                   UNITED STATES NAVY-MARINE CORPS
                      COURT OF CRIMINAL APPEALS
                           WASHINGTON, D.C.

                                        Before
                        D.C. KING, A.Y. MARKS, B.T. PALMER
                               Appellate Military Judges

                             UNITED STATES OF AMERICA

                                                 v.

                             BRIAN S. JOHNSON
                   STAFF SERGEANT (E-6), U.S. MARINE CORPS

                                   NMCCA 201500196
                               SPECIAL COURT-MARTIAL

Sentence Adjudged: 5 March 2015.
Military Judge: LtCol E.H. Robinson, Jr., USMC.
Convening Authority: Commanding Officer, Recruit Training Regiment, Marine
Corps Recruit Depot, San Diego, CA.
Staff Judge Advocate's Recommendation: Maj B.M. Wilson, USMC.
For Appellant: CDR Ricardo A. Berry, JAGC, USN.
For Appellee: LT Jetti L. Gibson, JAGC, USN; Capt Cory A. Carver, USMC.

                                         28 April 2016

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                                OPINION OF THE COURT
                        ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

        A military judge sitting as a special court-martial convicted the appellant, pursuant to his
pleas, of three specifications of violating a general order against fraternization, three
specifications of violating a general order against sexual harassment, one specification of
dereliction of duty, one specification of violating a general order regarding uniform regulations,
and one specification of adultery, in violation of Articles 92 and 134, Uniform Code of Military
J, 10 U.S.C. §§ 892, 934 (2012). The military judge sentenced appellant to 12 months of
confinement, reduction to pay grade E-1, and a reprimand. The convening authority approved
the sentence as adjudged and, pursuant to a pretrial agreement, suspended confinement in excess
of six months.

        The appellant asserts three assignments of error: (1) it was an unreasonable multiplication
of charges to charge separate specifications of fraternization and sexual harassment for
essentially the same course of conduct; (2) the appellant’s acts of sending digital images of
himself wearing his uniform, with his penis exposed to individuals who solicited the images,
does not constitute appearing at an event in public; and (3) recent legal and factual developments
require setting aside appellant’s conviction for adultery under Article 134 as a violation of equal
protection. We disagree and affirm the approved findings and sentence.

                                          Background

        The appellant, a married Marine with three years’ time-in-grade as a Staff Sergeant, was
the S-6 Communications Electronics Maintenance Chief for a squadron at Marine Corps Air
Ground Combat Center, Twentynine Palms, California. Among the Marines the appellant
supervised were three subordinate females, Corporal (Cpl) R, Cpl T, and Lance Corporal (LCpl)
J. The appellant’s three convictions for fraternization and three convictions for sexual
harassment involved these three Marines. In July 2012, when each reported to the squadron, the
appellant met with them one-on-one in his office.

Cpl R

        During their initial meeting, the appellant asked then-Private First Class (PFC) R whether
she was on birth control and what method of birth control she used. Later, in the S-6
workspaces, the appellant made inappropriate sexual jokes and comments around Cpl R and
warned her and other female Marines to ensure their faces were not in any nude photographs
they transmitted over the internet.

        After Cpl R contacted the appellant for career advice in the fall of 2013, the appellant
texted her a photograph of a naked woman from the internet and claimed it was Cpl R. Cpl R
responded she was not the woman in the photo because that woman did not have tattoos. At the
appellant’s request, Cpl R sent him photos of her tattoos, normally hidden by her uniform. The
appellant replied with sexually suggestive comments. Later, he sent Cpl R photos of his erect
penis until she told him to stop.

Cpl T

         When the appellant first met Cpl T, then a PFC, he asked her what kind of alcohol she
liked, whether she was on birth control, and if she had a boyfriend. Cpl T eventually responded
to the appellant’s overtures by confiding in him about her boyfriend. The appellant began
sending Cpl T personal text messages that began as words of encouragement but turned
flirtatious and sexual in nature. The appellant would text Cpl T nearly every day, telling her she
was beautiful and that he wished they could be together.




