                        UNITED STATES, Appellee

                                        v.

                    Keith E. POPE, Staff Sergeant
                      U.S. Air Force, Appellant

                                 No. 05-0077

                           Crim. App. No. 34921

       United States Court of Appeals for the Armed Forces

                        Argued November 8, 2005

                         Decided April 14, 2006

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD and EFFRON, JJ., joined. ERDMANN, J., filed
a dissenting opinion.



                                    Counsel


For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Captain Martin L.
Powell (on brief).

For Appellee: Captain Kimani R. Eason (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs,
Lieutenant Colonel William B. Smith, Major Michelle M. McCluer,
and Major Lane A. Thurgood (on brief).

Military Judge:   Sharon A. Shaffer


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Pope, No. 05-0077/AF


       Judge BAKER delivered the opinion of the Court.

       After a contested general court-martial before members,

Appellant, a recruiter, was convicted of a variety of offenses

relating to inappropriate and unprofessional conduct with

prospective applicants.   The findings of guilt included four

specifications of violating a lawful general regulation, one

specification of maltreatment, and two specifications of

assault, in violation of Articles 92, 93, and 128, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 892, 893, and 928

(2000), respectively.   The adjudged and approved sentence

included a bad-conduct discharge, confinement for fifteen

months, forfeiture of all pay and allowances and reduction to

airman basic (E-1).   The United States Air Force Court of

Criminal Appeals affirmed in an unpublished decision.    United

States v. Pope, No. ACM 34921, 2004 CCA LEXIS 204, 2004 WL

1933210 (A.F. Ct. Crim. App. Aug. 30, 2004).   We granted review

of the following three issues upon Appellant’s petition:

  I.     WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT
         APPELLANT OF SPECIFICATIONS 2, 3, AND 4 OF CHARGE I
         (VIOLATION OF A DIRECTIVE PROHIBITING SEXUAL HARASSMENT)
         BEYOND A REASONABLE DOUBT.

  II.    WHETHER AIR EDUCATION AND TRAINING INSTRUCTION 36-2002,
         PARA. 1.1.2.2.5. (PROHIBITING INAPPROPRIATE CONDUCT AND
         UNPROFESSIONAL RELATIONSHIPS) BOTH FACIALLY AND AS
         APPLIED TO APPELLANT VIOLATES DUE PROCESS AND IS
         UNCONSTITUTIONALLY VOID FOR VAGUENESS.

  III. WHETHER THE MILITARY JUDGE ERRED WHEN SHE ADMITTED OVER
       DEFENSE OBJECTION, A PROSECUTION EXHIBIT OFFERED AS


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United States v. Pope, No. 05-0077/AF


       SENTENCING AGGRAVATION EVIDENCE THAT ARGUED AIR FORCE
       CORE VALUES AND ENDORSED “HARSH ADVERSE ACTION” FOR THOSE
       WHO COMMITTED APPELLANT’S OFFENSES.

For the reasons that follow, we hold the evidence was legally

sufficient to support Appellant’s convictions.   Further, we hold

that the challenged instruction was not unconstitutionally vague

and that it provided sufficient notice to Appellant that his

conduct was subject to criminal sanction in the context of a

recruiter’s relationship with applicants.   Finally, we conclude

that the military judge admitted an impermissible command view

on punishment during presentencing.    Consequently, a rehearing

on sentence is authorized.

                              BACKGROUND

     Appellant was a thirty-five-year-old staff sergeant

assigned to the 331st Recruiting Squadron at Maxwell Air Force

Base, Gunter Annex, in Alabama.    Appellant completed recruiter

training and graduated from “Recruiter Technical School” on June

1, 2000.   In response to a number of incidents of sexual

harassment by Air Force recruiters, each graduating class of

recruiters, including Appellant’s, was briefed about the problem

of sexual misconduct and informed of the consequences if they

engaged in such misconduct.    Each recruiter was additionally

given a letter signed by Brigadier General Peter U. Sutton,

Commander of the Air Force Recruiting Service, stating that if

they failed to treat applicants respectfully and professionally,


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United States v. Pope, No. 05-0077/AF


they “should not be surprised when, once you are caught, harsh

adverse action follows.”

      After completing processing at Maxwell, Appellant was sent

to a recruiting field office in Athens, Georgia.

A.   Appellant’s conduct with applicant J.R.B.1

      J.R.B. first met Appellant at the recruiting office in

Athens around September 2000 when she was a seventeen-year-old

senior in high school.       Appellant initially offered her food and

started taking her information.         When J.R.B. told Appellant she

was an artist, Appellant mentioned that he needed some art for

his apartment and stated that he would like to see her artwork.

While J.R.B. did not think Appellant expressly stated that he

wanted her to come to his apartment, she believed that he

implied it.     Nothing else unusual happened during this first

encounter.

      J.R.B. met with Appellant a second time at a recruiting

fair outside her school cafeteria.          Appellant called out her

name and asked that she come to his booth.           J.R.B. complied, and

the two discussed whether rules in the Air Force were less

1
  The specification on the charge sheet related to J.R.B. was drafted as
follows:

             Specification 2: [D]id, at or near Farmington,
             Georgia, from on or about 1 September 2000 to on or
             about 31 October 2000, violate a lawful general
             regulation, to wit: paragraph 1.1.2.2.5.5, Air
             Education and Training Command Instruction 36-2002,
             dated 18 April 2000, by engaging in verbal conduct of
             a sexual nature with J.R.B. that created an
             intimidating, hostile or offensive environment.


