United States, Appellee
v.
Daniel J. SAUNDERS, III, Specialist
U.S. Army, Appellant
No. 02-0784
Crim. App. No. 9900899
___________________________________________________________
_____
United States Court of Appeals for the Armed Forces
Argued February 5, 2003
Decided July 16, 2003
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Mary E. Card (argued);
Colonel Robert D. Teetsel, and Major Imogene M. Jamison (on
brief); Lieutenant Colonel E. Allen Chandler, Jr.
For Appellee: Captain Janine P. Felsman (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines,
and Major Jennifer H. McGee (on brief).
Military Judge: Donna M. Wright
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Saunders, No. 02-0784/AR
JUDGE BAKER delivered the opinion of the Court.
Appellant was tried by members at a general court-
martial in Wuerzburg, Germany. Contrary to his pleas,
Appellant was convicted of attempted rape, failing to obey
a no-contact order issued by his company commander (five
specifications), forcible sodomy, assault consummated by a
battery (three specifications), unlawful entry, and
"harassment" in violation of Articles 80, 92, 125, 128, and
134, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. §§ 880, 892, 925, 928, 934, respectively. The
adjudged and approved sentence provided for a bad conduct
discharge, confinement for three years, total forfeitures,
and reduction to the lowest enlisted grade.
The Army Court of Criminal Appeals dismissed the words
“wrongfully calling” from the Article 134 harassment
specification as redundant, but otherwise affirmed the
findings and sentence. United States v. Saunders, 56 M.J.
930 (A. Ct. Crim. App. 2002).
We granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY
UPHOLDING THE CONVICTION FOR HARASSMENT UNDER ARTICLE
134, AS THE SPECIFICATION FAILS TO STATE AN OFFENSE.
We hold that the Court of Criminal Appeals did not
err and, therefore, we affirm.
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BACKGROUND
Appellant was charged with harassment for a course of
conduct over a six-month period. This conduct was itself
preceded by a consensual relationship with H. As a result,
some factual detail is necessary in order to consider and
evaluate the legal issue raised.
In January 1998, Appellant met and began dating H, a
German national, while he was stationed in Germany. Three
months later, she accepted his proposal of marriage.
However, no date was set for the wedding because Appellant
was already married and needed to obtain a divorce from his
current wife.
H testified that over the next few months, Appellant
became “possessive” of her and began calling her daily,
following her, and always wanting to be with her. In
September 1998, H told Appellant that she wanted to break
off the relationship and “just be friends.” Appellant
refused to accept this arrangement and continued to visit
daily, always wanting to “hug and kiss [H]” when he
visited. He also called H at all hours of the day and
night, both at home and at work. H testified that
Appellant was “terrorizing” her with his telephone calls
and that she “felt very uneasy.” At one point, Appellant
called H at work from the telephone in her own apartment.
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United States v. Saunders, No. 02-0784/AR
Appellant admitted to H that he entered her apartment
during this time period, using emergency keys that were
kept hidden outside. H testified that she had lent
Appellant her own keys on different occasions when they
were dating and that he knew where she kept the emergency
keys from having seen her use them. However she stated
that she had not given him permission to use or copy the
emergency keys. When Appellant was later searched prior to
entering pretrial confinement, keys to H’s apartment and
building were found under the insole of his shoe.
In January 1999, Appellant visited H, and H told him
that she didn’t want to see him anymore. In response,
Appellant locked himself in her kitchen and attempted to
cut his wrists with a knife. H apparently persuaded him to
desist and agreed to exercise with him occasionally at the
gym. According to her, Appellant “calmed down” after that
but continued to call H “too many times to be friends,”
including calling her repeatedly in the middle of the
night. On one occasion, when H did not answer his late
night calls, Appellant came to her door at 3:00 a.m. H let
him in, again told him that she did not want to see him,
and Appellant again locked himself in the kitchen,
threatening suicide. Despite Appellant’s conduct and H’s
January 1999 statement that she did not want to see him
4
United States v. Saunders, No. 02-0784/AR
anymore, H testified on cross-examination that she had
consensual sex with Appellant in February.
In mid March, H went to her parents’ home in
Reichenbach because, according to her, she “just couldn’t
take it any more with all this psycho-terror, and [she]
just had to get away, and so [she] went home to escape.”
Appellant then called her at her parents’ home on a
weekend, saying that he was lost nearby and needed
directions. He later came to her parents’ house. While H
testified she had given Appellant her parents’ telephone
number, she had never told him how to get to their home.
