                          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).




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