United States v. Zander

46 M.J. 558, 1997 CCA LEXIS 85, 1997 WL 139371
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedFebruary 28, 1997
DocketNMCM 95 01265
StatusPublished
Cited by5 cases

This text of 46 M.J. 558 (United States v. Zander) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Zander, 46 M.J. 558, 1997 CCA LEXIS 85, 1997 WL 139371 (N.M. 1997).

Opinion

OLIVER, Judge:

A military judge, sitting as a general court-martial, tried the appellant on various dates in July, August, and September 1994. The court convicted him, pursuant to his pleas, of two specifications of making a false official statement, twenty specifications of conduct unbecoming an officer and gentleman, and two specifications of wealing unauthorized awards in violation of Articles 107, 133, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 907, 933, and 934 (1994) [hereinafter UCMJ], respectively. The court sentenced him to confinement for 7 years, forfeiture of all pay and allowances, and a dismissal. On 28 April 1995 the convening authority approved the sentence. However, pursuant to the terms of the pretrial agreement, the convening authority suspended confinement in excess of 120 days and forfeitures in excess of $750.00 pay per month for 4 months for a period of 12 months from the date of trial. The appellant has raised six assignments of error on appeal.1 After care[560]*560fully considering the record of trial and the briefs of the parties, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

Assignment of Error I

The appellant contends in his first assignment of error, as he did at trial, that Charge II and the 20 specifications thereunder failed to state an offense under Article 133, UCMJ, 10 U.S.C. § 933.

The military judge disagreed, contending that the gravamen of the offenses charged was the appellant’s false representation, at each of these 20 courts-martial, that he was fully qualified to represent his clients as alleged. Record at 27-28. We agree with the military judge’s analysis and reject the appellant’s claim. We have no difficulty concluding that the specifications under Charge II stated an offense. A'ticle 133, UCMJ, 10 U.S.C. § 933, contains only two elements: “(1) That the accused did or omitted to do certain acts; and (2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.” Manual for Courts-Martial, United States (1995 ed.), Part IV, 1159b [hereinafter MCM],

The 20 specifications under Charge II allege that the appellant wrongfully and dishonorably represented to various courts-martial that he was fully qualified to serve as a defense counsel. Such dishonesty violates the standards expected of an officer and a gentleman. See United States v. Czekala, 38 M.J. 566, 574-75 (A.C.M.R.1993), aff'd, 42 M.J. 168 (1995); see also United States v. Bilby, 39 M.J. 467, 469-70 (C.M.A.1994), cert. denied,—U.S.-, 115 S.Ct. 724, 130 L.Ed.2d 629 (1995). During the providence inquiry, the appellant admitted that he purposefully represented to each court-martial that he was certified, knowing full well on each occasion that he had obtained the certification fraudulently. This was because he had represented to the Commandant of the Marine Corps that he was a member of the California bar, when he knew that he was not. As a result, the appellant admitted at trial that these fraudulent representations and his failure to take steps to correct the misperception violated his “duty as a Marine Corps officer.” Record at 133-34; see also Prosecution Exhibit 1 at 3 (Stipulation of Fact, stating: “Captain Zander’s misrepresentations regarding his Article 27(b), UCMJ, qualifications as reflected in each specification under Charge II, were wrongful and dishonorable, and the making of such false representations amounted to conduct unbecoming an officer and a gentleman.”). Therefore, this assignment of error is without merit.

Assignment of Error II

The appellant next contends that this court should dismiss Charge II and its 20 specifications because they are fatally void-for-vagueness. In his brief he claims that somehow he “could not reasonably understand that [the UCMJ proscribed] his contemplated conduct.” Brief and Assignments of Error on Behalf of Appellant at 12 (citing Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974)). He alleges that “the Government invented the offense after appellant acted.” Id. at 14. Once again, we agree with the military judge’s ruling, and find no merit in the appellant’s argument. Record at 27-29.

In 1974, the Supreme Court held that Article 133, UCMJ, is not itself void-for-vagueness. Parker, 417 U.S. at 752-57, 94 S.Ct. at 2559-62. A specification alleging a violation of Article 133, UCMJ, 10 U.S.C. § 933, is adequate for criminal prosecution if sufficient facts are pled which could reasonably be found to constitute conduct unbecoming an officer. United States v. Nowell, 26 M.J. 477, 480 (C.M.A.1988); see United States v. Sell, 3 C.M.A. 202, 11 C.M.R. 202, 206, 1953 WL 2005 (1953). In “determining the vagueness of a military disciplinary statute” under Article 133, 10 U.S.C. § 933, one must analyze the alleged misconduct “to determine whether it is disgraceful and cona[561]*561promising as contemplated by the statute.” United States v. Van Steenwyk, 21 M.J. 795, 801-02 (N.M.C.M.R.1985). Criminal responsibility will attach where a reasonable man under the circumstances could reasonably understand that the statute proscribed that kind of conduct. Id. at 801. The question is whether the appellant had sufficient reason to know that his repeated dishonest statements during courts-martial proceedings, alleging that he was qualified to represent his clients, constituted a violation of the Uniform Code of Military Justice.

We have no doubt that this was true. Indeed, Captain Zander admitted it. During the providence inquiry he stated that his actions in this regard were “inherently wrong, sir. It’s just plain morally wrong. It’s beneath the conduct that’s expected of a Marine Corps officer.” Record at 135. Shortly thereafter, he told the military judge: “[CJertainly, in each of the 20 court-martials [sic] I served as a defense counsel in, [I committed] conduct that’s unbecoming an officer. It falls below the moral standard that is expected of an officer. It’s dishonest and disreputable.” Record at 136. Captain Zan-der knew that he was perpetrating a fraud on the U.S. Marine Corps and the courts-martial in which he represented his clients. Particularly since he was a law-school graduate, we conclude that the appellant had more than adequate notice to realize that his actions were criminal. Therefore, this assignment of error is without merit.

Assignment of Error III

The appellant next contends that prosecution of the 20 specifications under Charge II are barred by the statute of limitations.

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

Related

United States v. Johnson
Navy-Marine Corps Court of Criminal Appeals, 2022
United States v. Major KENDALL M. AMAZAKI, JR.
67 M.J. 666 (Army Court of Criminal Appeals, 2009)
United States v. Sills
56 M.J. 556 (Air Force Court of Criminal Appeals, 2001)
United States v. Quintanilla
52 M.J. 839 (Army Court of Criminal Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
46 M.J. 558, 1997 CCA LEXIS 85, 1997 WL 139371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zander-nmcca-1997.