UNITED STATES, Appellee
v.
Steven D. JEFFERS, Specialist
U.S. Army, Appellant
No. 00-0286
Crim. App. No. 9701201
United States Court of Appeals for the Armed Forces
Argued January 22, 2002
Decided June 28, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.
Counsel
For Appellant: Captain Terri J. Erisman (argued); Colonel Adele
H. Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major
Imogene M. Jamison (on brief); William E. Cassara and Captain
Steven P. Haight.
For Appellee: Captain Steven D. Bryant (argued); Colonel Steven
T. Salata, Lieutenant Colonel Denise R. Lind, Major Paul T.
Cygnarowicz, and Captain Tami L. Dillahunt (on brief); Captain
Mary E. Braisted.
Military Judges: James J. Smith and Patrick J. Parrish
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Jeffers, No. 00-0286/AR
Chief Judge CRAWFORD delivered the opinion of the Court.
A court-martial panel of officers and enlisted members
convicted appellant, on mixed pleas, of failing to obey a lawful
order (two specifications), rape, forcible sodomy, and adultery
(four specifications), in violations of Articles 92, 120, 125,
and 134, Uniform Code of Military Justice, 10 USC §§ 892, 920,
925, and 934, respectively. The adjudged and approved sentence
provides for a bad-conduct discharge, confinement for three
years, total forfeiture of pay and allowances, and reduction to
E-1. The Court of Criminal Appeals affirmed the findings and
sentence without opinion. This Court granted review of the
following issues:
I. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO SUPPORT THE FINDING OF GUILTY TO FAILURE TO
OBEY A LAWFUL ORDER (SPECIFICATION 1 OF THE
ADDITIONAL CHARGE).
II. WHETHER APPELLANT’S CONSTITUTIONAL AND
STATUTORY RIGHT TO BE TRIED BY A COURT-MARTIAL
PANEL AND HAVE THAT PANEL DETERMINE WHETHER THE
GOVERNMENT HAS PROVEN EVERY ESSENTIAL ELEMENT
OF THE CHARGED OFFENSE BEYOND A REASONABLE
DOUBT WAS VIOLATED BECAUSE THE MILITARY JUDGE
RULED THAT THE ORDER GIVEN TO APPELLANT WAS
LAWFUL WITHOUT SUBMITTING THE ISSUE TO THE
PANEL FOR A VERDICT, AND BECAUSE THE MILITARY
JUDGE INSTRUCTED THE PANEL THAT THE ORDER WAS
LAWFUL AS A MATTER OF LAW.
For the reasons set out below, we affirm.
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United States v. Jeffers, No. 00-0286/AR
FACTS
Appellant was a married soldier stationed in Korea. He and
Private (PV1) P were having an extramarital relationship, which
resulted in appellant being charged with adultery, to which he
pleaded guilty. Upon discovering this relationship, the Company
Commander of both soldiers, Captain (CPT) DeHaan, gave appellant
an order that “you will not have social contact with PV1 [P].”
CPT DeHaan gave a similar no-contact order to PV1 P. The only
contact the two could have was to be contact that was "official
in nature.”
Appellant was charged with violating his commander’s no-
contact order on two occasions. On May 7, 1997, PV1 P went to
appellant’s room feeling “confused, upset, hurt.” She stayed in
appellant’s room from ten to fifteen minutes. PV1 P testified
that in her judgment, this visit was not official business. She
stated that the nature of her visit was both personal and
official, but it was more personal, and she had no doubt that
she was violating CPT DeHaan’s order by being in appellant’s
room. Appellant and PV1 P talked about appellant’s pending
court-martial and “how I [P] needed to save both of our butts.”
Appellant never told her to leave the room or otherwise
attempted to have her removed.
Similarly, appellant testified that he was in bed watching
television when PV1 P entered the room. He informed her that
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United States v. Jeffers, No. 00-0286/AR
she should not be there because the commander’s no-contact order
was still in effect. Appellant confirmed PV1 P’s earlier
testimony that she was “upset” at the time she entered his room.
During the fifteen to twenty minutes that PV1 P remained in the
room, sitting on appellant’s bed for part of the time and
threatening to hurt herself on two occasions, appellant did not
call the military police, the Charge of Quarters (CQ), or anyone
in his chain-of-command, even though he took her suicide threat
seriously. While he understood his commander’s no-contact
order, he did not think that his unsuccessful attempts to calm
PV1 P violated that order. The conversation between appellant
and PV1 P was terminated when Staff Sergeant Kimble, the CQ,
discovered PV1 P in appellant’s room and required her to leave.
