Petition for Writ of Certiorari — DeShaun L. Wells, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

DESHAUN L. WELLS, et al.,

Petitioners,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

SAMANTHA M. CASTANIEN

Counsel of Record

MEGAN P. MARINOS

TREVOR N. WARD

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

samantha.castanien.1@us.af.mil

Counsel for Petitioners

QUESTION PRESENTED

Since 1775, the United States military has been

subject to some version of today’s Article 134, Uniform

Code of Military Justice (UCMJ), known as the

“general article.” 10 U.S.C. § 934. However, before the

20th Century, the general article proscribed only two

types of conduct: (1) conduct that is prejudicial to good

order and discipline; and (2) conduct otherwise

unlawful under federal law. In 1916, Congress

proscribed a new type of offense under the general

article: conduct of a nature to bring discredit upon the

armed forces. This is known as “Clause 2.”

For decades, military courts required the

Government prove a “direct and palpable” connection

between the charged conduct and the military mission

for Article 134 offenses. It is for this reason that this

Court upheld Article 134 as constitutional in Parker

v. Levy, 417 U.S. 733 (1974). But, in the years since,

military courts have moved away from the direct and

palpable connection requirement for Clause 2

offenses. Now, the Government need not prove any

fact to satisfy the service discrediting element of the

general article. As petitioners’ cases represent, this

results in convictions for conduct which the

Government did not—and cannot—prove discredited

the service.

The question presented is:

Whether Clause 2 of Article 134, UCMJ, is

unconstitutional.

ii

PARTIES TO THE PROCEEDING

This Rule 12.4 petition consolidates direct appeals

from two servicemembers convicted by courts-martial.

Petitioners are Airman DeShaun L. Wells and

Technical Sergeant Charles S. Nestor. Respondent in

each of petitioners’ cases is the United States.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

The following is a list of all proceedings related to

this case within the meaning of Rule 14.1(b)(iii):

•

United States v. Wells, No. 23-0219 (C.A.A.F.),

decided September 24, 2024.

•

United States v. Wells, No. ACM 40222 (A.F. Ct.

Crim. App.), decided May 23, 2023.

•

United States v. Nestor, No. 23-0224 (C.A.A.F.),

decided October 24, 2024.

•

United States v. Nestor, No. ACM 40250 (A.F.

Ct. Crim. App.), decided June 30, 2023.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF CONTENTS ................................................... iii

TABLE OF AUTHORITIES ................................................ v

INTRODUCTION ............................................................. 1

PETITION FOR A WRIT OF CERTIORARI .......................... 2

OPINIONS BELOW ......................................................... 2

JURISDICTION ............................................................... 3

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS

INVOLVED ..................................................................... 3

STATEMENT OF THE CASE ............................................. 4

A. Airman Wells’s Case ........................................ 4

B. Technical Sergeant Nestor’s Case ................... 7

REASONS FOR GRANTING THE PETITION ....................... 8

I. This Court’s decision in Levy cannot save

Clause 2. The CAAF’s reliance on Levy was

error, which only this Court can fix. ............... 8

A. Article 134, and its general article

predecessors, were catch-all provisions

created to regulate conduct having militaryspecific impacts. .......................................... 8

B. In Levy, this Court held that Article 134 is

facially constitutional. But this was based

on the direct and palpable connection

requirement. ............................................... 9

iv

C. Since Levy, military courts have held that

Clause 2 does not require a direct and

palpable connection to the military mission.

Without this requirement, Clause 2’s

constitutionality is not supported by

Levy. .......................................................... 10

II. Clause 2 is unconstitutional because the second

element has no quantum of proof. ................. 12

A. Military courts have struggled to define the

quantum of proof for Clause 2 offenses.... 14

B. Clause 2 is void for vagueness because the

Government does not have to prove the

second element. ......................................... 16

III. If the CAAF is right that Levy precludes

finding Clause 2 unconstitutional, then this

case presents an ideal vehicle for this Court to

revisit Levy and resolve important issues. .... 17

CONCLUSION .............................................................. 22

APPENDIX

CAAF Opinion, United States v. Wells,

No. 23-0219 (September 24, 2024) ........................... 1a

AFCCA Opinion, United States v. Wells,

No. ACM 40222 (May 23, 2023) ............................. 24a

CAAF Order, United States v. Nestor,

No. 23-0224 (October 24, 2024) .............................. 53a

AFCCA Opinion, United States v. Nestor,

No. ACM 40250 (June 30, 2023)............................. 54a

v

TABLE OF AUTHORITIES

Cases

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ......................................... 17, 18

