Petition for Writ of Certiorari — Orben v. United States

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Jn the Supreme Court of the srntersrtates~

OCTOBER TERM, 1989

MICHAEL A. ORBEN, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

}

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

LAURENCE M. SOYBEL

Capjain, Office of The Judg.

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

August 1939 Counsel for Petitioner

QUESTION PRESENTED

Whether Article 134 of the Uniform Code of Military

Justice can be constitutionally applied as written to pro-

scribe the display of non-pornographic material.

(1)

INDEX

Page

Opinions below ... iS |

Jurisdiction ...... ee + . |

Constitutional and Regulatory Pro.isions Involved . 2

Statement of the Case ............ ide tare 3

Reasons for Granting the Writ . 4

eo ee cA ey 9

Appendix A...... la

Appendix B ...... ks Sree l6a

TABLE OF AUTHORITIES

Cases:

Ginsberg v. New York, 390 U.S. 629 (1968) .

Miller v. California, 413 U.S. 15 (1973) .. : 7

New York v. Ferber, 458 U.S. 747 (1982) .......... 5, 6, 8

United States v. Orben, ACM 25865 (A.F.C.M.R.

i ed Dik bs hae Rene 1,4

United States v. Orben, 28 M.J. 172 (C.M.A. 1989) ..... 1, 6, 7

United States v. Scott, 21 M.J. 345 (C.M.A. 1986) ... 7

Constitutional Provisions:

United States Constitution Amendment | 2

Statutory Authorities:

10 U.S.C. § 867(h) (Supp IIT 1985) . i

28 U.S.C. § 1259(3) (Supp HI, 1985) ree i

le eo BT). | 5

Uniforni Code of Military Justice:

Article 134, U.C.M.J., paragraph 87 (M.C.M. 1984)... é, 4,

5,8

Article 134, U.C.M.J., paragraph 89(c) (M.C.M. i984)... 2, §

Article 134, U.C.M.J., paragraph 90(c) (M.C.M. 1984)... 5, 7

Article 125, U.C.M.J., (M.C.M. 1984) . ae ms 3

(Ii)

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No.

MICHAEL A. ORBEN, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Michael A. Orben, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on June 5, 1989.

OPINIONS BELOW

The decision of the United States Air Force Court of

Military Review, ACM 25865, was issued on October 23,

1987 and was not published. That decision is reproduced

in the Appendix to this Petition. The decision of the

United States Court of Military Appeals is reported at 28

M.J. 172 (C.M.A. 1989), and is reproduced tn the Appen-

dix.

JURISDICTION

The jurisdiction of this Court is invoked under 10

U.S.C. § 867(h) (Supp. III 1985) and 28 U.S.C. § 1259(3)

(1)

tl

(Supp. III 1985). The judgment of the Court of Military

Appeals was entered on June 5, 1989.

CONSTITUTION AND STATUTORY PROVISIONS INVOLVED

The First Amendment provides:

Congress shall make no law ... abridging the

freedom of speech or of the press. . .

Article 134 of the Uniform Code of Military Justice, 10

U.S.C. 834 (1982) provides in pertineni 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 capita!, of which persons

subject to this chapter may be guilty, shall be taken

cognizance of by a general, special, or summary

court-martial, . . . and shail be punished at the discre-

tion of that court.

Parag.aph 87 of Article 134 of the Unitor n Code

Military Justice (hereinafter U.C.M.J.) provides perti-

nent part:

Indecent acts or liberties with a child.

(b) Elements

(2) No physical contact.

(a) That the accused committed a certain act;

(b) that the act amounted to the taking of inde-

cenit liberties with a certain person;

(c) that the accused committed toe act in the

presence of this person;

(d) that this person was under 16 years of age and

not the spouse of the accused;

(e) that the accused committed the act with the in-

tent to arouse, appeal to, or gratify the lust, passions

or sexual desires of the accused, the victim or both;

and

(f) that, under the circumstances, the conduct of

the accused was to the prejudice of good order and

discipline in the armed forces or was of a nature to

bring discredit upon the armed forces.

STATEMENT OF THE CASE

On December 11, 1986, the petitioner was convicted of.

four separate specifications under Article 134, U.C.M.J.,

alleging the commission of indecent acts with children

under the age of 16. He was acquitted of another specifica-

tion charged under Article 125, U.C.M.J., which alleged

the offense of sodomy with a child under the age of 16.

One of the specifications of indecent acts involved ap-

pellant’s display of several magazines depicting nude

photographs to a twelve year old boy named Eric Hricak.

Eric Hricak testified the first time he saw the magazines

was when Sergeant Orben showed them to Eric and a

friend in a parking lot on Grand Forks Air Force Base,

North Dakota. (R. 259). On that occasion the magazine

was a Playboy magazine. This particular issue featured a

pictorial display of the popular rock singer Madonna. (R.

