UNITED STATES, Appellee
v.
James E. MOORE, Fire Control Technician Second Class
U.S. Navy, Appellant
No. 03-0083
Crim. App. No. 9900594
United States Court of Appeals for the Armed Forces
Argued April 30, 2003
Decided July 10, 2003
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Colonel Eric Bradley Stone, USMC
(argued and on brief).
For Appellee: Lieutenant Christopher C. Burris, JAGC, USNR
(argued); Colonel Rose M. Favors, USMC (on brief).
Military Judge: Clark A. Price.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Moore, No. 03-0083/NA
Chief Judge CRAWFORD delivered the opinion of the Court.
Appellant was convicted, contrary to his pleas, of failure
to obey a lawful order, making a false official statement, and
committing an indecent act, in violation of Articles 92, 107,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892,
907, and 934 (2000), respectively. He was sentenced to a bad-
conduct discharge, one month’s confinement, and reduction to
E-3. The convening authority approved the sentence, and the
Court of Criminal Appeals affirmed the findings and sentence.
We granted review of the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT
AFFIRMED THE TRIAL COURT’S FINDING OF
GUILTY TO THE OFFENSE OF VIOLATING A
LAWFUL ORDER WHERE THE MILITARY JUDGE
ERRONEOUSLY DENIED THE DEFENSE MOTION
TO DISMISS THE ADDITIONAL CHARGE,
SPECIFICATION 1, WHERE THE ORDER WAS
UNCONSTITUTIONALLY OVERBROAD, VAGUE
AND UNLAWFUL.
For the reasons set forth below, we affirm.
FACTS
Appellant, an E-5, was a Fire Control Technician in the Dam
Neck Galley, a dining facility in Virginia Beach, Virginia. The
galley employed approximately 59 military and 70 civilian
workers. On any given shift, there were approximately 25
military and 30 civilian workers on duty. Seventy-five to 80
percent of the civilians were either physically or mentally
disabled.
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Given this unique work environment, the galley operated
under a standing military policy “curtailing unnecessary
association by military personnel with civilian employees.”
Military personnel were not permitted “to engage in horseplay
with civilian employees nor . . . exit the building with [them
or] . . . order [them] to do anything.” This policy was
reiterated to the troops every Monday, Wednesday, and Friday by
the senior chief, as were instructions that if the military
personnel needed anything work-related from the civilians, they
were to request it through military channels, and not directly
from the civilian personnel. The policy was instituted “in an
effort to promote good order and discipline . . . due to the
fact that [the civilians were] handicapped.” Appellant had
violated this policy once before and was counseled accordingly.
On February 21, 1998, Mr. Ray Cyrus, the galley’s civilian
supervisor, received a report from one of the civilian workers,
Ms. Clarice Jones, that Appellant and another sailor were trying
to coax Ms. S -- a disabled civilian employee at the galley who
suffered from repeated short-term memory lapses -- into either
the bathroom or the Master-at-Arms office. Ms. Jones stated
that she had observed Appellant touch Ms. S’s breasts. Another
civilian employee, Ms. Gloria McKenzie, also reported to Mr.
Cyrus that she observed Appellant and a companion attempt to
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lure Ms. S into either the Master-at-Arms office or the galley
bathroom.
After receiving this information, Mr. Cyrus located Ms. S
and asked her what happened. She responded that someone -- but
not Appellant -- had grabbed her breasts, and that she had
slapped his hand. Immediately thereafter, Mr. Cyrus informed
Mess Management Specialist First Class (MS1) Solomon Turner, the
Master-at-Arms Duty Watch Captain and an E-6, about the report.
MS1 Turner issued an order to Appellant and the other implicated
sailor that they were “not to converse with the civilian workers
[in the galley],” and noted that the order applied to
conversations with any civilian galley worker, not just Ms. S.
MS1 Turner gave Appellant this order some time between 9:30 and
10:00 a.m., and Appellant acknowledged it.
