                          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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United States v. Moore, No. 03-0083/NA


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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United States v. Moore, No. 03-0083/NA


                           CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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