On March 21, Appellant left a note on H’s door saying
that he was going to commit suicide by taking pills. This
convinced H to file a report with the American military
police detailing Appellant’s prior conduct toward her. She
later testified that she had previously attempted to get
help from the German police based on Appellant’s prior
acts, but had been told that they could not help her “at
that point.” When H returned home from filing her report,
Appellant was in a car at her apartment with three empty
pill bottles. H testified about the encounter as follows:
[I told him] that I made a police report, and he
begged me to drop the charges. And he promised me
that he would never bother me again, if that’s what I
really wanted. I said, “Yes.” . . . And he promised
me he would, and so I called-I called again, and I
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United States v. Saunders, No. 02-0784/AR
asked them to drop the charges, but they told me it
was already too late.
Sergeant (SGT) Gilman, the Company NCO contacted by H,
informed Appellant’s Company Commander, Captain (CPT)
Powers, about her statement. CPT Powers then spoke with
the battalion commander about Appellant’s apparent suicidal
gesture and Appellant was subsequently admitted to
Landstuhl hospital for a week. Appellant also called H
from the hospital.
Following his release from the hospital on March 29,
Appellant returned to his unit and was put on convalescent
leave for 72 hours based on the recommendation of the
hospital psychiatrist. Appellant visited H again on March
29, claiming to want to return a badminton racket that she
had given him. Not wanting Appellant in her apartment, H
went to meet him at the gate. However, Appellant followed
her back to her door and entered the apartment. Appellant
stayed briefly, telling H that he did not want to kill
himself. Afterwards, H made repeated calls to SGT Gilman
asking him to tell Appellant to leave her alone.
A written no-contact order was issued to Appellant on
March 31 by CPT Powers. The order stated that Appellant
should have no physical or written communication with H and
that he should not telephone her apartment, workplace,
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United States v. Saunders, No. 02-0784/AR
friends, or parents. CPT Powers discussed the order with
Appellant.
During the first weeks of April, despite the no-
contact order, Appellant continued to contact H, leaving
her notes and calling repeatedly. Around April 8,
Appellant left a message on H’s answering machine asking
her to return a diamond ring that he had given her. H went
to her parents’ home that weekend and returned on April 11
to find that her car had been scratched and that a diamond
ring Appellant had given her was missing from her
apartment, along with copies of her reports to the military
police and SGT Gilman’s telephone number. H went to
complain to SGT Gilman personally, and when she returned,
Appellant called again and then came to her apartment.
This time, H did not let him in the apartment. H’s brother
was with her at the time and she asked him to tell
Appellant to leave.
Appellant continued to come by H’s apartment almost
every day between April 11 - 23. On April 23, H returned
home to find two telephone messages from Appellant. He
then came by the apartment asking her to let him in, but H
refused and spoke to him through the door. Appellant told
her that he would use his own key if she refused to let him
in and showed her a key. Appellant demanded that she
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United States v. Saunders, No. 02-0784/AR
return letters that he had written as well as gifts he had
given her. H testified that she put the items in a bag and
dropped them off her balcony to Appellant, and then refused
to speak with him further.
About an hour later, H’s electricity went out. When
she went downstairs to check her fuse box, she found
Appellant hiding behind a door near her fuse box in the
basement. He put his hands around her neck, but did not
squeeze. When H began to cry and told Appellant to go
away, he grabbed her wrist and pulled her up the stairs and
forced her keys out of her hand. Appellant then told H he
was hungry and asked for some food. H gave him some chips
and dip, the first thing that she could find. Appellant
asked H if they should wash the dishes and H complied,
hoping to find an excuse to leave the room and call for
help. He then pulled H into her bedroom, removed her
clothes, attempted to tie her to the bed with a towel, and
sexually assaulted her. Afterwards, he dressed H, dragged
her to the kitchen, and told her that she would “have to
watch him die now.” When Appellant went to the drawer for
a knife, H escaped out onto her balcony and ran to a
neighbor’s house and called the police.
8
United States v. Saunders, No. 02-0784/AR
In response to this pattern of behavior, the
Government charged Appellant with “harassment”1 under clause
2 of Article 134, using the Georgia statute2 on “stalking”
as a basis for the elements of the specification. The
specification at issue read as follows:
In that SPC Daniel Saunders, U.S. Army, did at or
near Wuerzburg, Germany, on divers occasions between
on or about 1 October 1998 and 23 April 1999,
knowingly and willfully harass Ms. [H], by following
her without consent, waiting for her at home, showing
up at her home uninvited at all hours of the day and
night, attempting to gain access to her home,
breaking into her home, calling her at work from her
home phone, wrongfully calling her incessantly on the
1
“Harassment” as charged here is distinct from “sexual harassment,”
which is often charged as maltreatment under Article 93, Uniform Code
of Military Justice [hereinafter UCMJ], 10 U.S.C. § 893 (2000).
“Harassment” as charged in this case is also commonly referred to as
“stalking” in federal and state statutes. For consistency with the
record of trial, “harassment” is used here.
