United States v. Pope

63 M.J. 68, 2006 CAAF LEXIS 452, 2006 WL 1006415
CourtCourt of Appeals for the Armed Forces
DecidedApril 14, 2006
Docket05-0077/AF
StatusPublished
Cited by16 cases

This text of 63 M.J. 68 (United States v. Pope) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pope, 63 M.J. 68, 2006 CAAF LEXIS 452, 2006 WL 1006415 (Ark. 2006).

Opinions

Judge BAKER

delivered the opinion of the Court.

After a contested general court-martial before members, Appellant, a recruiter, was convicted of a variety of offenses relating to inappropriate and unprofessional conduct with prospective applicants. The findings of guilt included four specifications of violating a lawful general regulation, one specification of maltreatment, and two specifications of assault, in violation of Articles 92, 93, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 893, and 928 (2000), respectively. The adjudged and approved sentence included a bad-conduct discharge, confinement for fifteen months, forfeiture of all pay and allowances and reduction to airman basic (E-l). The United States Air Force Court of Criminal Appeals affirmed in an unpublished decision. United States v. Pope, No. ACM 34921, 2004 CCA LEXIS 204, 2004 WL 1933210 (A.F.Ct.Crim.App. Aug. 30, 2004). We granted review of the following three issues upon Appellant’s petition:

I. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT APPELLANT OF SPECIFICATIONS 2, 3, AND 4 OF CHARGE I (VIOLATION OF A DIRECTIVE PROHIBITING SEXUAL HARASSMENT) BEYOND A REASONABLE DOUBT.

II. WHETHER AIR EDUCATION AND TRAINING INSTRUCTION 36-2002, PARA. U.2.2.5. (PROHIBITING INAPPROPRIATE CONDUCT AND UNPROFESSIONAL RELATIONSHIPS) BOTH FACIALLY AND AS APPLIED TO APPELLANT VIOLATES DUE PROCESS AND IS UNCONSTITUTIONALLY VOID FOR VAGUENESS.

III. WHETHER THE MILITARY JUDGE ERRED WHEN SHE ADMITTED OVER DEFENSE OBJECTION, A PROSECUTION EXHIBIT OFFERED AS SENTENCING AGGRAVATION EVIDENCE THAT ARGUED AIR FORCE CORE VALUES AND ENDORSED “HARSH ADVERSE ACTION” FOR THOSE WHO COMMITTED APPELLANT’S OFFENSES. [70]*70For the reasons that follow, we hold the evidence was legally sufficient to support Appellant’s convictions. Further, we hold that the challenged instruction was not unconstitutionally vague and that it provided sufficient notice to Appellant that his conduct was subject to criminal sanction in the context of a recruiter’s relationship with applicants. Finally, we conclude that the military judge admitted an impermissible command view on punishment during presenteneing. Consequently, a rehearing on sentence is authorized.

BACKGROUND

Appellant was a thirty-five-year-old staff sergeant assigned to the 331st Recruiting Squadron at Maxwell Air Force Base, Gunter Annex, in Alabama. Appellant completed recruiter training and graduated from “Recruiter Technical School” on June 1, 2000. In response to a number of incidents of sexual harassment by Air Force recruiters, each graduating class of recruiters, including Appellant’s, was briefed about the problem of sexual misconduct and informed of the consequences if they engaged in such misconduct. Each recruiter was additionally given a letter signed by Brigadier General Peter U. Sutton, Commander of the Air Force Recruiting Service, stating that if they failed to treat applicants respectfully and professionally, they “should not be surprised when, once you are caught, harsh adverse action follows.”

After completing processing at Maxwell, Appellant was sent to a recruiting field office in Athens, Georgia.

A. Appellant’s conduct with applicant J.R.B.1

J.R.B. first met Appellant at the recruiting office in Athens around September 2000 when she was a seventeen-year-old senior in high school. Appellant initially offered her food and started taking her information. When J.R.B. told Appellant she was an artist, Appellant mentioned that he needed some art for his apartment and stated that he would like to see her artwork. WHiile J.R.B. did not think Appellant expressly stated that he wanted her to come to his apartment, she believed that he implied it. Nothing else unusual happened during this first encounter.