Estelle v. Williams,

425 U.S. 501 (1976) ............................................... 16

In re Winship,

397 U.S. 358 (1970) ............................... 2, 13, 16, 17

Ortiz v. United States,

585 U.S. 427 (2018) ......................................... 18, 19

Parker v. Levy,

417 U.S. 733 (1974) ................ i, 1, 8-9, 11, 12, 17-20

United States v. Avery,

79 M.J. 363 (C.A.A.F. 2020) ................................. 20

United States v. Caballero,

49 C.M.R. 594 (C.M.A. 1975) ................................ 10

United States v. Caldwell,

72 M.J. 137 (C.A.A.F. 2013) ................................. 10

United States v. Cendejas,

62 M.J. 334 (C.A.A.F. 2006) ................................. 10

United States v. Davis,

26 M.J. 445 (C.M.A. 1988) .............................. 14, 15

United States v. Evans,

333 U.S. 483 (1948) ............................................... 22

United States v. Fosler,

70 M.J. 225 (C.A.A.F. 2011) ................................. 13

United States v. Gray,

42 C.M.R. 255 (C.M.A. 1970) .................................. 9

vi

United States v. Grijalva,

84 M.J. 433 (C.A.A.F. 2024) ........................... 10, 20

United States v. Guerrero,

33 M.J. 295 (C.A.A.F. 1991) ..................... 12, 15, 16

United States v. Holiday,

16 C.M.R. 28 (C.M.A. 1954) .............................. 9, 10

United States v. Phillips,

70 M.J. 161 (C.A.A.F. 2011) .... 1, 2, 7, 11, 13-16, 18

United States v. Reese,

76 M.J. 297 (C.A.A.F. 2017) ................................. 20

United States v. Richard,

82 M.J. 473, 2022 CAAF LEXIS 637

(C.A.A.F. 2022) ................................................ 11, 13

United States v. Rocha,

84 M.J. 326 (C.A.A.F. 2024) ........... 6, 14, 15, 19, 20

United States v. Sadinsky,

34 C.M.R. 343 (C.M.A. 1964) ............................ 9, 11

United States v. Sanchez,

29 C.M.R. 32 (C.M.A. 1960) .............................. 9, 14

United States v. Snyder,

4 C.M.R. 15 (C.M.A. 1952) .................................. 8, 9

United States v. Wilcox,

66 M.J. 442 (C.A.A.F. 2008) ................................. 10

Statutes and Constitutional Provisions

10 U.S.C. § 934 ..................................... i, 1, 3, 8, 13, 19

U.S. Const. amend. V.................................................. 3

vii

Other Authorities

Collins Dictionary, Of A Nature Of

(last visited Feb. 6, 2024)

https://www.collinsdictionary.com/us/

dictionary /english/of-the-nature-of ..................... 19

David A. Schlueter,

The Court-Martial: A Historical

Survey, 87 MIL. L. REV.. 129 (1980) ..................... 18

Edward F. Sherman,

The Civilianization of Military Law,

22 MAINE L. REV. 3 (1970) .............................. 17, 19

Manual for Courts-Martial,

United States (2019 ed.) ....................... 2, 13, 20, 21

Manual for Courts-Martial,

United States (1969 ed.) ....................................... 20

WILLIAM WINTHROP, MILITARY LAW AND

PRECEDENTS (2d ed. 1920)............................... 1, 8, 9

1

INTRODUCTION

Since 1775, servicemembers have been prosecuted

under the so-called “general article.” WILLIAM

WINTHROP, MILITARY LAW AND PRECEDENTS 720 (2d

ed. 1920) [hereinafter WINTHROP]. The original

general article proscribed conduct which was

prejudicial to good order and discipline. Id. at 720,

723. The modern-day general article is Article 134,

UCMJ, and largely mirrors the 1775 version. Compare

10 U.S.C. § 934, with WINTHROP at 720.

But today’s general article has one notable

difference. In 1916, Congress added “Clause 2.” Levy,

417 U.S. at 746. Clause 2 criminalizes conduct “of a

nature to bring discredit upon the armed forces.” 10

U.S.C. § 934.

Because Article 134, and its general article

predecessor, were created to regulate “every possible

military offence,” WINTHROP at 720 n.67, early

military courts held that the proscribed conduct must

have a direct and palpable connection to the military.

See Levy, 417 U.S. at 778 n.13 (Stewart, J.,

dissenting). When this Court held Article 134

constitutional in Levy, this Court reasoned the direct

and palpable connection requirement saved Article

134 from being unconstitutionally vague. Id. at 75257.

But, in the years since Levy, military courts have

done away with this requirement for Clause 2. United

States v. Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011).

Instead, military courts now permit prosecution and

conviction under Clause 2 for conduct with no direct

or palpable connection to the military. Id. Despite

this, the Court of Appeals for the Armed Forces

(CAAF)

continues

to

justify

Clause

2’s

2

constitutionality under Levy. Pet. 8a, 10a. This is an

error that only this Court can fix.

Not only has the CAAF eliminated the direct and

palpable requirement, it also permits convictions

under Clause 2 even when the Government does not,

and cannot, prove the conduct discredited the service.

Phillips, 70 M.J. at 163. This is problematic because

the second element of Clause 2 requires that the

conduct be “of a nature to bring discredit upon the

armed forces.” Manual for Courts-Martial, United

States [MCM], pt. IV, para. 91.b.(2) (2019 ed.). By

affirming convictions with no proof of the second

element, the CAAF has sanctioned significant due

process violations in conflict with this Court’s decision

in In re Winship, 397 U.S. 358, 364 (1970).

Because of these due process problems, Levy

cannot save Clause 2. Nevertheless, the CAAF has

relied on Levy to deny constitutional challenges to

Clause 2. If the CAAF is correct that Levy precludes

these challenges, then Levy was wrongly decided and

should be overturned.

