United States v. Boyett

37 M.J. 872, 1993 CMR LEXIS 298, 1993 WL 242630

• Court: U S Air Force Court of Military Review
• Decided: July 2, 1993
• Docket: ACM 29345
• Status: Published

Opinions

OPINION OF THE COURT

HEIMBURG, Judge:

Lieutenant Boyett pleaded guilty to four specifications of conduct unbecoming an officer,¹ one of which (specification 5) alleged an “unprofessional close and personal social relationship” with an enlisted member who was neither his subordinate nor a member of his unit.² He appeals, arguing specification 5 fails to state an offense in light of this Court’s Johanns decision.

In United States v. Johanns, this Court held “as a matter of fact and law the custom against fraternization [in the Air Force] has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command nor supervision, unavailable.” 17 M.J. 862, 869 (A.F.C.M.R.1983). Today, we address whether a guilty plea to conduct clearly not recognized as criminally prosecutable fraternization under the holding in Johanns may stand. We limit the findings of Johanns to the facts of that case and affirm Lieutenant Boyett’s guilty plea.

BACKGROUND

Article 133, UCMJ, proscribes “conduct unbecoming an officer and a gentleman.” On its face, this historic³ article does not mention “custom” and seems to have nothing whatever to do with the punishment of violations of “custom.” What, then, is the significance of the reference to “the custom against fraternization” by the Johanns majority? For the answer, we turn to the Supreme Court case which upheld Article 133 against claims that it violated the Due Process clause of the Fifth Amendment, as “void for vagueness” and “overbroad.”

In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), Article 133 was attacked as too vague to sustain criminal sanctions. In upholding its constitutionality, the Supreme Court observed that decisions of the Court of Military Appeals, precedents incorporated over the years into manuals for courts-martial, and generally recognized customs of military service have had the effect of both narrowing the “very broad reach” of the article and supplying “considerable specificity by way of examples of the conduct which they cover.” Parker v. Levy, 417 U.S. at 754, 94 S.Ct. at 2561. As for the “sizable areas of uncertainty” which remain after resort to such sources of “official interpretation by authoritative sources, further content may be supplied ... by less formalized custom and usage.” Id.

At least since Parker v. Levy, then, it is clear that specifications under Article 133 may be sustained against “due process” attack only if they are defined by military precedent, but that precedent can include the common law of historic military traditions and customs. This is where the existence of a “custom of the service” becomes relevant: it is one means of giving officers notice of the legal limits imposed by their military status on otherwise permissible behavior, thus meeting the due process requirements of the Constitution.⁴ Customs of the service help to define behavior which is “unbecoming an officer and gentleman,” “prejudicial to good order and discipline,” or “of a nature to bring discredit upon the armed forces,” under Articles 133 and 134, UCMJ.

UNITED STATES v. JOHANNS

In Johanns, a majority of this Court found “as a matter of fact and law the custom of the Air Force against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command nor supervision, unavailable.” 17 M.J. at 869 (emphasis in original). This statement, although termed a finding “of fact and law,” actually amounted to a finding of fact, coupled with a legal conclusion. The finding of fact was that the “custom in the Air Force against fraternization” had been “eroded.” The Johanns majority found this erosion wore away the part of the Air Force custom against fraternization which prohibited sexual intercourse between officers and enlisted members where no other prohibitions, e.g., deviancy or a supervisory relationship, were present. The legal conclusion was that, to the extent the custom was eroded, it was not enforceable by criminal sanctions.

The Court of Military Appeals deferred to this Court’s fact-finding powers under Article 66(c), UCMJ. 20 M.J. 155, 160-61 (C.M.A.1985). It observed, “it appears that Captain Johanns lacked the notice from custom or otherwise which, even under the relaxed standard of review established by Parker v. Levy, supra, is constitutionally necessary to meet the due-process requirements of the fifth amendment.” Id. at 161. Acting on the finding of fact of the Johanns majority that the Air Force custom against fraternization was “eroded,” the Court of Military Appeals decided Captain Johanns “lacked constitutionally required notice” of the criminality of his behavior under Parker v. Levy and affirmed the dismissal of the affected specifications. Id. at 158.