                                                 2
       Responding to the appellant’s requests to see her naked during a barracks inspection, Cpl
T undressed to her underwear. The appellant kissed her but went no further when she told him to
stop. The relationship progressed as the appellant regularly met with Cpl T alone in his office,
ending every interaction by hugging and kissing her.

       One night when the appellant stood duty in the barracks, he visited Cpl T in her room.
He removed his uniform, belt, weapon, and duty arm band and had sexual intercourse with her.
Afterward, the appellant sent Cpl T photos of his erect penis and a sexually explicit video of
himself. He found a pre-enlistment photo of Cpl T online and sent it to her, asking if it were she.

        The appellant and Cpl T traveled to Marine Corps Air Station Miramar in Cpl T’s
personal vehicle to pick up equipment. During the trip, the appellant took Cpl T to the Marine
Corps Exchange, bought her a pair of shoes, and treated her to a meal at a restaurant. On another
occasion, the appellant signed Cpl T out on special liberty. Together they shopped, visited an art
gallery, and had lunch.

LCpl J

        After meeting LCpl J, the appellant suggested they speak to each other on a first name
basis, as if they were friends. He would approach LCpl J for a “‘this is Brian to [LCpl J’s first
name] . . . not Staff Sergeant to Lance Corporal’ conversation or ‘this is a Brian to a friend’
conversation.”1 He would invite LCpl J into his office to talk alone, close the door, and
sometimes lock it.

        Eventually, the appellant began to comment on LCpl J’s physical appearance during the
meetings. When he first saw LCpl J without her uniform blouse he remarked about the size of
her breasts. The appellant continued to comment on LCpl J’s breasts and on one occasion,
wrapped his fingers around her wrist and commented on how small she was in comparison to her
breasts. He also showed LCpl J a photo of himself in a bathing suit.

Photographs in Uniform

       In July 2013, the appellant transferred to the drill instructor school at Marine Corps
Recruit Depot San Diego, California. Around the same time, he began visiting the Craigslist
website and responding to posts from people interested in “casual encounters.”2 Using an
anonymous messaging application, the appellant sent approximately 89 sexually explicit
photographs of himself, in uniform, to approximately 24 individuals he met via Craigslist.




1
    Record at 34; Prosecution Exhibit 1 at 2.
2
    Record at 44.


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                                                     Discussion

1. Unreasonable Multiplication of Charges

       For the first time on appeal, the appellant alleges that his convictions for fraternization
and sexual harassment constitute an unreasonable multiplication of charges.

           It is within our authority under Article 66(c), UCMJ, “to consider all claims of
unreasonable multiplication of charges, even if raised for the first time on appeal, and to consider
waiver only ‘if an accused affirmatively, knowingly, and voluntarily relinquishes the issue at
trial . . . .’” United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (quoting United States v.
Quiroz, 53 M.J. 600, 606 (N-M. Ct. Crim. App. 2000). The appellant did not explicitly waive
motions in his pretrial agreement.3 When the military judge asked the trial defense counsel if he
had any motions prior to arraignment, he replied, “[n]o, sir.”4 No one discussed unreasonable
multiplication of charges on the record. Absent an affirmative waiver of the issue in the record,
we will consider it here.

        The concept of unreasonable multiplication of charges stems from RULE FOR COURTS-
MARTIAL 307(c)(4) and the admonition that, “[w]hat is substantially one transaction should not
be made the basis for an unreasonable multiplication of charges against one person.” RULE FOR
COURTS-MARTIAL 307(c)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). The
well-established Quiroz factors guide us in evaluating the reasonableness of charges: “(1) Did
the accused object at trial that there was an unreasonable multiplication of charges and/or
specifications?; (2) Is each charge and specification aimed at distinctly separate criminal acts?;
(3) Does the number of charges and specifications misrepresent or exaggerate the appellant's
criminality?; (4) Does the number of charges and specifications [unreasonably] increase the
appellant’s punitive exposure?; and, (5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?” Quiroz, 55 M.J. at 338 (quoting Quiroz, 53 M.J. at 607)
(internal quotation marks omitted).

