UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                     SALUSSOLIA, SALADINO, and ALDYKIEWICZ
                             Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                          Specialist WILLIAM R. RUNDLE
                            United States Army, Appellee

                                  ARMY MISC 20190158

                            Headquarters, Fort Carson
                        Steven Henricks, Military Judge
         Lieutenant Colonel Joshua F. Berry, Acting Staff Judge Advocate


For Appellant: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on brief and
reply brief).

For Appellee: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Timothy G. Burroughs, JA (on brief).


                                          17 May 2019

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                 S U M M A R Y D I S P O S I T I O N AND ACTION ON APPEAL
                     BY THE UNITED STATES FILED PURSUANT TO
                 ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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Per Curiam:

       The United States appeals the ruling of a military judge to dismiss three
specifications of indecent language, in violation of Article 134, Uniform Code of
Military Justice [UCMJ], 10 U.S.C. § 934, as unconstitutionally vague and
overbroad as applied to appellee. 1 We find the military judge erred as a matter of
law and reverse the military judge’s ruling.

1
  We have jurisdiction over this appeal under Article 62, UCMJ, 10 U.S.C. § 862.
The parties raise no jurisdictional issues to our attention nor have we independently
identified any. Unlike our reviews under Article 66, UCMJ, our review is limited
solely to questions of law. See United States v. Gore, 60 M.J. 178, 185 (C.A.A.F.
2004).
RUNDLE—ARMY MISC 20190158

                                   BACKGROUND

                       1. The allegation and pre-trial motions

       Appellee stands charged with three specifications of communicating indecent
language on the internet to anonymous individuals. The substance of appellee’s
messages in the charged specifications depict, in graphic detail, the rape of children.
Appellee submitted a pre-trial motion to dismiss the specifications as
unconstitutionally vague as applied to him under the Due Process Clause of the Fifth
Amendment. Specifically, appellee asserted he was not on fair notice that his
private communications on the internet with anonymous adults were criminalized.

       In opposing the motion, the government asserted appellee was on notice that
his conduct constituted offenses of indecent language, under Article 134, based on
the Manual for Courts-Martial, Army regulation, and case law.

                            2. The military judge’s ruling

       After hearing oral argument, the military judge granted appellee’s motion to
dismiss. The military judge ruled the specifications were vague and overbroad under
the First and Fifth Amendments “because the government is unaware of and not
prepared to introduce sufficient evidence that can establish a direct and palpable
connection between the complained of speech and the military mission or military
environment.”

        In arriving at his ruling, the military judge relied on United States v. Wilcox,
66 M.J. 442, 447-49 (C.A.A.F. 2008). In Wilcox, the Court of Appeals for the
Armed Forces (CAAF) applied a three part test to determine whether evidence
adduced at trial demonstrated Wilcox’s statements were legally sufficient to
criminalize his conduct under Article 134, UCMJ. The Wilcox test assesses whether
a charged violation of Article 134 involving speech implicates First Amendment
protection. The Wilcox test first asks two questions: (1) is the speech otherwise
protected under the First Amendment? and, (2) did the government prove the
elements of an Article 134 offense, including a “reasonably direct and palpable
connection between the speech and the military mission or military environment?”
Id. at 447-49. If the answer to those two questions is affirmative, then the court
conducts a balancing test to determine whether “criminalization of that speech is
justified despite First Amendment concerns.” Id. at 449.

      Applying the first prong of Wilcox, the military judge assumed appellee’s
charged communications were “indecent and [are] therefore also obscene, meaning
[appellee’s] alleged speech does not warrant First Amendment protections.”
Nonetheless, the military judge proceeded to the second prong of Wilcox, and
determined the government could not prove the elements of Article 134 given:



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RUNDLE—ARMY MISC 20190158

             [T]he private, consensual communications between
             [appellee] and different anonymous individuals alleged in
             the specifications [alleging indecent language], and . . .
             the additional dearth of evidence of which the government
             is currently aware that could tend to prove a direct and
             palpable connection between the complained of speech
             and the military mission or military environment . . . .

       Based on these findings, the military judge held that Wilcox required
dismissal of the charges of indecent language as “both constitutionally vague and
overbroad as applied to [appellee].”

      The government, acting within its discretion under Article 62(a)(1)(B),
UCMJ, appealed the military judge’s decision complaining, in essence, the military
judge applied the incorrect law when analyzing appellant’s constitutional challenge.
We agree.

                                     ANALYSIS

       We review a ruling to dismiss a specification for an abuse of discretion.
United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010). When acting on
interlocutory appeals under Article 62, UCMJ, our court may act “only with respect
to matters of law.” United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F. 2011).
We may not substitute our own fact-finding. Id. at 288. The military judge’s
findings of fact are reviewed under the clearly erroneous standard, while his
conclusions of law are reviewed de novo. United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995). A military judge abuses his discretion when he uses incorrect
legal principles. United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008).