260). He saw pictures of Madonna nude but only from the

waist up. (R. 200-201). No genitalia was exposed. Eric

Hricak testified that after he looked through the magazine

the petitioner put it away. (R. 201). Hricak further

testified that at thal time petitioner made no sexual or per-

sonal overtures towards Eric. The second incident oc-

curred inside petitioner’s car while he was driving with

Eric. He gave Eric a German magazine showing naked

boys and girls “[jJust standing there.” (R. 203). None of

the print was in written in English and Eric could not

speak or read German. The children in the pictures were

merely standing around and no sexual activity was por-

trayed. The only thing Eric Hricak recalled: petitioner say-

ing after he put the magazines away was “this was all right

in Germany and you can get these everywhere and stuff

like that.” (R. 264). Neither magazine was introduced into

evidence at trial. It was the display of these magazines

which constituted the indecent acts under Article 134.

At the first level of appellate review the Air Force Court

of Military Review.-declined to discuss or even decide

whether the pictures shown to Eric Hricak were porno-

graphic. In affirming this case the Court wrote “to resolve

this issue it is unnecessary to enter into a discussion as to

whether the published magazines were or were not porno-

graphic.” United States v. Orben, ACM 25865, 23 October

1987, at 3 (unpublished). In the same vein as the United

States Court of Military Appeals would eventually decide,

the Court of Review relied on petitioner’s intent to

establish the indecency of the acts.

The United States Court of Military Appeals gianted

discretionary review of petitioner’s case on the issue of

whether the displaying of a non-pornographic magazine to

Eric Hricak constituted the taking of indecent liberties in

violation of Article 134, Uniferm Code of Military

Justice. That court affirmed petitioner’s conviction.

REASONS FOR GRANTING THE WRIT

This case raises an important question conce ning the

constitutionality of the military’s use of Article 13 4 to pro-

tect children of tender years as it is applied to not -porno-

graphic publications. Under the current interpretation the

United States Court of Military Appeals permits a convic-

tion under a law which ‘nfringes upon a service member’s

rights under the First Amendment of the United States

Constitution without requiring a carefully drafted law nar-

rowly designed to accomplish that purpose. In this case

petitioner was convicted under Article 134, U.C.M.J., 10

U.S.C. 934, paragraph 87, of indecent acts or liberties

with a child. That particular paragraph does not define

“indecent” but relies instead on the definition of that term

as used in paragraphs 89(c) and 90(c) of Article !34,

U.C.M.J. Those paragraphs provide respectively:

89c. Explanation. “Indecent” language is that

which is grossly offensive to modesty, decency, or

propriety, or shocks the moral sense, because of its

vulgar, filthy, or disgusting nature, or its tendency to

incite lustful thought. The language must violate

community standards. See paragraph 87 if the com-

munication was made in the physical presence of a4

child.

90c. Explanation. “Indecent” signifies that form

of immorality relating to sexual impurity which is not

only grossly vulgar, obscene, and repugnant to com-

mon propriety, but tends to excite lust and deprave

the morals with respect to sexual relations.

Thus under military law there is no separate definition of

the term indecent as it relates to children. The difference

between indecent acts with a child and indecent acts with

another (adult) is found only in the maximum sentence of

seven years if committed with a child compared to five

years if committed with an adult. Otherwise the acts ac-

tually constituting the offensive behavior would be the

same under either provision. However, the United States

Court of Military Appeals rested their opinion on the no-

tion that children deserve more protection than adults:

In so far as First Amendment rights are concerned,

we rely on the Supreme Court’s conclusion in Ferber

(citation Omitted) that the right to communicate to

6

young children may be restricted. .. . Even adults

can be protected against exposure to obscenity; and to

hold that a service member may be tried for indecent

liberties only if he has a displayed obscene materials

to a child is to say that a child can be provided no

greater protection than an adult. We do not believe

this is sound. Children are entitled to develop without

premature exposure to materials which arouse their

sexual passions. Consistent with this policy, Eric

Hricak was entitled to protection from appellant’s

display of magazines to him when, as here, the

display was accompanied by the proscribed intent.

Orben at 175. While the policy identified by the Court is

both justified and desirable, its application by the United

States Court of Military Appeals in this opinion is flawed.

First, the opinion cites New York v. Ferber, 458 U.S. 747

(1982) in support of this policy and in justification of their

decision. Ferber dealt with a New York law proscribing

pictures displaying the lewd exhibition of genitalia by

children not to children. Thus Ferber dealt with the pro-

tection of children by punishing those who exploit them in

a sexual and pervert way. The policy of protecting children

from being exposed to sexual material which the Court of

Military Appeals sought to assert was actually the same

policy addressed by another New York law discussed in

Ginsberg v. New York, 390 U.S. 629 (1968). In Ginsberg

this Honorable Court upheld a iaw prohibiting the sale of

material containing photographs depicting female nudity.

