U.S. v. Saunders, 59 M.J. 1

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. it is well settled that conduct that is not specifically listed in the MCM may be prosecuted under Article 134, UCMJ; however, due process requires that a person have fair notice that an act is criminal before being prosecuted for it; potential sources of fair notice include federal law, state law, military case law, military custom and usage, and military regulations
2. a military accused is entitled to fair notice of the criminality of conduct charged as service discrediting under Article 134, UCMJ, which does not necessarily require published notice of the precise wording of the elements
3. a knowing and willful course of intimidation or harassment that places a reasonable person in fear of death or bodily harm or that causes emotional distress is patently conduct that would be service-discrediting under Article 134, UCMJ
4. in light of the federal and state criminal laws addressing stalking/harassing conduct as well as the military case law that has affirmed stalking/harassment convictions, appellant was on fair notice that he risked prosecution under Article 134, UCMJ, if he knowingly engaged in a course of conduct (stalking/harassment) that placed another person in reasonable fear of injury or emotional distress
5. in addition to notice that an act is a crime under Article 134, UCMJ, a person must also have fair notice as to the standard applicable to the forbidden conduct against which they must defend; thus, an Article 134, UCMJ, specification must contain words of criminality and provide the accused with notice of the elements of the crime alleged
6. where a specification required the members to determine that appellant carried out a knowing and willful course of conduct directed at a specific person which would cause substantial emotional distress in a reasonable person or which would place that person in reasonable fear of bodily injury, it adequately provided notice as to the requisite mental state; the requirements of emotional distress in a reasonable person and placing a person in reasonable fear are common legal standards
7. for military practice, harassment is appropriately charged as a general intent offense, when charged under clause 2 of Article 134, UCMJ; this is consistent with the prior application of Article 134, UCMJ, and it is consistent with the purpose behind the stalking and harassment statutes – to protect persons from reasonable fear generated by the unwanted advances and contacts of others, without consideration of the abstract motives, some pure, some not, that might have motivated the prohibited conduct; inadvertent or de minimis, but willful, contact would not constitute an offense under Article 134, UCMJ
8. the decision as to whether a given set of acts rises to the level of harassment is left to the fact finder; in addition to adequately informing the accused of the elements of the offense, the specification must also set out conduct that a fact finder could determine was service discrediting in the context presented; while the addition of words of criminality cannot make criminal acts which obviously are not, the allegation must serve to demonstrate the proscribed character of accused’s act
9. a reasonable fact finder could find that appellant’s conduct constituted harassment where appellant repeatedly called and visited his former fiancee, and entered her apartment against her wishes, all after receiving a no-contact order, and where his telephone calls and visits continued over several weeks and included suicide threats, unlawful entry, and angry demands for the return of gifts, all despite protestations by her that she did not want such conduct to continue
10. appellant’s subjective belief, caused by a delusional disorder and dependent personality disorder, that his course of conduct was not criminal because his former fiancee was his one true love is irrelevant to the issue of notice; it is settled law that notice is determined through application of an objective test as to whether a person could reasonably understand that his contemplated conduct is proscribed
11. the test of service discredit under Article 134, UCMJ, is whether appellant’s acts had a tendency to bring the service into disrepute or tended to lower it in the public esteem
12. a reasonable fact finder could find beyond a reasonable doubt that appellant’s course of conduct was service discrediting, where he repeatedly called and visited his former fiancee, and entered her apartment against her wishes, all after receiving a no-contact order, and where his telephone calls and visits continued over several weeks and included suicide threats, unlawful entry, and angry demands for the return of gifts, all despite protestations by her that she did not want such conduct to continue