2
The Georgia stalking law in force at the time, Ga. Code Ann. § 16-5-90
(1997), stated:
(a) A person commits the offense of stalking when he or she follows,
places under surveillance, or contacts another person at or about a
place or places without the consent of the other person for the purpose
of harassing and intimidating the other person. For the purpose of this
article, the term "place or places" shall include any public or private
property occupied by the victim other than the residence of the
defendant. For the purposes of this article, the term "harassing and
intimidating" means a knowing and willful course of conduct directed at
a specific person which causes emotional distress by placing such
person in reasonable fear of death or bodily harm to himself or herself
or to a member of his or her immediate family, and which serves no
legitimate purpose. This Code section shall not be construed to require
that an overt threat of death or bodily injury has been made.
(b) Except as provided in subsection (c) of this Code section, a person
who commits the offense of stalking is guilty of a misdemeanor.
(c) Upon the second conviction, and all subsequent convictions, for
stalking, the defendant shall be guilty of a felony and shall be
punished by imprisonment for not less than one year nor more than five
years.
(Emphasis added.)
9
United States v. Saunders, No. 02-0784/AR
phone at all hours of the day at both home and work,
wrongfully refusing to leave her house when asked,
locking himself in rooms of her home, repeatedly
threatening to kill himself, wrongfully visiting her
place of employment, wrongfully calling, visiting and
attempting to gain access to her parent's home in
Lichtenfels, Germany, and willfully damaging her car,
thereby causing the said Ms. [H] substantial
emotional distress and reasonable fear of bodily
injury, such conduct being of a nature to bring
discredit upon the armed forces.
At trial, Appellant made a motion to dismiss the
harassment specification under Article 134 for failure to
state an offense. The military judge denied this motion
and found as follows:
My ruling is that it states an offense; there
are a number of acts in there that it alleges the
accused did. Certainly, those acts could be
considered wrongful and could be a violation of
Article 134. This is exactly what 134 was designed
for - to cover those situations where you don’t have
a violation of another enumerated article; and it’s
up to the members to decide whether it’s a violation
of 134 and whether it’s either service discrediting
or prejudicial to good order and discipline.
At the close of the evidence the military judge
instructed the members on the harassment charge using the
language of the specification. The military judge defined
the terms “service discrediting conduct” and “harassed” for
the members as follows:
Service discrediting conduct is conduct which tends
to harm the reputation of the service or lower it in
public esteem. The term ‘harassed’ means a knowing
and willful course of conduct directed at a specific
person which would cause substantial emotional
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United States v. Saunders, No. 02-0784/AR
distress in a reasonable person or which placed that
person in reasonable fear of bodily injury.
The members found Appellant guilty by exceptions and
substitutions as follows:
In that SPC Daniel Saunders, U.S. Army, did at or
near Wuerzburg, Germany, on divers occasions between
on or about 1 October 1998 [21 March 1999] and 23
April 1999, knowingly and willfully harass Ms. [H],
by following her without consent, waiting for her at
home, showing up at her home uninvited at all hours
of the day and night, attempting to gain access to
her home, breaking into her home, calling her at work
from her home phone, wrongfully calling her
incessantly on the phone at all hours of the day at
both home and work, wrongfully refusing to leave her
house when asked, locking himself in rooms of her
home, repeatedly threatening to kill himself,
wrongfully visiting her place of employment,
wrongfully calling, visiting and attempting to gain
access to her parent's home in Lichtenfels, Germany,
and willfully damaging her car, thereby causing the
said Ms. [H] substantial emotional distress and
reasonable fear of bodily injury, such conduct being
of a nature to bring discredit upon the armed forces.
Saunders, 56 M.J. at 933.
The members found Appellant not guilty of the
underlined language above and substituted “21 March 1999,”
the date when H first filed a report with the military
police, for the start of the offense. Id. at n.2.3 On
appeal, Appellant renews his argument that “harassment” as
charged in his case does not constitute an offense under
Article 134.
3
The Army Court of Criminal Appeals dismissed the words “wrongfully
calling” from the specification as redundant. United States v.
Saunders, 56 M.J. 930, 933 n.2 (A. Ct. Crim. App. 2002).
11
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DISCUSSION
Article 134, UCMJ, the “General Article,” criminalizes
service-discrediting conduct by military service members.4
Certain specified offenses are included under this Article.
See Manual for Courts-Martial, United States (2002 ed.)
[hereinafter MCM] Part IV, paras. 61-113. However, “if
conduct by an accused does not fall under any of the listed
offenses . . . a specification not listed in this Manual
may be used to allege the offense.” Id. at Part IV, para.
