United States v. Brown (2023)

As relevant here, Congress has broadly criminalized any conduct by an enlisted servicemember that “treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office.” Article 91, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891 (2018). Absent any narrowing construction by the President, this broad language likely would proscribe Appellant's actions in this case. Nevertheless, the elements and explanation of Article 91, UCMJ, promulgated by the President in the Manual for Courts-Martial, United States (2019 ed.) (Manual or MCM), require that the accused perform his disrespectful act within the sight or hearing of the victim for the conduct to be criminal. MCM pt. IV, para. 17.b.(3)(c). Because the record contains no evidence that Appellant's disrespectful behavior occurred within the sight or hearing of the alleged victims, I would hold that the United States Coast Guard Court of Criminal Appeals (CGCCA) should be reversed as to Specifications 1, 2, and 4 of Charge I, and that the findings of guilty with respect to those three specifications should be set aside and dismissed. 1

I. The President's Elements to Article 91(3), UCMJ, Control the Analysis

The granted issue in this case asks whether Appellant's convictions under Article 91(3), UCMJ, were legally insufficient because there is no evidence that his disrespectful behavior occurred “within the sight or hearing” of the victims. MCM pt. IV, para. 17.b.(3)(c). This so-called “presence” requirement does not appear in the text of Article 91(3), UCMJ, but rather is an element of the offense that the President has specified in the Manual. This raises the interesting question—briefed extensively by the parties—whether the President has the authority to narrow a statutory offense by adding elements that must be proven beyond a reasonable doubt beyond those requirements expressly stated by Congress in the text of the article.

In its briefs, the Government argues that we need only consider the text of Article 91(3), UCMJ, to determine the legal sufficiency of Appellant's convictions without any consideration of the President's elements presented in the Manual. The Government contends that the President's guidance—issued pursuant to an express delegation of authority from Congress in Article 36, UCMJ, 10 U.S.C. § 836 (2018), and through the President's inherent constitutional authority as commander-in-chief, U.S. Const. art. II, § 2, cl. 1—can be ignored unless it unambiguously narrows the scope of the offense's statutory language. The Government abandoned this line of reasoning at oral argument conceding that it must prove every element enumerated by the President in the Manual to convict a servicemember of an offense under the UCMJ. 2 In light of the Government's concession, it is no longer strictly necessary to answer this question to decide this case. Nevertheless, given the importance of this threshold question and the extensive briefing already presented in this case, I think it is worth considering whether the President's elements are relevant to the legal sufficiency of Appellant's challenged offenses.

Possibly the best support for the Government's argument comes from an opinion from our predecessor Court stating that “the President's rule-making authority does not extend to matters of substantive military criminal law.” Ellis v. Jacob, 26 M.J. 90, 92-93 (C.M.A. 1988). Twenty years earlier, our predecessor had similarly suggested that the President's elements may “be disregarded if they are ‘no more than an attempted addition to the statute of something which is not there.’ ” United States v. Margelony, 14 C.M.A. 55, 57-58, 33 C.M.R. 267, 269-70 (1963) (quoting United States v. Calamaro, 354 U.S. 351, 359 (1957)). Although the language in those precedents might be interpreted as suggesting that the President lacks any authority to promulgate elements narrowing the scope of a statutory criminal offense (because doing so exceeds the scope of the delegation of authority made to the President by Congress in Article 36, UCMJ), I do not believe that that is the best reading of those cases.

I read those precedents as only holding that the President lacks the authority to create new criminal offenses or to expand the scope of the statutory offenses enacted by Congress. This reading has two benefits. First, it does not call into question the past seven decades of military justice practice during which the President's elements have defined how the government establishes guilt for crimes prosecuted under the UMCJ. And second, this reading is consistent with our precedent, where we have permitted the President to narrow—but not to expand—the applicable scope of the statutory UCMJ offenses. See, e.g., United States v. Jenkins, 7 C.M.A. 261, 262, 22 C.M.R. 51, 52 (1956) (refusing to enforce the President's expansion of Article 83, UCMJ, to include inductees); United States v. Rushlow, 2 C.M.A. 641, 644, 10 C.M.R. 139, 142 (1953) (refusing to enforce the President's guidance that a contingent purpose to return qualifies as an intent to remain away permanently for the purpose of Article 85, UCMJ). But whether or not Article 36, UCMJ—or possibly the commander-in-chief clause of the Constitution—grants the President authority to promulgate additional elements to statutory UCMJ offenses, I believe that there is a greater constitutional concern that would prevent this Court from disregarding the President's guidance in the Manual.

This Court has long held that “[w]here the President's narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, ‘we will not disturb the President's narrowing construction, which is an appropriate [e]xecutive branch limitation on the conduct subject to prosecution.’ ” United States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998) (quoting United States v. Davis, 47 M.J. 484, 486-87 (C.A.A.F. 1998)). In my view, the deference the Court gives the President in these matters is not simply a courtesy but is also necessary to uphold fundamental principles of notice and due process.