      Having reviewed the record before us, we find the military judge erred as a
matter of law for the following reasons:

        First, the military judge erroneously applied the three prong test in Wilcox in
concluding Article 134, indecent language, is unconstitutionally void for vagueness
and overbroad as applied to appellee. The test in Wilcox applies to questions of
legal sufficiency when reviewing an appellant’s conviction and determining
“whether, considering the evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found all of the essential elements beyond a
reasonable doubt.” Wilcox, 66 M.J. 442, 446. In other words, the Wilcox test is not
used to determine whether offenses, as applied, are either unconstitutionally vague
or overbroad. Neither the service courts nor our superior court, to date, has used
Wilcox to evaluate a vagueness or overbreadth challenge.




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RUNDLE—ARMY MISC 20190158

        Second, the military judge’s ruling is devoid of any reference to the proper
legal standard for addressing a vagueness challenge. The void for vagueness
doctrine “is an outgrowth not of the First Amendment, but of the Due Process Clause
of the Fifth Amendment.” United States v. Williams, 553 U.S. 285 (2008). “A
statute can be impermissibly vague for either of two independent reasons. First, if it
fails to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits. Second, if it authorizes or even encourages
arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732
(2000) (citing Chicago v. Morales, 527 U.S. 41, 56-57 (1999)). 2 The potential
sources of “fair notice” that one’s conduct is proscribed by Article 134, indecent
language, include federal law, state law, military case law, military custom and
usage, and military regulations. United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F.
2003).

       Third, the military judge’s ruling lacks any reference to the proper legal
standard for determining whether a statute is overbroad. Although the doctrines of
overbreadth and vagueness often overlap, they are nonetheless two distinct doctrines
of constitutional law with different standards of review. See, e.g., Hoffman Estates
v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) (addressing overbreadth and
vagueness challenges with different analysis). “The overbreadth doctrine prohibits
the Government from banning unprotected speech if a substantial amount of
protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech
Coal., 535 U.S. 234, 255 (2002). 3 Under the First Amendment overbreadth doctrine,

2
  See also FCC v. Fox TV Stations, Inc., 567 U.S. 239 (2012) (holding no fair notice
in FCC policy to broadcasters that “a fleeting expletive” could be indecent in
violation of statute); Kolender v. Lawson, 461 U.S. 352 (1983) (holding state law
requiring person provide “credible and reliable” identification unconstitutionally
vague because gives excessive discretion to police); Hoffman Estates v. Flipside,
Hoffman Estates, 455 U.S. 489 (1982) (ordinance requiring businesses obtain license
to sell drug paraphernalia “designed or marketed for use with illegal cannabis or
drugs” not vague due to implied scienter requirement); Parker v. Levy, 417 U.S. 733
(1974) (holding Articles 133 and 134 not unconstitutionally vague in prohibiting
officer’s statements to enlisted soldiers not to go to Vietnam since “he could have
had no reasonable doubt that his public statements . . . were both ‘unbecoming an
officer and a gentleman,’ and ‘to the prejudice of good order and discipline in the
armed forces’”); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (holding
anti-noise ordinance not unconstitutionally vague on its face because “contains no
broad invitation to subjective or discriminatory enforcement”).
3
  “The first step in overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what
the statute covers.” Williams, 553 U.S. at 293. The second step is for the Court to

                                                                      (continued . . .)


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RUNDLE—ARMY MISC 20190158

“a statute is facially invalid if it prohibits a substantial amount of protected speech.”
Williams, 553 U.S. 285, 292 (2008). When overbreadth is alleged, “[t]he
overbreadth claimant bears the burden of demonstrating, from the text of [the law]
and from actual fact, that substantial overbreadth exists.” Virginia v. Hicks, 539
U.S. 113, 122 (2003) (citation and internal quotation marks omitted). Here, other
than the military judge’s misapplication of Wilcox, where he in-part determined
appellee’s alleged communications do not warrant First Amendment protections, we
are unclear as to how he otherwise found Article 134, indecent language,
unconstitutionally overbroad in the context of the First Amendment. 4

                                    CONCLUSION

       The appeal of the United States pursuant to Article 62, UCMJ, is GRANTED
and the decision of the military judge is therefore SET ASIDE. We make no ruling
as to the constitutionality of the charged specification alleging violations of Article
134, indecent language, but rather return the record of trial to the military judge in
light of the preceding discussion.



                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




                                         MALCOLM H. SQUIRES, JR.
                                         MALCOLM H. SQUIRES, JR.
                                         Clerk of Court
                                         Clerk of Court


(. . . continued)
then determine “whether the statute, as we have construed it, criminalizes a
substantial amount of protected expressive activity.” Id. at 297; see also Tinker v.
Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (holding school rule
prohibiting students from wearing arm bands in protest to Vietnam War overbroad
because school officials had no reason “to anticipate the wearing of armbands would
substantially interfere with the work of the school or impinge upon the rights of
other students”).
4
  We note appellee neither asserted in his motion to dismiss, nor during the Article
39(a), UCMJ, hearing on the motion to dismiss, a claim that Article 134, indecent
language, was overbroad. While appellee’s brief argues this alternate theory for
dismissal, that the additional charge and its specifications are overbroad, we decline
to consider it since the issue was not adequately addressed by the military judge in
his ruling.



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