60.c.(6)(c). In this case, the defense was apprised that
the government was using a specification modeled on the
Georgia State stalking statute.5 The present question is
whether Appellant had “fair notice” such conduct was
subject to criminal sanction, and if so, whether harassing
4
The Manual for Courts-Martial, United States (2002 ed.) [hereinafter
MCM] Part IV, para. 60.b.(1)-(2), lists two requirements under Article
134 if the conduct addressed is “of a nature to bring discredit upon
the armed forces”:
1. That the accused did or failed to do certain acts; and
2. That, under the circumstances, the accused’s conduct was .
. . of a nature to bring discredit upon the armed forces.
5
However, in doing so, the Government did not adopt all the elements of
the Georgia statute verbatim. Unlike the Georgia statute, Appellant’s
specification does not allege that Appellant’s conduct was undertaken
“for the purpose of harassing and intimidating the other person” as
suggested by section (a) of the Georgia statute. The MCM does not
necessarily require parallel pleading between Article 134 and a model
state statute. MCM Part IV, para. 60.c.(6)(c) does not require that
the Government model its unlisted specifications under Article 134 on
one or more particular state statutes where the offense is charged
under clause 1 or 2, rather than as an assimilated offense under clause
3; however, as discussed below due process does require “fair notice”
that conduct is criminal.
12
United States v. Saunders, No. 02-0784/AR
conduct as charged here, states an offense under Article
134.
Whether the military judge correctly understood and
applied the proper legal principle in denying the motion to
dismiss is a question we review de novo. United States v.
Hughes, 48 M.J. 214, 216 (C.A.A.F. 1998).
Fair Notice
A. Notice of Criminal Sanction
Appellant claims that he lacked fair notice that his
conduct was punishable under Article 134 because
”harassment” is not an offense specified in the Manual for
Courts-Martial. He also argues that his dependent
personality disorder prevented him from knowing that his
conduct was unlawful.
It is well settled that conduct that is not
specifically listed in the MCM may be prosecuted under
Article 134. United States v. Vaughan, 58 M.J. 29, 31
(C.A.A.F. 2003)(prosecution of child neglect is cognizable
under Article 134); see MCM Part IV, para.
60.c.(6)(c)(permitting the use of specifications not listed
in the MCM to allege offenses not listed in paras. 61-113
as offenses under clause 1 or 2 of Article 134).6 However,
6
United States v. Bivins, 49 M.J. 328, 330-31 (C.A.A.F. 1998)
(permitting bigamy prosecution even when elements of specified Article
134 bigamy not met); United States v. Sullivan, 42 M.J. 360, 366
13
United States v. Saunders, No. 02-0784/AR
due process requires that a person have fair notice that an
act is criminal before being prosecuted for it. Vaughan,
58 M.J. at 31.
In Vaughan, this Court identified from longstanding case
law several potential sources of “fair notice” including:
federal law, state law, military case law, military custom
and usage, and military regulations. Id. at 31-32; see
Parker v. Levy, 417 U.S. 733, 755 (1974).7 Unlike the
circumstances addressed in Vaughan or United States v.
Davis, 26 M.J. 445 (C.M.A. 1988)(prosecuting “cross-
dressing” under Article 134), in Appellant’s case there is
a federal criminal statute relevant to Appellant’s offense
although not applicable because his conduct occurred in
Germany. Title 18 U.S.C. § 2261A (1997), the interstate
stalking statute, provides:
Whoever travels across a State line or within the
special maritime and territorial jurisdiction of the
United States with the intent to injure or harass
(C.A.A.F. 1995)(noting that “[i]n our view, any reasonable officer
would know that asking strangers of the opposite sex intimate questions
about their sexual activities, using a false name and a bogus
publishing company as a cover, is service-discrediting conduct under
Article 134.”); United States v. Choate, 32 M.J. 423, 425 (C.M.A.
1991)(noting that when an offense is charged under “the service-
disorder or –discredit clause of Article 134[,] . . . the specific
elements of the crime . . . as a matter of civilian or military law are
not particularly relevant.”); United States v. Davis, 26 M.J. 445, 447
(C.M.A. 1988).
7
Although United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003), focused
on state law, military case law, and military custom and usage as
sources of notice, we expressly did not need to reach a conclusion as
to whether one or more of these sources might on its own have provided
fair notice in the context presented. Id. at 31.
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United States v. Saunders, No. 02-0784/AR
another person, and in the course of, or as a result
of, such travel places that person in reasonable fear
of the death of, or serious bodily injury (as defined
in section 1365(g)(3) of this title) to, that person
or a member of that person's immediate family (as
defined in section 115 of this title) shall be
punished as provided in section 2261 of this title
(Emphasis added.)