The Supreme Court has explained that “[t]he essence of due process is the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976) (second alteration in original) (internal quotation marks omitted) (citation omitted). Accordingly, our predecessor Court recognized that “[a]n accused must be on notice that his conduct is unlawful and that the article fairly informs ‘that particular conduct which he engaged in was punishable.’ ” United States v. Guerrero, 33 M.J. 295, 297 (C.M.A. 1991)) (quoting Parker v. Levy, 417 U.S. 733, 755 (1974)). Requiring the government to prove every element as enumerated and explained by the President is necessary to protect servicemembers’ due process rights by ensuring that they bear no criminal liability for conduct that the President has publicly and officially deemed noncriminal in the Manual.

Servicemembers are justified in relying on the President's guidance for fair notice of what conduct is criminal under the UCMJ for two reasons. First, the President issued and updates the Manual via executive order pursuant to express statutory authority under Article 36, UCMJ. 3 When the President issues an executive order “pursuant to a mandate or a delegation of authority from Congress” that order has “the force and effect of laws.” Farmer v. Philadelphia Elec. Co., 329 F.2d 3, 7 (3d Cir. 1964); see also Maryland Casualty Co. v. United States, 251 U.S. 342, 349 (1920) (noting that it is a settled principle of law that “a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of Congress ․ has the force and effect of law if it be not in conflict with express statutory provision”). Because Congress has delegated to the President the authority to prescribe regulations for courts-martial, and because all the actors in the military justice system are members of the executive branch to whom the President's executive order lawfully applies, the President's guidance is legally binding on the military justice system. 4

Second, when the President enumerates elements in the Manual, he is informing the military community what conduct is criminal under the UCMJ pursuant to his inherent constitutional authority as commander-in-chief. The President's enumeration of criminal elements is an exercise of prosecutorial discretion that functions as a lawful order to commanders and trial counsel, that they must prove every element before an accused can be convicted of an offense by courts-martial. As the Government conceded at oral argument, see supra note 2 and accompanying text, it has no authority to deviate from the President's elements when charging servicemembers with crimes under the UCMJ. Servicemembers are thus fully justified, for notice and due process purposes, in relying on the President's lawful order to describe the scope of conduct considered criminal under the UCMJ.

The President's guidance in the Manual puts all servicemembers on notice of what conduct is proscribed and what must be proven to put their personal liberty in jeopardy. Even if this Court were eventually to decide that Article 36, UCMJ, does not authorize the President to promulgate elements for the UCMJ offenses, convicting a servicemember for conduct that fell outside the scope of conduct described by the President in the Manual would still violate the servicemember's fundamental due process rights because under the current state of the law, servicemembers are entitled to rely on the President's orders—as published in the Manual—until and unless those orders are declared to be unlawful.

II. Legal Sufficiency of Appellant's Convictions Under Article 91(3)

I turn now to the granted question in this case, whether Appellant's challenged convictions under Article 91, UCMJ, were legally insufficient. Specification 1 alleged that Appellant engaged in disrespectful conduct “by modifying a digital photograph of Chief Petty Officer [J.D.] to include a depiction of male genitalia on his head and distributing it to the POLAR STAR Chief's Mess.” (Emphasis added.) Specification 2 alleged that Appellant engaged in disrespectful conduct “by modifying a digital image of Chief Petty Officer [S.C.]’s high school yearbook photograph to include the phrase ‘[v]oted most likely to steal your bitch’ and distributing it to the POLAR STAR Chief's Mess.” (Second alteration in original.) (Emphasis added.) Specification 4 alleged that Appellant engaged in disrespectful conduct “by sending a digital image of a scantily clad male to the POLAR STAR Chief's Mess and alleging that the scantily clad male was the reason Senior Chief Petty Officer [K.B.] was unable to attend a Chief's Call, or words to that effect.” (Emphasis added.) Applying the President's elements, the question presented can be broken down into two components. First, whether Appellant's disrespectful behavior was “used toward and within sight or hearing” of the named petty officers.’ MCM pt. IV, para. 17.b.(3)(c). And second, whether those petty officers were “then in the execution of office” when Appellant committed the disrespectful acts. MCM pt. IV, para. 17.b.(3)(e).

A. The Elements of Article 91(3) Must Be Satisfied Simultaneously

I agree with Chief Judge Ohlson that the language of Article 91(3)’s elements mandates that those elements be satisfied simultaneously for the accused's conduct to be criminal, and therefore agree that Appellant's convictions as to Specifications 2 and 4 of Charge I should be reversed. Brown, __ M.J. at __ (9-11). I believe, however, that there is a more straightforward means of resolving this case under which Appellant's convictions as to Specifications 1, 2, and 4 of Charge I should be reversed.

