Petition for Writ of Certiorari — Rogers v. United States

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ry

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001267 FEB 5 - 2001

No. OF Rae Of TO TY

IN THE

SUPREME COURT of the UNITED STATES

SHELLEY S. ROGERS,

Lieutenant Colonel, United States Air Force,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeal for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Frank J. Spinner

10511 Judicial Drive

Fairfax, VA 22030

(703) 691-2141

Counsel of Record

TIMOTHY W. MURPHY

Counsel for Petitioner

Lt Colonel, U.S. Air Force \

Air Force Legal Services Agency

Appellate Defense Division

— 112 Luke Avenue, Suite 343

Bolling AFB D.C. 20332-8000

(202) 767-1563

February 2001

QUESTIONS PRESENTED

I. Whether Article 133, UCM, 10 US.C. § 933,

alleging conduct unbecoming an officer and a

gentleman, is void for vagueness because

neither the military courts nor other military

authority narrowed the broad reach of the

statute to otherwise innocent conduct between

officers?

I]. Whether the charge under Article 133,

UCMJ, 10 U.S.C. § 933, failed to state an

offense because it did not identify specific acts

that constituted the alleged conduct

unbecoming an officer and gentleman?

TABLE OF CONTENTS

Page

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Constitutional Provisions and Statute Involved......................c0:0s0+ 2

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Reasons for Granting the Petition ......................ccsscsseeseess biicennieais 9

I. Article 133, UCMJ, 10 U.S.C. § 933, alleging conduct

unbecoming an officer and a gentleman, is void for

vagueness because neither the military courts nor other

military authority narrowed the broad reach of the statute

to otherwise innocent conduct between

officers... ... pial dibs dahon Gen ean ah cn Pca ele

II. The ee under Article 133, UCM], 10 U.S.C. § 933,

failed to state an offense because it did not identify

specific acts that constituted the alleged conduct

unbecoming an officer and gentleman... ... ... ... ... ... 18

DENG LE CELA TOTE AIOE 25

Appendix A

United States v. Rogers, 54 M.J. 244

lacs ceanksseitiomsensnitocnonhcnsalniniis la

Appendix B

United States v. Rogers, 50 MJ. 805

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panne % Cc

Bill of Particulars, Appellate Exhibit 10...................cccccccseceseees 59a

\

Appendix D

Air Force Instruction 36-2909, 20 Feb 1995... ..............6la

Appendix E

Air Force Instruction 36-2909, 1 May 1996 ... ... ... ... s+. 66a

Appendix F

Aur Force Instruction 36-2909, 1 May 1999... ... ... ...... ... 76a

iv

TABLE OF AUTHORITIES

United States Supreme Court

City of Chicago v. Morales,

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Onappell v. Wallace,

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Grayned v. City of Rockford,

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In re Olzer,

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Monissette v. United States,

342 US. 246 (1952) ......... wen ene tn, 00.n0p noe ana'ene ons osn.ann sia BA

Parker v. Levy,

417 US. 733 (1974) .. dts Nis a a abe ea ong

Posters 'N’ Things, Ltd. v. United States,

511 U.S. 513 (1994). .. sid Slik gine pub dan dale Sik bee dadaed hevaaa Ee

Powell v. Alabama,

OFS BO. See

Richardson v. United States,

TT rT. eee

Russell v. United States,

SVUS IO OME. oS SS

Staples v. United States,

5 TIS ONG i os SR ea

United States v. National Dat iy Prabas Cp.

372 US. 29 (1963)... iheek ideale acer aaa Sc

Vv

Federal Courts

United States v. Murphy,

762 F.2d 1151 (1st Cir. 1985)... cc. coe ces coe sve oes eos soe sve oY, 20

Military Courts

United States v. Bruins, 49 M.J. 328 (CA.AF. 1998)... 0. ces coe Dd

United States v. Clack, 47 M.J. 813 (AF Ct. Crim App 1998)... .16

United States v. Dear, 40 M.J. 196 (CMA 1994)... co. ccs se ves eel

United States v. Frends, 31 MJ. 57, 59 (CMA 1990)... co. oes eo 12

United States v. Hecker, 42 M.J. 640 (AF Ct. Crim App 1995)...23

United States v. Kroop, 38 M.J. 470 (CMA 1993)... so. ces cov sve oel2

United States v. Kroop, 34 M.J. 628 (AFCMR 1992)... 4, 12, 14, 15

United States v. Norvell, 26 MJ. 477 (CMA 1988)... ... ce. vee exe 10

Cited Shaws. Piet 21 USCMA 564, 45 CMR 338

(CM.A. 1972)... anne sass scsxbiecalll

Unind Seats, Reges, 54M], MOCAAR = hesaieens passim

United States v. Rogers, 50 M.J. 805

United States v. Shavronodh, 49 MJ. 334 (CAAF. 1998)... ....... 8

Statutes

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Miscellany

Manual for Courts-Martial (MCM), Part IV, paragraph 83... ..15

Rule for Court Martial (RCM) 502(a)... sid Said

Warren, The Bill of Rights and the 3 Miia,

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l

In The

SUPREME COURT OF THE UNITED STATES

SHELLEY S. ROGERS,

Lieutenant Colonel, United States Air Force,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Shelley S. Rogers, Lieutenant Colonel, United States

Air Force, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Armed Forces.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces, United States v. Rogers, 54 M.J. 244

(C.A.A.F. 2000), is located in Appendix A at 1a-41a. The

opinion of the Air Force Court of Criminal Appeals, United

States v. Rogers, 50 M.J. 805 (AF Ct. Crim App 1999), is

located in Appendix B at 42a-58a.