PETITION FOR A WRIT OF CERTIORARI

Airman DeShaun L. Wells and Technical Sergeant

Charles S. Nestor, United States Air Force,

respectfully petition for a writ of certiorari to review

the decision of the Court of Appeals for the Armed

Forces.

OPINIONS BELOW

In Airman Wells’s case, the decision of the Air

Force Court of Criminal Appeals (Air Force Court) is

unreported. It is available at 2023 CCA LEXIS 222

and is reproduced at pages 24a-52a. The CAAF’s

decision is pending publication in the military justice

3

reporter. It is available at 2024 CAAF LEXIS 552 and

reproduced at pages 1a-23a.

In Technical Sergeant Nestor’s case, the decision

of the Air Force Court is unreported. It is available at

2023 CCA LEXIS 272 and is reproduced at pages 54a84a. The CAAF’s decision is pending publication in the

military justice reporter. It is available at 2024 CAAF

LEXIS 662 and reproduced at page 53a.

JURISDICTION

In each of petitioners’ cases, the CAAF granted

discretionary review of the question presented here.

In Airman Wells’s case, the CAAF issued an opinion

and judgment on September 24, 2024. In Technical

Sergeant Nestor’s case, CAAF issued judgement on

October 24, 2024. The Chief Justice extended the time

for filing a petition for writ of certiorari to, and

including, February 21, 2025. This Court’s jurisdiction

rests on 28 U.S.C. § 1259(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment, in pertinent part, provides:

“No person . . . shall . . . be deprived of life, liberty, or

property, without due process of law.”

Article 134, UCMJ, 10 U.S.C. § 934 (2018),

provides, in pertinent part:

Though not specifically mentioned in this

chapter, 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, of which persons subject to

this chapter may be guilty, shall be taken

cognizance of by a general, special, or summary

4

court-martial, according to the nature and

degree of the offense, and shall be punished at

the discretion of that court.

STATEMENT OF THE CASE

A. Airman Wells’s Case

Airman Wells had consensual sex with BF and LW,

both short-term girlfriends, while he was married to

another woman. CAAF.JA 42, 118, 120, 264-65. For

this, Airman Wells faced court-martial charges under

Clause 2 for extramarital sexual conduct. CAAF.JA

42. The Government alleged the affairs were criminal

solely because they were “of a nature to bring discredit

upon the armed forces.” Id.

The affairs were astonishingly similar. Both BF

and LW met Airman Wells online and proceeded to

have a three-month long relationship with him.

CAAF.JA 115-16, 118, 216-17, 264-65. Both women

were British nationals and both claimed Airman

Wells impregnated them. CAAF.JA 120-21, 207, 269271. Both women were misled about his marital

status. CAAF.JA 209-10, 217, 266-67. Both women

told their respective parents, each other, and the Air

Force that Airman Wells had sex with them when he

was married to someone else. CAAF.JA 118, 217-18,

220, 266-68. Both testified their opinions of the United

States Air Force and United States military were not

impacted as a result of Airman Wells’s extramarital

sexual conduct. CAAF.JA 226-27, 272. There was no

evidence presented that either affair affected the

reputation of the military.

Despite having no evidence as to how Airman

Wells’s conduct discredited the service, the

prosecution argued that Airman Wells’s conduct could

have harmed the Air Force’s reputation. CAAF.JA

5

290. This was because his adulterous conduct had “the

potential to seriously tarnish the reputation of the Air

Force.” CAAF.JA 301 (emphasis added). But even the

prosecutor recognized that, in this case, the service

was not actually discredited. CAAF.JA 289, 301. For

both offenses, the prosecutor relied on the conduct

alone, with no other evidence, to argue in the

hypothetical that the extramarital conduct was “of a

nature to bring discredit upon the armed forces.”

CAAF.JA 289-90, 300-01, 315-17.

The trial defense counsel rebutted the prosecutor’s

arguments by highlighting how neither affair was

“open” nor “notorious.” CAAF.JA 313-14. The conduct

was done in private, no one in the public knew about

the affair, and “not even the people who were involved

in the affair, [thought] any less of the Armed Forces

as a result of it.” CAAF.JA 314. The trial defense

counsel noted, “If it was just . . . possible that an affair

could bring the reputation of the Air Force down and

that’s enough to make an affair criminal, all affairs

would be criminal because it would be possible for all

of them.” CAAF.JA 313.

Despite the identical presentation of evidence

about the affairs and the lack of proof introduced on

discredit to the service, Airman Wells was convicted

of the affair with BF, but not with LW.

On appeal, Airman Wells argued the Government

presented no evidence that his conduct was service

discrediting and, in fact, there was evidence to the

contrary. Pet. 34a. The Air Force Court disagreed and

affirmed Airman Wells’s adultery conviction. Pet. 34a35a. The Air Force Court determined that Airman

Wells’s affair was “neither private nor discreet”

because Airman Wells filmed one of his consensual

6

sexual encounters with BF and posted it online. Pet.

35a. The video that the Air Force Court relied on did

not identify Airman Wells or BF, did not show their

faces, and made no reference to Airman Wells being a

servicemember. Pet. 20a (Hardy, J., dissenting);

CAAF.JA 61-62, 112. Following the affirmance,

Airman Wells appealed to the CAAF.