Three days later, on May 10, 1997, appellant violated CPT
DeHaan’s order by having social contact with PV1 P at the Navy
Club, located on Yongsan Garrison, Republic of Korea. Appellant
pleaded guilty to violating his commander’s order on this
occasion. During the providence inquiry into this guilty plea,
appellant admitted that the commander’s order was lawful, after
the military judge explained the definition of a lawful order.
Prior to instructing the members on findings, the military
judge informed defense counsel that he intended to give the
court members the elements of the offense of disobeying an order
and inform them, as a matter of law, that the order, if there
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United States v. Jeffers, No. 00-0286/AR
was in fact such an order, was lawful. Defense counsel had no
objection to this proposed instruction. The military judge then
instructed the members as he said he would, informing them that
as a matter of law, the order in this case, if in fact there was
an order, was lawful. Trial defense counsel again had no
objection to this instruction. At trial defense counsel’s
request, the military judge properly instructed the members that
duress was a defense to appellant’s failure to obey his
commander’s order on May 7.
DISCUSSION
Appellant now asserts that CPT DeHaan’s order to him was
(1) overbroad, in light of United States v. Wysong, 9 USCMA 249,
26 CMR 29 (1958); and (2) illegal, because it unlawfully
inhibited his ability to prepare a defense. See United States
v. Aycock, 15 USCMA 158, 35 CMR 130 (1964). Additionally,
appellant argues that there is insufficient evidence to sustain
the finding of guilty to the specification of violating CPT
DeHaan’s order on May 7, because appellant felt compelled to
disobey his commander’s directive in order to prevent PV1 P’s
suicide. Finally, with regard to Issue II, appellant argues
that United States v. New, 55 MJ 95, cert. denied, 122 S. Ct.
356 (2001), is not dispositive because that case involved a
question of law. Here, according to appellant, there was a
factual issue raised as to whether the order issued by the
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United States v. Jeffers, No. 00-0286/AR
company commander was “reasonably necessary,” and that factual
decision belonged to the members.
Appellant does not contest CPT DeHaan’s authority to issue
a no-contact order, nor does he claim that such an order, on its
face, has no valid military purpose. See United States v.
Padgett, 48 MJ 273 (1998); United States v. Milldebrandt, 8
USCMA 635, 25 CMR 139 (1958). However, he argues that CPT
DeHaan’s order was neither reasonable nor necessary in this
instance. While conceding that a “no social” contact order
given to two members of the same company who are engaged in an
adulterous relationship certainly could be required to maintain
good order and discipline, as well as the morale, of that unit,
appellant contends that without some showing that CPT DeHaan’s
order was reasonably necessary to maintain good order,
discipline, or morale, it served no valid military purpose.
As we recently observed in Padgett, supra at 277,
“[s]tarting with United States v. Womack, 29 MJ 88 (1989), this
Court took a somewhat different approach to issues involving the
breadth of an order, examining the specific conduct at issue
rather than the theoretical limits of the order, as it did in
Wysong and [United States v.] Wilson, [12 USCMA 165, 30 CMR 165
(1961)].” Compare, e.g., Wilson, supra (order “not to indulge
in alcoholic beverages” held to be overbroad), with United
States v. Blye, 37 MJ 92 (CMA 1993)(order “not to drink any
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United States v. Jeffers, No. 00-0286/AR
alcoholic beverages” held valid under circumstances of the
case).
Unlike the order in Wysong, supra, where the breadth of the
order prevented all speech, except in the line of duty, CPT
DeHaan’s order was definite, specific, and importantly,
uncontested by defense counsel at trial.1 Furthermore, there was
absolutely no restriction on appellant’s ability to communicate
with PV1 P, the company clerk, on official business.
Similarly, the order to have no social contact with PV1 P
did not inhibit appellant’s ability to prepare his defense. See
United States v. Nieves, 44 MJ 96 (1996). In Aycock, the case
on which appellant relies, the majority of this Court condemned
an order that denied Aycock access to the witnesses against him
prior to commencement of his court-martial. 15 USCMA at 162, 35
CMR at 134. Nothing in CPT DeHaan’s order could have been
interpreted as restricting appellant’s access to PV1 P, a
potential witness against him, so long as the meeting with PV1 P
was official business. There are no facts developed at trial,
either through motions, objections or testimony, that showed
CPT DeHaan’s order interfered with an attorney-client
relationship, or impaired defense counsel’s trial preparation.