2

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on November 8, 2000.

This Court’s jurisdiction is invoked under 28 U.S.C. §

1259(2).

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The Fifth Amendment to the United States Constitution

provides, in relevant part:

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

property, without due process of law .. ..

The Sixth Amendment to the United States

Constitution provides, in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right . . . to be informed of the nature

and cause of the accusation. a

Article 133 of the Uniform Code of Military Justice

(UCM]J) provides:

Any commissioned officer, cadet, or midshipman

who is convicted of conduct unbecoming an officer

and gentleman shall be punished as a court-martial

may direct.

Article 133, UCMJ, 10 U.S.C. § 933.

STATEMENT OF THE CASE

This case involves the constitutionally vague reaches of

Article 133, UCMJ, 10 U.S.C. § 933, that prohibits

military officers from engaging in conduct that is

3

“unbecoming an officer and gentleman.” As this Court

noted in Parker v. Levy, 417 U.S. 733 (1974), the literal

language of Article 133, UCMJ, 10 U.S.C. § 933, has a very

broad reach, governing all sorts of conduct by military

officers. But, this Court upheld application of Article 133,

UCMJ, 10 U.S.C. § 933, to certain types of improper

conduct by officers, noting that military customs and

construction of the offense by the military courts and other

military authorities have narrowed the broad reach of the

Article. Yet, this Court also agreed that there are “still

areas within the general confines of the Article’s language

which have been left vague despite these narrowing

constructions.” Parker at 754. In the over twenty-five

years since this Court decided Parker, this Court has not

examined the vague reaches of Article 133, UCMJ, 10

U.S.C. § 933. This case presents the Court an opportunity

to further clarify the constitutional limits on “conduct

unbecoming an officer and gentlemen.”

The issue in this case involves one area that remains

constitutionally vague—the relationships between officers.

Here, the Air Force charged the petitioner with conduct

unbecoming an officer and gentleman by wrongfully and

willfully developing an “unprofessional relationship of

inappropriate familiarity” with a subordinate officer in his

unit.' Neither Air Force custom, the military courts,

' The charge stated:

In that LIEUTENANT COLONEL SHELLEY S.

ROGERS, United States Air Force, 90 Fighter Squadron, at

or near Pordenone, Italy, did, between on or about 20

November 1995 and on or about 18 December 1995,

wrongfully and willfully develop an_ unprofessional

relationship of inappropriate familiarity with First Lieutenant

Julie Clemm, a subordinate under his command, which

conduct under the circumstances was unbecoming an officer

4

regulations, nor other military authority narrowed this

offense.

As the then Air Force Court of Military Review’ stated

in United States v. Kroop, 34 M.J. 628, 634 (AF.C.MR.

1992), “the problems in defining or proving a custom

[prohibiting excessive social contacts between officers] is

readily apparent. Officers are expected to socialize with

each other ... [and] [w]hat one person might regard as

~ ‘undue familiarity’ or ‘excessive social contacts’ another

person might regard as mere friendly socializing or

demonstrations of concerns for one’s subordinates.”

I. Facts

The petitioner was tried by General Court-Martial and

found guilty in 1996 of conduct unbecoming an officer and

gentleman in violation of Article 133, UCMJ, 10 U.S.C.

§ 933. He was sentenced to a reprimand and forfeiture of

all pay and allowances for four months.’

The events that led to this court-martial occurred while

the unit the petitioner commanded, an F-15 Fighter

Squadron,* was deployed to Italy in the fall of 1995 to fly

combat missions over Bosnia. The petitioner’s record of

outstanding achievement was undisputed, having been

selected for early promotion three times in his career,

including his below-the-zone promotion to colonel during

and gentleman.

? The Air Force Court of Military Review (A.F.C.M.R.) has been

renamed as the Air Force Court of Criminal Appeals (A.F.C.C.A.).

> The petitioner was also charged with conduct -prejudicial to good

order and discipline under Article 134, UCMJ, 10 U.S.C. § 934, but

that charge i is not implicated in this petition.

* The unit Deployed to Italy with eee 200 personnel, both

officer (30) and enlisted (170).

in oo aah eens

5

the deployment in December 1995.

It was during this deployment that the petitioner was

accused of developing an unprofessional relationship of

inappropriate familiarity with First Lieutenant (1Lt) Julie

Clemm, the squadron intelligence officer. 1Lt Clemm was

new to the squadron and joined the deployment to Italy in

mid-November 1995.

The claims of misconduct against the petitioner were

primarily raised by Major (Maj) Michael A. Cloutier, a

weapons systems officer (navigator) and an Assistant

Director of Operations for the squadron, and a small group

of his officer friends within the squadron, whom Maj

Cloutier called, “the boys.” Maj Cloutier was second in

command of the squadron during the deployment. The

petitioner had recently counseled or reprimanded all of

these officers for inappropriate conduct during the

deployment.

The charge did not specify any acts or conduct that

allegedly constituted the conduct unbecoming an officer

and gentleman, but a bill of particulars included: allegations

that the petitioner had frequent off-duty contacts with 1Lt

Clemm-including riding in a car rented by the squadron

for transportation during the deployment; allegations that

petitioner behaved inappropriately toward 1Lt Clemm at a

squadron Thanksgiving party and put his arm around her

while standing around a bonfire with other squadron

personnel that evening; and testimony from several officers

concerning their “perception” of the petitioner’s behavior.’