        The appellant argues that the conduct that formed the basis for his fraternization
convictions is “inextricably intertwined with the conduct that comprises sexual harassment.”5
Since the Stipulation of Fact and the providence inquiry do rely on many of the same incidents as
proof of both fraternization and sexual harassment, we will examine the multiple specifications
through the Quiroz lens.

           (1)    As previously stated, the appellant did not raise an objection for
           unreasonable multiplication of charges at trial. This factor weighs in the
           Government’s favor.



3
    Appellate Exhibit II.
4
    Record at 14.
5
    Appellant’s Brief and Assignments of Error of 23 Sep 2015 at 8.


                                                          4
           (2)       The appellant faced one specification each of fraternization with and
           sexual harassment of three subordinate Marines in his squadron. Fraternization
           includes “personal relationships between . . . enlisted members that are unduly
           familiar[,] . . . that do not respect differences in grade or rank[,]” and that are
           “prejudicial to good order and discipline or of a nature to bring discredit on the
           naval service[.]”6 The prejudice to good order and discipline may stem from
           “circumstances which – a. call into question a senior’s objectivity; b. result in
           actual or apparent preferential treatment; c. undermine the authority of a senior; or
           d. compromise the chain of command.”7 The unduly familiar relationships that
           constitute fraternization need not be sexual in nature, but they invariably threaten
           a unit’s good order and discipline by creating an appearance of favoritism in the
           chain of command. On the other hand, sexual harassment as prohibited in Marine
           Corps Order 1000.9A, is inherently sexual in nature and is characterized by
           discrimination against, instead of favoritism toward, an individual: “Sexual
           harassment is a form of discrimination that involves unwelcome sexual advances,
           requests for sexual favors, and other verbal or physical conduct of a sexual nature
           . . . .”8 A victim of sexual harassment may face submission to sexual advances as
           a condition of employment or promotion, or a hostile work environment.9

           Over the course of months, the appellant established unduly familiar relationships
           with junior female Marines reporting to his squadron and separately made
           unwanted sexual advances toward them. Conversations between supervisor and
           subordinate on a first name basis and behind closed doors, the exchange of
           personal text messages, and day trips with shopping and lunch were not
           necessarily sexual, but cultivated unduly familiar relationships likely to create an
           appearance of favoritism. Sometimes the unduly familiar relationships facilitated
           sexual contact or the transmission of sexually explicit photos. However, no
           relationship was necessary for unwanted sexual advances. Personal questions
           about birth control and boyfriends occurred during in-calls before a relationship
           existed. Inappropriate jokes and comments made in the S-6 shop created a hostile
           work environment, but did not require an unduly familiar relationship or create an
           appearance of favoritism. The evidence revealed a pattern of behavior toward
           each victim, made up of numerous transactions. While many transactions
           provided evidence of both fraternization and sexual harassment, each
           specification addresses a distinctly separate criminal act. This second factor
           supports the Government’s position.

           (3)     Single specifications of fraternization and sexual harassment address the
           differences in the nature and impact of the appellant’s actions toward his three
           female subordinates over months without exaggerating his criminality. Incidents
6
    United States Navy Regulations, Change 1, article 1165, ¶ 2, 14 Sep 90.
7
    Id.
8
    Marine Corps Order 1000.9A, Sexual Harassment, ¶ 4.c.(1), 30 May 06.
9
    Id.

                                                           5
            of sexual harassment were numerous enough to support more specifications than
            were actually referred. This factor also favors the Government.

            (4)    A single specification of a violation of a general order carries a maximum
            penalty beyond what the appellant faced at a special court-martial. Therefore
            there was no increase in the appellant’s punitive exposure, much less an
            unreasonable one. This factor favors the Government.

            (5)    Finally, finding distinct criminal acts support each specification, we find
            no evidence of prosecutorial overreaching or abuse in the drafting of the charges.