A three-to-two majority at the CAAF found Airman

Wells’s conviction legally sufficient. Pet. 1a-2a. The

majority largely adopted the Air Force Court’s

reasoning, relying on the anonymously posted video as

the basis for why Airman Wells’s extramarital sexual

conduct “would tend to bring the service into disrepute

if it were known.” Pet. 7a-8a (emphasis added); see Pet.

20a (Hardy, J., dissenting) (noting the identities of

those associated with the video were anonymous). The

majority also determined there were no constitutional

problems with Clause 2 because such a challenge was

“conclusively” foreclosed by this Court’s decision in

Levy. Pet. 8a, 10a.

The dissent took exception to the majority’s logic.

First, citing a case the CAAF decided earlier last term,

Judge Hardy reasoned the CAAF should overturn its

Clause 2 precedent because it is constitutionally

suspect and raises due process concerns. Compare Pet.

12a (Hardy, J., dissenting) (citing United States v.

Rocha, 84 M.J. 326 (C.A.A.F. 2024)), with Rocha, 84

M.J. at 352-54 (Hardy, J., dissenting). Second, Judge

Hardy emphasized that, here, there was no evidence

supporting a conviction under Clause 2. Pet 17a-23a

(Hardy, J., dissenting). He pointed out “the only

evidence in the record that directly addressed whether

[Airman Wells’s] extramarital conduct was service

discrediting was contrary evidence—BF . . . did not

hold Appellant’s conduct against the Air Force.” Pet.

7

18a-19a (Hardy, J., dissenting). Finally, he stressed

that the Government did not argue Airman Wells’s

conduct was actually service discrediting, nor did the

Government argue the video was relevant to this

offense. Pet. 19a-22a (Hardy, J., dissenting).

B. Technical Sergeant Nestor’s Case

Technical Sergeant Nestor was convicted of

possessing and distributing child pornography under

Clause 2. Pet. 55a. On appeal, he challenged the legal

sufficiency of his conviction because the Government

did not present evidence that the charged conduct

discredited the service. Pet. 77a. The Air Force Court

upheld the conviction for possession, noting that the

CAAF does not require proof of the service

discrediting element. Pet. 80a-81a. Instead, “proof of

the conduct itself” is sufficient for the factfinder “to

conclude beyond a reasonable doubt that . . . it was of

a nature to bring discredit.” Pet. 79a-80a (quoting

Phillips, 70 M.J. at 163).

While the Air Force Court noted Technical

Sergeant Nestor’s rank was ostensibly known to a

Japanese internet provider, the court relied primarily

on the conduct itself—the possession of child

pornography—to uphold the conviction. Pet. 80a.

Technical Sergeant Nestor appealed the Air Force

Court’s decision to the CAAF. The CAAF summarily

affirmed in accordance with its decision in Wells. Pet.

53a.

8

REASONS FOR GRANTING THE PETITION

I. This Court’s decision in Levy cannot save

Clause 2. The CAAF’s reliance on Levy was

error, which only this Court can fix.

When this Court decided Levy, military law

required a direct and palpable connection between the

Article 134 misconduct and the military mission. But,

in the years since Levy, the CAAF made clear no such

requirement exists for Clause 2. This renders Clause

2 unconstitutional under Levy.

A. Article 134, and its general article

predecessors, were catch-all provisions

created to regulate conduct having

military-specific impacts.

The predecessor to Article 134 was the general

article. United States v. Snyder, 4 C.M.R. 15, 17

(C.M.A. 1952). This article punished conduct not

otherwise proscribed by the enumerated articles.

WINTHROP at 720. The “evident purpose” of the

general article “was to provide for the trial and

punishment of any and all military offenses not

expressly made cognizable by courts-martial in the

other more specific articles.” Snyder, 4 C.M.R. at 17

(quoting WINTHROP at 720) (emphasis added).

While some version of the general article has

existed since 1775, WINTHROP at 720, the modern-day

Article 134 was not enacted until 1916. Levy, 417 U.S.

at 746. Article 134 has three clauses. Clause 1

criminalizes conduct which prejudices good order and

discipline. 10 U.S.C. § 934. Clause 2 criminalizes

conduct which is “of a nature to bring discredit upon

the armed forces.” 10 U.S.C. § 934. And Clause 3

assimilates federal law into the UCMJ. 10 U.S.C. §

934.

9

Because Article 134 and its general article

predecessors were created to try and punish “every

possible military offence,” WINTHROP at 720 n.67

(emphasis added), it is unsurprising that early

military courts held that such offenses must include a

direct and palpable connection to the military mission.

See, e.g., United States v. Gray, 42 C.M.R. 255, 260

(C.M.A. 1970) (reasoning that Article 134 offenses

must have a direct and palpable impact on the

military mission); United States v. Sadinsky, 34

C.M.R. 343, 345 (C.M.A. 1964) (concluding that the

misconduct had a direct and palpable impact); United

States v. Sanchez, 29 C.M.R. 32, 33-34 (C.M.A. 1960)

(“[W]hen it enacted [Article 134], Congress intended

to proscribe conduct which directly and adversely

affected the good name of the service.”); Snyder, 4

C.M.R. at 17-18 (reasoning that Article 134 offenses

require the Government to prove that misconduct

palpably impacts the military mission). This Court

decided Levy against this backdrop.