“The state ... had an independent interest in the well-

being of its youth.” Ginsberg at 640. See also Ferber,

supra. This is the problem presented by this case. There

exists no law in the military giving children any more pro-

tection from pornographic material than adults receive.

Yet the United States Court of Military Appeals applies a

more restrictive interpretation of Article 134 vis a vis the

First Amendment when children are shown non-porno-

graphic—even non-sexual material. We submit they are

not free to apply such a puiicy in the absence of a Congres-

sional mandate such as a carefully drafted law providing

children with such special protection. An indecent act

under the U.C.M.J. is by definition pornographic.! In this

case the United States Court of Military Appeals has ex-

panded that definition to include non-pornographic sexual

material if such material is shown to children. In fact the

court goes so far as to include all pictures of nudes as

being indecent providing the accused held the required 1n-

tent. They wrote:

“In our opinion, a display of pictures of nude persons

to young children may constitute taking indecent

liberties with them if the prohibited intent exists.

Thus, even displaying to a child a nude body or an

anatomical chart or pictures of nude aborigines in the

National Geographic magazine might constitute tak-

ing indecent liberties, if accompanied, by behavior

and language of an accused which demonstrated his

intent to arouse his own sexual passions, those of the

child, or both.”

Orben at 174-175. As defined by the U.C.M.J., an inde-

cent act involves only pornographic material and a peti-

tioner’s intent cannot change the character of the material

displayed.

Congress certainly is free to pass laws protecting

children from indecent acts and to prohibit the display of

' Under the U.C.M.J., Article 134, paragraph 90(c), indecent is

defined as obscene. The United States Court of Military Appeals in

United States v. Scott, 21 M.J. 345 (C.M.A. 1986), has equated

obscene with pornographic and adopted the Miller v. California, 413

U.S. 15 (1973), definition of pornography.

8

non-pornographic sexual material to them. However, as

the law now exists in the military, only the display of por-

nographic material is illegal. Interpreting Article 134,

U.C.M.J., paragraph 87 to prohivit the display of non-

pornographic material ignores the requirement that such

statutes be specifically designed and narrowly written. See

Ferber, supra. Such a law would be constitutional but the

responsibility of creating it properly lies with Congress not

the United States Court of Military Appeals. The Court’s

ruling prohibits constitutionally protected speech which

cannot be made illegal absent a specific cong*essiona!

mandate. Petitioner respectfully prays that a wrt of cer-

tiorari be granted so that this Honorable Court can ad-

dress the misapplication of Article 134, U.C.M.J , which

affects the First Amendment rights of over 2 million serv-

ice members.

CONCLUSION

Article 134, U.C.M.J., prohibits indecent acts. “Inde-

cent” is defined by the U.C.M.J. and United States Court

of Military Appeals precedent to mean pornographic.

With this case the military has expanded indecent acts to

include non-pornographic, even non-sexual material if

shown to children. This interpretation affects the First

Amendment rights of over 2 miilion service members.

LAURENCE M. SOYBEL

Captain, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate Genera!

United States Air Force

Augusi 1989 Counsel for Petitioner

APPENDICES

UNITED STATES COURT OF MILITARY APPEALS

No. 59,340

ACM 25865

UNITED STATES, APPELLEE

VY.

MICHAEL A. ORBEN, SERGEANT, U.S. AIR FORCE,

, APPELLANT

June 5, 1989

For Appellant: Captain Laurence M. Soybel (argued);

Colonel Richard F. O’Hair (on brief); Colonel Leo L.

Sergi.

For Appellee: Captain Jeffrey H. Curtis (argued); Col-

onel Joe R. Lamport and Lieutenant Colonel Robert E.

Giovagnoni (on brief).

Opinion of the Court

EVERETT, Chief Judge:

A military judge, sitting as a general court-martial at

Grand Forks Air Force Base, North Dakota, tried ap-

peilant on a charge that from October 1, 1985, to

November 15, 1985, he committed sodomy with a child

under the age of 16 years, in violation of Article 125,

Uniform Code of Military Justice, 10 USC § 925, and that

he had been guilty of various types of indecent conduct

with minors, in violation of Article 134, UCMJ, 10 USC

(1a)

2a

§ 934. Orben was acquitted of the sodomy but found guil-

ty of all four specifications under the other Charge. These

were:

Spec

Summary of, Offense

l

nN

From September 15, 1985, to January 11,

1986, he committed indecent acts upon the

body of Thomas Thorp, a male under 16 years

of age, by placing his hands on his legs, thighs,

and private parts and kissing his mouth “with

intent to arouse, appeal to, and gratify the

lust, passion and sexual desires of” appellant

and Thorp;

From August I, 1985, to October 31, 1985, he

orally communicated to Mario Perez, a child

under 16, “certain indecent language, to wit:

that there was no difference between a man’s

anus and a woman’s vagina when sexual inter-

course is involved, and if” Mario Perez “were

in prison for three years he would make love to

a man, or vords to that effect”;

Between ful’ 1, 1985, and August 31, 1985, he

took “indecent liberties with Eric Hricak, a

male under” 16, “by showing. . . [him] several

magazines containing numerous pictures de-

picting the full body nudity of adults and

children, with intent to arouse and appeal to

the lust, passion and sexual desires of” Hricak

and Orben;

Between July I, 1985, and August 31, 1985, he

“committ[ed] an indecent act upon the body of

Eric Hricak, a male under 16 years of age. . .

by placing his hands on his upper leg, with in-

tent to arouse, appeal to, and gratify the lust,

passion and sexual desires of” Hricak and ap-

pellant.

