                         UNITED STATES, Appellee

                                         v.

                       Phillip R. BROWN, Sergeant
                          U.S. Army, Appellant

                                  No. 08-0261
                         Crim. App. No. 20040087

       United States Court of Appeals for the Armed Forces

                         Argued December 2, 2008

                        Decided January 14, 2009

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Lieutenant Colonel Jonathan F. Potter (argued);
Lieutenant Colonel Matthew Miller and Major Grace M. Gallagher
(on brief); Mary T. Hall, Esq., Major Teresa L. Raymond, Captain
Nathan J. Bankson, and Captain Shay Stanford.


For Appellee: Captain Jonathan P. Robell (argued); Colonel
Denise R. Lind, Lieutenant Colonel Mark H. Sydenham, and Major
Christopher Burgess (on brief); Captain Larry W. Downend.



Military Judge:    Edward J. O’Brien



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brown, No. 08-0261/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of willful

disobedience of a superior commissioned officer, false official

statement, indecent acts (three specifications), and adultery,

in violation of Articles 90, 107, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 890, 907, and 934 (2000),

respectively.   The military judge also convicted Appellant,

contrary to his pleas, of false official statement, rape,

larceny, extortion, assault (four specifications), and

communicating a threat in violation of Articles 107, 120, 121,

127, 128, and 134, UCMJ, 10 U.S.C. §§ 920, 927, 907, 928, and

934 (2000), respectively.   The sentence adjudged by the court-

martial and approved by the convening authority included a

dishonorable discharge, confinement for sixteen years, a $50,000

fine, and reduction to the grade of E-1.   After an initial

remand by the United States Army Court of Criminal Appeals to

correct matters not at issue in the present appeal, United

States v. Brown, No. ARMY 20040087 (Army Ct. Crim. App. Jan. 8,

2007) (unpublished), the Court of Criminal appeals affirmed the

findings and sentence.   United States v. Brown, No. ARMY

20040087 (Army Ct. Crim. App. Oct. 31, 2007) (unpublished).

     Upon Appellant’s petition for review, our Court specified

the following issue:


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United States v. Brown, No. 08-0261/AR


             WHETHER THE PHRASE “WITH INTENT UNLAWFULLY
             TO OBTAIN AN ADVANTAGE, TO WIT: SEXUAL
             RELATIONS,” IN THE SPECIFICATION OF CHARGE
             II STATES THE OFFENSE OF EXTORTION IN LIGHT
             OF THE PROVISION IN THE MANUAL FOR COURTS-
             MARTIAL THAT PROVIDES THAT “AN INTENT TO
             MAKE A PERSON DO AN ACT AGAINST THAT
             PERSON’S WILL IS NOT, BY ITSELF, SUFFICIENT
             TO CONSTITUTE EXTORTION.” SEE MANUAL FOR
             COURTS-MARTIAL, UNITED STATES PT. IV, PARA.
             53.c.(4) (2005 ED.).

     For the reasons set forth below, we affirm the decision of

the Army Court of Criminal Appeals.



                            I.   BACKGROUND

     The specified issue concerns the extortion charge under

Article 127, UCMJ, which involved Appellant and Private First

Class (PFC) RA.    Appellant and his wife were involved in a

consensual sexual relationship with PFC RA while all three were

stationed in Korea.    After several months, PFC RA told Appellant

that she wanted to end the relationship following an altercation

in which Appellant held a knife to his wife’s throat and stabbed

at PFC RA.

     Appellant, who did not want the relationship to end,

continued to contact PFC RA in person and on the telephone.

Although PFC RA repeatedly told Appellant that she no longer

wanted to talk to him, Appellant persisted.    During a number of

these conversations, Appellant said that he had a videotape of




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United States v. Brown, No. 08-0261/AR


PFC RA engaging in sexual activity with him and his wife, adding

that that he would show the videotape to PFC RA’s colleagues.

     On one occasion, Appellant met PFC RA in the hallway

outside her barracks, and a heated verbal exchange ensued.

Shortly thereafter, Appellant telephoned PFC RA and told her

that he would show the videotape of their sexual activities to

her chain of command.   Appellant returned to PFC RA’s barracks,

but PFC RA refused to allow Appellant to enter her room.

Appellant said:   “I’ll yell down the hall about us having sex.”