B. In Levy, this Court held that Article 134 is

facially constitutional. But this was based

on the direct and palpable connection

requirement.

In Levy, this Court considered a facial challenge to

Article 134. Levy, 417 U.S. at 753. At that time,

“Article 134 [did] not make ‘every irregular,

mischievous, or improper act a court-martial offense.’”

Id. at 753 (quoting Sadinsky, 34 C.M.R. at 345).

Rather, Article 134 was limited to that misconduct

which had a direct and palpable relation to the

military mission or environment. Id. (citing United

States v. Holiday, 16 C.M.R. 28, 30 (C.M.A. 1954)).

This limiting principle was recognized by the dissent,

too. Id. at 778 (Stewart, J., dissenting) (reasoning that

10

Article 134 and its general article predecessor are

limited to criminalizing acts with a “reasonably direct

and palpable” impact to the military).

Based on the direct and palpable connection

requirement, this Court held that Article 134 was not

void for vagueness.

C. Since Levy, military courts have held that

Clause 2 does not require a direct and

palpable connection to the military

mission. Without this requirement,

Clause 2’s constitutionality is not

supported by Levy.

Just one year after this Court decided Levy, the

Court of Military Appeals (CMA) narrowed the direct

and palpable connection requirement to Clause 1. See

United States v. Caballero, 49 C.M.R. 594, 596 (C.M.A.

1975) (“[Clause 1] is confined to cases in which the

prejudice is reasonably direct and palpable. . . . [The

CMA] has employed much the same language in

attempting to define the outer limits and scope of

[C]lause 1.”). The CAAF continued to tailor this

requirement to just Clause 1 in later cases. United

States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006)

(drawing a distinction between the direct and

palpable connection requirement for Clause 1 and

Clause 2’s requirement of lowering the service in

public esteem); cf. United States v. Caldwell, 72 M.J.

137, 140 (C.A.A.F. 2013) (discussing the direct and

palpable connection requirement for Clause 1 only).

But see United States v. Wilcox, 66 M.J. 442, 448

(C.A.A.F. 2008) (requiring a direct and palpable

impact to the military mission or environment under

Clause 2, but only for speech-related cases); cf. United

States v. Grijalva, 84 M.J. 433, 438 (C.A.A.F. 2024)

11

(explaining that the direct and palpable connection

requirement applies to all cases where free speech is

implicated).

In United States v. Phillips, the CAAF considered

the type of evidence necessary to convict a

servicemember under Clause 2. 70 M.J. at 164. While

the CAAF recognized that Clause 1 and Clause 2 come

from the same general article, id., the court ultimately

concluded that to convict a servicemember of

discrediting the service, the Government was not

required to present evidence of a direct and palpable

connection to the military mission. Id. at 166 (“[T]he

government’s obligation is to introduce sufficient

evidence of the accused’s allegedly service discrediting

conduct to support a conviction.”). Following Phillips,

no evidence of discredit to the service is required at

all. Id. This is distinct from the type of proof

historically required for Article 134 offenses, and

which is still required under Clause 1. United States

v. Richard, 82 M.J. 473, 2022 CAAF LEXIS 637, at *13

(C.A.A.F. 2022).

Despite military courts eliminating the direct and

palpable connection requirement for conduct charged

under Clause 2, the CAAF relied on Levy to dismiss

Airman Wells’s constitutional challenge. Pet. 8a

(“[Levy] established conclusively the constitutionality

of Article 134, UCMJ.”), 10a (reasoning that Article

134, UCMJ, is not void for vagueness pursuant to

Levy). This was error. Article 134, UCMJ, is

constitutional because of the direct and palpable

connection requirement. Levy, 417 U.S. at 753-54.

Without this limiting principle, “every irregular,

mischievous, or improper act” is a criminal offense

under Article 134. Levy, 417 U.S. at 753 (quoting

Sadinsky, 34 C.M.R. at 345).

12

The direct and palpable connection requirement

protects servicemembers against the “very broad

reach of the literal language of” Article 134. Id. at 756.

Without this requirement, Article 134 has an

unconstitutionally broad reach, which is exemplified

in this case. The Government presented no evidence

in either Airman Wells’s or Technical Sergeant

Nestor’s of a direct and palpable connection between

the charged conduct and the military mission. Pet.

17a-20a (Hardy, J., dissenting), 80a-81a. Making

matters worse, the public was not aware of either

servicemember’s status or their conduct. Id. Instead,

both

servicemembers

were

convicted

with

hypothetical evidence: if the public knew what they

did, then the service would be discredited. Pet. 7a-8a,

79a-81a. This speculative, undefined standard is a far

cry from the direct and palpable requirement this

Court relied on in Levy.

When this Court decided Levy, military caselaw

and tradition supported Clause 2’s constitutionality

because the Government had to prove a direct and

palpable connection between the conduct and the

military mission. In narrowing the direct and palpable

connection requirement to Clause 1, the CAAF has

invited “[this Court] to reexamine its holding [in

Levy].” United States v. Guerrero, 33 M.J. 295, 299

(C.A.A.F. 1991) (Everett, J., concurring in part,

dissenting in part). By relying on Levy explicitly here,

the CAAF has put the constitutional problem directly

in front of this Court for consideration.

