United States v. Guerrero

31 M.J. 692, 1990 CMR LEXIS 812, 1990 WL 134916
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedAugust 16, 1990
DocketNMCM 90 0160
StatusPublished
Cited by3 cases

This text of 31 M.J. 692 (United States v. Guerrero) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Guerrero, 31 M.J. 692, 1990 CMR LEXIS 812, 1990 WL 134916 (usnmcmilrev 1990).

Opinion

HILTON, Judge:

Contrary to his pleas, appellant was convicted by a military judge alone sitting as a special court-martial of two specifications alleging that appellant dressed in women’s clothing in public view in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.1 He was acquit[694]*694ted of a specification alleging solicitation to commit sodomy in violation of Article 134, UCMJ. The military judge sentenced him to a bad-conduct discharge and reduction to E-5. The convening authority approved the sentence as adjudged, but effectuated the automatic reduction provision of Article 58a, UCMJ, 10 U.S.C. § 858a.

On review, appellant asserts that the military judge erred to his substantial prejudice by denying his motion to dismiss Specification 3 of the Charge, which is the specification describing appellant’s wrongfully dressing in women’s clothing in public view in June 1989. The basis for appellant’s position here is essentially the same as at trial: Appellant had no notice that the acts set forth in Specification 3 would be considered criminal, as is required by the Fifth Amendment to the Constitution.

At trial, appellant admitted through a confessional stipulation of fact that he had dressed in women’s clothing in public view as alleged in the two specifications of which he was convicted. He vigorously asserted, however, that such conduct was not wrongful, i.e., that none of the acts set forth in the two specifications was conduct prejudicial to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Appellant’s dressing in women’s clothing was referred to during the trial as “cross-dressing” and that is what we will call it here.

The following is a brief recitation of the factual scenario for Specification 3 of the Charge. In June 1989, appellant was seen attired in women’s clothing at or near his off-base apartment. Seaman D., a neighbor of appellant, opened his windows one evening in June 1989 to be greeted by the sight of appellant in his bedroom dressed in wig, make-up, and women’s clothing. The curtains of appellant’s windows were open and Seaman D. could look directly across into appellant’s apartment, the wall of which was 10-15 feet away. Seaman D., who knew that appellant was a member of the armed forces, subsequently complained to the apartment manager. Mr. S., a retired master chief petty officer and the manager of appellant’s apartment complex, saw appellant dressed in women’s clothing “just passing by one night” in early June 1989. Later in June, Mr. S. saw appellant dressed in a tight skirt, wig, and makeup when appellant came to Mr. S’s apartment. Appellant, who told Mr. S. that he was coming from the club, had locked himself out of his apartment and asked the manager’s assistance. Mr. S. accompanied appellant to his apartment and using his master key, let him back in. Mr. S. knew that appellant was in the Navy because he had seen him attired in the uniform of a chief petty officer.

Although appellate defense counsel have made no assignment of error with respect to Specification 2 of the Charge, we have set forth the facts because we decided to evaluate whether Specification 2 alleged an offense. The facts relating to that specification are: On 20 April 1989, appellant and FA B. became acquainted as they played a game of pool together at a bowling alley at Naval Training Command (NTC), San Diego, California. Neither man was in uniform. Afterward they had something to eat, and appellant offered to drive FA B. to the airport to pick up boarding passes. In the car, appellant informed FA B. that he was a chief petty officer. FA B. told appellant he was in the military, had recently completed school, and was going home on leave before taking up his assignment in Diego Garcia. On the way to the airport, appellant talked about prostitution and his friends. After picking up the boarding passes, appellant invited FA B. to his apartment for a drink. At the apartment, appellant gave FA B. a drink, put on a movie, and said “Sometimes I crossover.” When appellant left the room, FA B. “got his name off a telephone bill” which was on the couch. When asked why he did so, he answered: “Cause I knew something was messed up after he said that to me. I was putting everything together.” Fifteen minutes after leaving the room, appellant returned in “a long-haired wig, makeup, miniskirt, and a blouse.” When he saw appellant thus transformed, FA B. “got up and [695]*695headed out the door.” As he did so he heard appellant say: “I thought you had experienced it. I’ll have to show you sometime.” FA B. reported the incident to his command and to the Naval Investigative Service.

At the time he committed the offenses for which he was convicted, appellant had been frocked to the rank of chief petty officer (E-7). He had been in the Navy for 97a years.

In order for there to be a violation of Article 134, UCMJ, it must be proved that:

(1) The accused did or failed to do certain acts; and
(2) Under the circumstances, 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.

The law also requires that an accused must be on notice that his conduct is unlawful, i.e., that the article of the UCMJ in issue, by its language, fairly informs him “that the particular conduct which he engaged in was punishable.” Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974).

As the Court of Military Appeals observed in United States v. Sadinsky, 14 U.S.C.M.A. 563, 565, 34 C.M.R. 343, 345 (1964), “the General Article is not such a catchall as to make every irregular, mischievous, or improper act a court-martial offense.” Rather, it is misconduct which is “directly and palpably — as distinguished from indirectly and remotely — prejudicial to good order and discipline.” United States v. Holiday, 4 U.S.C.M.A. 454, 456, 16 C.M.R. 28, 30 (1954); see also Paragraph 60c(2)(a), Part IV, Manual for Courts-Martial (MCM), United States, 1984. There is no requirement that conduct be prohibited by order, regulation or statute for there to be a violation of Article 134, UCMJ. Sandisky, 34 C.M.R. at 346.

Article 134, UCMJ, also proscribes service-discrediting conduct, i.e., conduct which has a “tendency to bring the service into disrepute or which tends to lower it in public esteem.” Paragraph 60c(3), MCM.

As in United States v. Davis, 26 M.J. 445 (C.M.A.1988), “[t]he essence of appellant’s crime is that his unusual conduct ... had an adverse effect on military order and discipline and created a negative perception of the armed services.”2 We are satisfied beyond a reasonable doubt from the testimony of the witnesses, and the totality of the circumstances in this case, that appellant’s cross-dressing as described in Specifications 2 and 3 was both prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces.

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Related

United States v. Peszynski
40 M.J. 874 (U.S. Navy-Marine Corps Court of Military Review, 1994)
United States v. Smith
34 M.J. 1005 (U.S. Army Court of Military Review, 1992)
United States v. Guerrero
33 M.J. 295 (United States Court of Military Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 692, 1990 CMR LEXIS 812, 1990 WL 134916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guerrero-usnmcmilrev-1990.