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United States v. Pope, No. 05-0077/AF


strict than in the Marines.          During the conversation J.R.B.

asked whether her eyebrow ring would be permitted in the Air

Force.     Appellant, referring to the eyebrow ring, commented,

“[t]hat’s driving me crazy, that [sic] so sexy.”              J.R.B.

reported the incident to her French teacher.

        At trial, J.R.B. testified that she did not feel

intimidated by Appellant, but felt extremely uncomfortable and

that after his comments, her “skin was crawling” and she “was

all shaky.”      Upon defense counsel questioning, J.R.B. also

testified that Appellant never asked her out on a date.

B.     Appellant’s conduct with applicant P.M.B.2

        P.M.B. was sixteen years old when she first met Appellant

at the recruiting office in October 2000.            Appellant commented

that she was “pretty” and also that she had “a lot going for

[her].”      On one occasion when P.M.B. was riding back with

Appellant in his car from an Air Force entrance exam, he again

commented that she was pretty and placed his hand around her

knee area for a couple of seconds.           P.M.B. testified that


2
    This specification was drafted on the charge sheet as follows:

              Specification 3: [D]id, at or near Athens, Georgia,
              on divers occasions from on or about 1 October 2000
              to on or about 27 December 2000, violate a lawful
              general regulation, to wit: paragraph 1.1.2.2.5, Air
              Education and Training Command Instruction 36-2002,
              dated 18 April 2000, by engaging in verbal and
              physical conduct of a sexual nature with P.M.B. that
              created an intimidating, hostile or offensive
              environment.



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United States v. Pope, No. 05-0077/AF


Appellant’s actions could have been done in a conversational

way, but that his actions made her feel uncomfortable and

intimidated.

C.     Appellant’s conduct with applicant A.D.R.3

        A.D.R. was eighteen years old when she first met Appellant

at the recruiting office in July 2000.           A.D.R. testified at

trial that Appellant was professional initially, but then he

started to get uncomfortably personal.           Appellant inquired why

A.D.R. did not have a boyfriend and why her past relationships

with boyfriends had failed.          Appellant began looking at his

computer, and when A.D.R. asked what he was looking at,

Appellant stated it was a picture, but “not the kind you take

home to your grandmother.”         Appellant repeatedly told A.D.R.

that he wanted her to come over to his house at nighttime to

take pictures of her, and A.D.R. testified at trial that as she

got up to leave, Appellant “look[ed] her up and down.”               She also

testified that his comments made her “very uncomfortable” and

that she never returned to the recruiting office.



3
    This specification was drafted as follows:

              Specification 4: [D]id, at or near Athens, Georgia,
              from on or about 18 April 2000 to on or about 1
              November 2000, violate a lawful general regulation,
              to wit: paragraph 1.1.2.2.5.5., Air Education and
              Training Command Instruction 36-2002, dated 18 April
              2000, by engaging in verbal conduct of a sexual
              nature with A.R. that created an intimidating,
              hostile, or offensive environment.



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United States v. Pope, No. 05-0077/AF


                                 DISCUSSION

A.   Sufficiency of the evidence

      Regarding his conduct with the three applicants mentioned

above, the Government charged Appellant with violating

paragraphs 1.1.2.2.5. and 1.1.2.2.5.5. of Air Education and

Training Command, Instr. 36-2002, Recruiting Procedures for the

Air Force (Apr. 18, 2000) [hereinafter AETCI 36-2002].4

Appellant renews his argument before this Court that the

evidence was not legally sufficient to support his conviction.

4
  The portions of AETCI 36-2002 that are at issue in this case state the
following:

      1.1.2.2.5.        Recruiting personnel will maintain high standards of
                        conduct and be totally professional in their
                        relationships with applicants. Inappropriate conduct
                        and unprofessional relationships include, but are not
                        limited to, the following:

      1.1.2.2.5.1.      Developing or attempting to develop or maintain an
                        intimate personal relationship with an applicant.

      1.1.2.2.5.2.      Making sexual advances towards applicants or seeking
                        or accepting sexual advances from applicants.

      1.1.2.2.5.3.      Dating or attempting to date any applicant whose
                        processing has begun and has not been terminated due
                        to the applicant’s own withdrawal or one of the
                        grounds of unacceptability outlined elsewhere in this
                        instruction. . . .

      1.1.2.2.5.4.      Using grade or position, threats, pressure, or
                        promise of return of favors or favorable treatment in
                        an attempt to gain sexual favors from applicants.

      1.1.2.2.5.5.      Engaging in any verbal or physical conduct of a
                        sexual nature that creates an intimidating, hostile,
                        or offensive environment.

      1.1.2.2.5.6.      Using personal resources to provide applicants with
                        lodging or transportation.

      1.1.2.2.5.7.      Accepting an applicant’s personal belongings or
                        household goods for storage or any other reason.



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United States v. Pope, No. 05-0077/AF


     In determining whether the evidence is legally sufficient,

we “‘view[] the evidence in the light most favorable to the

prosecution’” and decide whether “‘any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.’”   United States v. Brown, 55 M.J. 375, 385

(C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).   The assessment of the legal sufficiency of the

evidence is limited to the evidence presented at trial.     United

States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

     The elements of an Article 92, UCMJ, violation for failure

to obey a lawful general order or regulation are:   (a) a certain

lawful general order or regulation was in effect; (b) the

accused had a duty to obey that order or regulation; and (c) the

accused violated or failed to obey the order or regulation.