II. Clause 2 is unconstitutional because the

second element has no quantum of proof.

When this Court decided Levy, it made no

distinction between Clause 1 and Clause 2 to find

13

Article 134 facially constitutional. In the years since

Levy, military courts have interpreted the clauses to

mean different things. United States v. Fosler, 70 M.J.

225, 230 (C.A.A.F. 2011). Clause 2 offenses require the

Government prove beyond a reasonable doubt two

elements: (1) that there was a certain act; and (2) that

act was of a nature to discredit the service. 10 U.S.C.

§ 934; MCM, pt. IV, para. 91.b.(2) (2019 ed.); Phillips,

70 M.J. at 163. Clause 1 similarly requires the

Government to prove a certain act, but the second

element requires proving the act prejudiced good

order and discipline. 10 U.S.C. § 934; MCM, pt. IV,

para. 91.b.(1) (2019 ed.). In delineating these clauses,

military courts changed the quantum of proof

required for each. While Clause 1 requires the charged

act have a direct and palpable connection to the

military mission, Clause 2 has no such requirement.

Compare Richard, 82 M.J. 473, 2022 CAAF LEXIS

637, at *13-15, with Phillips, 70 M.J. at 163.

Without the direct and palpable connection

requirement or any other limiting principle, Clause 2

is unconstitutional because every act is a potential

violation of Article 134. This is especially so when

there is no quantum of proof required for the second

element, meaning proof of the act (element 1) is proof

of discredit to the service (element 2). As several

CAAF judges have noted, this means the proven

conduct is “per se” service discrediting. E.g., Phillips,

70 M.J. at 167 (Ryan, J., dissenting). By condensing

two elements into one, the Government avoids proving

the second element of Clause 2 beyond a reasonable

doubt. See In re Winship, 397 U.S. at 364 (“[T]he Due

Process Clause protects the accused against

conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime

14

with which he is charged.”). This interpretation of

Clause 2 violates due process and renders Clause 2

void for vagueness. Phillips, 70 M.J. at 167 (Ryan, J.,

dissenting); Rocha, 84 M.J. at 352-54 (Hardy, J.,

dissenting).

A. Military courts have struggled to define

the quantum of proof for Clause 2 offense.

Even before Levy, there were warning signs that

Clause 2 was unconstitutional because “obvious”

criminal conduct was viewed as “per se” service

discrediting. For example, in United States v.

Sanchez, the accused had sex with a chicken. 29

C.M.R. at 33. The CMA upheld the conviction because

the conduct was “criminal per se” and because, “when

an accused performs detestable and degenerate acts .

. . he heaps discredit” upon the service. Id. The CMA

did not require proof of actual discredit. Id. Despite

the majority endorsing a “per se” service discrediting

analysis, the limiting principle later endorsed in Levy

persisted in Judge Ferguson’s concurrence. Id. at 37

(Ferguson, J., concurring in part and dissenting in

part). He “trusted” the majority’s “characterization of

[the] accused’s behavior as ‘criminal per se’ [was] not

intended to detract from the formerly expressed

requirement that court members be instructed that

they must find as a fact such acts are discreditable.”

Id.

But after Levy, military courts fashioned an

unconstitutional interpretation of Clause 2. They did

so by eliminating any quantum of proof for the second

element. For example, in United States v. Davis, a

servicemember cross-dressed “in and around the

Puget Sound Naval Shipyard.” 26 M.J. 445, 447

(C.M.A. 1988). Even though cross-dressing was not

15

specifically prohibited by the UCMJ, the CMA upheld

the conviction because such conduct is “virtually

always” service discrediting. Id. at 448-49. Despite

this confident conclusory statement, the CMA

provided no evidence or analysis supporting why

cross-dressing was “virtually always” service

discrediting. Id. at 449.

Over the years, the CAAF has tried to cure Clause

2’s constitutional deficiencies. It has failed. One of the

court’s first attempts was to draw a distinction

between the charged conduct and “(1) the time, (2) the

place, (3) the circumstances, and (4) the purpose for

the [conduct].” Guerrero, 33 M.J. at 298. This was a

distinction without a difference. By attempting to

differentiate between the charged act and the “service

discrediting” element, the CAAF referred to the same

thing: the conduct itself.

Two decades later, the CAAF admitted that “proof

of the conduct itself” is sufficient to prove a Clause 2

offense. Phillips, 70 M.J. at 163. This means that the

Government need only prove the charged conduct, and

nothing else, to prevail in a Clause 2 prosecution. Id.

at 167-68 (Ryan, J., dissenting); see Rocha, 84 M.J. at

353 (Hardy, J., dissenting) (highlighting that Clause

2 requires merely hypothetical, rather than real,

evidence). In other words, so long as prosecutors

charge a “certain act,” and that act is proven beyond a

reasonable doubt, the servicemember is guilty under

Clause 2. Unsurprisingly, calls to examine Clause 2’s

constitutionality persist. Rocha, 84 M.J. at 352-54

(Hardy, J., dissenting); see Pet. 12a (Hardy, J.,

dissenting) (citing how the CAAF did not reexamine

Clause 2’s precedent in Rocha).

16

B. Clause 2 is void for vagueness because

the Government does not have to prove

the second element.

