United States v. Henderson

32 M.J. 941, 1991 CMR LEXIS 563

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 24, 1991
• Docket: MNCM 89 3480
• Status: Published

Opinions

ALBERTSON, Senior Judge:

Contrary to his pleas, appellant was convicted by a general court-martial composed of officer and enlisted members of violations of Articles 80 (conspiracy), 92 (violation of a lawful order), 125 (sodomy), and 134 (false swearing, wrongful sexual intercourse, and wrongful furnishing of alcohol to minors), of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 892, 925, and 934, respectively. Appellant was sentenced to confinement for 4 years, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged, but suspended confinement in excess of 2 years for a period of 1 year from the date of imposition of the sentence.

Appellant, a Marine Corps recruiter, worked out of an office in Waltham, Massachusetts, with another Marine named SSGT Llewellyn. Appellant had an apartment close by and, over a period of many months, he and Llewellyn used the apartment as a staging ground to conduct affairs with students from Waltham High School, a school within their recruiting responsibilities. Appellant was convicted of having wrongful sexual intercourse with M.B., D.J. (both members of the Marine Junior ROTC program at Waltham High), and K.H.; receiving fellatio from D.J.; using a government vehicle to drive the young women to and from; purchasing liquor for them on various occasions; making false statements denying sexual intimacy with them or knowledge that others were sexually intimate with them; and conspiring with Llewellyn, who was married, to commit adultery with M.B. Each of the females was of the lawful age to consent to intercourse.

Appellant raises several issues relating to the legal propriety and factual sufficiency of his convictions.

Wrongful Sexual Intercourse

The novel specification under Article 134, UCMJ (Charge VI, Specification 4), alleging wrongful sexual intercourse by appellant reads as follows:

In that Staff Sergeant Dwight Henderson, U.S. Marine Corps, United States Marine Corps Recruiting Station, Boston, Massachusetts, did at the apartment of said Staff Sergeant Henderson, Waltham, Massachusetts, on or about or during May 1988, wrongfully have sexual intercourse with the following persons: Miss D.J.; Miss K.H.; and Miss M.B.; said Miss J. and said Miss B. then being students at Waltham High School, Waltham, Massachusetts under instruction as Marine Junior ROTC Cadets at said High School, said conduct under the circumstances being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces.

Appellant maintains accurately that fornication, or private sexual intercourse, between unmarried persons of consenting age is not punishable. See United States v. Hickson, 22 M.J. 146 (C.M.A.1986). He argues that he cannot be convicted of this novel Article 134 offense as the intercourse was between consenting adults and occurred in private; it is therefore not an offense under the UCMJ. See United States v. Carr, 28 M.J. 661 (N.M.C.M.R.1989). The Government counters that given certain aggravating circumstances, which were present here, appellant’s fornication with these three young women is punishable under Article 134, UCMJ. In other words, the conduct is an offense under the UCMJ. See United States v. Snyder, 1 U.S.C.M.A. 423, 4 C.M.R. 15 (1952).

From the Government’s point of view, as we discern it from the record, appellant, as a Marine recruiter in the local community, cynically exploited his position as a Marine recruiter for sexual advantage with these young women, and used the prestige and glamour of his status as a Marine recruiter to foster personal intimacies with the very type of individuals who were his most likely candidates for recruitment into the Marines. Such exploitation by a Marine recruiter discredited the Marine Corps in the eyes of the local community. It is this exploitation of position resulting in discredit to the Marine Corps, the Government asserts, that makes appellant’s private, nondeviate, consensual sexual intercourse with the three young women criminal under Article 134, UCMJ.

The conduct proscribed by the general article has always been confined to cases where the prejudice to good order and discipline or discredit to the service is direct and palpable. Such conduct must be easily recognizable as criminal, must have a direct and immediate adverse impact on discipline, and must be judged in the context surrounding the acts. See United States v. Davis, 26 M.J. 445 (C.M.A.1988); United States v. Johanns, 20 M.J. 155 (C.M.A.1985). This specification was challenged at trial for failing to state an offense, and a motion was made for a bill of particulars, requesting the exact time, date, place, and any witnesses to the alleged wrongful acts of intercourse.

We find that this specification states an offense. We conclude that by fair implication of the wording of the specification the appellant was sufficiently placed on notice of that against which he had to defend himself. The specification fairly advised him of that which constituted his offense under the UCMJ, that is, his conduct of having sexual intercourse with the three alleged young women was wrongful and prejudicial to good order and discipline or service discrediting because it was a result of the favorable relationship he developed with them because of his status as a Marine Corps recruiter and their status as Marine JROTC high school students. Where such an allegation is made to denote as criminal that which could otherwise be innocent conduct, then the use of the allegation of wrongful is critical. See United States v. Regan, 11 M.J. 745 (A.C.M.R.1981). Although the word “wrongful” will not make an otherwise innocent act criminal, here the allegation describes the proscribed character of the appellant’s act. See United States v. Sandinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964). Our conclusion that the specification states an offense and that the appellant had sufficient notice against that which he had to defend is buttressed by the objections lodged against this specification at trial, the responses to those objections, and by the fact that on appeal appellant has not challenged this aspect of the specification.