     There is no question that AETCI 36-2002 was in effect at

the time of Appellant’s offenses.    The instruction became

effective April 18, 2000, over two months prior to his

interactions with the applicants involved in this case.

Moreover, there is no issue concerning Appellant’s duty to obey

the instruction.   AETCI 36-2002 is the primary instruction used

by the Air Force Recruiting Service in providing guidance to

recruiters and listing recruitment procedure.   It informs all

recruiters in the field of their duties, and outlines prohibited

conduct with prospective applicants.    AETCI 36-2002 expressly


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United States v. Pope, No. 05-0077/AF


states that “[f]ailure to observe the prohibitions and mandatory

provisions . . . may result in punishment under Article 92, or

other articles, of the [UCMJ].”

     The element in question is whether the evidence proved

beyond a reasonable doubt that Appellant failed to obey AETCI

36-2002.

     1.    Conduct with J.R.B.

     Regarding his conduct with J.R.B., Appellant was found

guilty of violating AETCI 36-2002, paragraph 1.1.2.2.5.5.     This

provision proscribes “[e]ngaging in any verbal or physical

conduct of a sexual nature that creates an intimidating,

hostile, or offensive environment.”   Appellant argues that

because he never expressly invited J.R.B. over to his apartment,

he cannot be guilty of engaging in verbal conduct of a sexual

nature that creates an offensive environment.   We disagree.

Comments need not be expressly or explicitly sexual to be of a

sexual nature.   Sexual innuendo, or a recruiter’s implied

invitation to an applicant that latently suggests sexual

activity, may be sexual in nature.    Moreover, reasonable triers

of fact could have found that Appellant’s sexually laden

comments to J.R.B. that her eyebrow ring was “driving [him]

crazy,” and that it was “so sexy,” were expressly sexual and

contributed to the creation of the offensive environment.




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United States v. Pope, No. 05-0077/AF

     2.   Conduct with P.M.B.

     Regarding Appellant’s interaction with P.M.B., he was

charged with violating paragraph 1.1.2.2.5. of AETCI 36-2002.

That paragraph states that “[r]ecruiting personnel will maintain

high standards of conduct and be totally professional in their

dealings with applicants.”   The instruction incorporates an

unexhausted list of prohibited behavior, including making or

accepting sexual advances from applicants, attempting to date

applicants, using threats, promises, or pressure to gain sexual

favors, or engaging in verbal conduct of a sexual nature that

creates an intimidating, hostile, or offensive environment.

     In this case, a reasonable member could have found that

Appellant engaged in conduct of a sexual nature with a sixteen-

year-old that was in the position of needing to ride alone with

Appellant in his car.   Reasonable triers of fact could have

concluded that by placing his hand on P.M.B.’s knee shortly

after commenting on her appearance, Appellant engaged in conduct

of a sexual nature and created an intimidating or offensive

environment.

     3.   Conduct with A.D.R.

     With respect to A.D.R., Appellant was charged with

violating paragraph 1.1.2.2.5.5. of AETCI 36-2002.   Under the

circumstances of this case, a rational trier of fact could

determine that Appellant created an offensive environment by


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United States v. Pope, No. 05-0077/AF

implying that he was looking at inappropriate images while he

was conversing with A.D.R..   Based on A.D.R.’s testimony, the

members could also have reasonably concluded that Appellant’s

invitation to A.D.R. to come to his home alone at night to “take

pictures” was anything but a request for an innocent rendezvous,

especially in the context of how A.D.R. stated Appellant looked

at her.

      4.   Conclusion

      Viewing the evidence in the light most favorable to the

prosecution, we conclude that a rational trier of fact could

have found beyond a reasonable doubt that Appellant violated

AETCI 36-2002 with respect to J.R.B., P.M.B, and A.D.R. by

engaging in verbal conduct of a sexual nature that created an

intimidating, hostile, or offensive environment.   See Brown, 55

M.J. at 385.

      Appellant was in a position where prospective applicants

had a right to expect that they would be treated with dignity

and respect.   AETCI 36-2002 requires as much.   Applicants expect

a recruiter to evaluate them for their skills, potential, and

ability to contribute to the Air Force, and not for their sexual

appeal.

B.   Constitutionality of the instruction

      We now turn to Appellant’s constitutional challenge to the

instruction.   Appellant argues that subjecting him to criminal


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United States v. Pope, No. 05-0077/AF

sanction for violating AETCI 36-2002 infringes upon his due

process rights because the instruction was vague, and he lacked

fair notice that sexually offensive conduct could be subject to

criminal sanction.   In addition, he argues that a reasonable

person could not conclude that his particular statements were

unacceptable and could subject him to criminal sanction.

     To withstand a challenge on vagueness grounds, a regulation

must provide sufficient notice so that a servicemember can

reasonably understand that his conduct is proscribed.     United

States v. Moore, 58 M.J. 466, 469 (C.A.A.F. 2003).      See also

United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003)

(holding due process requires fair notice that an act is

forbidden and subject to criminal sanction).      This Court

recognizes that possible sources of “fair notice” include:

federal law, state law, military case law, military custom and

usage, and military regulations.     Id. at 31.   Training,

pamphlets, and other materials may also serve as sources of

notice because they may give context to regulations and explain

the differences between permissible and impermissible behavior.