Without the second element—and without a

requirement that the conduct have a direct and

palpable connection to the military mission—

prosecutors can and do criminalize otherwise lawful

conduct at their discretion. This means that

servicemembers can be prosecuted for conduct

without fair notice. The lack of fair notice is

emphasized by the fact that not even military judges

can agree on what conduct falls under Clause 2.

Guerrero, 33 M.J. at 299 (Everett, J., concurring in

part, dissenting in part) (explaining that crossdressing “is not within the contemplation of Article

134. Indeed, to affirm such a conviction expands

Article 134 so greatly as to raise problems of notice

and vagueness.”).

Coupled with the failure to provide notice is the

elimination of the Government’s burden of proof. The

life and liberty of servicemembers is subject to a

hypothetical standard: if certain acts were known, the

conduct would tend to discredit the service. Phillips,

70 M.J. at 165-66. The second element of Clause 2 is

the reason why conduct is criminal under Article 134.

But if the Government does not have to prove discredit

to the service in any way, this is a “dilution of the

principle that guilt is to be established by probative

evidence and beyond a reasonable doubt.” Estelle v.

Williams, 425 U.S. 501, 503 (1976) (citing In re

Winship, 397 U.S. at 364).

Because the Government can charge and convict

servicemembers of any act under Clause 2 without

proving the second element, Clause 2 is void for

17

vagueness. Cf. Levy, 417 U.S. at 779 (Stewart, J.,

dissenting) (citing Edward F. Sherman, The

Civilianization of Military Law, 22 MAINE L. REV.. 3,

80 (1970) (“[A]n infinite variety of other conduct,

limited only by the scope of a commander’s creativity

or spleen, can be made the subject of court-martial

under these articles.”). This conflict with Levy and

constitutional misunderstanding repeatedly affirmed

by the CAAF can only be cured by this Court,

justifying review.

III. If the CAAF is right that Levy precludes

finding Clause 2 unconstitutional, then this

case presents an ideal vehicle for this Court

to revisit Levy and resolve important issues.

The CAAF failed to meaningfully engage with the

constitutional challenge to Clause 2 in this case,

determining Levy “conclusively” established the

general article’s constitutionality. Pet. 8a, 10a. For

the reasons noted above, Levy cannot save Clause 2;

post-Levy military precedent stripped Clause 2 of its

limiting principles. But, if the CAAF is correct that

Levy bars challenges to Clause 2, then Levy has

sanctioned a constitutional error in the military

justice system that is based on faulty historical

reasoning, is divorced from the plain text, and which

creates a vague criminal statute. Only this Court can

correct this error and this is the case to do so.

Levy has been “on a collision course with the

Constitution from the day it was decided.” Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 218

(2022). The due process clause requires the

Government prove each element beyond a reasonable

doubt. In re Winship, 397 U.S. at 364. But, under the

CAAF’s reading, Levy excepts Clause 2 from this

18

requirement. And military precedent following Levy

only “perpetuated its errors.” Dobbs, 597 U.S. at 219.

That is apparent from cases like Phillips and this

case, where “conclusive presumptions” are denounced

through judicial lip-service, but are nevertheless

applied by the courts. Phillips, 70 M.J. at 165-67; Pet.

10a-11a.

Levy cloaked all of Article 134 in rhetoric about

“specialized” differences between military members

and their civilian counterparts. See Levy, 417 U.S. at

743-52 (discussing the history and evolution of the

military justice system). But this historical reasoning

was faulty, too.

Whatever “specialized” differences between

military members and civilians existed at the

Founding, a different military—and military justice

system—existed in 1974. David A. Schlueter, The

Court-Martial: A Historical Survey, 87 MIL. L. REV.

129, 145-64 (1980) (explaining the American evolution

of the court-martial from the Founding to 1980). Gone

was the “small, professional, and voluntary force” and

in came the “military establishment whose members

numbered in the millions, a large percentage of whom

were conscripts or draft-induced volunteers, with no

prior military experience and little expectation of

remaining beyond their initial period of obligation.”

Levy, 417 U.S. at 781-82 (Stewart, J., dissenting).

Today, those “specialized” differences are even

more nonexistent. Levy’s assertion that the UCMJ

“cannot be equated to a civilian criminal code,” 417

U.S. at 749, has been abrogated by Ortiz v. United

States, 585 U.S. 427 (2018). In Ortiz, this Court

highlighted the evolution of the military justice

system, noting its “judicial” nature, how it “can try

19

service members for a vast swath of offenses,

including garden-variety crimes unrelated to military

service,” and how the punishments are similar to

those meted out in federal and state courts. 585 U.S.

at 437-39. This is not the military justice system Levy

describes.

Whether then or now, the average military

member cannot read Clause 2 and know the extent of

its reach. Sherman, supra at 80; see, e.g., Rocha, 84

M.J. at 353 (Hardy, J., dissenting) (remarking “as a

matter of common sense” no servicemember would

know whether his or her entirely private conduct

could be criminalized as service discrediting). The

plain text of Clause 2, which Levy did not directly

analyze, is driving the problem. The statute does not

require actual discredit to the service. Rather, it only

requires that the conduct is “of a nature” to bring

discredit upon the service. 10 U.S.C. § 934. This

means the proscribed act need only have “the

character or quality of” discrediting the service.