3a

The military judge sentenced Orben to a dishonorable

discharge, confinement for | year, total forfeitures, and

reduction to the lowest pay grade. The convening authori-

ty approved this sentence; and the Court of Military

Review affirmed the findings and sentence. We granted

review on these two issues:

WHETHER APPELANTS CONDUCT OF

DISPLAYING A NONPORNOGRAPHIC

MAGAZINE TO ERIC HRICAK CONSTITUTED

THE TAKING OF INDECENT LIBERTIES IN

VIOLATION OF ARTICLE 134.

WHETHER THE MILITARY JUDGE ERRED TO

THE SUBSTANTIAL PREJUDICE OF THE AC-

CUSED BY NOT FULLY COMPLYING WITH HIS

REQUEST FOR SPECIAL FINDINGS.

The offenses of which Orben was convicted all involved

dependent children of servicemembers assigned to Grand

Forks Air Force Base, where appellant had arrived in July

1985. According to the government evidence, two months

later he met Thomas Thorp, then 14 years old, at the

video-arcade section of the base bowling alley. Thorp

testified that he had seen Orben on various occasions

thereafter. On one outing together, appellant had showed

him magazines! which Thorp described as “dirty” and

which contained pictures of totally nude people. Orben

had stated that these magazines came from Europe. On

various Occasions came from Europe. On various occa-

' This evidence was offered over objection as uncharged miscon-

duct tending to support the allegations of specification 3 involving

Eric Hricak.

4a

sions appellant had grabbed Thorp’s inner thigh; and once

he had kissed him on the lips.

Mario Perez, a 13-year old whom Orben had met at the

video arcade also, testified that he had seen appellant there

three or four times a week. Orben had used language like

that alleged in specification 2; and on one occasion, he had

placed his hand on Mario’s thigh and begun to rub it.

Also, on one trip, Orben had displayed to Mario three

magazines?—one of which had on the cover “a naked

body” who appeared to be 10 to 12 years old and did not

have much pubic hair. In looking through this magazine,

Mario had seen several naked people, who ranged “[f]rom

very young to about ny age and older.” About half the

picture he saw were of males, and the other half were of

females.

Eric Hricak testified that he had been 12 years old when

he had met Orben at the video arcade in July 1985. Ap-

pellant had taken him to the base movie theater 1 couple

of times. Once while Eric was in appellant’s car, the latter

had placed his hand on Eric’s inner thigh.

On another occasion Eric and a friend of his were sit-

ting with Orben in his car when ap»ellant had produced a

Playboy magazine and showed it to them. Eric had seen

pictures of a woman nude from the waist up. On another

occasion, while alone w th Orben in his car, appellani had

pulled out a magazine \’hich he had stated was German,

opened it up, and given it to Eric. He had seen “kids stand-

ing there naked” who had appeared “younger than”

himself. Their genitals had been fully displayed in the

magazine’s pictures.

> See n.1., supra.

Sa

At trial and on appeal, Orben has contested the suffi-

ciency of the allegations in specification 3 and the evidence

offered in its support. In appellant’s view, he could not

properly be convicted of indecent liberties with Eric

Hricak because the magazines which he showed Eric and

the pictures therein were not pornographic or obscene.

Moreover, appellant insists that showing these magazines

to children was constitutionally protected conduct under

the First Amendment. |

According to the Manual for Courts-Martial, United

States, 1984, the crime of taking indecent liberties with a

child must be proved by evidence that the accused com-

mitted a certain act in the presence of a child under 16

years of age, which amounted to the taking of indecent

liberties with the child and was “with intent to arouse, ap-

peal to, or gratify the lust, passions, or sexual desires of

the accused, the victim, or both.” See para. 87b(2)(e), Part

IV. The discussion in the Manual for Courts-Martial,

United States, 1969 (Revised edition), was to the same ef-

fect. See para. 213/(3).

