United States v. Brown, (2023)

As noted by the lead opinion, Appellant's argument before this Court can be condensed into two prongs: (1) Do the provisions of Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), encompass those instances where an accused remotely uses digital communication technology? And if so, (2) does the victim have to be “in the execution of office” at the time the accused conveys the disrespectful language or behavior, or is it sufficient for the victim to be in the execution of office at the time the victim views or hears the disrespectful language or behavior?

First, I agree with the lead opinion that an accused servicemember can be convicted under Article 91(3), UCMJ, even if his or her disrespectful conduct occurs outside the physical presence of the victim. Under Appellant's interpretation of the elements, a servicemember could convey a disrespectful message through any medium to the victim recipient—text, telephone, mail, video communication, etc., yet avoid punishment simply because the offending sender was not physically proximate to the victim when the disrespectful conduct or language was committed or communicated. This result would plainly conflict with the article's intent and the overall statutory scheme: promoting good order and discipline via punishment of disrespect to noncommissioned officers. See Manual for Courts-Martial, United States, pt. IV, para 17.c.(1) (2019 ed.) (MCM).

My disagreement is with the lead's holding that under Article 91(3), UCMJ, the victim must be in execution of his or her office at the time the accused engages in the disrespectful conduct. For the reasons discussed below, in my view, the victim must be in the execution of his or her office at the time the victim views or hears the disrespectful conduct.

I. In the Execution of Office

In order for disrespectful conduct to be a chargeable offense, element (e) of Article 91(3), UCMJ, requires: “That the victim was then in the execution of office.” MCM, pt. IV, para. 17.b.(3)(e). From Appellant's perspective there are two parts to the “execution of office” analysis: (1) does the language of the specification focus on when Appellant sent the texts, or when the texts were read or received; and (2) is there evidence that the victims were in “ ‘execution of [their] office’ ” at the appropriate time, or at all? (Alteration in original.)

As for the first part, I conclude that the language of Article 91, UCMJ, and the specifications in this case apply to when the victims read or received the texts. The language of the statute and the elements compel me to reject the notion that the operative focus is centered on when Appellant sends the text messages. The relevant elements state that “the accused did ․ or used certain language;” “[t]hat such behavior or language was used toward and within the sight or hearing of a certain ․ petty officer;” “[t]hat the accused then knew that the person toward whom the behavior or language was directed was a ․ petty officer;” and “[t]hat the victim was then in the execution of office.” MCM pt. IV, para. 17.b.(3)(b)-(e). The important point here is that when Appellant engaged in the disrespectful conduct, he “then knew” that the victim was a noncommissioned officer and that the victim “was then” in the execution of office. 1 Id. It is tempting to read these provisions in the context of the classic situation where the target of the conduct or language instantly becomes aware of it because the offender and the victim are physically within each other's presence. However, Appellant was charged with either sending or distributing the images, and neither sending nor distributing are necessarily isolated or discrete acts occurring at one instantaneous point in time. Here, the act of sending or distributing was complete when the communications were in the possession of the recipients, i.e., when they were delivered. See e.g., Distribute, Black's Law Dictionary 508 (8th ed. 2004) (“[t]o deliver”). Thus, it is not necessary that the record reflect whether the victims were in execution of office when Appellant pressed send because it sufficiently demonstrates that Appellant knew the victims would receive and read the texts, and that they would “then” be in execution of office when doing so. See MCM pt. IV, para. 17.b.(3)(b-e).

