United States v. Brown

8 M.J. 501, 1979 CMR LEXIS 616
CourtU S Air Force Court of Military Review
DecidedAugust 1, 1979
DocketACM 22498
StatusPublished
Cited by2 cases

This text of 8 M.J. 501 (United States v. Brown) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brown, 8 M.J. 501, 1979 CMR LEXIS 616 (usafctmilrev 1979).

Opinion

DECISION

ARROWOOD, Judge:

The accused was convicted by a general court-martial, consistent with his guilty plea, of four specifications of consensual sodomy, in violation of Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925. The charge had specified one allegation of consensual sodomy and three allegations of forcible sodomy, but the accused maintained in his plea, and the court apparently agreed, that all the acts were consensual. The accused was acquitted of extorting sexual favors and committing indecent acts in violation of Articles 127 and 134, respectively, Code, 10 U.S.C. §§ 927, 934, supra. The approved sentence extends to a bad conduct discharge, confinement at hard labor for six months, forfeiture of $200 per month for six months and reduction to the grade of airman basic.1

In their second assignment of error, which we consider first, appellate defense counsel assert that the court-martial lacked subject matter jurisdiction over Specification 4 of Charge II. This specification alleged acts of forcible sodomy by the accused over a four month period in various civilian communities in Arizona, Illinois, Indiana, and Missouri.

Evidence at trial revealed that the accused and the victim, Airman Bailey, first met in the dormitory at Williams Air Force Base shortly after the victim’s arrival. They were assigned to the same unit and developed a friendship through their associations on base. They also socialized on base when they were off duty. The accused first requested that Bailey perform a homosexual act while they were in the dormitory. In fact, the first homosexual contact between the two airmen took place in the dormitory. Thereafter, when Bailey became uneasy about their relationship, the accused threatened to expose him to his military superiors. While on duty, the accused frequently called him at his duty section. These telephone calls were made to threaten, harass and intimidate Bailey as well as to arrange homosexual liaisons on and off the base.

With respect to the acts covered by the specification which took place in states other than Arizona, the evidence showed that such acts occurred on a journey that the accused and Bailey took together. The trip began at Williams Air Force Base and proceeded to Luke Air Force Base. A homosexual act occurred between the two airmen at Luke Air Force Base. From Luke, the pair traveled to St. Louis, Missouri; Robinson, Illinois; and Terre Haute, Indiana; engaging in homosexual acts at each place.

After their return from the trip, they continued their homosexual relationship, often meeting both on and off base during the duty day to perform the acts.

Airman Bailey’s supervisor testified that Bailey had been an excellent and conscientious worker, but around the time of the first charged act, “his whole attitude changed” so much that “it was like he wasn’t even in the hangar.” The supervisor said that Bailey would receive as many as three telephone calls a day from the accused and that the calls were “taking him away from his work.” The supervisor also testified that approximately thirty man-hours were spent counseling him as a result of his slipping duty performance.

Weighing the factors bearing on military jurisdiction set forth in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), the military judge denied a defense motion to dismiss the specification for lack of jurisdiction. The judge found, as the Government had pleaded,2 that the of[503]*503fenses were part of a continuing course of conduct which had its inception at Williams Air Force Base; that the general criminal intent required for the offenses was formed at Williams Air Force Base; that to the extent that threats and force were used, the offenses were committed in substantial part at Williams Air Force Base; that the offenses constituted a flouting of military authority; and that the offenses were ones traditionally prosecuted by the military. Further, the military judge found that the offenses had degraded the duty performance of the alleged victim and had an adverse impact upon the mission of the aircraft maintenance squadron to which the victim was assigned.

The essential considerations in weighing the Relford criteria include the impact of the offense on military discipline and effectiveness; whether the military interest in deterring the offense is greater than and distinct from the civilian interest; and whether the military interest can be adequately vindicated in the civilian courts. Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1974). The fact that both the accused and the victim are military members does not alone confer jurisdiction upon a court-martial. United States v. Hedlund, 2 M.J. 11 (C.M.A.1976).

Considering the facts in the light of Relford, supra, we find an “essential and obvious interest of the military.” 401 U.S. at 367. The continuing course of homosexual conduct between the accused and the alleged victim was inextricably bound up with their duty performance and their intimate relationship grew directly from their military associations. See United States v. Conn, 6 M.J. 351 (C.M.A.1979) and United States v. Ruggerio, 1 M.J. 1089 (N.C.M.R.1977), pet. den., 3 M.J. 117 (C.M.A.1977). Also the acts committed off base were “part of the integrated course of criminal conduct centered on the base.” United States v. King, 6 M.J. 927, 930 (A.F.C.M.R.1979).

In United States v. Ruggerio, supra, the Navy Court of Military Review found court-martial jurisdiction over off-base acts of sexual misconduct where the accused and the victim had been introduced on base and were acquainted through their subsequent encounters on base. The language of the Navy Court in that case is applicable here:

Sexual or other assaults by one member of a military unit upon another member of the same unit, when both assailant and victim associate from day to day in their unit or elsewhere, on base, in the course of their working or other military relationships, pose a serious threat to good order and discipline within the unit, even though the assaults occur off base.

1 M.J. 1089, 1098; see also United States v. Allen, 3 M.J. 986 (A.C.M.R.1977).

The fact that the offenses in the present case degraded the duty performance of Bailey to the extent that “he didn’t know what he was doing,” and seriously eroded the mission of a vital tactical fighter maintenance squadron by consuming valuable work time to counsel him, demonstrates a substantial threat to the military community and creates a distinct military interest without parallel in the civilian community. Such a military interest cannot be adequately vindicated in the civilian courts. Considering all the surrounding circumstances, we find the specification was properly triable by court-martial.

Appellate defense counsel also contend that the testimony of a prosecution witness, Airman Johnson, improperly put before the court evidence of uncharged misconduct on the part of the accused.

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Related

United States v. Shorte
18 M.J. 518 (U S Air Force Court of Military Review, 1984)
United States v. King
16 M.J. 990 (United States Court of Military Appeals, 1983)

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