In United States v. Scott, 21 MJ 345 (CMA 1986), we

considered whether showing two young girls “a magazine

designed to appeal to the prurient interest” might consitute

a violation of Articles 133 and 134, UCMJ, 10 USC §§ 933

and 934, respectively. First, we reaffirmed “that the of-

fense of taking indecent liberties with a child may be com-

mitted without any physical contact or touching.” 21 MJ

at 348. See also United States v. Brown, 3 USCMA 454, 13

CMR 10 (1953). Next, we concluded that “showing a child

pornographic pictures” can authorize a conviction for

“taking indecent liberties” with a child because of the

strong “policy of protecting the morals of children.” Jd. at

349 (footnote omitted). Finally, we held that Scott’s “first

6a

amendment right to communicate with others” had not

been infringed because “the right to communicate to

children of tender ages is less extensive than the right to

communicate to adults. New York v. Ferber, 458 U.S.

747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).” 21 MJ at

349,

Because our opinion in Scott referred to “pornographic

pictures,” see 21 MJ at 349, appellant now contends that

only a display of such pictures constitutes indecent liber-

ties and that a display of pictures which cannot be

classified as “pornographic” or “obscene,” see 21 MJ 349

n. 3, does not constitute taking indecent liberties.

[1] Wereject this contention. In our opinion, a display

of pictures of nude persons to young children may con-

stitute taking indecent liberties with them if the prohibited

intent exists. Thus, even display to a child a nude body on

an anatomical chart or pictures of nude aborigines in the

National Geographic inagazine might constitute taking in-

decent liberties, if accompanied by behavior and language

of an accused which demonstrated his intent to arouse his

own sexual passions, those of the child, or both.

[2] Insofar as First-Amendment rights are concerned,

we rely on the Supreme Court’s conclusion in Ferber that

the right to communicate to young children may be

restricted. Thus, courts have upheld various types of

statutes and ordinances designed to prevent the exposure

of minors to sexually-oriented material. See, e.g., Upper

Midwest Booksellers Association v. City of Minneapolis,

780 F.2d 1389 (8th Cir.1985); M.S. News Co. v. Casado,

721 F.2d 1281 (10th Cir.1983). Also, Congress has enacted

legislation which limits distribution of pornography to

children. Child Protection Act, Pub.L.No. 98-292, 98

Stat. 204 (1984), amending 18 USC § 2251.

[3] Even adults can be protected against exposure to

obscenity; and to hold that a servicemember may be tried

for indecent liberties only if he has displayed obscene

materials to a child is to say that a child can be provided

no greater protection than an adult. We do not believe that

this is sound. Children are entitled to develop without

premature exposure to materials which arouse their sexual

passions. Consistent with this policy, Eric Hricak was en-

titled to protection from appellant’s display of magazines

to him when, as here, the display was accompanied by the

proscribed intent.

At trial, defense counsel requested that the military

judge enter a number of special findings. Under Article

Si(d) of the Uniform Code, 10 USC § 851(d), and RCM

918(b), 1984 Manual, supra, a military judge is obligated

to find the facts specially, if he is requested so to do. See

also United States v. Gerard, 11 MJ 440 (CMA 1981).

However, “[s}pecial findings may be requested only as to

matters of fact reasonably in issue as io an offense.” RCM

918(b).

[4,5] In our opinion, neither the Code nor the Manual

contemplate that a military judge could be required by

counsel to analyze in detail the evidence which led to cer-

tain findings or to justify the findings which were made. In

- this case, the defense request (see Appendix A) went too

far and sought to require the judge to write a brief in sup

port of the findings he had made.

in some instances, the requests were predicated on an

erroneous premise. For example, the defense asked the

judge: “What evidence did you rely on in determining local

community standards as it pertains to ‘indecent’ verbal

communication?” If it were required that the language

used by appellant be “obscene” in order to justify convic-

tion on specification 2, it might be necessary for the

8a

Government to prove what the local community standards

are —just as it might be required in an obscenity prosecu-

tion. Miller v. California, 413 U.S. 15, 93 S.Ct. 2507, 37

L.Ed.2d 419 (1973). The same observation applies to this

Gefense request for a finding on specification 3: “What

evidence did you rely on in determining local community

standards as it pertains to written or pictorial materials?”

Since it was not necessary for the Government to prove

obscenity, dental of these requests was proper.

In our view, some of the requests for special findings

were really requests that the military judge recapitulate all

the evidence or summarize all the evidence on which he

relied. Such requests need not be granted. The findings

made by the judge (see Appendix B) were sufficent to per-

mit an informed appellate review of this case. Under the

circumstances here, no further findings were required.

iil

We conclude that the evidence was sufficient to sustain

all the findings of guilty; that appellant’s First-Amendment

rights were not violated; and that no prejudicial error oc-

curred.

The decision of the United States Air Force Court of

Military Review is affirmed.

Judges Cox and Su! LIVAN concur.

APPENDIX A

Concerning Specification 2, Charge II

1. What facts do you find tha‘ establish beyond a

reasonable doubt that the language in question is “inde-

cent”?

2. What evidence did you rely on in determining local

community standards as it pertains to “indecent” verbal

communication?

Qa

3. What facts establish that the First Amendment right

of free speech was not a defense to the specification?