Nevertheless, within a half hour of receiving MS1 Turner’s
order, Appellant approached another civilian employee, Mr.
Thurman Phillips, and stated: “That bitch lied on me. She said
I had touched her breasts.” Appellant left, but returned two or
three minutes later and again spoke to Mr. Phillips about the
incident with Ms. S. These conversations gave rise to
Appellant’s conviction for violating MS1 Turner’s order not to
converse with the civilians.
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DISCUSSION
The legality of an order is a question of law that we
review de novo. United States v. New, 55 M.J. 95, 100 (C.A.A.F.
2001). A superior’s order is presumed to be lawful and is
disobeyed at the subordinate’s peril. Manual for Courts-
Martial, United States (2002 ed.)[hereinafter MCM] Part IV,
para. 14.c.(2)(a)(i); United States v. Nieves, 44 M.J. 96, 98
(C.A.A.F. 1996). Nevertheless, to sustain this presumption,
“[t]he order must relate to military duty, which includes all
activities reasonably necessary to accomplish a military
mission, or safeguard or promote the morale, discipline, and
usefulness of members of a command and directly connected with
the maintenance of good order in the service.” MCM Part IV,
para. 14.c.(2)(a)(iii)(emphasis added). Moreover, the order may
not “conflict with the statutory or constitutional rights of the
person receiving the order” and must be a “specific mandate to
do or not to do a specific act.” Id. at para. 14.c.(2)(a)(iv)
and (d). In sum, an order is presumed lawful, provided it has a
valid military purpose and is a clear, specific, narrowly drawn
mandate. See United States v. Womack, 29 M.J. 88, 90 (C.M.A.
1989).
Appellant does not challenge the validity of the order’s
purpose. Appellant does, however, challenge the order to have
been unconstitutionally overbroad and vague, and therefore
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unlawful. Specifically, Appellant finds the order overbroad
because it prevented him from speaking with all civilians.
Moreover, Appellant finds the order vague and indefinite because
it prohibited all speech with civilians, and not merely speech
concerning the alleged assault or related investigation, and
lacked either an express or implied termination point. On both
accounts, we disagree.
A. The Order was not Unconstitutionally Overbroad in
Violation of the First Amendment.
In United States v. Wysong, on which Appellant relies, this
Court found unlawful an order “not to talk to or speak with any
of the men in the company concerned with this investigation
except in [the] line of duty.” 9 C.M.A. 249, 251, 26 C.M.R. 29,
31 (1958). Specifically, the Court found the order overbroad
because it not only prohibited the appellant from communicating
with people on and off duty, but, taken literally, also
“prohibit[ed] the simple exchange of pleasantries between the
[appellant] and those ‘concerned’ with the investigation.” Id.
at 250-51, 26 C.M.R. at 30-31.
Since Wysong, however, this Court has refined its approach,
focusing more directly on the specific conduct at issue in the
context of the purposes and language of the order. For example,
in Womack, the Court held that a “safe-sex” order that arguably
applied to “civilians having no connection with the military”
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was constitutional given the appellant’s specific conduct, which
did not “violat[e] the order in this way.” 29 M.J. at 91.
Given the Court’s new direction, in analyzing the order’s
breadth in this case, we decline to follow Wysong and, instead,
employ the contextual approach favored in Womack. See also
United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998).
The Supreme Court has long-recognized the principle that
“the military is, by necessity, a specialized society.” Parker
v. Levy, 417 U.S. 733, 743 (1974). Accordingly, “[t]he
fundamental necessity for obedience, and the consequent
necessity for imposition of discipline, may render permissible
within the military that which would be constitutionally
impermissible outside it.” Id. at 758. Given this distinction,
“[t]he weighing of First Amendment considerations within the
military is such that ‘the right of free speech in the armed
services is not unlimited and must be brought into balance with
the paramount consideration of providing an effective fighting
force for the defense of our Country.’” United States v. Brown,
45 M.J. 389, 396 (C.A.A.F. 1996)(quoting United States v.
Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972)). Thus,
military authorities may curtail a servicemember’s communication
and association with other individuals -- and thus burden the
servicemember’s freedom of speech and association -- provided
the authorities act with a valid military purpose and issue a
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clear, specific, narrowly drawn mandate. See United States v.