> The original charges also included a charge of adultery against the

petitioner, but the government dropped that charge before trial, as well

as several others, because they had no admissible evidence to support the

allegation. While investigating the adultery charge, the government

compelled 1Lt Clemm to cooperate under a grant of immunity. She

6

A copy of the bill of particulars is printed at Appendix C.

II. Proceedings Below

At trial, the petitioner challenged the charge because it

failed to plead any custom or regulation that would narrow

the broad reach of Article 133 to otherwise innocent

conduct between officers. He also challenged the charge

because it failed to allege any acts upon which the offense

was based. Finally, the petitioner vigorously contested the

evidence presented at trial. He challenged the credibility of

the key government witnesses; he testified and denied any

inappropriate behavior or relationship with 1Lt Clemm;

and he presented the testimony of many officers and

enlisted personnel from the squadron who stated that they

saw no inappropriate behavior between their commander

and 1Lt Clemm.* 1iLt Clemm also testified at trial and

denied any inappropriate behavior or relationship between

the two.

On Appeal to the Air Force Court of Criminal Appeals

(A.F.C.C.A.), the petitioner challenged the charge of

conduct unbecoming an officer and gentleman because it

was unconstitutionally vague and failed to state an offense.

He also challenged the sufficiency of the evidence

supporting the charge. The Air Force Court rejected this

stated under oath that she had not committed adultery; she also denied

engaging in other ina late. conduct with the petitioner. She

copemed this entimany at rial : ry

6 The following individuals testified that they saw no inappropriate

behavior between the petitioner and 1Lt Clemm: Capt Lovrak, MSgt

Sanchez, Capt Burg, Capt Reesman, Capt Jaasma, Capt Bennett, SMSgt

Adams, MSgt Keiholz, MSgt Kowski, Capt Hume, SSgt Warner, TSgt

Conners, SrA Gaultney, TSgt Deview, TSgt Wood, TSgt Myers, TSgt

Deardorff.

7

appeal holding that the petitioner had adequate notice

regarding the charge that he committed conduct

unbecoming an officer and gentleman by developing an

unprofessional relationship of inappropriate familiarity

with 1Lt Clemm. United States v. Rogers, 50 M.J. 805 (AF

Ct. Crim App 1999). The Air Force Court also concluded

that the charge stated a course of conduct offense and did

not need to specify any acts of the alleged unprofessional

relationship of inappropriate familiarity. Jd. at 809. The

A.F.C.C.A. also rejected the petitioner’s challenges based

on the sufficiency of the evidence presented at trial. Id. at

812.

Petitioner also brought these claims on his appeal

before the United States Court of Appeals for the Armed

Forces’ (C.A.A.F.). United States v. Rogers, 54 M.J. 244

(C.A.A.F. 2000) The C.A.A.F. rejected petitioner’s claims

that the charge was unconstitutionally vague and did not

allege any wrongful acts. The Court also rejected his

challenge to the sufficiency ‘of the evidence by a vote of

four to one.

Judge Effron dissented, finding the evidence legally

insufficient to support the charge. He stated, “... [t]he

evidence reflected the speculation of others as to the

possibility of an inappropriate relationship, but did not

provide a legally sufficient basis upon which a reasonable

factfinder could have concluded, beyond a reasonable

doubt, that [petitioner’s] conduct with 1Lt Clemm crossed

the line from permissible interaction to an_ illegal

unprofessional relationship of inappropriate familiarly.”

Rogers, 54 M.J. at 262 (Effron, J. concurring in part and

dissenting in part) (emphasis added). While Judge Effron

” This Court was formerly named the United States Court of Military

Appeals (C.M.A.).

8

concluded that there is a line between permissible and

impermissible interaction between officers, his finding that

the petitioner did not cross that line while others, relying on

the same conduct, concluded that it did cross the line

between permissible and impermissible conduct between

officers demonstrates just how difficult it is to ascertain

what conduct between officers is permissible and what

conduct is not.

In its majority opinion, the C.A.A.F. acknowledged,

“there will be many gradations of relationships and

associations between servicemembers that will not put the

parties fairly on notice that the conduct might be

inappropriate.” Rogers, 54 M.J. at 257. The C.A.A.F. cited

a nonpunitive® Air Force regulation that suggested, “senior

members should not date or be personally obligated or

indebted to junior members.” Jd. (emphasis original). The

Court then stated that it “decline[d] to attempt to walk a

line between ‘dating’ and the evidence adduced at

[petitioner’s] court-martial.” /d. at 257, n 25. The

C.A.A.F. quoted this Court, noting that there is certain

conduct to which Article 133, UCMJ, 10 USC § 933,

“clearly applies without vagueness or imprecision.” The

C.A.A.F. then simply concluded, without analysis of the

facts, that “under the circumstances of this case, we are

satisfied that [petitioner’s] conduct falls into the latter

category. Any officer would be on notice that this type of

* A punitive regulation is a regulation that is intended to regulate the

conduct of individual servicemembers, and the direct application of

sanctions for violations of the regulation must be self-evident. A

nonpunitive regulation is one that supplies only general guidelines or

advice for conducting military functions and may not be enforceable

under Article 92(1), UCMJ, 10 U.S.C. § 892 (criminal offense of

violating a lawful general ation). United States v. Shavrnoch, 49

M.]J. 334, 336 (C.A.A.F. 1998).

9

behavior was punishable.” /d. at 257.