See Brown, 55 M.J. at 384.

     1.   Notice of criminal sanction

     As a threshold matter we note that the instruction as well

as the recruiter school placed Appellant on notice that his

conduct was subject to criminal sanction.    Appellant completed a


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United States v. Pope, No. 05-0077/AF

recruiter training course in which he was instructed on proper

comportment with applicants and informed of rules prohibiting

sexual misconduct.        The Staff Judge Advocate (SJA), Major Robert

Mitchell, testified at trial that he interacted with recruiters

from July 1998 through July 2000 as they came through “Recruiter

Technical School” training, and that he warned applicants,

including Appellant’s June 2000 class, about the consequences of

engaging in misconduct.5        Major Mitchell discussed several high

profile sexual misconduct cases with recruiters in training to

“let them see if they decide not to obey . . . what’s going to

happen.”      Upon graduation from training, every recruiter in the

Air Force Recruiting Service was given a folder with a letter

signed by Brigadier General Peter U. Sutton, Commander of the

Air Force Recruiting Service, stating that such misconduct “will

not be tolerated.”6        Major Mitchell testified that the issue was

5
  Although Major Mitchell testified on sentencing, his testimony is
nonetheless relevant to our analysis and resolution of the constitutional
issue.
6
    Paragraph two of the letter states:
              There is an important reason that AFI [Air Force
              Instruction] 36-2002 forbids recruiters from engaging
              in unprofessional relationships with applicants.
              Whether you feel powerful or not, each recruiter is
              in what is viewed as an influential position. The
              bulk of our applicants are vulnerable young people,
              often teenagers. You hold substantial power in their
              lives . . . at least in their minds, as well as in
              the eyes of their parents. Even in cases where the
              facts indicate consensual sexual activity, the
              victims often feel like an agent of the Air Force
              took advantage of them. You must keep your
              relationships with applicants professional -- period!

Paragraph four of the letter states:


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United States v. Pope, No. 05-0077/AF

so important that “almost every Commander gave it to them a

second time when they got to their units.”          Moreover, the

instruction itself is a source of notice.          The instruction

expressly states that failure to observe its prohibitions may

result in punishment under Article 92, UCMJ, and that compliance

is mandatory.

     2.    Was the regulation vague as applied in context?

     Appellant primarily argues that even if he were on notice

as to the general criminal prohibition regarding sexual contact

with applicants, the instructions were too vague to provide him

with fair notice as to what specific types of conduct would be

prohibited.    He contends that the vagueness of AETCI 36-2002 is

apparent when compared with other sexual harassment directives

in the armed forces that provide specific examples of prohibited

conduct.   For example, Appellant posits Dep’t of the Navy, Sec’y

of the Navy Instr. 5300.26C, Policy on Sexual Harrassment (Oct.

17, 1977) [hereinafter SECNAVINST 5300.26C], discussed in United

States v. Jones, No. NMCM 200000845, 2003 CCA LEXIS 4, at *8-

*16, 2003 WL 131691, at *3-*7 (N-M. Ct. Crim. App. Jan 16, 2003)


            Remember, “integrity first” and “service before self”
            are two of our core values. These two types of
            misconduct violate those principles. The citizens of
            this country demand that we treat our applicants
            respectfully, equitably, and ethically. This command
            and the US Air Force will accept no less. If you
            choose to ignore these important rules for the sake
            of your own pleasure or esteem, you should not be
            surprised when, once you are caught, harsh adverse
            action follows.


                                     14
United States v. Pope, No. 05-0077/AF

(unpublished), as a proper model of clarity.   Unlike AETCI 36-

2002, SECNAVINST 5300.26C provides a detailed summary of the

criteria for sexual harassment.    It discusses “the range of

workplace behaviors that may constitute sexual harassment” and

“utilizes a ‘traffic light illustration . . . in which behaviors

are divided up into three zones, corresponding to a traffic

light.’”   Jones, 2003 CCA LEXIS 4, at *15, 2003 WL 131691, at *6

(citing SECNAVINST 5300.26C, enc. (2), para. 4).   Behavior

falling in the “yellow zone,” which may or may not constitute

sexual harassment, includes violating personal space, whistling,

questions about personal life, lewd and suggestive comments,

repeated requests for dates, and sexually suggestive touching or

gesturing.   Jones, 2003 CCA LEXIS 4, at *15-*16, 2003 WL 131691,

at *6.

     In another context it may be prudent to have specific

prohibitions illustrated with examples in order to identify

criminal conduct; however, the question here is whether the

regulation is constitutionally vague as applied to a recruiter’s

conduct with applicants.   In the context of recruiting, an

instruction as detailed as SECNAVINST 5300.26C is not required.

AETCI 36-2002 is clear that sexual conduct by recruiters with

applicants is prohibited, and recruiters must be “totally

professional in their relationships with applicants.”   AETCI 36-

2002, 1.1.2.2.5.   It was not necessary for the Air Force


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United States v. Pope, No. 05-0077/AF

recruiting instruction to identify every possible nook and

cranny in the line of conduct, for the line is straight and

narrow.

