United States v. Saunders

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.

2
United States v. Saunders, No. 02-0784/AR

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.

3
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

5
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,

6
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

7
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

10
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
United States v. Saunders, No. 02-0784/AR

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.

14
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.

15
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).

16
United States v. Saunders, No. 02-0784/AR

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
United States v. Saunders, No. 02-0784/AR

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
United States v. Saunders, No. 02-0784/AR

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