While 18 U.S.C. § 2261A could apply to a broad range
of conduct, the language of the statute has been upheld
against a challenge for overbreadth and vagueness. United
States v. Young, No. 98-4742, 1999 U.S. App. LEXIS 32721,
at *13 (4th Cir. Dec. 16, 1999), cert. denied, Young v.
United States, 529 U.S. 1081 (2000)(noting that a person
must induce “reasonable” fear in order to be guilty under
this law).
In addition to the federal statute, all fifty states
and the District of Columbia have enacted criminal laws
addressing stalking or harassing conduct.8 Further, several
8
All of these laws were in effect at the time of Appellant’s conduct.
Ala. Code § 13A-6-90 (Michie, LEXIS through 2003 Sess.); Alaska Stat. §
11.41.270 (Michie, LEXIS through 2002 Sess.); Ariz. Rev. Stat. § 13-
2923 (LEXIS through 2002 Sess.); Ark. Code Ann. § 5-71-208 (Michie,
LEXIS through 2002 Sess.); Cal. Penal Code § 646.9 (Deering, LEXIS
through 2002 Sess.); Colo. Rev. Stat. § 18-9-111 (LEXIS through 2002
Sess.); Conn. Gen. Stat. § 53a-181d (LEXIS through Jan. 6 Spec. Sess.);
Del. Code Ann. tit. 11, § 1312A (LEXIS through 2002 Sess.); D.C. Code
Ann. § 22-404 (LEXIS through Mar. 14, 2003); Fla. Stat. ch. 784.048
(LEXIS through 2002 Sess.); Ga. Code Ann. § 16-5-90 (LEXIS through 2002
Reg. Sess.); Haw. Rev. Stat. Ann. § 711-1106.5 (Michie, LEXIS through
2002 Reg. Sess.); Idaho Code § 18-7905 (Michie, LEXIS through 2003
Sess.); 720 Ill. Comp. Stat. 5/12-7.3 (LEXIS through Mar. 26, 2003);
Ind. Code Ann. § 35-45-10-1,2,5 (Michie, LEXIS through 2002 Spec.
Sess.); Iowa Code § 708.11 (LEXIS through 2003 ed.); Kan. Stat. Ann. §
21-3438 (LEXIS through 2002 Supp.); Ky. Rev. Stat. Ann. § 508.130,
.140, .150 (Michie, LEXIS through 2002 Reg. Sess.); La. Rev. Stat.
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United States v. Saunders, No. 02-0784/AR
state statutes have been applied by military authorities to
address harassment, demonstrating that military authorities
have looked to state statutes to address harassment in the
absence of a specified Article 134 offense. This Court
affirmed a conviction under North Carolina’s anti-stalking
law that was charged under Article 134 by means of the
Assimilative Crimes Act (ACA), 18 U.S.C. § 13 (2000).
United States v. Sweeney, 48 M.J. 117 (C.A.A.F. 1998),
14:40.2 (West, LEXIS through 2002 Sess.); 17 Me. Rev. Stat. Ann. tit.
17-A, § 210-A (West, LEXIS through Feb. 19, 2003); Md. Code Ann.,
Criminal Law § 3-802 (LEXIS through 2002 Sess.); Mass. Gen. Laws ch.
265, § 43 (LEXIS through June 12, 2003); Mich. Comp. Laws § 750.411h
(LEXIS through Apr. 4, 2003); Minn. Stat. § 609.749 (LEXIS through 2002
Legis.); Miss. Code Ann. § 97-3-107 (LEXIS through 2002 Reg. & 3d
Extraordinary Sess.); Mo. Rev. Stat. § 565.225 (LEXIS through 2002
Legis.); Mont. Code Ann. § 45-5-220 (LEXIS through 2002 Spec. Sess.);
Neb. Rev. Stat. Ann. § 28-311.02-.03 (Michie, LEXIS through 2002 3d
Spec. Sess.); Nev. Rev. Stat. Ann. § 200.571-.575 (LEXIS through 71st
Reg. (2001) & 18th Spec. (2002) Sess.); N.H. Rev. Stat. Ann. § 633:3-a
(LEXIS through 2002 Sess.); N.J. Stat. Ann. § 2C:12-10 (West, LEXIS
through May 8, 2003); N.M. Stat. Ann. § 30-3A-3 (Michie, LEXIS through
Nov. 5, 2002); N.Y. Penal § 120.14-.15 (Consol., LEXIS through May 20,
2003); N.C. Gen. Stat. § 14-277.3 (LEXIS through 2002 Sess.); N.D.
Cent. Code § 12.1-17-07.1 (LEXIS through 2001 Gen. & Spec. Sess.); Ohio
Rev. Code Ann. § 2903.211 (Anderson, LEXIS through Feb. 15, 2003);
Okla. Stat. tit. 21, § 1173 (LEXIS through 2003 Supp.); Or. Rev. Stat.