1
During CPT DeHaan’s testimony concerning the purpose and extent of his no-
contact order, defense counsel interrupted and announced to the military
judge that “the defense will stipulate to the lawfulness of the order.” The
military judge responded by informing defense counsel that he would consider
a written stipulation only. No such written stipulation was introduced into
evidence.
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United States v. Jeffers, No. 00-0286/AR
Finally, testing for legal sufficiency under Jackson v.
Virginia, 443 U.S. 307, 319 (1979), we conclude that a “rational
trier of fact could have found the essential elements of
[disobeying CPT DeHaan’s order] beyond a reasonable doubt.” The
length of time PV1 P remained in appellant’s room, coupled with
the fact that the contact between appellant and PV1 P ended only
after a noncommissioned officer discovered PV1 P in appellant’s
room and removed her, are consistent with the specification’s
allegation that appellant’s contact with PV1 P on May 7 was
social, in violation of the commander’s order.
“Questions of the applicability of a rule of law to an
undisputed set of facts are normally questions of law.
Similarly, the legality of an act is normally a question of
law.” RCM 801(e)(5) Discussion, Manual for Courts-Martial,
United States (2000 ed.),2 cited in New, 55 MJ at 101. Appellant
raised no legal or factual challenge to CPT DeHaan’s order at
trial. Nonetheless, he now belatedly insists that this is one
of those rare instances where the legality of an act is not a
question of law but is one of fact. We disagree and hold that
the military judge did not err. “‘[L]awfulness’ is a question
of law.” New, 55 MJ at 105.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
2
This Manual provision is identical to the one in effect at the time of
appellant’s court-martial.
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United States v. Jeffers, 00-0286/AR
SULLIVAN, Senior Judge (concurring in the result):
In my view, it is Congress who “make[s] Rules for the
Government and Regulation of the land and naval Forces,” not the
Manual drafters of the Discussion section of RCM 801(e)(5). U.S.
Const., art. I, § 8, cl.14. The majority continues to follow the
lead of the Manual drafters in holding that the lawfulness of a
disobeyed order is not an element of a criminal offense but a
question of law to be decided by the military judge alone. I
again must disagree and would hold that it is an element of the
offense of disobedience of lawful orders under Article 92, UMCJ,
which should have been decided by the members in this case. See
United States v. New, 55 MJ 95, 114-28 (2001)(Sullivan, J.,
concurring in the result).
Congress has repeatedly chosen to make the lawfulness of a
certain act an element of a military criminal offense to be
decided by the military jury or by the military judge if the
military accused so requests. Lawfulness in these circumstances
is usually a mixed question of fact and law. See generally
United States v. Gaudin, 515 U.S. 506, 512-15 (1995). Examples
are:
Article 84 UCMJ unlawful enlistment, appointment, or
separation
Article 90(2) UCMJ lawful command
Article 91(2) UCMJ lawful order
United States v. Jeffers_, No. 00-0286/AR
Article 92(1) UCMJ lawful general order or regulation
92(2) UCMJ lawful order
Article 94(a)(1) UCMJ lawful military authority
94(a)(2) UCMJ lawful civil authority
Article 97 UCMJ unlawful detention
Article 119 UCMJ unlawfully kills
Article 128 UCMJ unlawful force
Article 130 UCMJ unlawful entry
Article 131(1) UCMJ lawful oath
The majority’s broad pronouncement that “‘lawfulness’ is a
question of law,” _ MJ at (8), suggests that the element of
lawfulness, common to all these offenses, should also be removed
from the military jury. I disagree.
Nevertheless, I would affirm appellant’s conviction. There
was overwhelming evidence of the lawfulness of the order in this
case. Moreover, appellant pleaded guilty to a second violation
of this same order and admitted that the order was lawful. (R.79-
80) Finally, there was no dispute as to the lawfulness of this
order at trial. In fact, appellant offered to stipulate that the
order was lawful. (R.197) Clearly, this was harmless error under
Neder v. United States, 527 U.S. 1 (1999); see generally United
States v. Phanphil, No. 01-0620, __ MJ __ (2002).
2