The Johanns majority’s finding of fact, apparently because it was not expressly limited to the record in that case, has long been considered prima facie evidence of the general state of Air Force customs on fraternization. So long as Johanns announced the state of Air Force customs as a matter of fact, no prosecution outside the narrow limits outlined in that opinion could survive constitutional scrutiny. As a result, the finding set the legal framework for subsequent Air Force cases involving similar behavior.⁵ Although in recent years Chief Judge Everett observed that a finding of fact contrary to the finding made in the Johanns decision would lead to a different legal result, no contrary finding has been made. See United States v. Appel, 31 M.J. at 320; United States v. Wales, 31 M.J. at 308-09.⁶

THE GUILTY PLEA

We now turn to the facts of this case. Lieutenant Boyett, before entering his pleas, moved to dismiss specification 5 for failure to state an offense. The trial judge determined he could not rule on the motion without hearing evidence, because there was a factual issue to be resolved: whether, because of a custom of the service or otherwise, Lieutenant Boyett “was on fair notice of the criminality of his conduct.” The prosecutor suggested, since it was a bench trial, the judge could defer ruling until the presentation of evidence. Although trial defense counsel argued that the issue was solely one of law, she did not object to deferring the ruling. Pursuant to a pretrial plea agreement, Lieutenant Boyett then entered a plea of guilty to the contested specification.

During the providence inquiry, Lieutenant Boyett testified he was a product of the Air Force Reserve Officers Training Corps (ROTC) program. His ROTC instructors taught him it was improper for an officer to have a close personal relationship with enlisted members generally, not just those who work directly for the officer. After coming on active duty, he had that notion reinforced by active duty officers and NCOs. His first squadron commander held two conversations with Lieutenant Boyett on the subject of officer-enlisted relationships. The first conversation was held within two or three months after Lieutenant Boyett arrived at the squadron, after duty hours. While he described it as “just a talk,” Lieutenant Boyett told the judge there was apparently “some concern” in the squadron he was “too friendly” with airmen, male and female, and the commander wanted to “redirect” him on that issue. The commander told Lieutenant Boyett close relationships between officers and enlisted members were “not looked too highly upon, and that it shouldn’t be done.” He advised Lieutenant Boyett “serious trouble,” which included court-martial, could follow. Later, Lieutenant Boyett testified, he had another after-hours conversation with his squadron commander in which the commander used the example of a female officer court-martialed for her sexual relationship with an airman who worked for her. Even though there was a duty relationship involved in the example, Lieutenant Boyett said, he understood the prohibition to apply “generally.” His thoughts on the subject were reinforced in a conversation with a master sergeant in the squadron and with “other people,” all of whom agreed it was improper for an officer to have “too close” a relationship with an enlisted member. Lieutenant Boyett said his understanding of the custom of the Air Force was that sexual relations between officers and enlisted members, regardless of supervision, were prohibited and could result in criminal prosecution.⁷

In concluding their colloquy concerning Lieutenant Boyett’s guilty plea to this contested specification, the trial judge asked whether Lieutenant Boyett admitted the existence of “a custom in the Air Force that prohibits sexual relations between officers and enlisted people, generally?” Lieutenant Boyett said he did. Lieutenant Boyett also told the judge he understood “making that admission ... under the reasoning [the judge] used earlier ... would essentially undermine or undercut [his] defense counsel’s motion.”

THE APPEAL

Lieutenant Boyett now renews his attack on the specification, alleging it fails because neither the pleadings nor the proof show his conduct to be prohibited by an existing “custom” of the Air Force. The behavior which forms the basis of the specification was private, consensual, non-deviate sexual intercourse between unmarried adults who happened to be officer and airman, but without a supervisory or command relationship. Therefore, citing Johanns, Lieutenant Boyett avers his conduct was not subject to criminal sanctions in the Air Force.

The government argues this specification does not allege fraternization, but a different Article 133 offense which should be upheld on appeal. The specification states an offense under Article 133, according to the government, because it alleges “conduct unbecoming an officer” which is “wrong” even if not ordinarily considered criminal.⁸ Further, the government avers, Lieutenant Boyett’s sworn responses during his guilty plea inquiry show he was on notice that his behavior was “wrong” and could lead to court-martial.

FRATERNIZATION OR NOT?