§ 163.732 (LEXIS through 2001 Reg. Sess.); 18 Pa. Cons. Stat. § 2709
(LEXIS through Act 237 of 2002 Legis. Sess.); R.I. Gen. Laws § 11-59-1,
-2 (LEXIS through Jan. 2002 Sess.); S.C. Code Ann. § 16-3-1700, -1710
(Law. Co-op., LEXIS through 2002 Supp.); S.D. Codified Laws § 22-19A-1,
-5 (Michie, LEXIS through 2003 Sess.); Tenn. Code Ann. § 39-17-315
(LEXIS through 2002 Sess.); Tex. Penal Code Ann. § 42.07 (Vernon, LEXIS
through 2001 Legis.); Utah Code Ann. § 76-5-106.5 (LEXIS through 2002
6th Spec. Sess.); Vt. Stat. Ann. tit. 13, § 1061-1062 (LEXIS through
2003); Va. Code Ann. § 18.2-60.3 (Michie, LEXIS through 2003 Reg.
Sess.); Wash. Rev. Code Ann. § 9A.46.110 (LEXIS through Nov. 2002); W.
Va. Code § 61-2-9a (LEXIS through 2003 Reg. & 1st Extraordinary Sess.);
Wis. Stat. § 940.32 (LEXIS through 2001-02 Legis.); Wyo. Stat. Ann. §
6-2-506 (Michie, LEXIS through 2003 Reg. Sess.). See Major Joanne P.T.
Eldridge, Stalking and the Military: A Proposal to Add an Anti-Stalking
Provision to Article 134, Uniform Code of Military Justice, 165 Mil. L.
Rev. 116 (2000); Marjorie A. Caner, Annotation, Validity, Construction,
and Application of Stalking Statutes, 29 A.L.R. 5th 487, §7 (1995 &
Supp. 2002).
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aff’g United States v. Sweeney, ACM No. 32026, 1997 CCA
LEXIS 37 (A.F. Ct. Crim. App. Jan. 17, 1997). While the
ACA would not apply here because Appellant’s actions took
place in Germany, approval by this Court of an assimilated
stalking offense provides notice that such conduct is
punishable under the UCMJ, at least when the ACA applies.
The Air Force Court of Criminal Appeals has also
addressed harassment. Id.; United States v. Rowe, ACM No.
32852, 1999 CCA LEXIS 125 (A.F. Ct. Crim. App. Apr. 7,
1999), pet. denied, 52 M.J. 417 (C.A.A.F. 1999)(affirming
Article 134 harassment specification); United States v.
Diaz, 39 M.J. 1114 (A.F.C.M.R. 1994)(setting aside offense
because judge failed to instruct on the definition of
harassment). In addition, the Air Force Court of Criminal
Appeals affirmed a “harassment” charge with elements based
on the same Georgia statute. Rowe, ACM No. 32852, 1999 CCA
LEXIS 125 at *7.
In summary, while the terms vary somewhat from statute
to statute, federal and state statutes criminalize the act
of knowingly pursuing a course of conduct that would
produce emotional distress in a reasonable person or create
a reasonable fear of death or injury to that person or an
immediate family member when that course of conduct in fact
17
United States v. Saunders, No. 02-0784/AR
creates emotional distress and reasonable fear in the
targeted person. See 18 U.S.C. § 2261A; M.J. (15 n.8).
In addressing this issue, we are also cognizant that
the federal stalking statute and roughly half of state
statutes charge harassment as a specific intent offense
requiring an intent to harass.9 A bare majority of statutes
require a knowing and willful course of conduct that has
the result of placing a person in reasonable fear or
emotional distress without requiring proof of a specific
intent to produce that result. Therefore, we must also
consider, in light of this statutory landscape, whether
Appellant’s “fair notice” of sanction was undermined by the
mens rea variance in state statutes.
In Parker, and subsequent military case law, courts
have addressed Article 134 in light of the due process
clause, concluding that fair notice that one’s conduct is
subject to criminal sanction requires something more than
the notice provided by the service discrediting words of
element 2 of Article 134. However, in doing so, the Court
did not require notice of specific elements set down in
9
There is some division among states as to whether a “specific intent”
to harass is required as an additional element of the crime, above and
beyond the mental state that accompanies the act. See 1 Wayne R.
LaFave & Austin W. Scott Jr., Substantive Criminal Law § 3.5 (1986 &
Supp. 2003). Twenty-six of the state statutes in force at the time
would permit a conviction without a clear showing that the defendant
intended to harass the victim. The charge used here stated that
Appellant “knowingly and willfully harass[ed H].”