REASONS FOR GRANTING THE PETITION

I. Article 133, UCMJ, 10 U.S.C. § 933, alleging conduct

unbecoming an officer and a gentleman, is void for

vagueness because neither the military courts nor other

military authority narrowed the broad reach of the

statute to otherwise innocent conduct between officers.

The petitioner, so far as can be ascertained by a review

of reported military opinions, is the only officer that has

been punished by Court Martial for conduct unbecoming

an officer and gentleman for an “unprofessional

relationship of inappropriate familiarity” with a

subordinate officer when that alleged improper relationship

did not involve allegations of violations of other UCMJ

provisions, such as adultery.

This case involves a fundamental due process question

of when an allegation must be struck down because it is

unconstitutionally vague. The “void for vagueness”

doctrine “incorporates notions of fair notice or warning.

Moreover, it requires legislatures to set reasonably clear

guidelines for law enforcement officials and triers of fact in

order to prevent ‘arbitrary and _ discriminatory

enforcement.” Parker v. Levy, 417 U.S. 733, 753

(1974)(citations omitted).

Article 133, UCMJ, 10 U.S.C. § 933, prohibits officers

from engaging in “conduct unbecoming an officer and

gentleman.” In Parker v. Levy, 417 WS. 733 (1974), the

principal case construing under Article 133, 10

U.S.C. § 933, this Court noted that the “literal language” of

Article 133, 10 U.S.C. § 933, “had a very broad reach.” Id.

at 752-53. The Court observed that the then Court of

Military Appeals "has narrowed the very broad reach of

—-

10_

the literal language” of Article 133, 10 U.S.C. § 933, and at

the same time the C.A.A.F. “has supplied considerable

specificity by way of examples of the conduct which they

cover." Id. at 754. However, even with this narrowing

construction, the Court acknowledged that there may still

be “sizable areas of uncertainty as to the coverage of the

articles." Id. This is such a case.

The Parker Court recognized “the factors differentiating

military society from civilian society,” and described the

proper standard of review for a vagueness challenge to

Article 133, UCMJ, 10 U.S.C. § 933:

Void for vagueness simply means that criminal

responsibility should not attach where one could

not reasonably understand that his contemplated

conduct is proscribed. In determining the

sufficiency of the notice a statute must of necessity

be examined in light of the conduct with which a

defendant is charged.

417 U.S. at 756-57, (emphasis added) quoting United States

v. National Dairy Products Corp., 372 U.S. 29, 32-33, (1963)

(citations omitted). See also United States v. Dear, 40 M.].

196 (C.M.A. 1994)(upholding a charge of maltreatment of a

subordinate under Article 93, UCMJ, 10 U.S.C. § 893); and

United States v. Norvell, 26 M.J. 477, 480 (C.M.A.

1988) (upholding a charge of conduct unbecomingian officer

and gentleman under Article 133, UCMJ, 10 U.S.C. § 933,

when officer catheterized herself to conceal use of

marijuana and explained how to avoid such detection to an

enlisted person). The C.A.A.F. has applied this void for

vagueness standard holding that “(t]he primary obstacle to

prosecuting a servicemember under the general article is

that the servicemember must be on ‘fair notice’ that his

conduct was punishable under the Uniform Code.”

11

United States v. Bivins, 49 M.J. 328 (C.A.A.F. 1998).

In Parker, this Court upheld charges under Article 133

and Article 134, UCMJ, 10 U.S.C. § 933 and § 934, that

charged Captain Levy, an Army physician, with conduct

unbecoming an officer and gentleman and conduct

prejudicial to good order and discipline. The charges

stemmed from Captain Levy’s statements to enlisted

personnel denouncing the United States’ participation in

the Viet Nam War and urging the enlisted personnel to

refuse to go to or fight in Viet Nam.

This Court held that Captain Levy had fair notice that

his conduct violated the Articles and that they were not

void for vagueness as applied to him. The Court found

the notice in two sources: prior decisions by the then

Court of Military Appeals and in language in the Manual

for Courts-Martial. Among the Court of Military Appeals

decisions the Court cited was United States v. Priest, 21

U.S.C.M.A. 564, 45 C.M.R. 338 (1972), applying Article

134, UCMJ, 10 U.S.C. § 934, to calls for active opposition

to the military policy of the United States. Additional

notice was found in the Manual for Courts-Martial. Under -

Article 134, UCMJ, 10 U.S.C. § 934, the Manual stated,

“certain disloyal statements by military personnel” may be

punished and noted as an example “utterances designed to

promote disloyalty or disaffection among troops, as

praising the enemy, attacking the war aims of the United

States, or denouncing our form of government.” Parker at

753.

The petitioner’s case can be distinguished from Parker.

Unlike Parker, there was no prior opinion by the military

courts, no examples from the Manual for Courts-Martial,

and no relevant custom of the service, regulation, or other

military authority to give the petitioner adequate notice

12

that otherwise innocent conduct between he and his

subordinate officer would fall within the reach of Article

133, UCMJ, 10 U.S.C. § 933. To the contrary, the leading

opinion from the military appellate courts specifically held

that an officer could not be held criminally accountable

under Article 133, UCMJ, 10 U.S.C. § 933, for excessive

social contacts with a subordinate officer.