4. What facts establish beyond a reasonable doubt that

the specification serves to give a libidinous message?

5. What facts establish beyond a reasonable doubt that

the accused’s conduct was to the prejudice of good order

and discipline or was of a nature to bring discredit upon

the armed rorces?

Concerning Specification 3, Charge II

1. What facts do you find that establish beyond a

reasonable doubt that the accused took indecent liberties

with Eric Hricak?

2. What facts do you find which indicate “full body

nudity of adults and children” are indecent?

3. What evidence did you rely on in determining local

community standards as it pertains to written or pictorial

materials?

4. Without viewing the “indecent” materials, what facts

establish beyond a reasonable doubt that the materials are

indecent?

5. What facts establish that the First Amendment right

of free speech/expression was not a defense to the

specification?

6. What facts establish beyond a reasonable doubt that

the accused intended to arouse and appeal to the lust, pas-

sion and sexual desires of Eric Hricak and himself?

What facts establish beyond a reasonable doubt that

the accused’s conduct was to the prejudice of good order!

and discipline in the armed forces or was of a nature to

)

bring discredit upon the armed forces’

10a

Concerning Specification 4, Charge II

1. What facts establish beyond a reasonable doubt that

the accused committed an indecent act on Eric Hricak?

2. What facts establish that the touching was not the

product of a friendship or horseplay between Eric Hricak

and the accused?

3. What facts establish intent to arouse, appeal to, and

gratify the lust, passion, and sexual desires of Eric Hricak

and the accused?

4. What facts do you find that make the testimony of

Eric Hricak truthful?

Concerning Specification 1 —Charge II

1. What facts establish beyond a reasonable doubt that

the accused committed an indecent act on Thomas C.

Thorp?

2. What facts establish that the touching and kissing was

not the product of a friendship or horseplay between

Thomas C. Thorp and the accused?

3. What facts establish intent to arouse, appeal to, and

gratify the lust, passion, and sexual desires of Thomas C.

Thorp and the accused?

4. What facts do you find that make the testimony of

Thomas C. Thorp truthful?

lla

APPENDIX B

321 SERVICES SQUADRON

GRAND FORKS, AFB, N.D.

UNITED STATES

v.

SGT MICHAEL ORBEN, FR293-64-9661

SPECIAL FINDINGS

Charge II, Specification |

By Elements

1. I find that near Grand Forks AFB in September, 1985,

the accused placed his hand on Thorp’s !eg while traveling

in the accused’s automobile. (R. 40) I find that approx-

imately a week later, still in September, the accused kissed

Thorp on the mouth in the restroom of a theatre in the

town of Grand Forks near Grand Forks AFB. (R. 50,53).

The accused put his hand on Thorp’s leg in the same

theatre on the same date. (R. 54). He continued this con-

duct although Thorp moved his leg. (R. 55). Approximate-

ly one week later, in October 1985, Thorp again accom-

panied the accused to town (R. 56), where accused kissed

12a

Thorp on the lips in a pizza parlor bathroom (R. 57). Later

the same day the accused kissed Thorp on the lips in a

theatre bathroom. (R. 61). The accused put his hand on

Thorp’s leg on the way home in accused’s car. (R. 73).

The accused visited Thorp at Thorp’s home in December

1985 (R. 75) and while there grabbed Thorp’s penis

through Thorp’s clothing. R. 76).

The accused visited Thorp at Thorp’s in early January

1986 (R. 73-74) where he kissed Thorp on the mouth in the

basement. (R. 79).

2. I find that Thomas Thorp was a male person, not the

spouse of the accused under the age of 16 years. (R. 36,

38).

3. I find that the acts of the accused, as portrayed upon

the entire record were in fact indecent. In so finding I have

consulted my common sense and my knowledge of the

ways of the world. These acts were depraved, grossly

vulgar, obscene and repugnant to common propriety and

tended to excite lust and deprave morals with respect to

sexual relations.

4. I find upon a reading of the entire record as it pertains

to these acts that the intent of the accused was totally

unambiguous. I find his intent clearly was to appeal to and

gratify the lust, passions and sexual desires of both the ac-

cused and his victim, Thomas Thorp.

5. I find that, under the circumstances, the conduct of

the accused was to the prejudice of good order and

discipline in the service and was of a nature to bring

discredit upon the armed forces.

l3a

Charge II, Specification 2

By Elements

1. I find that in August 1985, (R. 190) when the victim,

Mario Perez, was under the age of 16 years (R-190) the ac-

cused spoke to him at the bowling alley on Grand Forks

AFB. (R. 191). The accused stated, in effect, that there

was no difference between a woman’s vagina and a man’s

anus when sexual intercourse is involved and further

stated in effect that if the victim were even in prison for 3

years, he, the victim, would commit anal sodomy also. (R.

192).

