213a; 21 USC § 188m. The possession thus shown was in its very essence, of sinister significance — and it was surely within the power of accused to prove with ease that his possession fell within an exception to the circular, if such was the case. He made no attempt whatever to do so. It is in no sense unfair or unjust to hold him accountable in the absence of his failure to explain. Williams v. United States, ... [78 U.S.App.D.C. 147 ,138 F.2d 81 (1943)]. [2 U.S.C.M.A. at 177 ,7 C.M.R. at 53 .]
Here the regulation provides, in pertinent part: “Wigs or hair pieces will not be worn while on duty or in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration.” AFM 35-10(Cl), paragraph l-12b(4), September 21, 1973. Undisputed evidence established that, while on duty, the accused wore a wig on the occasions set out in the specifications. If nothing else appeared in the rеcord, under Gohagen, the judge would not have been required to instruct as to any instance when a wig might be worn without violating the regulation. There was, however, some evidence relevant to an exception, and the question, therefore, is whether that evidence was sufficient to require a specific instruction as to it.
Testifying as a defense witness, a dermatologist stated he had examined the accused’s head and had found, near the part line on the left side, a scar about two centimeters (slightly more than 3A of an inch) in length and a V2 to % of a centimeter (Vs to slightly more than a lU of an inch) in width. In the doctor’s opinion, the scar was a “physical disfigurement.” Not an iota of evidence, however, suggests that the accused wore a wig “for cosmetic reasons to cover” the scar, as required for the exception to be operative. The only evidence of the relationship between the scar and the accused’s wearing of a wig impels the conclusion that he wore a wig to conceal hair length that would otherwise be contrary to the style regulation. Thus, a witness, who testified he was a “close friend” of the accused and that he had seen him without the wig, stated that accused’s natural hair was “slightly longer than . . . that of his hair piece”; and, in a pretrial statement by the accused that was properly admitted into evidence, the accused said:
I wear a wig. The reason for this is I prefer to have my hair a little longer when I am out of uniform.
In his pоst-trial review to the convening authority, the staff judge advocate extensively discussed the law as to the necessity of instructions to be responsive to the issues in the case. He observed that the “time-honored” principle is that the instructions must be “ ‘tailored’ to the evidence present in the case.” He concluded, and I agree, that the evidence was “insufficient . to raise a requirement for an instruction” as to the right to wear a wig “for cosmetic reasons to cover . . . physical disfigu
In this case, the . [regulation] is clearly not within the class of cases requiring the government to nеgative the exception by proof. As recently as United States v. Jenkins,22 USCMA 365 ,47 CMR 120 (1973), the court considered a provision of AFM 35-10, paragraph 1-12(5), prohibiting beards and goatees, “except that a medical officer may grant a waiver of the wear of a beard for medical reasons.” In this class of cases, the court stated, the accused has the burden of bringing himself within the exception to the regulation, as reiterated in United States v. Mallow,7 USCMA 116 , 125,21 CMR 242 (1956):
“[T]he legal burden placed on the accused is no more than to produce some evidence, regardless of its source, to raise reasonably an issue that he is within the excepted class. If he goes that far, he may raise reasonable doubt about his guilt, and in the final analysis, the burden does not shift from the Government tо establish the offense beyond a reasonable doubt.”
From Mallow and related cases, it is clear that it is incumbent upon the accused to set up “this affirmative defense of coming within the exception,” so as to require an instruction. United States v. Fraser,17 CMR 790 , 794 (AFBR 1954).
Thus, the requirement to raise reasonably the affirmative defense, that is, to meet the requirements of the defense, is all the more significant, when a regulation contains an overall prohibition, with limited exceptions. It is incumbent upon the defense in these cases to show that it falls within the exception. Jenkins, supra; Mallow, supra; Fraser, supra; United States v. Blau,5 USCMA 232 ,17 CMR 232 (1954); United States v. Thompson,3 USCMA 620 ,14 CMR 38 (1954); United States v. Gohagen,2 USCMA 175 ,7 CMR 51 (1953); United States v. Durham,6 CMR 320 (ABR 1952); United States v. Winters,2 CMR 728 (AFBR 1951); cf. United States v. Landrum,4 USCMA 707 ,16 CMR 281 (1954) (instruction improperly denied on essential element of regulation, which prosecution was required to prove); United States v. Tucker,17 USCMA 551 ,38 CMR 349 (1968) (accused’s contradicted testimony was sufficient to raise an instructional issue — credibility is not the test).
The defense asserted continuously the exception was a physical disfiguration, when in fact, the essential element of the defense is “cosmetic reasons to cover . physical disfiguration.” There was no evidence indicating that the accused was entitled to wear the wig at the times in question for cosmetic reasons to cover the scar . . . .”
The accused, required under Mallow to move forward with a defense, did not meet his burden of reasonably raising an issue. (Compare the evidence in Jenkins, supra, where accused raised reasonably his entitlement to the exception.) He never indicated a cosmetic reason at the time of the offenses alleged. Thus, although the accused was shown to have a scar on his head, the evidence falls fаr short of establishing that such sear amounted to a physical disfiguration even in the accused’s own mind. There is absolutely no evidence tending to establish that the accused on the dates in question was wearing the wig for “cosmetic reasons” to cover a physical disfiguration. In fact the only direct evidence of a reason for wearing a wig comes from the accused’s own statement given to Lt. Col. Hill on 7 October 1974 (Prosecution Exhibit 4), wherein the accused stated, “My only problem as far as the Air Force is concerned is that I wear a wig. The reason for this is I prefer to have my hair a little longer when I am out of uniform.” Based on the foregoing, it is crystal clear that no instruction was necessary on the exception to the regulation. See United States v. Sikorski,21 USCMA 345 ,45 CMR 119 (1972).
For the reasons indicated, I would affirm the decision of the Court of Military Review.