In United States v. Kroop, the Air Force similarly court-

martialed an officer for conduct unbecoming an officer and

gentleman for “excessive social contacts”? with a

subordinate officer. 34 M.J. 628 (A.F.C.M.R. 1992), 38

M.J. 470 (C.M.A. 1993). In Kroop, both military appellate

courts set aside Lieutenant Colonel Kroop’ $ conviction

based on the “excessive social contacts,” with a subordinate

officer holding, in accordance with Parker, that such a

charge was too vague to state an offense in the absence of a

custom of the service or regulation that prohibited such

conduct. Kroop, 34 M.J. at 634; 38 M.J. at 473. Moreover,

because Kroop involved a guilty plea, the appellate rulings

were made while employing a strict standard of review used

to test specifications in guilty plea cases. See Kroop, 38 M.]J.

at 474 (Gierke, J. dissenting). See also United States v.

French, 31 M.J. 57, 59 (C.M.A 1990) (when a specification is

challenged at trial, it is examined much more critically than

if challenged for the first time on appeal). This strict

standard of review was not applicable to the petitioner’s

case because he challenged the charge on this principle at

the outset of his trial and did not plead guilty.

* Kroop included allegations of adultery. That portion of the charge

was upheld under Article 134, UCMJ, 10 U.S.C. §934, conduct to the

prejudice of good order and discipline in the armed forces, because, like

the disloyal statements in Parker, adultery is specifically enumerated as

an example under Article 134, UCMJ, 10 U.S.C. §934, thus giving

adequate notice to servicemembers. Kroop, 34 M.J. at 635.

13

In the absence of a custom or regulation further

defining proscribed relationships between officers, the

petitioner could not understand what conduct is

prohibited. See Posters 'N' Things, Ltd. v. United States, 511

U.S. 513, 525 (1994) (void for vagueness requires that a

penal statute define the criminal offense with sufficient

idinienginaltiedimeli nei le can under what conduct is

prohibited). Accord, thielee. v. United States, 511 U.S. 600,

605 (1994) citing Morissette v. United States, 342 U.S. 246,

250 (1952) (before an injury can amount to a crime,

individual must be able to “choose between good and

evil"). This is particularly true because the offense

involved an “unprofessional relationship of inappropriate

familiarity” between two officers. Officers are expected to

socialize with on another. Indeed, the record is replete

with examples of socializing between the petitioner and all

of his subordinate officers during the entire deployment.

Much of the evidence in this case focused on an evening

in November 1995 when the petitioner’s squadron had a

Thanksgiving celebration. After the group’s meal, the

celebration moved to the beach where they made a bonfire.

Here, the petitioner was alleged to have put his arm

around 1Lt Clemm for a brief period of time.” While

repeated, intentional physical contact of this nature for

extended periods of time might be evidence of an

unprofessional relationship, this brief physical contact, in

the setting that it occurred, cannot be the basis of a

criminal charge. To convict on such conduct would

subject nearly every officer to criminal sanctions for

otherwise innocent physical contact with their subordinate

officers. This would include a fond greeting, a celebratory

© The petitioner vigorously challenged the evidence surrounding this

incident at trial. Both he and 1Lt Clemm, as well as others present,

testified that it did not occur.

14

embrace, a slap on the back or hand on the shoulder for

encouragement, or a simple goodbye hug. In fact, the

record shows us that the petitioner’s number two officer in

command during the deployment, Maj Cloutier, posed for

a photo with his arm around 1Lt Clemm this very same

evening that the petitioner is alleged to have improperly

had his arm around 1Lt Clemm. Further, 1Lt Clemm gave

Maj Cloutier a birthday hug, and Maj Cloutier indicated he

often hugged women as a greeting, yet he was not subject

to criminal allegations of inappropriate conduct.

In addition to the events of the squadron Thanksgiving

party, the Air Force Court noted that the petitioner and

iLt Clemm went to the gym and ate at restaurants

together. Rogers, 50 M.J. at 811. Yet, the Court did not

articulate how these facts are evidence of an unprofessional

relationship. Indeed, just two pages earlier in their

opinion, the Air Force Court stated, “such acts could be

perfectly legal.” Jd. at 809. In fact, the evidence at trial

indicated that all of the officers in the squadron traveled

together in cars, worked out at the gym together, and went

out to dinner. There simply is nothing improper about

this conduct. Indeed, such conduct is quite common for a

deployed unit where there are limited transportation

resources and group activities are widely encouraged.

The then Air Force Court of Military Review touched

on this problem in Kroop. The Court said:

The problem in defining or proving such a custom is

readily apparent. Officers are expected to socialize

with each other. Officers may date other officers,

treat each other with various degrees of intimacy,

and marry each other. What one person might regard

as "undue familiarity" or "excessive social contacts"

another person might regard as mere friendly

15

socializing or demonstrations of concern for one's

subordinates.

34 MJ. at 634 (emphasis added).

Moreover, unlike the officer/enlisted fraternization

offense which is specifically defined in the Manual for

Courts-Martial (1995), Part IV, paragraph 83, and which

has been construed in numerous appellate decisions, no

such legal history can be found defining officer/officer

unprofessional relationships that are considered criminal.

Furthermore, violation of a custom of the service is an

essential element of fraternization offenses prosecuted

under Article 134, UCMJ, 10 U.S.C. § 934. No

comparable element was included under the Article 133,

UCMJ, 10 U.S.C. § 933, offense that the petitioner faced.

This Court has explained why— vague laws are

Constitutionally impermissible:

Vague laws offend several important values. First

because we assume that man is free to steer between

lawful and unlawful conduct, we insist that laws give

the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may

act accordingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented, laws

must provide explicit standards for those who apply

them. A vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discrimination

application.

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)

(emphasis added). See also City of Chicago v. Morales, 527

16

U.S. 41, 63-64 (1999)(Chicago’s Gang Congregation

Ordinance stuck down as unconstitutionally vague in

failing to give notice and providing absolute discretion in

police officers to determine what activities constituted

prohibited loitering); Parker, 417 U.S. at 752.