The government contends, as it did at trial, this specification does not allege fraternization. Certainly, it does not use language of the Manual for Courts-Martial, 1984, Part IV, paragraph 83f, (MCM) such as “fraternize,” “on terms of military equality,” or “in violation of the custom ... that officers shall not fraternize with enlisted persons on terms of military equality.” The trial judge, apparently accepting the prosecutor’s argument, did not use the elements of fraternization from the MCM in his explanation of the offense during the providence inquiry and advised both parties he considered the maximum punishment to include one year’s confinement, rather than the two years prescribed for fraternization. Compare MCM, Part IV, paragraph 59c(2) with paragraph 59e; See United States v. Arthen, 32 M.J. at 547.

Unfortunately for the government’s position, accepting the premise that the specification alleges, not fraternization, but another “unprofessional close personal relationship, including sexual intercourse,” does not automatically lead to safe ground. As we have already discussed, offenses under Article 133 may not be created by the stroke of a pen in the act of signing a charge sheet because of due process, notice considerations. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Moreover, charging an offense under Article 133 without labeling it “fraternization,” does not make proof easier. An offense may properly be charged under Article 133 even though specifically punishable under another article of the Code, but the elements of proof are the same, with the addition that the conduct be proved to be “unbecoming an officer and gentleman.” MCM, Part IV, Paragraph 59c(2); United States v. Arthen, 32 M.J. at 544; United States v. Parrillo, 31 M.J. at 890.

Because Lieutenant Boyett was charged with misbehavior under Article 133, whether fraternization or not, we must determine whether he had fair notice of the criminality of his conduct.⁹ For evidence of such “fair notice” we look to the trial transcript: specifically, to the stipulation of fact and Lieutenant Boyett’s sworn admissions during the guilty plea inquiry.

FACTUAL BASIS FOR THE GUILTY PLEA

Lieutenant Boyett pleaded guilty and readily admitted the existence of the custom he was charged with violating. He further admitted he was on notice that his conduct in violating this custom could subject him to criminal prosecution. Is that proof of the “existence and nature” of the custom sufficient to sustain Lieutenant Boyett’s conviction? We believe it is. In our legal system, one may waive even the most precious rights: a guilty plea waives the right against self-incrimination and the right to a trial of the facts. R.C.M. 910(c)(3); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247, 253 (1969). We decline, therefore, to add to the guilty plea inquiry a requirement that the government also introduce proof of the factual basis for his plea. A trial court ought to be able to enter a finding of guilty on the basis of a provident plea alone, without receiving any evidence. Lieutenant Boyett, by his provident plea of guilty and sworn testimony before the trial judge, provided a factual basis for a finding that a custom existed which prohibited his conduct and that he was on notice that engaging in the prohibited behavior could result in criminal sanctions.

JOHANNS REVISITED?

As we noted above, the majority decision in Johanns made a “finding of fact and law” which, in reality, was a finding of fact coupled with a conclusion of law.¹⁰ Subsequent decisions have not clearly distinguished the two parts. Today we do. We expressly limit the finding of fact by the Johanns majority to the state of customs reflected in the record in that case. We are not called upon to make a substitute finding of fact about the general state of Air Force customs against fraternization today, and we will not. The record of trial in this case contains a sufficient factual basis for our decision about Lieutenant Boyett’s case, and his case is the only matter before us.

Lieutenant Boyett’s providence inquiry responses make clear his officer pre-commissioning education and the climate of military leadership he found after entering active duty combined to impress on his mind the custom against officers “dating” and engaging in sexual intercourse with enlisted persons, regardless of the existence of a supervisory relationship. Lieutenant Boyett’s responses are sufficient to show that, at the time of his offense, he was on notice of the existence of Air Force customs which proscribed the behavior charged in specification 5. On the basis of the record before us, we find “there is a factual basis for the plea” to specification 5, and we find Lieutenant Boyett’s guilty plea to that specification provident. R.C.M. 910(e).

Before we conclude this discussion of Lieutenant Boyett’s guilty plea, we must address the “finding of ... law” contained in the Johanns majority’s decision. We have shown above that the combined finding of “fact and law” was actually a finding of fact and a legal conclusion, and we have limited the factual finding of Johanns concerning the state of Air Force customs against fraternization to that case. It follows, then, that the “finding of law” in Johanns is not binding on a different, later set of facts concerning the custom against fraternization. We are free to uphold Lieutenant Boyett’s guilty plea if it is provident, and we have found it provident. Our ruling on the providence of Lieutenant Boyett’s guilty plea does not commit us to a finding concerning the general contours of Air Force customs concerning fraternization. We leave to future cases such matters of adjudicative fact.

