U.S. v. Pope, 63 M.J. 68

First Principles: Constitutional Matters: First Amendment

1. an Air Force recruiting regulation prohibiting sexual harassment of recruits did not impermissibly curtail a recruiter’s First Amendment rights to expression; while intimidating, hostile, or offensive speech may be tolerated in civilian society, in the armed forces, other considerations also come to bear; restrictions on speech may exist that have no counterpart in civilian society; the right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the Country’s defense; proper relations between recruiters and applicants in the armed forces are indispensable in attracting young people to serve their country and in maintaining military discipline; intimidating, hostile, or offensive conduct of a sexual nature by recruiters drives potential applicants away from military service and undermines the effectiveness of the armed forces

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. the elements of an Article 92, UCMJ, violation for failure to obey a lawful general order or regulation are: (a) a certain lawful general order or regulation was in effect; (b) the accused had a duty to obey that order or regulation; and (c) the accused violated or failed to obey the order or regulation
2. viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that appellant violated an Air Force recruiting regulation by engaging in verbal conduct of a sexual nature that created an intimidating, hostile, or offensive environment; comments need not be expressly or explicitly sexual to be of a sexual nature; sexual innuendo, or a recruiter’s implied invitation to an applicant that latently suggests sexual activity, may be sexual in nature
3. to withstand a challenge on vagueness grounds, a regulation must provide sufficient notice so that a servicemember can reasonably understand that his conduct is proscribed; possible sources of fair notice include: federal law, state law, military case law, military custom and usage, and military regulations; training, pamphlets, and other materials may also serve as sources of notice because they may give context to regulations and explain the differences between permissible and impermissible behavior
4. an Air Force recruiting regulation prohibiting sexual harassment of recruits was not unconstitutionally vague on the ground that it did not give fair notice that such conduct could be subject to criminal sanction; the regulation expressly stated that failure to observe its prohibitions may result in punishment under Article 92, UCMJ, and that compliance was mandatory; in addition, recruiter school placed appellant on notice that his conduct was subject to criminal sanction by instructing him on proper comportment with applicants and informing him of rules prohibiting sexual misconduct
5. an Air Force recruiting regulation prohibiting sexual harassment of recruits was not unconstitutionally vague as applied to conduct of appellant in placing his hand on an applicant’s knee while riding alone with her in a car, inviting an applicant to his apartment at night to take pictures, or telling an applicant that her appearance was driving him crazy and was so sexy; the regulation was clear that sexual conduct by recruiters with applicants was prohibited and that recruiters must be totally professional in their relationships with applicants; it was not necessary for the regulation to identify every possible nook and cranny in the line of conduct, for the line is straight and narrow; given the evolving and innumerable ways in which sexually offensive conduct may occur in the recruiting context, the Air Force was not required, as a matter of law, to expressly set forth all conceivable instances of impermissible conduct; the language of the regulation provided ample discussion of the types of behavior that were prohibited and a reasonable person would have been on notice that misconduct of the sort engaged in by appellant was subject to criminal sanction

Trial Stages: Sentence and Punishment: Evidence

1. a policy directive may be promulgated to improve discipline; however, it must not be used as leverage to compel a certain result in the trial itself; references to command policies or views which in effect bring the commander into the deliberation room are condemned; such a practice invades the province of the sentencing authority by raising the specter of command influence
2. the military judge abused his discretion during presentencing in admitting in aggravation a letter from appellant’s commander provided to every recruiter which stated that “harsh adverse action” would follow violation of recruiting rules prohibiting sexual misconduct with potential recruits, as the letter improperly conveyed the command’s view that harsh action should be taken against the appellant, a recruiter found guilty of sexual harassment

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in determining whether the evidence is legally sufficient, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the assessment of the legal sufficiency of the evidence is limited to the evidence presented at trial
2. an appellate court reviews a military judge’s decision to admit evidence on sentencing for a clear abuse of discretion