18
United States v. Saunders, No. 02-0784/AR
writing before the offense is committed, only “fair notice”
that conduct was criminal. 417 U.S. at 752, 755-56. This
is evident in the Court’s acceptance that such notice could
arise from military custom and usage, which is clearly not
defined by elements or with mens rea specificity. Id. at
754. Moreover, in Parker the Court recognized and accepted
that those undertaking service to their country in the
military might appropriately be subjected to a higher
standard of behavior than provided for in civilian society
and that the constitutional measure of review, as in
Parker’s case, might vary between the two with respect to
the application of Article 134 to the military. Id. at
756-57. Thus, the Court stated that “even though sizable
areas of uncertainty as to the coverage of the [general]
articles may remain after their official interpretation by
authoritative military sources, further content may be
supplied even in these areas by less formalized custom and
usage.” Id. at 754. In short, under Parker, a military
accused is entitled to “fair notice” of the criminality of
conduct charged as service discrediting under Article 134,
which does not necessarily require published notice of the
precise wording of the elements. Such a view is consistent
with Article 134’s purpose of capturing service
discrediting conduct that might not have been foreseen by
19
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the drafters of the UCMJ or those charged with its
subsequent implementation in changing and complex military
circumstances. See id. at 745-46 (tracing the history and
language of Article 134).
Thus, the question presented here is not whether there
is a difference between state statutes, but whether the
state statutes would have placed a reasonable soldier on
fair notice that harassment, as charged in this case, was
service discrediting conduct under Article 134. We believe
the statutory landscape does just that. All fifty states
and Title 18 punish harassment as either a specific or
general intent offense. A “specific intent” to harass
therefore is not universally required, nor is it a
“majority” rule. The core concept of criminality described
in all these statutes – a knowing and willful course of
intimidation or harassment that places a reasonable person
in fear of death or bodily harm or that causes emotional
distress -- is patently conduct that would be service-
discrediting under Article 134. A reasonable soldier would
understand as much. See Sullivan, 42 M.J. at 366. In
light of this body of law as well as the military case law
cited above we conclude that Appellant was on “fair notice”
that he risked prosecution under Article 134 if he
knowingly engaged in a course of conduct that placed
20
United States v. Saunders, No. 02-0784/AR
another person in reasonable fear of injury or emotional
distress. See Vaughan, 58 M.J. at 32.
B. Notice of Specification Elements
In addition to notice that an act is a crime, a person
must also have “fair notice as to the standard applicable
to the forbidden conduct” against which they must defend.
Id. at 31 (citing Parker, 417 U.S. at 755). Thus, an
Article 134 specification must contain words of criminality
and provide the accused with notice of the elements of the
crime alleged. Id. at 35. The specification required the
members to determine that Appellant carried out “a knowing
and willful course of conduct directed at a specific person
[H] which would cause substantial emotional distress in a
reasonable person or which placed that person in reasonable
fear of bodily injury.” This specification adequately
provides notice as to the dates and times of the acts
charged and the requisite mental state. See id. at 35 n.4.
The requirements of emotional distress in a reasonable
person and placing a person in reasonable fear are common
legal standards. See id. at 35 (upholding definition of
culpable negligence by conduct that was “reasonable under
the circumstances”); Marjorie A. Caner, Annotation,
Validity, Construction, and Application of Stalking
Statutes, 29 A.L.R. 5th 487, §11 (1995 & Supp. 2002)(citing
21
United States v. Saunders, No. 02-0784/AR
cases upholding statutes that prohibit conduct based on an
objective standard, such as conduct that causes
“reasonable” fear or emotional distress in a “reasonable”
person).
We conclude that for military practice, harassment is
appropriately charged as a general intent offense, when
charged under clause 2 of Article 134. This is consistent
with the prior application of Article 134 and it is
consistent with the purpose behind stalking and harassment
statutes – to protect persons from reasonable fear
generated by the unwanted advances and contacts of others,
without consideration of the abstract motives, some pure,
some not, that might have motivated the prohibited conduct.
Inadvertent or de minimis, but willful, contact would not
constitute an offense under Article 134. For, as the
military judge correctly instructed, harassment under
Article 134 requires “a knowing and willful course of
conduct directed at a specific person, which would cause
substantial emotional distress in a reasonable person or
which placed that person in reasonable fear of bodily
injury." (Emphasis added.)
As the military judge also stated, the decision as to
whether a given set of acts rises to the level of
harassment is left to the fact finder. See Vaughan, 58
22
United States v. Saunders, No. 02-0784/AR
M.J. at 35-36. In addition to adequately informing the
accused of the elements of the offense, the specification
must also set out conduct that a fact finder could
determine was service discrediting in the context
presented. Id. (affirming a conviction of child neglect
for leaving infant unattended in a crib for six hours);
Davis, 26 M.J. at 449 (finding that “cross-dressing” stated
an offense under particular facts and circumstances);
United States v. Sadinsky, 14 C.M.A. 563, 565, 34 C.M.R.