     Moreover, this introductory paragraph of the regulation

incorporates the subordinate paragraphs that follow.    The

subordinate paragraphs provide a range of illustrative, but not

exhaustive conduct that would violate the regulation.    For

example, recruiters are prohibited from “attempting to date any

applicant” or “making sexual advances towards applicants.”     Id.

at 1.1.2.2.5.3; 1.1.2.2.5.2.   With such notice, a reasonable

servicemember need not have pondered whether placing his hand on

an applicant’s knee while riding alone with her in a car,

inviting an applicant to his apartment at night to take

pictures, or telling an applicant that her appearance was

“driving [him] crazy” and was “so sexy,” were prohibited.

     Given the evolving and innumerable ways in which sexually

offensive conduct may occur in the recruiting context, the Air

Force was not required, as a matter of law, to expressly set

forth all conceivable instances of impermissible conduct.      In

our view, the language of AETCI 36-2002 provided ample

discussion of the types of behavior prohibited by the regulation

and a reasonable person would have been on notice that

misconduct of the sort engaged in by Appellant was subject to

criminal sanction.


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United States v. Pope, No. 05-0077/AF

      3.   First Amendment Challenge

      Finally, Appellant argues that AETCI 36-2002 impermissibly

curtails a recruiter’s First Amendment rights to expression.

While intimidating, hostile or offensive speech may be tolerated

in civilian society, in the armed forces, other considerations

also come to bear.      Restrictions on speech may exist that have

no counterpart in civilian society.         Parker v. Levy, 417 U.S.

733, 759 (1974).     “‘[T]he 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)).             Proper

relations between recruiters and applicants in the armed forces

are indispensable in attracting young people to serve their

country and in maintaining military discipline.            Intimidating,

hostile, or offensive conduct of a sexual nature by recruiters

drives potential applicants away from military service and

undermines the effectiveness of the armed forces.7

C.   Admission of the commander’s letter

      During the sentencing phase of Appellant’s trial, the

Government moved to admit in aggravation the letter from

7
  The record reflects that all three of the applicants involved in this case
dropped out of the recruitment process following their interactions with
Appellant.



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United States v. Pope, No. 05-0077/AF

Appellant’s commander, Brigadier General Peter U. Sutton,

Commander of the Air Force Recruiting Service.8           According to the

trial counsel, this exhibit was in support of the anticipated

testimony of the SJA of the Recruiting Service, Major Mitchell.

The theme of the letter as it related to Appellant’s charged

misconduct was that “unprofessional relationships with

applicants . . . will not be tolerated.”          After explaining how

such misconduct, specifically sexual misconduct, erodes the

integrity and effectiveness of the recruiting effort, the letter

concluded with the following:        “If you choose to ignore these

important rules for the sake of your own pleasure or esteem, you

should not be surprised when, once you are caught, harsh adverse

action follows.”

      Trial counsel’s position was that Major Mitchell would

testify that this letter was provided to every recruiter coming

through “Recruiting Technical School,” including Appellant.              The

Government’s argument was that the letter demonstrated the

aggravating nature of Appellant’s conduct because he had

knowledge of what standard of conduct was expected of




8
  This letter was also discussed above in Part B, and was introduced during
the sentencing phase as a source of notice that Appellant’s conduct was
subject to criminal sanction. However, a different question presented here
is whether the letter should have been admitted on sentencing, in light of
its apparent reference to a command policy, without providing the members
with an instruction as to how the command view should be considered.




                                     18
United States v. Pope, No. 05-0077/AF

recruiters, and notwithstanding, chose to conduct himself

otherwise.

     Defense counsel objected on the basis of Rule for Courts-

Martial (R.C.M.) 403 and argued, among other things, that the

letter impermissibly introduced command policy into the

sentencing process.   Defense counsel’s specific concern was the

statement seemingly endorsed “harsh adverse action.”   The

military judge disagreed and admitted the letter, concluding

that she discerned “[no] type of policy argument, or policy

statement in the letter like in drug offenses where a Commander

might say ‘You will not remain in the Air Force’. . . . I don’t

see any . . . policy . . . statement that says ‘You’re going to

be kicked out of the Air Force.’”

     We review a military judge’s decision to admit evidence on

sentencing for a clear abuse of discretion.   United States v.

Manns, 54 M.J. 164, 166 (C.A.A.F. 2004).   We have long

recognized “the need in the service for a broad regulatory

authority for the maintenance of discipline.”   United States v.

Fowle, 7 C.M.A. 349, 351, 22 C.M.R. 139, 141 (1956); United

States v. Hawthorne, 7 C.M.A. 293, 299, 22 C.M.R. 83, 89 (1956).

“A policy directive may be promulgated to improve discipline;

however, it must not be used as leverage to compel a certain

result in the trial itself.”   Fowle, 7 C.M.A. at 351, 22 C.M.R.

at 141.   Thus, we have condemned references to command policies


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United States v. Pope, No. 05-0077/AF

or views “which in effect bring[] the commander into the

deliberation room.”     United States v. Grady, 15 M.J. 275, 276

(C.M.A. 1983).      Such a practice invades the province of the

sentencing authority by raising the spectre of command

influence.    Id.