The facts of petitioner’s case demonstrate both evils of

such a vague charge as an “unprofessional relationship of

inappropriate familiarity” between officers. Not only was

the petitioner not provided adequate notice of what type of

social contacts between officers would subject him to a

criminal allegation, the “unprofessional relationship of

inappropriate familiarity” charge was arbitrarily and

discriminatorily applied against him when the record

clearly demonstrates others, including his prime accuser,

committed acts avhich were virtually identical to the

allegations against the petitioner.’ As noted above, the

very same evening that the petitioner allegedly put his arm

around 1Lt Clemm at the bonfire—a charge both he and 1Lt

Clemm denied under oath—Maj Cloutier was photographed

with his arm around 1Lt Clemm. Further, in his testimony,

Maj Cloutier admitted that he often hugged women,

including 1Lt Clemm, yet he was not similarly charged

" The petitioner’s case preceded the now infamous “Kelly Flinn” case

involving allegations of adultery, fraternization, and false official

statements against the Air Force’s first female B-52 pilot. While the

alleged improper conduct was different in the Flinn matter, the Air

Force was widely criticized for disparate application of adultery charges

against women. An official Air Force memorandum released on 16

July 1997, by the Secretary of the Air Force and Chief of Staff, after the

trial in this case and after the Flinn matter, encouraged commanders to

draw on a wide range of responses to allegations of fraternization and

unprofessional relationships. The memorandum noted that court-

martial was appropriate only “in the most aggravated cases.” See

United States v. Clack, 47 M.J. 813 (AF Ct. Crim App 1998).

17

with developing an “unprofessional relationship of

inappropriate familiarity.”

The A.F.C.C.A. and C.A.A.F. claimed that an Air

Force regulation defined the term “unprofessional

relationship” with adequate specificity (50 M.J. at 808; 54

M.]J. 256-57) to overcome the petitioner’s challenge to the

charge as vague. However, the Air Force regulation, Air

Force Instruction (AFI) 36-2909 (App. D), did not

adequately define the term “unprofessional relationship.”

This is illustrated by the fact that this regulation was

revised on 1 May 1996, between the time of the alleged

offense and the petitioner’s trial. The revised regulation

“provided additional guidance on activities and situations

that lead to or constitute unprofessional relationships,” and

“provided expanded guidance on administrative actions

which may be initiated as a result of unprofessional

relationships.” App. E (emphasis added). Even the May

1996 regulation has undergone significant revision as the

military services have grappled with clearly defining

inappropriate social contacts in the wake of media

attention.”

The current version of the regulation was published on

1 May 1999, “substantially revis[ing]” the May 1996 version

” On 10 June 1997, Secretary of Defense William Cohen announced

three initiatives “to ensure policies governing good order and discipline

are clear and fair.” One of these specifically set out “to review the

clarity of existing guidance on adultery under the UCMJ.” Secretary

Cohen’s remarks indicated, “recent perceptions that our system is

inconsistent damage the morale of our troops.” In referring the matter to

the General Counsel for review, Secretary Cohen noted, “recent events

suggest the need to review the clarity of existing guidance related to

adultery under the Uniform Code of Military Justice.” This lack of

clarity is all the more palpable when the charge of an “unprofessional

relationship of inappropriate familiarity,” as in Lt Col Rogers’s case,

does not involve allegations of sexual misconduct, including adultery.

18

that it superceded. This version specifically includes a

requirement that all personnel be trained on this policy and

receive annual briefings. AFI 36-2909, paragraph 9. App.

F. In fact, the official training program for this regulation

includes the following note, “[e]xperience has shown that

most violations of the Air Force policy on Professional

Relationships stem from inexperience or unfamiliarity with

the policy and can be easily and quickly corrected through

education.” App. F.

Article 133, UCMJ, 10 U.S.C. § 933, as applied to the

petitioner in this case is void for vagueness and must be

dismissed. The petitioner’s fundamental right to due

process was violated when the government charged him

with and convicted him of conduct unbecoming an officer

and gentleman for maintaining an “unprofessional

relationship of inappropriate familiarity" with his

subordinate officer, 1Lt Julie Clemm. “Citizens in uniform

may not be stripped of their basic rights simply because

they have doffed civilian clothes.” Chappell v. Wallace, 462

U.S. 296, 304 (1983) (quoting Warren, The Bill of Rights

and the Military, 37 N.Y.U.L.Rev. 181, 188 (1962)). The

petitioner must not be stripped of his most basic right of

due process.

II. The charge under Article 133, UCMJ, 10 U.S.C. §

933, failed to state an offense because it did not identify

specific acts that constituted the alleged conduct

unbecoming an officer and gentleman.

The Sixth Amendment provides that "[iJn all criminal

prosecutions, the accused shall enjoy the right . . . to be

informed of the nature and cause of the accusation." See,

eg., In re Oliver, 333 U.S. 257, 273 (1948) (right to

reasonable notice of charges); Powell v. Alabama, 287 U.S.

45, 68 (1932) (due process requires notice of essential

19

elements). In this case in addition to its vagueness as raised

above, the charge under Article 133, UCM], 10 U.S.C. §

933, also did not identify any acts constituting the alleged

conduct unbecoming an officer and gentleman. Although

the charge alleged the petitioner developed an

“unprofessional relationship of i inappropriate familiarity”

with a subordinate officer, there is no way, given the

current state of the record of trial, to deterrnine what acts

the court members found that petitioner committed

beyond a reasonable doubt that amounted to the

“unprofessional relationship of inappropriate familiarity.”