OTHER ISSUES

We noted above the trial judge did not advise Lieutenant Boyett of all the elements of this Article 133 offense. He advised him there were two elements of specification 5:

The first is that on divers occasions, and by divers, the government is alleging a number of times, an indefinite number, but certainly more than once, between the dates of about 15 May 1990 and 30 June 1990, you engaged in unprofessional close personal social relationships, including sexual intercourse, with Airman [B], an enlisted person.

And the second element would be that under the circumstances your conduct was unbecoming an officer and a gentleman.

The trial judge omitted advice to Lieutenant Boyett that an element of the offense was that this “close personal social relationship, including sexual intercourse,” violated a custom of the Air Force. United States v. Fox, 34 M.J. at 103; United States v. Wales, 31 M.J. at 309. Nevertheless, we find this omission not fatal in light of the discussion which ensued between the judge and Lieutenant Boyett. In a colloquy which covered more than seven pages of transcript, the judge carefully defined what it meant for Lieutenant Boyett to plead guilty to conduct unbecoming an officer and a gentleman as alleged in specification 5. Both in the stipulation of fact, Prosecution Exhibit 1, and personally, Lieutenant Boyett told the judge why he believed a custom of the Air Force existed which prohibited the type of social relationship in which he engaged with Airman B. Lieutenant Boyett concluded by telling the judge he admitted “there is a custom in the Air Force that prohibits sexual relations between officers and enlisted people, generally.” We find Lieutenant Boyett was clearly on notice that the existence of a custom of the Air Force which prohibited his conduct was an essential element of proof of specification 5. Knowing that, we find he knowingly and consciously gave up his right to a trial of the facts concerning specification 5. Cf., United States v. Care, 40 C.M.R. at 253.

Lieutenant Boyett also has asserted the staff judge advocate erred by denying a defense request for delay in submitting clemency matters. A defense request for an additional 10 days to submit matters pursuant to R.C.M. 1105, dated 30 May 1991, was denied by letter dated 30 May 1991. A request for reconsideration, dated 3 June 1991, was denied by letter dated 3 June 1991. Both letters of denial, although signed by the staff judge advocate, used the authority line, “FOR THE COMMANDER.” Lieutenant Boyett points out R.C.M. 1105(c)(1) says the convening authority must act personally on requests for delay in submission of matters, and asserts there is no indication the convening authority ever saw the request or acted on it personally.

This assertion need not detain us long. The “authority line” is used in Air Force correspondence when a staff officer is permitted to sign for a commander. Air Force Regulation 10-1, Preparing Written Communications, paragraph 3-4, 29 March 1985; cf., United States v. O’Connor, 19 M.J. 673, 675 (A.F.C.M.R.1984). Use of the authority line does not signify the staff officer who signed “for the commander” usurped the commander’s decision authority. United States v. Meckler, 6 M.J. 779, 781 (A.C.M.R.1978). In the absence of some evidence to the contrary, we will not assume that a usurpation occurred in this case.¹¹ United States v. Moschella, 20 U.S.C.M.A. 543, 43 C.M.R. 383, 386 (1971); United States v. Masusock, 1 U.S.C.M.A. 32, 1 C.M.R. 32 (1951).

CONCLUSION

On the basis of the entire record, the approved findings of guilty and sentence are hereby

AFFIRMED.

Senior Judge SNYDER and Judges GRUNICK and JOHNSON concur.

1 . In violation of Article 133, UCMJ, 10 U.S.C. § 933 (1988): "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.”

2 . Before a military judge sitting as a general court-martial, Lieutenant Boyett also pleaded guilty to making a false official statement to the officer who conducted the initial investigation of the allegations which resulted in these charges, having sexual intercourse with a female airman who worked for him, and making an obscene and demeaning declaration about that airman in the presence of two other subordinates. His approved sentence is dismissal from the service and forfeiture of $500 pay per month for 3 months.

3 . A predecessor of this article was included in the British Articles of War of 1765, in effect at the beginning of the Revolutionary War, and in American military codes of 1775, 1776, and 1786. W. Winthrop, MILITARY LAW AND PRECEDENTS 945, 957, 969, and 974 (2d. ed., 1920 reprint). It was revised in 1806 to substantially its present form. Winthrop, supra at 710, 983.