2. I find the language was indecent, being grossly offen-

sive to the community sense of modesty, decency or pro-

priety. I find it shocks the moral sense because of its

vulgar, filthy and disgusting nature. I find that it is par-

ticularly odious to invite a child of tender years to con-

template himself committing anal sodomy. | find language

from an adult to a child of tender years, as in this case,

suggesting no difference between anal sodomy and

heterosexual intercourse tc be dangerously indecent in that

the child may dwell upon this perverted suggestion and

speculate as to its merit.

3. I find that, under the circumstances, the conduct of

the accused was to the prejudice of good order and

discipline in the service and was of a nature to bring

discredit upon the armed forces.

".

Charge IJ, Specification 3

By Elements

1. I find that at Grand Forks, AFB, N.D. in the period

July-August, or early September 1985, (R. 250, 254) the

accused showed Eric Hricak several magazines showing

full body nudity of adults and children. (R. 259, 262).

l4a

2. I find that Eric Hricak was a male person not the

spouse of the accused under the age of 16 years, (R. 250),

being 12 years of age at the time of the offense.

3. I find that the act amounted to the taking of indecent

liberties with the victim.

4. I find that the accused committed the act with the in-

tent to arouse and appeal to the lust, passions and sexual

desires of the accused and the victim.

5. I find that the act was committed in the presence of

the victim. (R. 259, 262)

6. 1 find that, under the circumstances, the conduct of

‘ne accused was to the prejudice of good order and

discipline in the service and was of a nature to bring

discredit upon the armed forces.

Charge II, Specification 4

By Elements

1. I find that at Grand Forks, AFB, N.D. in the period

July-August, or early September 1985, (R. 254) the ac-

cused placed his hand on Eric Hricak’s upper leg. (R. 258).

2. I find that the victim was a male person, not the

spouse of the accused, under the age of 16 years, being 12

years of age at the time of the offense. (R. 250).

3. I find from the evidence of the event and the cir-

cumstances that the act of the accused was indecent.

4. I find that the accused committec ihe act with the in-

tent to arouse, appeal to and gratify the lust, passions and

sexual desires of the accused and the victim.

5. | find that, under the circumstances, the conduct of

the accused was to the prejudice of good order and

discipline in the service and was of a nature to bring

discredit upon the armed forces.

lSa

Summation

I found the accused guilty beyond a reasonable doubt as to

each and every element of each and every offense under

Charge II based on the legal and competent evidence ad-

mitted and the reasonable inferences to be drawn there-

from.

/s/ CHARLES W. FOWLER

Charles W. Fowler, Colonel, USAF

Chief Circuit Military Judge

Date: 18 Feb-87

l6a

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 25865

UNITED STATES

V.

SERGEANT MICHAEL A. ORBEN. FR 293-64-966]1

UNITED STATES AIR FORCI

23 OCTOBER 1987

Sentence adjudged 11 December 1986 by GCM convened

at Grand Forks Air Force Base, North Dakota. Military

Judge: Charles W. Fowler (sitting alone).

Approved Sentence: Dishonorable discharge, confinement

for one (1) year, forfeiture of all pay and allowances and

reduction to airman basic.

Appellant Counsel for the Appellant: Mr. Robert J.

Labine, Grand Forks, North Dakota, Colonel Leo |

Sergi and Captain Laurence M. Soybel. Appellate Counsel

for the United States: Colonel Joe R. Lamport, Lieu-

tenant Colonel Robert R. Giovagnoni and Captain Jeffrey

H. Curtis.

Before

HODGSON, FORAY and HOLT!

Appellate Military Judge

17a

DECISION

Per Curiam:

The appellant was charged with one specification of

sodomy with a child under the age of sixteen years !n viola-

tion of Article 125, U.C.M.J. Consistent with his plea he

was found not guilty of this charge. Additionally he was

charged with four specifications under Article 134

U.C.M.J. Specification 1 alleged indecent acts upon a

male under sixteen years of age during the period from on

or about 15 September 1985 to on or about 11 January

1986; Specification 2 alleged orally communicating to a

child under the age of sixteen years indecent language

from on or about | August 1985 to about 31 October 1985;

Specification 3 alleged taking indecent liberties with a

male under sixteen years of age at divers times between on

or about | July 1985 to about 31 August 1985; Specifica-

tion 4 alleged committing an indecent act upon the body of

a male under sixteen years of age from on or about | July

1985 to about 31 August 1985. Contrary to his pleas he

was convicted of these charges. The sentence adjudged by

the judge alone general court-martial, and approved by

the convening authority, extended to a dishonorable

discharge, confinement for one year, forfeiture of all pay

and allowances and reduction to the grade of E-1.

On the evening prior to trial Specification | of Charge II

was amended to enlarge the time frame of the charged acts

from divers times during the period from on or about I

October 1985 to on or about 11 January 1986 to on or

about 15 September 1985 to on or about 11 January 1986.