The fact that the specification states an offense does not, of course, mean that the government has proven the appellant guilty of the criminal conduct alleged in the valid specification. We find that it is in this arena that the government has lost its case. Regardless of the moral censure to which appellant’s conduct might be subject, and despite the legitmate concerns of public trust and honor expressed so ably by the Government in its brief to this Court (“A recruiter puts on the uniform and the regalia of his service for the express and sole purpose of parading his country’s hon- or in the hope of attracting young men and women to military service.”), the record fails to disclose any evidence that any directive or policy existed that prohibited appellant’s conduct or that appellant was on notice that his conduct was criminal. See United States v. Mayfield, 21 M.J. 418 (C.M.A.1986). Although it is clear that appellant’s conduct was disreputable and service discrediting, it does not follow inexorably that the general article was violated by his conduct. What may be discrediting in the moral sense is not always criminal in the legal sense. See United States v. Johanns, 17 M.J. 862 (A.F.C.M.R.1984); aff'd in part, rev’d in part, 20 M.J. 155 (C.M.A.1985). Here, no evidence was admitted to demonstrate that the young women involved consented to the sexual intercourse with appellant only because he wore a uniform or because they believed they were required to do it to obtain favor or gain influence with him because of his position as a recruiter. See United States v. Adames, 21 M.J. 465 (C.M.A.1986). In addition, no evidence was offered showing that these young women had any interest in enlisting in the Marine Corps, or any other armed service, or that appellant’s position as a recruiter was the basis for their relationship. Indeed, we find no evidence that in any way indicates that appellant abused his position as a recruiter by having a sexual relationship with these young women. Finally, fornication is not prohibited under military law, or apparently, the laws of the Commonwealth of Massachusetts. Simply put, although the government demonstrated that appellant’s conduct was morally reprehensible and was discrediting to the Marine Corps as testified to by several witnesses at trial, it failed to establish that appellant’s conduct, as a Marine Corps recruiter, was prohibited by law, regulation or directive, or that appellant was fairly put on notice that his actions were discouraged as not being conduct becoming a recruiter, or that he abused his position. See United States v. Van Steenwyk, 21 M.J. 795 (N.M.C.M.R.1985). Although, as stated by our sister court, “Congress never intended to regulate private moral conduct of an individual servicemember under the general articles”, Johanns, 17 M.J. at 868 (citation omitted), aggravating factors may make such private moral conduct proscriptive, providing, of course, that the aggravating factors are proven. In appellant’s case it is not readily apparent to us that his sexual intercourse with these three young women above the age of consent was aggravating such that his conduct was criminal. See Parker v. Levy, 417 U.S. 738, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); United States v. Johanns, 17 M.J. 862. Further, given that under the UCMJ general article many forms of sex offenses have been delineated, we do not find it within our jurisdiction to add appellant’s private, heterosexual, consensual, nondeviate intercourse to that list, particularly in the absence of evidence that appellant knew that sexual intercourse under these particular circumstances was prohibited, or that sexual activity and conduct with potential recruits by a recruiter has been prohibited by the Marine Corps. Accordingly, we cannot affirm his conviction under this novel Article 134 specification.

Sodomy

Appellant was a willing participant in an act of fellatio performed upon him by one of the high school girls, D.J. He challenges his conviction under Article 125, UCMJ, asserting that consensual heterosexual fellatio, when done in private, falls within the ill-defined constitutionally-protected zone of privacy that shields this type of personal conduct from prosecution. Further, he argues that the government must show a strong and compelling justification for the prosecution, that none was shown here, and that in any event, the term “unnatural carnal copulation” is impermissibly vague and does not include within its ambit private heterosexual fellatio.

Through law, regulations, and interpretive material, the military community is made aware that certain forms of sexual intercourse are deviations from its standards. United States v. Scoby, 5 M.J. 160, 162 (C.M.A.1978). Article 125, UCMJ, prohibits “unnatural carnal copulation with another person of the same or opposite sex [and] [p]enetration, however, slight is sufficient to complete the offense.” Appellant argues that the constitutional defect inherent in applying Article 125 to his actions is that “unnatural carnal copulation” is a vague term and should be narrowly applied to only those acts constituting the common-law offense of sodomy, and not to encompass additional forms of sexual conduct, such as fellatio, that some people might find aberrant. The broad interpretation, he argues, which would include acts such as his private, consensual, heterosexual fellatio, within the proscription of Article 125, is impermissibly vague.