4 . See, e.g., United States v. Parrillo, 31 M.J. 886, 890-91 (A.F.C.M.R. 1990).

5 . For illustration of how this finding has affected Court of Military Appeals treatment of Air Force cases, see United States v. Fox, 34 M.J. 99 (C.M.A.1992); United States v. Appel, 31 M.J. 314 (C.M.A.1990); United States v. Wales, 31 M.J. 301 (C.M.A.1990). Its impact on Air Force decisions can be seen in these cases; United States v. Miller, 34 M.J. 1175 (A.F.C.M.R. 1992); United States v. Kroop, 34 M.J. 628 (A.F.C.M.R. 1992); United States v. Cottrell, 32 M.J. 675 (A.F.C.M.R. 1991); United States v. Arthen, 32 M.J. 541 (A.F.C.M.R. 1990); United States v. Parrillo, 31 M.J. 886 (A.F.C.M.R.1990); United States v. Serino, 24 M.J. 848 (A.F.C.M.R.1987); United States v. Woodard, 23 M.J. 514 (A.F.C.M.R. 1986).

6 . The finding of fact made in Johanns cannot be undone by judicial notice at trial, since the "existence and notice” of such a custom is no longer an "undisputed fact.” Appel, 31 M.J. at 320. What is now required is “proof at trial” of the “existence and notice of the custom that has been violated.” Wales, 31 M.J. at 309. Our decision today has no effect on that aspect of the precedents of the Court of Military Appeals in Air Force fraternization cases.

7 . Although Air Force Regulation 35-62, Policy on Fraternization and Professional Relationships, 16 April 1990, came into effect during the period alleged in specification 5, trial counsel conceded it had not been "posted” to the base Master Reference Library until 15 October 1990. As a result, the trial judge did not discuss the implications of this policy directive with Lieutenant Boyett during the providence inquiry.

8 . Fornication is not an offense in the military. See United States v. Snyder, 1 U.S.C.M.A. 423, 427, 4 C.M.R. 15, 19 (1952); United States v. Johanns, 17 M.J. at 866; United States v. Wilson, 32 C.M.R. 517, 518 (A.B.R.1962); United States v. Ord, 2 C.M.R. (A.F.) 84, 86-87 (A.F.B.R.1949).

9 . We note that Captain Johanns also was charged under Article 133, not Article 134. Johanns, 17 M.J. at 863, n. 1.

10 . Some view the Johanns majority’s “finding of fact and law” as a rule of law defining what fraternization is prosecutable in the Air Force. The difference to this case is that one might conclude a rule of law would still apply to Lieutenant Boyett’s conduct, even though we modify the rule for future cases.

Whatever the intent of the Johanns majority— I am in no position to know — the Court of Military Appeals has consistently treated the Johanns finding as one of fact. See Johanns, 20 M.J. at 160, where Chief Judge Everett said:

The court below apparently determined that no custom of that service prohibited Captain Johanns’ private sexual relationships with several enlisted women. In the face of this determination by a tribunal which has factfinding powers, it must be assumed that Johanns did not receive notice from an Air Force custom or long-established practice that his amorous activities might transgress Articles 133 and 134.

See also Appel, 31 M.J. at 320; Wales, 31 M.J. at 308-09. That the Johanns majority’s finding was primarily fact is evident from the extended discussion on the state of customs in the Air Force which preceded it. Having found an “eroded” custom which did not extend to "mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his commandnor supervision,” the majority "found,” quite logically, that Captain Johanns’s behavior, since it was not proscribed by such a custom, could not be prosecuted criminally. This latter "finding" was a conclusion of law, whether based on notions of due process and lack of notice or on the principle that a custom "ceases to exist when its observance has been long abandoned.” MCM, 1969 (Rev.), paragraph 213b. But it was a legal conclusion completely dependent on the underlying findings of fact, and can have no independent life apart from those findings. Of course, had the Johanns majority intended to craft a rule of law, there are significant questions about their legislative authority.

11 . Lieutenant Boyett submitted a letter from his defense counsel, a personal letter, and 29 additional letters on 3 June 1991, which were considered by the convening authority prior to his action. In light of all the matters the convening authority had before him, we do not believe the one letter submitted after his action could have significantly impacted the decision.