        None of the five Quiroz factors supports the appellant’s contention that the specifications
of fraternization and sexual harassment constitute an unreasonable multiplication of charges.
Thus, we find no error.

2. Violation of Marine Corps Uniform Regulations

       The appellant challenges his conviction for violating the Marine Corps Uniform
Regulations, which prohibit “[a]ppearing or participating in any event in public that would
compromise the dignity of the uniform.”10

        “[W]e review a military judge's decision to accept a guilty plea for an abuse of discretion
and questions of law arising from the guilty plea de novo. In doing so, we apply the substantial
basis test, looking at whether there is something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question regarding the appellant's guilty plea.”
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

        For the first time on appeal, the appellant claims that sending photographs of himself
exposed in uniform to members of the general public did not constitute appearing “in an event in
public” and thus did not violate the order.11 We agree with the appellant that we should construe
punitive orders strictly,12 as we would construe a penal statute. United States v. Scott, 46 C.M.R.
25, 28 (C.M.A. 1972). However, we do not construe criminal statutes so strictly as to frustrate
their drafters’ intent. United States v. Craig, 67 M.J. 742, 746 (N-M. Ct. Crim. App. 2009)
(“‘The rule that penal laws are to be construed strictly, is perhaps not much less old than
construction itself. [However] . . . they are not to be construed so strictly as to defeat the obvious
intention of the legislature.’” (alterations in original) (quoting United States v. Wiltberger, 18
U.S. 76 (1820)). See also United States v. Duke, 37 C.M.R. 80, 84 (C.M.A. 1966); United States
v. Rowe, 32 C.M.R. 302, 311 (C.M.A. 1962). Here, the intent of the order is clear: “The purpose
of this policy is to ensure Marines present the best possible image at all times and continue to
lead the way in military presence.”13 “Any activity which detracts from the dignified appearance
10
     Marine Corps Order P1020.34G w/Ch 1-5, ¶ 1003, 31 Mar 03.
11
     Appellant’s Brief at 5-6.
12
     “Chapter 1 of these regulations is a punitive order.” MCO P1020.34G w/Ch 1-5, ¶ 1000.9.
13
     Id. ¶ 1000.6.c.

                                                          6
of Marines, [sic] is unacceptable.”14 The Marine Corps Uniform Regulations also explicitly
incorporate the Department of Defense regulation which prohibits wearing the uniform “when
[it] would tend to bring discredit upon the Armed Forces.”15

        The appellant admitted to exposing himself, while in uniform, on 24 occasions,
memorializing those exposures in digital images that also displayed his uniform, and forwarding
those images to strangers. The evidence showed he invited at least one recipient to share the
photos with other strangers.16 In a Stipulation of Fact and during the providence inquiry, the
appellant admitted that these actions brought discredit upon the armed forces and disrespected
the dignity and professionalism of the uniform, in violation of the Marine Corps Uniform
Regulations and the Department of Defense regulation they incorporate. On the limited facts of
this guilty plea, we decline to find a substantial question of law or fact that would indicate the
military judge abused his discretion.

3. Equal Protection Challenge

        The appellant also challenges his adultery conviction, arguing that it denied him the equal
protection of the law in violation of the Due Process clause of the Fifth Amendment to the
United States Constitution. In accordance with our holding in United States v. Hackler, __ M.J.
__, 2016 CCA LEXIS 168 (N-M. Ct. Crim. App. 2016), we summarily reject this assigned error.

                                                       Conclusion

            The findings and the sentence are affirmed.

                                                                 For the Court




                                                                 R.H. TROIDL
                                                                 Clerk of Court




14
     Id. ¶ 1000.6.a.
15
   Id. ¶ 11002.1.a(4) (following DoDI 1334.01, Wearing of the Uniform, ¶ 3.1.4, 26 Oct 2005, the current regulation
in the series that began with DoDD 1334.1, Wearing of the Uniform, 11 Aug 1969).
16
     “Anything I send u, u can post if u want, or just have it for ur own use.” PE 4 at 1.

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