In Russell v. United States, 369 U.S. 749 (1962), this

Court stated, "basic principles of fundamental fairness

retain their full vitality under modern concepts of

pleading.” 369 U.S. at 765-66. In reversing six separate

convictions based on motions to quash indictments

brought under 2 U.S.C. § 192, this Court expressed the

recognized notion that an indictment cannot stand that

fails to identify the relevant “core of criminality" and

where "guilt depends so crucially upon a_ specific

identification of fact." 369 U.S. at 764. The Court added:

A cryptic form of indictment in cases of this kind

ires the defendant to go to trial with the chief

issue undefined. Jt enables his conviction to rest on

one point and the affirmance of the conviction to rest

on another. It gives the prosecution free hand on

appeal to fill in the gaps of proof by surmise and

conjecture.

369 U.S. at 766 (emphasis added). See also United States v.

Murphy, 762 F.2d 1151 (ist Cir. 1985)(indictment for

threatening a witness in an official proceeding under 18

U.S.C. § 1512 was defective because it did not identify the

particular proceeding and therefore did not adequately

20

apprise dehendongn of charges against them).

Russell also made it clear that providing a bill of

particulars (Appellate Exhibit 10 in this case) is inadequate

to remedy this problem, by stating, "it is a settled rule that

a bill of particulars cannot save an invalid indictment." 369

USS. at 770, Murphy at 1154.

This Court described the problem with a defective

charge that leaves the core of criminality undefined in a

“recent case while construing the “continuing criminal

enterprise” violation under 21 U.S.C. § 848. Richardson v.

United States, 526 U.S. 813 (1999). In Richardson, the

Court noted that the government, by not specifically

alleging which acts violated the law and constituted a

continuing criminal enterprise,

permittfed] a jury to avoid discussion of the specific

factual details of each violation [and] will cover-up

wide disagreement among the jurors about just what

the defendant did, or did not, do. The second

consideration significantly aggravates the risk

(present at least to a small degree whenever multiple

means are at issue) that jurors, unless required to focus

upon specific factual detail, will fail to do so, simply

concluding from testimony, say, of bad reputation,

that where there is smoke there must be fire.

Id. at 819 (emphasis added).

The charge against the petitioner alleging conduct

unbecoming an officer and gentleman by developing an

“unprofessional relationship of inappropriate familiarity”

highlights the need for the government to identify the

alleged improper acts. Both military appellate courts

rejected this notion. The Air Force Court described this as

a “course of conduct offense” in deciding that it was not

21

necessary for the prosecution to allege or for the members

to vote on and find specific acts of this so-called

“unprofessional relationship of inappropriate familiarity.”

Rogers, 50 M.J. at 809. The C.A.A.F. stated that the “acts”

did not constitute the “unprofessional relationship of

inappropriate familiarity,” they evidenced it. Rogers, 54

M.J. at 257. Under the rationale of both courts, the jurors

were not required to discuss any specific facts while

deliberating on this charge.

Here, both considerations noted in Richardson are

present. First, the failure to allege any specific acts in the

charge improperly allowed the jurors to agree on the

charge even if they widely disagreed about what the

petitioner did or did not do—facts that were vigorously

contested at trial. What did the petitioner do-by way of

acts—in his relationship with his subordinate officer—that

amounted to “conduct unbecoming an officer and

gentleman?” Did going to the gym one time and playing

racquetball with her qualify? Did riding to or from the

wing operations center in a car with her qualify? Did

talking to her on the telephone twice late at night qualify?

Did briefly putting his arm around her at a bonfire qualify?

Did any of these events occur beyond a reasonable doubt?

What combination of events must have existed before an

"unprofessional relationship of inappropriate" was

achieved?

Because no acts were pled in the charge against the

petitioner, there was no objective standard by which these

questions could be factually resolved. To the extent the

court members answered these questions, there is no record

upon which to test their findings against the evidence.

Richardson also articulated a second consideration that

is present when the government does not specifically allege

22

which acts constituted “conduct unbecoming an officer and

gentleman.” Without such acts identified in the charge, the

jurors are left to conclude from testimony, “where there is

smoke there must be fire.” Richardson at 819.

The petitioner’s record is full of such “smoke” as the

subordinate officers who testified against him were all

allowed to testify that they perceived that something

improper was going on. The following question, asked by

a court member,” demonstrates that the case against the

petitioner was based on perception:

On numerous occasions during Maj Cloutier’s

testimony, he referred to “incidents” and the

“situation”. Much of his testimony seems to be

based on crewmember assumptions and perceptions.

Question: Can Maj Cloutier provide some specific

facts concerning “incidents” or the “situation”

which support the allegation of “unprofessional

relationship of inappropriate familiarity?

Appellate Exhibit XXIX (emphasis original).

Indeed, both lower appellate courts cited this perception

as significant in finding that the petitioner committed the

offense. Rogers, 50 M.J. at 811, 54 M.J. at 249. Yet, many

of these individuals had no actual knowledge of any

improper actions by the petitioner.

On this item, the Air Force Court noted,

Several officers in the squadron believed the accused

and 1Lt Clemm spent an inordinate amount of time

'3 In the military, a court member is detailed by the convening

authority to serve on a panel as a juror for the court martial. The

court members determine whether the accused is guilty and, if

necessary, determine a proper sentence. R.C.M. 502(a).