Article 125, however, is sufficiently defined as to be understood by a person of ordinary intelligence in the military community and is, therefore, not unconstitutionally vague. Id. at 163; cf. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). That is to say, a military member is required to take account of community standards in sexual matters, and there is a substantial range of conduct to which Article 125 clearly applies, even if an area of uncertainty, such as sexual conduct between a married couple, remains. That uncertainty, however, does not render the proscriptions within Article 125 fatally deficient. Id,.; see Parker v. Levy, 417 U.S. at 754-58, 94 S.Ct. at 2564-67, 41 L.Ed.2d at 457-60. Article 125, proscribing carnal copulation in any opening of the body except the sexual parts, specifically includes the act of fellatio. Paragraph 51c, Part IV, Manual for Courts-Martial, United States, 1984. See United States v. Harris, 8 M.J. 52 (C.M.A.1979); Scoby. The provisions of Article 125, coupled with its judicial construction, constitutes the required notice that fellatio is a criminal act. See United States v. Tedder, 24 M.J. 176, 180 (C.M.A.1987).

The other aspect of appellant’s constitutional challenge to this statute is that there is no “compelling governmental interest” to justify intrusion upon his fundamental constitutional right to engage in consensual, heterosexual fellatio with a woman not his wife. Article 125, he argues, when applied to such an act of fellatio, performed consensually in private, violates the right to privacy as extrapolated from the Bill of Rights as interpreted and defined in various Supreme Court decisions. A compelling governmental interest, however, is not required to sustain prosecutions under statutes whose purview implicates sexual freedom or affects adult sexual relations. See Carey v. Population Services Int’l, 431 U.S. 678, 688 n. 5, 97 S.Ct. 2010, 2018 n. 5, 52 L.Ed.2d 675, 683 n. 5; cf. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). We conclude that fellatio is included within the terms of Article 125, that the traditional statutory scope of the offense involves the taking into the mouth, or putting one’s sexual organ into the mouth, of any other person. See Paragraph 51c, Part IV Manual for Courts-Martial (MCM), United States, 1984; Paragraph 204, Manual for Courts-Martial, United States, 1969 and 1951; Paragraph 180j, Manual for Courts-Martial, U.S. Army, 1949. We conclude that fellatio is properly chargeable as a violation of Article 125, and that the evidence is legally and factually sufficient to affirm the findings of guilty. Article 66, UCMJ; See United States v. Turner, 25 M.J. 324 (C.M.A.1987).

Other Offenses

The Government concedes, and we agree, that Specification 2 under Charge VI, alleging violation of a Massachusetts statute pertaining to the furnishing of alcohol to someone under the age of 21, must fall. United States v. Sadler, 29 M.J. 370 (C.M.A.1990).

We also set aside the findings of guilty as to the two Specifications under Charge III, alleging violations of a lawful order governing the use of a government vehicle. It was alleged, and proved, that appellant misused his government vehicle throughout his liaisons with these high school girls. There is, however, no evidence in the record from which we can infer beyond a reasonable doubt that appellant had actual knowledge of the contents of paragraph 1002, District Order P11240.6c dated 1 December 1986, which governed the use of government vehicles by Marine recruiters in his recruiting district. This order was not a general order or regulation, and to convict appellant for violating its provisions as an other lawful order, the Government had to show that appellant had knowledge of its contents. It failed to prove that knowledge. Article 66, UCMJ, Paragraph 16c(2)(c), Part IV, MCM.

The Specification under Charge II alleges a conspiracy by appellant with Staff Sergeant Llewellyn to commit the following offenses: adultery between Llewellyn and M.B., appellant’s wrongful sexual intercourse with the young women, purchasing alcohol for individuals under 21, and using a government vehicle for matters of personal convenience in violation of a lawful District order. While the evidence at trial showed that appellant committed the overt acts alleged, we find that the evidence is insufficient to prove beyond a reasonable doubt that a prior agreement between appellant and Llewellyn existed to commit the criminal offenses alleged. While a conspiratorial agreement need take no particular form or be manifested in any formal words, and is generally established by circumstantial evidence as manifested by the conduct of the parties themselves, see United States v. Matias, 25 M.J. 356 (C.M.A.1987), in the absence of sufficient evidence which constitutes proof beyond a reasonable doubt that an agreement existed between the alleged conspirators to commit the overt acts and realize the criminal ends of the conspiracy, the Charge and Specification must fall. Article 66, UCMJ.

Accordingly, we affirm only those findings of guilty pertaining to Charge Y, Specification 1, a violation of UCMJ, Article 125, and Charge VI, Specification 1, a violation of UCMJ, Article 134, alleging that appellant made false statements under lawful oath. The remaining findings of guilty are set aside and those charges and specifications are dismissed. The sentence is also set aside but a rehearing on sentence is authorized. The record of trial is returned to the Judge Advocate General of the Navy for proper disposition.

Judge LANDEN, concurs.