J.R.B. met with Appellant a second time at a recruiting fair outside her school cafeteria. Appellant called out her name and asked that she come to his booth. J.R.B. complied, and the two discussed whether rules in the Air Force were less strict than in the Marines. During the conversation J.R.B. asked whether her eyebrow ring would be permitted in the Air Force. Appellant, referring to the eyebrow ring, commented, “[tjhat’s driving me crazy, that [sic] so sexy.” J.R.B. reported the incident to her French teacher.

At trial, J.R.B. testified that she did not feel intimidated by Appellant, but felt extremely uncomfortable and that after his comments, her “skin was crawling” and she “was all shaky.” Upon defense counsel questioning, J.R.B. also testified that Appellant never asked her out on a date.

B. Appellant’s conduct with applicant P.M.B.2

P.M.B. was sixteen years old when she first met Appellant at the recruiting office in October 2000. Appellant commented that [71]*71she was “pretty” and also that she had “a lot going for [her].” On one occasion when P.M.B. was riding back with Appellant in his car from an Air Force entrance exam, he again commented that she was pretty and placed his hand around her knee area for a couple of seconds. P.M.B. testified that Appellant’s actions could have been done in a conversational way, but that his actions made her feel uncomfortable and intimidated.

C. Appellant’s conduct with applicant A.D.R.3

A.D.R. was eighteen years old when she first met Appellant at the recruiting office in July 2000. A.D.R. testified at trial that Appellant was professional initially, but then he started to get uncomfortably personal. Appellant inquired why A.D.R. did not have a boyfriend and why her past relationships with boyfriends had failed. Appellant began looking at his computer, and when A.D.R. asked what he was looking at, Appellant stated it was a picture, but “not the kind you take home to your grandmother.” Appellant repeatedly told A.D.R. that he wanted her to come over to his house at nighttime to take pictures of her, and A.D.R. testified at trial that as she got up to leave, Appellant “lookfed] her up and down.” She also testified that his comments made her “very uncomfortable” and that she never retened to the recruiting office.

DISCUSSION

A. Sufficiency of the evidence

Regarding his conduct with the three applicants mentioned above, the Government charged Appellant with violating paragraphs 1.1.2.2.5. and 1.1.2.2.5.5. of Ah’ Education and Training Command, Instr. 36-2002, Recruiting Procedures for the Air Force (Apr. 18, 2000) [hereinafter AETCI 36-2002].4 Appellant renews his argument before this Court that the evidence was not legally sufficient to support his conviction.

In determining whether the evidence is legally sufficient, we “‘view[] the evidence in the light most favorable to the prosecution’ ” and decide whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Brown, 55 M.J. 375, 385 (C.A.A.F.2001) (quoting Jackson v. Virginia, 443 U.S. 307

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Matti
Court of Appeals for the Armed Forces, 2026
United States v. Folts
Air Force Court of Criminal Appeals, 2024
United States v. Edwards
Court of Appeals for the Armed Forces, 2022
United States v. Da Silva
Air Force Court of Criminal Appeals, 2020
United States v. Branson
Air Force Court of Criminal Appeals, 2019
United States v. Staff Sergeant JASON A. LOPEZ
Army Court of Criminal Appeals, 2019
United States v. Bodoh
Court of Appeals for the Armed Forces, 2019
United States v. Jerkins
Court of Appeals for the Armed Forces, 2018
United States v. Allen
Air Force Court of Criminal Appeals, 2017
United States v. Hill
Air Force Court of Criminal Appeals, 2017
United States v. Frias
Air Force Court of Criminal Appeals, 2015
United States v. Leblanc
74 M.J. 650 (Air Force Court of Criminal Appeals, 2015)
United States v. Baldwin
Navy-Marine Corps Court of Criminal Appeals, 2014
United States v. Caporale
73 M.J. 501 (Air Force Court of Criminal Appeals, 2013)
Aguilar-Turcios v. Holder
691 F.3d 1025 (Ninth Circuit, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 68, 2006 CAAF LEXIS 452, 2006 WL 1006415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pope-armfor-2006.