23

together. They seemed to travel back and forth

between the hotel and the squadron together on a

regular basis. They went to the gym and ate at

restaurants together.

50 M.J. at 811 (emphasis added). Here, the Air Force

Court did not find as fact that the petitioner and 1Lt

Clemm spent an inordinate amount of time together, but

referred to the officers’ “belief” and their testimony that the

petitioner and 1Lt Clemm “seemed” to travel back and

forth between the hotel and the squadron together on a

regular basis. Later in the opinion, the Air Force Court

noted, “[sJeveral subordinate officers warned the accused of

the perception that he was carrying on an affair with Lt

Clemm. The accused took no action to change his

behavior or alleviate the concerns of his subordinates.”

Rogers, 50 M.J. at 812. The witnesses’ subjective belief or

perceptions, without factual evidence to support their

opinions, cannot be the basis of the petitioner’s criminal

conviction. See United States v. Hecker, 42 M.J. 640, 644

(AF Ct. Crim App 1995)(an individual cannot be found

criminally guilty on an “appearance” of impropriety).

Nothing illustrates this better than Judge Effron’s

dissent. He noted that the evidence “reflected the

speculation of others as to the possibility of an inappropriate

relationship, but did not provide a legally sufficient basis

upon which a reasonable factfinder could have concluded,

beyond a reasonable doubt, that appellant’s conduct crossed

the line from permissible interaction to an_ illegal

unprofessional relationship of inappropriate familiarity.”

Rogers, 54 M.J. at 262 (Effron, J. dissenting) (emphasis

added).

Further, the Air Force Court noted that the petitioner

and 1Lt Clemm went to the gym and ate at restaurants

24

together. However, the Court did not articulate how these

facts are evidence of an unprofessional relationship.

Indeed, just two pages earlier in the opinion, the Air Force

Court stated, “such acts could be perfectly legal.” Rogers,

50 MJ. at 809.

In fact, a review of the entire record on the allegation

that the frequency of contacts between the petitioner and

iLt Clemm somehow supported the Article 133, UCM],

10 U.S.C. § 933, conduct unbecoming charge demonstrates

that, although several squadron members subjectively

believed that the frequency was inappropriate, the

prosecution did not present any evidence to support their

subjective beliefs. Instead, because the charge did not

include specific factual allegations, it allowed the

government to rely on the witnesses’ subjective beliefs.

One witness’s testimony, reproduced below, vividly

demonstrates the lack of actual evidence against the

petitioner:

A: I told [Lt Col Rogers] that I, in my opinion, his

relationship with Lieutenant Clemm_ was

inappropriate, and I just wanted to let him know

that I thought it was inappropriate.

Q: What had you seen yourself, with regard to that

relationship, that caused you to bring this up, other

than what others may have told you, what did you

see personally?

A: Well, a couple of times, driving in his car

together, just the two of them alone. His attitude

towards the rest of us in discussing her, seemed to be

more defensive in nature than I would have

expected. It was just a general impression I had.

Q: What about other than riding in his car, were

there other places that you had seen them?

A: I saw them at the Wing Operations Center one

time together.

Q: Is that off duty?

A: No, that was on duty.

Q: Okay. What about off duty contacts? Did you

ever see them in the gym together?

A: I saw them come back from the gym together. I did

not see them at the gym together.

Trial Record, Vol. IV, p. 493 (emphasis added).

The charge in this case failed to sufficiently apprise the

petitioner of the nature and cause of the accusation against

him. While the charge contained a general description of

the offense, it was not accompanied with a statement of the

facts and circumstances to inform the petitioner of the

offense he was charged with. Russell, 369 U.S. at 765. Not

only did the charge fail to adequately inform the petitioner,

it failed an important corollary purpose in that it did not

“inform the court of the facts alleged, so that [the court]

may decided whether they are sufficient in law to support a

conviction, if one should be had.” Jd. at 768. As a

consequence, not only was the petitioner deprived of

defending against the nature and cause of the accusation

against him at trial, he has been deprived of meaningful

appellate review as the appellate courts have been unable to

“bring an enlightened judgment” to the task of evaluating

the sufficiency of the evidence against him. Id. at 769.

CONCLUSION

The charge of conduct unbecoming an officer and

gentleman in this case cannot be upheld. Article 133,

UCMJ, 10 U.S.C. § 933, is unconstitutionally vague

because it has broad reach to otherwise innocent conduct

between officers and has not been sufficiently narrowed by

the military courts or other military authority. This broad

reach causes indiscriminate application of Article 133,

26

UCMJ, 10 U.S.C. §933, undermining belief that the

military justice system will be applied in a fair and

evenhanded manner. Moreover, the charge was insufficient

because it did not give reasonable notice of the allegation

against the petitioner. Consequently, without such

specificity, the jurors possessed no clear factual basis upon

which to reach their finding. Finally, appellate courts,

including this Court, are unable to perform reasoned

appellate review given the charge and the evidence in the

record of trial.

Petitioner respectfully requests that this Honorable

Court grant the petition for a writ of certiorari to the

United States Court of Appeals for the Armed Forces.

February 2001

27

Respectfully submitted,

FRANK J. SPINNER

Attorney at Law

10511 Judicial Drive

Fairfax, VA 22030

(703) 691-2141

Counsel of Record

TIMOTHY R.MURPHY

Lt Colonel, United States Air Force

Chief, Appellate Defense Counsel

Appellate Defense Division

(AFLSA/ JAJA)

Air Force Legal Services Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

United States Air Force

(202) 767-1562

Counsel for Petitioner