       In this case, the military judge’s rationale for concluding

that no impermissible command policy was being introduced, while

partially accurate, did not reach far enough.     While the letter

does not suggest that one convicted of this type of misconduct

should be punitively separated, “‘the appearance of improperly

influencing the court-martial proceedings’” is troubling because

it conveys the command’s view that harsh action should be taken

against an accused.     Id.   (quoting Hawthorne, 7 C.M.A. at 297,

22 C.M.R. at 87).     It is just such an appearance that we have

cautioned against in the past.     Id.   “A trial must be kept free

from substantial doubt with respect to fairness and

impartiality.”      Id. at 276; Fowle, 7 C.M.A. at 352, 22 C.M.R. at

142.   Moreover, the letter was admitted without the benefit of

an instruction to the members as to how such a view should be

considered.   Consequently, consistent with this Court’s

practice, we are not convinced beyond a reasonable doubt that

these members were not influenced by the letter.     United States

v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986).




                                   20
United States v. Pope, No. 05-0077/AF

                               DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed with respect to the findings but

reversed as to the sentence.    The sentence is set aside.   The

record of trial is returned to the Judge Advocate General of the

Air Force.   A rehearing on the sentence is authorized.




                                  21
United States v. Pope, 05-0077/AF


     ERDMANN, Judge (dissenting):

     The majority holds that paragraph 1.1.2.2.5.5. of Air

Education and Training Command, Instr. 36-2002, Recruiting

Procedures for the Air Force (Apr. 18, 2000) [hereinafter AETCI

36-2002] is not unconstitutionally vague and therefore does not

violate Pope’s constitutional right to due process.   Because I

find that the language in this instruction prohibiting “verbal

or physical conduct of a sexual nature that creates an

intimidating, hostile, or offensive environment[]” failed to put

Pope on notice that the conduct in which he engaged would

subject him to criminal sanctions and failed to provide adequate

enforcement standards, I respectfully dissent.   As I would find

the language in the instruction unconstitutionally void for

vagueness, I would set aside the findings for Specifications 2,

3, and 4 of Charge I and the sentence.1

     AETCI 36-2002 provides:

          1.1.2.2.5. Recruiting personnel will
          maintain high standards of conduct and be
          totally professional in their relationships
          with applicants. Inappropriate conduct and
          unprofessional relationships include, but
          are not limited to, the following:

          . . . .

          1.1.2.2.5.5. Engaging in any verbal or
          physical conduct of a sexual nature that


1
  Because I would reverse on Issue II, I would not reach the
remaining issues.
United States v. Pope, 05-0077/AF


          creates an intimidating, hostile, or
          offensive environment.2


     “No person shall be . . . deprived of life, liberty, or

property, without due process of law.”   U.S. Const. amend. V.

“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

     The void-for-vagueness doctrine requires that a penal
     statute define the criminal offense with sufficient
     definiteness that ordinary people can understand what
     conduct is prohibited and in a manner that does not
     encourage arbitrary and discriminatory enforcement.
     Kolender v. Lawson, 461 U.S. 352, 357 (1983). The
     same facets of a statute usually raise concerns of
     both fair notice and adequate enforcement standards.
     Hence the analysis of these two concerns tends to
     overlap. The Supreme Court, however, while recently
     recognizing the second concern as more important,
     continues to treat each as an element to be analyzed
     separately. See id. at 357-58.

     The degree of specificity which the Constitution
     demands depends on the nature of the statute.
     Criminal statutes must be more precise than civil
     statutes because the consequences of vagueness are
     more severe. . . . Finally, the Constitution demands


2
  Specification 3 of Charge I alleges that Pope violated
paragraph 1.1.2.2.5. of the instruction while Specifications 2
and 4 of Charge I allege that Pope violated paragraph
1.1.2.2.5.5. of the instruction. However all the specifications
were treated as if they charged a violation of paragraph
1.1.2.2.5.5. All of the specifications charge him with
“engaging in verbal conduct of a sexual nature with [the victim]
that created an intimidating, hostile, or offensive
environment.” The military judge’s instructions to the members
stated that to find Pope guilty they had to find that he
violated paragraph 1.1.2.2.5.5.


                                2
United States v. Pope, 05-0077/AF


     more clarity of laws which threaten to inhibit
     constitutionally protected conduct, especially conduct
     protected by the First Amendment.

United States v. Gaudreau, 860 F.2d 357, 359-60 (10th Cir. 1988)

(footnotes omitted).3

     This court has recognized that a regulation is void for

vagueness if it does not provide sufficient notice for a

servicemember to reasonably understand that his conduct is

proscribed.   United States v. Moore, 58 M.J. 466, 469 (C.A.A.F.

2003).4   Paragraph 1.1.2.2.5.5. of AETCI 36-2002 fails on both

the “notice” and “adequate enforcement standards” grounds.    The

broad language in the instruction does not enable ordinary

people to understand what conduct is prohibited.   Other

administrative and criminal provisions addressing this type of

conduct recognize a need for further definition.   Further, AETCI

3
 In Parker v. Levy, 417 U.S. 733, 756 (1974), the Supreme Court
stated: “Because of the factors differentiating military
society from civilian society, we hold that the proper standard
for review for a vagueness challenge to the articles of the
[Uniform Code of Military Justice (UCMJ)] is the standard which
applies to criminal statutes regulating economic affairs.” Pope
does not challenge an article of the UCMJ, but rather an Air
Education and Training Command (AETC) instruction adopted by an
executive branch agency. The deference that the Supreme Court
granted to Congress in regulating conduct in the military should
not apply to an instruction adopted by a military commander
which has criminal consequences.
4
  While the majority relies in part on the conclusion that a
reasonable member could have found that Pope’s conduct resulted
in sexual conduct that created an intimidating or offensive
environment, that is simply not the correct test in a
constitutional void for vagueness analysis. United States v.
Pope, 62 M.J. __ (10-12) (C.A.A.F. 2006).