343, 345 (1964)(noting that Article 134 is “not such a
catchall as to make every irregular, mischievous, or
improper act a court-martial offense.”). While the
“addition of words of criminality . . . cannot make
criminal acts which obviously are not, here that allegation
serves to demonstrate the proscribed character of accused’s
act.” Sadinsky, 14 C.M.A. at 565, 34 C.M.R. at 345.
In this case, a reasonable fact finder could find that
Appellant’s conduct constituted “harassment.” Appellant
repeatedly called and visited H, and entered her apartment
against her wishes, all after receiving a no-contact order.
His telephone calls and visits continued over several weeks
and included suicide threats, unlawful entry, and angry
demands for the return of gifts, all despite protestations
by H that she did not want such conduct to continue. A
23
United States v. Saunders, No. 02-0784/AR
reasonable jury could find that Appellant’s actions taken
together constituted a “course of conduct” that harassed H
by placing her in reasonable fear of harm and emotional
distress in the context of these facts.10
Personality Disorder
The first element of the offense was that
“[A]ppellant knowingly and willfully harassed H.”
Saunders, 56 M.J. at 933. The judge defined “harassed”
for the members as "a knowing and willful course of
conduct directed at a specific person which would cause
substantial emotional distress in a reasonable person or
which placed that person in reasonable fear of bodily
injury." Id.
At trial, Appellant made the argument that his
mental condition prevented him from acting “willfully”
and the military judge advised the members that “an
accused because of some underlying mental condition, may
be mentally incapable of acting willfully.” (Appellant
did not argue that he was not criminally responsible by
10
All but seven states require repeated acts or a “course of conduct”
as an element of harassment. Colorado, Georgia [under its current
statute], Hawaii, Indiana, Minnesota, New Hampshire, and Texas permit
prosecution based on a single incident. As Appellant was charged with
repeated acts, this distinction would not limit his prosecution under
state law. As noted in Vaughan, an important distinction exists
between notice that conduct is criminally punishable and a common sense
understanding that it is bad judgment. 58 M.J. at 33 n.3. However,
the potential for close cases on the margin does not preclude
prosecution on grounds of notice as to what the law prohibits.
24
United States v. Saunders, No. 02-0784/AR
reason of insanity.) Nonetheless, the members found
Appellant guilty by exceptions and substitutions for
some acts, but found the requisite mental state.
On appeal, Appellant now argues that his dependent
personality disorder prevented him from fairly knowing that
his conduct was wrongful. Appellant correctly notes that a
law is “void for vagueness” if “one could not reasonably
understand that his contemplated conduct is proscribed.”
See Vaughan, 58 M.J. at 31 (citing Parker, 417 U.S. at 757)
(emphasis added). However, Appellant further argues that
whether he had notice of the criminality in his case must
be determined in light of his “delusional disorder and
dependent personality disorder,” which caused him to
believe that H was his one true love, thereby preventing
him from understanding that his course of conduct could be
criminal.
However, Appellant’s subjective belief is
irrelevant to the issue of notice. It is settled law
that notice is determined through application of an
objective test as to whether a person could “‘reasonably
understand that his contemplated conduct is
proscribed.’” Id. (quoting Parker, 417 U.S. at 757).
25
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Service Discrediting Conduct
Finally, Appellant argues that his conduct was not
service discrediting. His acts, he contends, were not
prohibited by German law. Furthermore, he argues that they
were not the acts of “moral turpitude” contemplated by
Article 134, as found in cases involving obscene phone
calls and sexually explicit letters. See Sullivan, 42 M.J.
at 363 (charging obscene phone calls in the guise of a
survey); United States v. Hartwig, 39 M.J. 125 (C.M.A.
1994)(charging the writing of sexually suggestive letters
under Article 133, UCMJ, 10 U.S.C. § 933 (2000)). His
attentions were directed to his former fiancée, as part of
a failed relationship, and not indecent acts directed at a
stranger or public figure.
Appellant, however, is arguing facts rather than law.
The test of service discredit is whether Appellant’s acts
had a “tendency to bring the service into disrepute[.]”
MCM Part IV, para. 60.c.(3). “’Discredit’ means to injure
the reputation of [sic]. This clause . . . makes
punishable conduct which has a tendency to bring the
service into disrepute or which tends to lower it in the
public esteem.” Id. We hold that a reasonable fact finder
could find beyond a reasonable doubt that Appellant’s
26
United States v. Saunders, No. 02-0784/AR
course of conduct, recounted in detail above, was service
discrediting.
Decision
The decision of the United States Army Court of
Criminal Appeals is affirmed.
27