The appellant contends that this constituted a major

change in violation of R.C.M. 603, resulting in an inade-

quate pre-trial investigation which prevented the appellant

from properly preparing for trial. We disagree. The ap-

pellant had available to him long before trial a copy of the

lS8a

Article 32(b) U.C.M.J. Investigation. Contained therein

was the evidence used by the trial counsel to justify the

amendment of the specification. In United States vy.

Brown, 16 C.M.R. 257 (C.M.A. 1954) it was held that

time was not of the essence in the crime of a lewd and

lascivious act and held the amendment enlarging the time

frame by slightly over four months proper. We see no

reason not to apply the same principle to this case. R.C.M.

603 states that a change in charges is considered to be ma-

jor and requiring re-preferral if it results in a different of-

fense or allegation of different or more serious offenses or

raises substantial question as to statute of limitation or

misleads the accused. United States v. Blair, 21 M.J. 981

(A.F.C.M.R. 1986). We find none of these factors in the

case sub judice. A final test to be applied in a variance

Situation 1s: (1) has the accused been misled to the extent

that he has been unable adequately io prepare for trial,

and (2) is the accused fully protected against another pros-

ecution for the same offense. United States v. McCullah, 8

M.J. 697 (A.F.C.M.R. 1980). We resolve both these fac-

tors against the appellant. Having reached these conclu-

sions we have determined that the complained of change

to the specification was minor and one not prohibited

under R.C.M. 603. Therefore this allegation of error is

without merit.

The next asserted error is that the language used by the

appellant as alleged in Specification 2 of Charge II was not

indecent under Article !34(c), U.C.M.J. We disagree.

Deciding whether the language used by the appellant was

indecent requires looking beyond the actual spoken words.

There can be no doubt that what is indecent or obscene is

not readily definable. The test to be applied in determining

whether particular language is obscene is whether the par-

ticular language is calculated to corrupt morals or excite

libidinous thoughts, and not whether the words themselves

19a

are impure. United States v. Simmons, 27 C.M.R. 654

(A.C.M.R. 1959); United States v. Linyear, 3 M.J. 1027

(N.C.M.R. 1977.) In Linyear the court stated, “Whaicon-

stitutes legally punishable verbal obscenity is a relative

matter which requires consideration of many diverse fac-

tors such as fluctuating community standards of morals

and manners, the personal relationship existing between a

given speaker ana his auditor, motive, intent and probable

effect to mention but a few”. In response to special find-

ings requested by appellant pursuant to R.C.M. 903 on

this issue the military judge stated in part,

I find the language was indecent, being grossly offen-

sive to the . smmunity sense of modesty, decency or

propriety. I find it shocks the moral sense because of

its vulgar, filthy a. disgusting nature. I find that it is

particularly odious to invite a child of tender years to

contemplate himself committing anal sodomy. I find

language from an adult to a child of tender years, as

in this case, suggesting no difference between ana!

sodomy and heterosexual intercourse to be danger-

ously indecent in that the child may dwell upon this

perverted suggestion and speculate as to its merit.

We are in total agreement with this special finding. Con-

sidering ail of the facts and circumstances of this case we

conclude that the language was indeed indecent and decide

this issue adverse to the appellant.

The appellant next complains that his conduct of

displaying a non-pornographic magazine to the victim did

not constitute the taking of indecent liberties in violation

of Article 134, U.C.M.J. We again disagree. To resolve

this issue it is unnecessary to enter into a discussion as to

whether the published magazines were or were nol porno-

graphic. It is well estavlished that a physical touching is

not necessary to the offense of indecent liberties with

20a

child. United States v. Brown, 3 U.S.C.M.A. 454, 13

C.M.R. 10 (1953). Alhough the magazines in question

were not admitted into evidence, they were described as

containing nude photographs of nude children of both

sexes and nude women. Admittedly these pictures per se

may not constitute the charged offense. However, it was

the obvious intended purpose of the appellant for showing

these publications to the victim that makes his conduct

criminal. Prior to producing these magazines the appellant

and the victim were riding in the appellant’s automobile

during which time the appellant repeatedely placed his

hands on the inner thighs of the victim. Considering the

posture 0. the evidence relating to the prior activity of the

appellant and the fact that the mens rea of the oftender is

the gratification or arousal of sexual desires we conciude

that the charged offense was in fact committed by the ap

pellant. United States v. Scott, 21 M.J. 345 (C.M.A

1986)

[he tinal issue to be discussed is the allegation that the

evidence was insufficient as a matter of law to support the

Indings of guilty for Specifications 3 and 4 of Charge |

I

Utilizing our fact finding powers authorized by Article 66

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C.M.J. we decide S issue adverse ne appelian

I

rs, and the government’s response thereto, and nave

’

that the findings and the sentence are correct In

iw and fact and that no error materially prejudicial to

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a al iKiits Ol] LEit accused Was COTTNIMI UA . ()

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