                                 3
United States v. Pope, 05-0077/AF


36-2002 fails to provide any standards to guide those charged

with enforcement of the instruction which encourages arbitrary

or discriminatory enforcement.

     In order to be prohibited under the language of paragraph

1.1.2.2.5.5., AETCI 36-2002, it is not enough that the conduct

is of a sexual nature, it must also create an intimidating,

hostile or offensive environment.    While the instruction does

limit the scope of the prohibition to a recruiter’s relationship

with an applicant, it does not further define “conduct of a

sexual nature”.   It also fails to define or further explain what

constitutes an “intimidating, hostile, or offensive

environment”.   The “conduct of a sexual nature” and

“intimidating, hostile, or offensive environment” language is

familiar to those who deal with sexual harassment issues in both

the civilian and military context, as it comes from the

definition of “sexual harassment” adopted by the Equal

Opportunity Employment Commission (EEOC):

          Unwelcome sexual advances, requests for
          sexual favors, and other verbal or physical
          conduct of a sexual nature constitute sexual
          harassment when (1) submission to such
          conduct is made either explicitly or
          implicitly a term or condition of an
          individual’s employment, (2) submission to
          or rejection of such conduct by an
          individual is used as the basis for
          employment decisions affecting such
          individual, or (3) such conduct has the
          purpose or effect of unreasonably
          interfering with an individual’s work


                                 4
United States v. Pope, 05-0077/AF


           performance or creating an intimidating,
           hostile, or offensive working environment.

29 C.F.R. § 1604.11(a) (2005).   However, in sharp contrast to

AETCI 36-2002, the EEOC regulation is accompanied by extensive

policy guidance as to what constitutes “conduct of a sexual

nature” and a “hostile” environment.   See EEOC Notice No. N-915-

050, Policy Guidance on Current Issues of Sexual Harassment

(Mar. 19, 1990) [hereinafter EEOC Policy Guidance].     The EEOC

Policy Guidance notes that “[u]nless the conduct is quite

severe, a single incident or isolated incidents of offensive

sexual conduct or remarks generally do not create an abusive

environment.”5   Id. at para. C(2)

     The EEOC Policy Materials also adopts an objective

“reasonable person” standard to evaluate when harassment is

sufficiently pervasive or severe to constitute a hostile

environment and whether challenged conduct is of a sexual

nature.   Id. at para. C(1).   It is constitutionally troublesome

that the EEOC regulation provides more definition than does

AETCI 36-2002, yet the EEOC regulation does not subject an

individual to criminal sanctions as AETCI 36-2002 does.

     It is also instructive to compare the language of AETCI 36-

2002 to policies and regulations adopted by the Air Force and

5
  The EEOC Policy Guidance also notes, “sexual flirtation or
innuendo, even vulgar language that is trivial or merely
annoying, would probably not establish a hostile environment.”
Id. at para. C.

                                  5
United States v. Pope, 05-0077/AF


other branches of the armed forces that are derived from the

EEOC definition.6     Similar to AETCI 36-2002, these service

regulations can provide the basis for criminal sanctions under

Article 92, UCMJ, 10 U.S.C. § 892 (2000).     Unlike AETCI 36-2002,

however, these service regulations provide further explanation

and guidance as to what type of conduct is prohibited and what

type of conduct is allowed under the regulation.

     The military has generally adopted a standard that not only

utilizes the “objective reasonable person” standard similar to

the EEOC, it also has added the subjective viewpoint of the

victim.7   Dep’t of Defense Dir. 1350.2, Military Equal

Opportunity (MEO) Program E2.1.15.3 (Aug. 18, 1995) [hereinafter

DoD Directive 1350.2] defines “sexual harassment” using the EEOC

language and provides that the conduct must be “so severe or

pervasive that a reasonable person would perceive, and the

victim does perceive, the work environment as hostile or

offensive.”   The directive goes on to define the “[w]orkplace”

environment as including conduct, “on or off duty, [twenty-four]

hours a day.”   Id.    The Air Force has also adopted this same

6
  See J. Richard Chema, Arresting “Tailhook”: The Prosecution of
Sexual Harassment in the Military, 140 Mil. L. Rev. 1, 7-8
(1993).
7
  For a discussion as to the difficulty in adopting the EEOC
language into the military context, see Michael F. Noone,
Chimera or Jackalope? Department of Defense Efforts to Apply
Civilian Sexual Harassment Criteria to the Military, 6 Duke J.
Gender L. & Pol’y 151 (1999).

                                   6
United States v. Pope, 05-0077/AF


standard in Dep’t of the Air Force, Instr. 36-2706, Military

Equal Opportunity Program (July 29, 2004) and Dep’t of the Air

Force, Pamphlet 36-2705, Discrimination and Sexual Harassment

(Feb. 28, 1995).   The lack of definition and enforcement

guidance in AETCI 36-2002 is inconsistent with general Air Force

policy.