After PFC RA opened the door slightly, Appellant pushed his way

into the room and told PFC RA’s friend, who was also in the

room, about the videotape.   Appellant left the room, called PFC

RA again, and indicated to her that he would release the

videotape if she did not meet him outside in three minutes.    She

agreed to meet him, and they argued for approximately an hour

and a half.   During that time, he repeatedly told her that he

would disseminate the videotape to various individuals in her

command.   Eventually, Appellant told PFC RA that he would give

her the videotape if she got in his car.   She acquiesced, and he

proceeded to sexually assault her in the vehicle.

     The next morning, Appellant called PFC RA, telling her that

he would release the videotape if she did not stay with him.

She refused and hung up the phone.   Appellant called back,

stating that he would give the videotape to named individuals in


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United States v. Brown, No. 08-0261/AR


her command.    Later that morning, Appellant called PFC RA to

tell her that he would provide her with the videotape, subject

to the condition that she have sex with him on the following

Monday, and monthly thereafter during the balance of her

remaining twelve months in Korea.       PFC RA refused, and Appellant

reiterated that he would tell her command about the videotape.

Over the next few days, he repeatedly called PFC RA and said

that he would release the videotape.      Eventually, PFC RA

reported these events to her chain of command.      The subsequent

investigation resulted in a variety of charges against

Appellant, including the charge of extortion under Article 127,

UCMJ.    The specification of which Appellant was convicted stated

that “with intent unlawfully to obtain an advantage, to wit:

sexual relations, [Appellant] communicate[d] to [PFC RA] a

threat to expose to other members of the military their past

sexual relationship and to use his rank, position, and

connections to discredit her and ruin her military career.”



                            II.   DISCUSSION

        The specified issue asks whether the facts charged in the

specification are sufficient as a matter of law to constitute

extortion under Article 127, UCMJ.      This is a question of law,

which this Court reviews de novo.       See United States v. Crafter,

64 M.J. 209, 211 (C.A.A.F. 2006).


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United States v. Brown, No. 08-0261/AR


      Article 127, UCMJ, prohibits the “communicat[ion of]

threats to another person with the intention thereby to obtain

anything of value or any acquittance, advantage, or immunity.”

The Manual for Courts-Martial (MCM) explains that, “[u]nless it

is clear from the circumstances, the advantage or immunity

sought should be described in the specification.”    MCM, pt. IV,

para. 53.c.(4) (2005 ed.).   The Manual further explains that

“[a]n intent to make a person do an act against that person’s

will is not, by itself, sufficient to constitute extortion.”

Id.   The specified issue involves interpretation of the guidance

in para. 53.c.(4) of the Manual.     As such, the present case does

not involve a challenge to the validity of the guidance on

substantive offenses under pt. IV of the Manual.     See United

States v. Mitchell, 66 M.J. 176, 179 (C.A.A.F. 2008).

      The specification in the present case is sufficient under

the statute, Article 127, UCMJ, in that it describes the

“advantage” that Appellant sought to achieve (the participation

of PFC RA in sexual relations) and further describes the threat

communicated to PFC RA to obtain that advantage (to expose their

past sexual relationship in a manner that would harm her

military career).   As such, the specification is consistent with

para. 54.c.(4) of the Manual, which expresses a preference for

an express description of the advantage.    Moreover, the

specification is consistent with the additional guidance in


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United States v. Brown, No. 08-0261/AR


para. 54.c.(4) of the Manual, which states that an intent to

have “a person do an act against that person’s will,” would not

be sufficient “by itself” to constitute extortion.   Here, in

addition to alleging that Appellant sought to have PFC RA engage

in an act against her will, the specification further alleged

that Appellant intended to obtain an advantage through her

participation with him in sexual relations.   As such, the

specification did not rely solely, or “by itself,” on an

allegation that Appellation sought to have her engage in an act

against her will.

     The specification alleged, and the evidence demonstrated,

that Appellant sought a specific advantage in exchange for not

releasing the videotape -- namely, sexual relations with PFC RA.

See United States v. Hicks, 24 M.J. 3, 5 (C.M.A. 1987) (holding

that “value” and “advantage” are broad concepts that include

sexual favors).   As the specification explicitly identified this

as the advantage Appellant sought, the specification at issue

was sufficient to state an offense of extortion under Article

127, UCMJ.



                         III.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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