Jeffers, 57 M.J. 13, 15-16 (C.A.A.F. 2002); Padgett, 48 M.J. at
276-78; Nieves, 44 M.J. at 98-99; Womack, 29 M.J. at 90.
The standing policy governing military/civilian employee
contact at the galley prohibited military employees from exiting
the building with any civilian, engaging in “horseplay” with any
civilian, or giving orders to any civilian. In this vein, if
military employees needed anything work-related from a civilian,
they were required to request it through their supervisors. The
valid military purpose of this policy was to promote good order
and discipline in an environment in which civilian employees –-
the vast majority of whom had physical or mental disabilities –-
were at an increased risk of abuse and injury by non-disabled
military personnel. See United States v. McDaniels, 50 M.J.
407, 408 (C.A.A.F. 1999) (protecting civilians from injury at
the hands of military personnel is a valid military purpose);
Padgett, 48 M.J. at 277-78 (the military has a legitimate
interest in protecting civilians from injury by servicemembers).
Appellant violated the galley’s standing policy on a prior
occasion. His alleged second violation of that policy was much
more serious. Faced with the apparent ineffectiveness of the
standing policy with respect to Appellant, and a potential
investigation into Appellant’s alleged criminal actions, MS1
Turner issued an order directed specifically at Appellant and
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his co-actor. This order reflected both the purpose of the
original standing policy and the further purpose of protecting
the integrity of any investigation.
Within minutes after receiving the order from MS1 Turner,
Appellant approached a civilian employee of the galley and,
using derogatory language, stated that he had been falsely
accused by another civilian employee of touching her breasts.
His supervisors viewed this contact as threatening to the
civilian employees and potentially compromising the integrity of
the investigation. Under these circumstances, it is unnecessary
to determine whether the outer limits of the order were overly
broad, see McDaniels, 50 M.J. at 408, because Appellant’s
contact with the civilian employee involved the type of
unlawful, service-discrediting conduct that may be prohibited by
military orders. Padgett, 48 M.J. at 278.
In short, given the specific context in which the order was
issued and the manner in which it was violated, we find that the
order was not unconstitutionally overbroad in violation of the
First Amendment.
B. The Order was not Unconstitutionally Vague or Indefinite
in Violation of the Fifth Amendment.
Under the Due Process Clause of the Fifth Amendment, “[n]o
one may be required at peril of life, liberty or property to
speculate as to the meaning of penal statutes. All are entitled
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to be informed as to what the State commands or forbids.”
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Here, the
central question of this “void for vagueness” doctrine is
whether Appellant “had actual knowledge of [the order’s] nature
and terms, and [whether] he was on fair notice as to the
particular conduct which was prohibited.” Womack, 29 M.J. at
90. Void for vagueness simply means that criminal
responsibility should not attach where one could not reasonably
understand that his or her contemplated conduct is proscribed.
Parker, 417 U.S. at 757. In evaluating the sufficiency of
notice, we examine the order in light of the conduct with which
Appellant was charged. Id.
MS1 Turner’s order directed Appellant not to converse in
any way with any civilian employees of the galley. The order
was sufficiently clear and certain to have informed Appellant
that to speak with any civilian employee of the galley, as
Appellant did with Mr. Phillips, was to violate the order.
Appellant cannot now claim that the order was so vague that he
could not reasonably understand that his conversation with Mr.
Phillips was proscribed by the order.
Because the order’s language was sufficiently clear,
specific, and narrowly drawn under the circumstances of this
case, we find that the order was not unconstitutionally vague
and indefinite in violation of the Fifth Amendment.
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CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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