Collins Dictionary, Of A Nature Of (last visited Feb. 6,

2024) https://www.collinsdictionary.com/us/dictionary

/english/of-the-nature-of. This language is facially

vague because any act could—depending on the law

prosecutor—potentially bring discredit upon the

service. And, the direct and palpable connection

requirement Levy used to limit this vague text has

since been abrogated. While it is true that “[f]acially

vague statutes may . . . be saved from

unconstitutionality

by

narrowing

judicial

construction,” the opposite has occurred here. Levy,

417 U.S. at 777 (Stewart, J., dissenting). Clause 2 no

longer has any limiting construction.

Additionally, military members cannot rely on

what Levy described as the limits to Article 134, such

20

as the list of offenses in the Manual under Article 134,

to know what is criminal. Levy, 417 U.S. at 753 & n.22

(citing MCM, pt. IV, para. 213c (1969 ed.)); see MCM,

pt. IV, paras. 92-108 (2019 ed.) (identifying possible

Article 134, Clause 2, offenses). This is because, to this

day, servicemembers are criminalized for “novel”

Clause 2 offenses—offenses not otherwise envisioned

by the Manual. See, e.g., Grijalva, 84 M.J. at 434

(criminalizing the broadcast of intimate images under

Article 134 instead of Article 117a, the enumerated

offense for such conduct); Rocha, 84 M.J. at 348

(C.A.A.F. 2024) (criminalizing private “sexual acts

with a sex doll with the physical characteristics of a

female child,” an act not criminal in any American

jurisdiction at the time the accused committed the

act); United States v. Avery, 79 M.J. 363, 366 (C.A.A.F.

2020) (criminalizing indecent communications with a

minor under Article 134 instead Article 120b, the

enumerated offense for such conduct); United States v.

Reese, 76 M.J. 297, 298 (C.A.A.F. 2017) (criminalizing

“general disorder for making a statement to a child

that was of a nature to bring discredit upon the armed

forces”).

In cases like Grijalva and Avery, the apparent

Government motive behind charging under Article

134, Clause 2, rather than the otherwise specifically

enumerated offense, was to lower or avoid the burden

of proof on certain elements. See Grijalva, 84 M.J. at

439 (Hardy, J., concurring) (“In the military justice

system, the preemption doctrine exists to prevent the

government from easing its evidentiary burden at

trial

by

eliminating

vital

elements

from

congressionally established, enumerated offenses and

charging the remaining elements as a novel offense

under Article 134.”) (citing Avery, 79 M.J. at 366). This

21

pernicious workaround causes even more due process

and vagueness concerns.

Even Airman Wells, whose “extramarital sexual

conduct” is an example offense listed under Article

134, MCM, pt. IV, para. 99 (2019 ed.), could not know

his affair would be criminal under the circumstances.

He was charged with two counts of adultery. CAAF.JA

42. No one except the women involved—and their

respective parents—knew of Airman Wells’s conduct

and his relationship to the military. CAAF.JA 117-18,

217-18, 220, 266-68. Furthermore, both women

testified Airman Wells’s affair with them did not affect

their opinions of the service. JA at 226-27, 272.

Neither the evidence presented nor the arguments at

trial made the affairs distinguishable. But Airman

Wells was only convicted of one affair, not both.

This

curious

result

demonstrates

the

unpredictable nature of Clause 2’s “evidentiary”

standard. The Government “has no obligation to

present any evidence or argument with respect to the

[second] element in any Clause 2, Article 134, case,”

and instead, “the accused has the burden to

affirmatively refute every possible theory for why his

extramarital conduct was service discrediting.” Pet.

21a (Hardy, J., dissenting). This circumvents due

process while also turning Clause 2 into a guessing

game of how “bad” the conduct has to be to discredit

the service.

Airman Wells’s case provides a perfect vehicle for

assessing Clause 2’s constitutionality because there

was no evidence of discredit to the service and no

argument from the Government about the service

suffering any discredit; in fact, evidence existed to the

contrary. Pet. 17a-20a (Hardy, J., dissenting). The

22

only explanation for these conflicting findings is the

whim of the factfinder. Airman Wells’s case highlights

how Clause 2 now operates: without regard for proof

beyond a reasonable doubt on the second element and

without notice for what conduct is actually criminal.

If Levy precludes challenge to this unconstitutional

dynamic, this is the case to reexamine Clause 2 and

Levy’s reasoning.

CONCLUSION

The repeated attempts to make Clause 2

constitutional reveal its true nature: it is

unconstitutional. Uncertainties in Clause 2 may be

tolerable in isolation, but “their sum makes a task for

[courts,

factfinders,

practitioners,

and

servicemembers] which at best could be only

guesswork.” United States v. Evans, 333 U.S. 483, 495

(1948). For the foregoing reasons, this Court should

grant the petition for certiorari to either correct the

military justice system’s interpretation of Levy or do

away with Levy’s unjustified defense of Clause 2.

Respectfully submitted,

SAMANTHA M. CASTANIEN

Counsel of Record

MEGAN P. MARINOS

TREVOR N. WARD

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

samantha.castanien.1@us.af.mil

Counsel for Petitioner