As to the second part, this Court has held that a servicemember may be in “ ‘execution of his office when engaged in any act or service required or authorized to be done by him, by statute, regulation, the order of a superior, or military usage.’ ” United States v. Glaze, 3 C.M.A 168, 172, 11 C.M.R. 168, 172 (1953) (quoting William Winthrop, Military Law and Precedents 571 (2d ed., Government Printing Office 1920) (1895)). Given that whether one is in “execution of office” is a factual inquiry, from a legal sufficiency standpoint, we are bound by the military judge's finding as a rational trier of fact. Although there was some joking in the group text, the record indicates that the primary purpose of the group text was for official work reasons. Accordingly, when the chief petty officers participated in the group chat, they were in effect working. See e.g., Glaze, 3 C.M.A. at 172, 11 C.M.R. at 172 (finding that the victim noncommissioned officer was in “execution of his office” when in charge of a supply tent despite simultaneously fraternizing and drinking alcohol with other noncommissioned officers); see generally United States v. Diggs, 52 M.J. 251, 256 (C.A.A.F. 2000) (supporting the notion that a servicemember need not be explicitly on duty in order to be in “execution of his office”); United States v. Nelson, 17 C.M.A. 620, 622-23, 38 C.M.R. 418, 420-21 (1968) (concluding an officer “in execution of his office” despite being off-duty and wearing civilian clothes when stopping two drunk soldiers from causing a scene in public).

Appellant is correct, however, that there is a temporal requirement relating to the disrespectful conduct or language occurring “within sight or hearing” of the victim and whether the victim is in “ ‘execution of [their] office,’ ” as those two conditions must occur contemporaneously. The question here is whether the military judge, could have reasonably inferred that the victims read the text messages within a reasonable time after Appellant pressed “send.” 2

II. Application

a. Senior Chief Petty Officer (SCPO) K.B.

Prosecution Exhibit 9 indicates that Appellant sent the image to SCPO K.B. at 7:39 PM. The exhibit displays SCPO K.B.’s comments regarding his having missed a previous chiefs’ meeting. Beneath his comment is the offending image sent by Appellant at 7:39 PM. SCPO K.B. confirmed that he received the text after working hours but did not respond to the sent image. However, SCPO K.B. testified that he found the image funny at the time he received it, presumably shortly after 7:39 PM. Given the importance he and the others placed on checking their phones regarding the group texts, his testimony supports the conclusion that he checked his phone a relatively short time after the text was sent. Thus, after viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found SCPO K.B. was in the execution of his office at the time he saw the text message. See Wilson, 76 M.J.at 6. Accordingly, I dissent from the lead's holding to the contrary and would affirm Appellant's conviction for this offense.

b. Chief Petty Officer (CPO) J.D.

I agree with the lead opinion that CPO J.D. was in the execution of his office, albeit based on a different interpretation, when he opened the group text while being down at the dry dock. Accordingly, I concur that we should affirm Appellant's conviction pertaining to CPO J.D.

c. CPO S.C.

As for CPO S.C., she testified that her light duty status prevented her from joining the crew while the ship was in dry dock. Nonetheless, she still felt obligated to carry out her duties as a chief petty officer. That included checking her phone when it notified her that a text from the chiefs’ group had been received. However, even under my view and considering her response (Defense Exhibit A) to the image from her high school yearbook (Prosecution Exhibit 5) posted by Appellant, it is difficult to conclude the evidence is sufficient with respect to the allegation pertaining to her. Here, unlike with SCPO K.B., it is unknown when CPO S.C. opened the text message in question. Accordingly, I concur with the lead opinion that we should set aside and dismiss this specification.

FOOTNOTES

1.   Appellant does not challenge that he “knew” the victims were petty officers.

2.   Consider the following example. A servicemember leaves a disrespectful picture on a noncommissioned officer's desk early in the morning before the victim is at work, but the offender knows the victim will be there shortly as it is the victim's appointed place of duty. The offender caused the disrespectful picture to be within sight of the victim despite not being physically or temporally proximate. However, the victim saw the picture upon coming to the desk and was thus in the “execution of office” at that time. This scenario is no different than the case at hand, despite the technological differences.

Judge SPARKS, concurring in part and dissenting in part

Judge SPARKS, with whom Judge Johnson joins, concurring in part and dissenting in part.