     The current Navy regulation on sexual harassment, Dep’t of

the Navy, Sec’y of the Navy Instr. 5300.26D, Policy on Sexual

Harassment (Jan. 3, 2006), contains the same prohibitions as the

EEOC regulation quoted above, but goes even further than DoD

Directive 1350.2 in providing guidance as to that language.    It

includes a definition of the “reasonable person standard” as an

“objective test used to determine if behavior meets the legal

test for sexual harassment,” along with a three-page discussion

of the “range of behaviors which constitute sexual harassment”

that includes the traffic light illustration described by the

majority.   Id. at enc. (1) and (2).   The Army also has

regulation which contains a version of the EEOC definition and

provides examples of different categories of sexual harassment

including verbal conduct, nonverbal conduct, and physical

contact.    See Dep’t of the Army, Reg. 600-20, Personnel-General,

Army Command Policy Ch. 7 (Feb. 1, 2006).    In contrast, AETC has

not developed any further definition or explanation of the same

terms used in the instruction in question.


                                  7
United States v. Pope, 05-0077/AF


     The EEOC and the branches of the armed forces have

determined that the “conduct of a sexual nature” and “hostile

environment” language requires further definition and

explanation in order to be understood by those to whom the

language is applied.   If persons who are subject to the EEOC and

other military service policies and regulations on sexual

harassment require further definition and explanation to know

what conduct is prohibited in those contexts, there is no reason

that a “person of ordinary intelligence” who is subject to AETCI

36-2002 would not also need those additional definitions and

explanations.

     In addition to the lack of definition, there is no guidance

in AETCI 36-2002 as to what standard is to be applied by those

who enforce the instruction.   For example, questions such as

should an objective or subjective standard be used and should

the incident be viewed through the eyes of the victim or a

reasonable person are left unanswered.   With no standards to

rely upon, those who initiate criminal sanctions for violation

of AETCI 36-2002 must necessarily do so in an arbitrary manner.

See City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing

Kolender v. Lawson, 461 U.S. 352, 358 (1983)).

     I agree with the majority that sexual harassment should not

be tolerated in the recruiting context –- just as it should not

be tolerated in any military context.    But if AETC intends, as


                                 8
United States v. Pope, 05-0077/AF


the majority holds, to have a zero tolerance policy for sexual

harassment that differs from the sexual harassment policy

utilized by the rest of the Air Force, the other services and

the EEOC, their instruction should make that clear.    I disagree

with the majority that in the context of recruiting a lack of

definitions and standards for conduct that constitutes a sexual

harassment criminal offense is acceptable.8

     I do not reach a conclusion as to whether Pope’s actions

violated the language of the instruction.     The question before

this court is whether the instruction was adequate to inform him

what conduct would be prohibited and whether the instruction

provides adequate enforcement standards.    Which definitions and

standards are utilized is crucial to determining whether Pope’s

conduct violated the instruction.    Under the commonly accepted

definitions and standards of the EEOC and other service

regulations, Pope’s conduct may not have violated the

instruction.   Under the vague standard affirmed by the majority,

his conduct did violate the instruction.    This conflict

illustrates the problems presented where there is a lack of

notice and inadequate enforcement standards.




8
  While the majority recognizes that it might be prudent in other
contexts to provide further guidance in order to identify
potential criminal conduct, it concludes that it is somehow not
necessary in a recruiting context.

                                 9
United States v. Pope, 05-0077/AF

     The majority finds that the language of the instruction,

along with the directions against misconduct given to Pope

during his recruiter training, were sufficient to provide Pope

with notice that his behavior would subject him to criminal

sanctions.   Pope, 62 M.J. at __ (13).9   Generally, unless a

statute infringes on First Amendment rights, it will be

evaluated “in light of the facts of the case at hand.”    United

States v. Mazurie, 419 U.S. 544, 550 (1975).    Pope raises First

Amendment concerns in his brief that should limit the analysis

to the language of the statute.10    However, even if the statute

were evaluated “in light of the facts of the case at hand”, at

best Pope was informed that nonspecific misconduct could result

in harsh consequences.   The record does not reflect that he was

informed at any time during his training as to what constitutes

“conduct of a sexual nature”, or what constitutes an

“intimidating, hostile, or offensive environment” under AETCI

36-2002.

     Pope could not have known whether his conduct would fall

under AETCI 36-2002 without being aware of the definitions and

9
 This finding addresses only the “notice” prong of the vagueness
analysis and does not impact the “adequate enforcement standard”
prong.
10
  See United States v. Harriss, 347 U.S. 612, 617 (1954) (in
reviewing the definiteness of a criminal statute the Court was
“not concerned with the sufficiency of the information as a
criminal pleading” but with “the statute on its face”).


                                10
United States v. Pope, 05-0077/AF

the standards to be applied.   Similarly, with no further

definitions and standards, those charged with enforcement of the

regulation have no guidance to ensure uniform enforcement that

results in arbitrary enforcement of the instruction.   The lack

of definitions and standards does not create more certainty, it

creates the very ambiguity that the void for vagueness doctrine

is designed to address.   As I find the language of AETCI 36-

2002, paragraph 1.1.2.2.5.5., to be unconstitutionally void for

vagueness, I would set aside the findings for Specifications 2,

3, and 4 of Charge I and the sentence.




                                11