B. Appellant's Disrespectful Behavior Was Not Performed Within the Sight or Hearing of the Named Petty Officers

As applicable here, to convict Appellant of the charged Article 91(3) offenses, the Government was required to prove, inter alia: “[t]hat the accused did ․ certain acts” and “[t]hat such behavior ․ was used toward and within sight or hearing” of the named petty officers. MCM pt. IV, para. 17.b.(3)(b)-(c). The most straightforward meaning of the requirement that the disrespectful behavior must occur “within the sight or hearing” of a certain petty officer is that the accused must have committed disrespectful acts at a time when, and in a place where, the petty officer could see or hear the accused commit the disrespectful acts. In this case, the Government did not prove that Appellant committed the charged disrespectful acts—“modifying,” “distributing,” and “sending” photos and messages—at times when, and in places where, the named petty officers could see or hear Appellant commit these disrespectful acts. Therefore, the evidence did not show that these disrespectful acts occurred “within the sight or hearing” of the named petty officers.

To be sure, the disrespectful messages that Appellant sent did reach and were eventually viewed by the chief petty officers. But those disrespectful messages were the product of Appellant's disrespectful acts, not the acts of “modifying,” “distributing,” or “sending” with which Appellant was charged. For these reasons, I find the evidence to be legally insufficient to prove Appellant guilty of disrespectful deportment in violation of Article 91(3), UCMJ, under the elements specified by the President.

This interpretation of Article 91(3), UCMJ's elements may seem overly strict, but I am unaware of any case before today in which this Court affirmed a finding that an accused was guilty of an offense under Article 91(3), UCMJ, where the accused engaged in disrespectful behavior at a time when, or in a place where, the disrespected warrant, noncommissioned, or petty officer could not see or hear that behavior. Moreover, as noted by Chief Judge Ohlson, “it is not the role of this Court to expand the reach of either statutory language passed by Congress or elements of the articles promulgated by the President in order to avoid anomalous or undesirable results.” Brown, __ M.J. at __ n.8 (9 n.8). Nor do I mean to suggest that I believe—as Appellant argues—that the elements of Article 91(3), UCMJ, impose a physical presence requirement. Modern communications technology might bring an accused's conduct “within the sight or hearing” of the accused's intended victim. Nevertheless, when the government charges an accused with committing disrespectful acts—as it did in this case—the government must prove that those acts were committed “within sight or hearing” of the victim. MCM pt. IV, para. 17.b.(3)(b). Because the Government failed to do so in this case, the findings of guilty with respect to Specifications 1, 2, and 4 of Charge I are not legally sufficient.

III. Conclusion

Because the record indicates that Appellant did not create or send the disrespectful text messages within the sight or hearing of any of the alleged victims, I would hold that his Article 91(3) convictions are not legally sufficient and reverse the decision of the CGCCA with respect to Specifications 1, 2, and 4 of Charge I. 5

FOOTNOTES

1.   Putting aside the question whether an accused's conduct must be performed in the sight or hearing of the victims, I also agree with Chief Judge Ohlson that the elements and explanation of Article 91(3), UCMJ, impose a concurrency requirement on the offense, such that the conduct of an accused must occur when the target of his contempt or disrespect was in the execution of his office. United States v. Brown, __ M.J. __ , __ (9) (C.A.A.F. 2023). Because the Government introduced no evidence establishing whether the targeted petty officers in Specifications 2 and 4 of Charge I were in the execution of office when Appellant acted, I agree with Chief Judge Ohlson that the CGCCA should be reversed with respect to those two Specifications for this additional reason. Id. at __ (11).

2.   Oral Argument at 30:06-32:34, United States v. Brown (C.A.A.F. Jan. 24, 2023) (No. 22-0249).

3.   See 2023 Amendments to the Manual for Courts-Martial, United States, Exec. Order No. 14,103, 88 Fed. Reg. 50,535 (July 28, 2023) (updating the current version of the 1984 Manual); Manual for Courts-Martial, United States, 1984, Exec. Order No. 12,473, 49 Fed. Reg. 17,152 (Apr. 13, 1984) (prescribing the 1984 Manual and rescinding all previous editions).

4.   One notable exception to this rule, of course, are the judges of this Court, who enjoy the constitutionally curious status of executive branch officers who are empowered to act independently of the President because they have statutory tenure protection. See Humphrey's Ex'r v. United States, 295 U.S. 602, 632 (1935) (holding that Congress may create executive branch agencies led by a group of principal officers removable by the President only for good cause); Article 142(c), UCMJ, 10 U.S.C. § 942(c) (2018). Although the scope of Congress's authority under Humphrey's Ex'r to create independent executive branch officers has recently come under increased scrutiny, this Court's constitutional status as a multimember panel of principal officers that performs a judicial function seems secure. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2199 (2020) (describing the limits of Congress's power to create independent executive branch entities).

5.   In the alternative, I agree with Chief Judge Ohlson that Appellant's Article 91(3) convictions with respect to Specifications 2 and 4 of Charge I were not legally sufficient, and I would reverse the CGCCA with respect to those two specifications.

Judge HARDY, with whom Judge MAGGS joins with respect to Part II, concurring in part and dissenting in part.