United States v. Brown

IN THE CASE OF UNITED STATES, Appellee v. Michael C. BROWN, Captain U.S. Air Force, Appellant No. 00-0295 Crim. App. No. 32906 United States Court of Appeals for the Armed Forces Argued October 11, 2000 Decided September 14, 2001 EFFRON, J., delivered the opinion of the Court, in which SULLIVAN and GIERKE, JJ., joined. SULLIVAN, J., filed a concurring opinion. CRAWFORD, C.J., and BAKER, J., each filed an opinion concurring in part and dissenting in part.

Counsel

For Appellant: Major Stephen P. Kelly (argued); Lieutenant Colonel James R. Wise (on brief); Colonel Jeanne M. Rueth.

For Appellee: Captain James C. Fraser (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on brief); Captain Melissa A. Burke.

Military Judge: Patrick C. Rosenow THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION. United States v. BROWN, No. 00-0295/AF

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of officer members

convicted appellant, contrary to his pleas, of one specification

of disrespect toward a superior officer and six specifications

of conduct unbecoming an officer, in violation of Articles 89

and 133, Uniform Code of Military Justice, 10 USC §§ 889 and

933. He was sentenced to dismissal and confinement for 14 days.

The convening authority approved these results, and the Court of

Criminal Appeals affirmed in an unpublished opinion.

On appellant’s petition, we granted review of the following

issues:

I

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S REQUEST FOR A SPECIAL INSTRUCTION TO ENSURE A PROPER VERDICT BY A VOTE OF TWO-THIRDS OF THE MEMBERS.

II

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING AIR FORCE PAMPHLET 36-2705 ("DISCRIMINATION AND SEXUAL HARASSMENT") WHICH PREJUDICIALLY INVITED THE MEMBERS TO CONSIDER OFFICIAL "AIR FORCE POLICY" IN ADJUDGING FINDINGS AND SENTENCE.

III

WHETHER VARIOUS SPECIFICATIONS OF CHARGE II AND THE ADDITIONAL CHARGE ARE SUPPORTED BY LEGALLY INSUFFICIENT EVIDENCE.

2 United States v. BROWN, No. 00-0295/AF

We hold that the military judge did not err with respect to

Issue II. With respect to Issue III, concerning the legal

sufficiency of the evidence, we affirm in part and reverse in

part for the reasons set forth below. Issue I is moot in light

of our disposition of Issue III.

I. BACKGROUND This case involves the relationships among four Air Force

nurses -- appellant, Captain (Capt) TT, Capt LK, and First

Lieutenant (1Lt) VC. At the time of the incidents at issue, the

four nurses were assigned to the 42nd Medical Group, Maxwell Air

Force Base (AFB), Alabama. Appellant was serving in the grade

of captain as an operating room nurse and assistant supervisor

of the operating room. He was married, had one child, and had

served nearly 10 years on active duty, including 6 years of

service as a commissioned officer in the Air Force. Capt TT, a

female nurse with 4 years of service, also worked in the

operating room. Capt TT was a First Lieutenant for most of the

period during which she worked with appellant and was promoted

near the end of the period encompassing the charges. Appellant

was her assistant supervisor throughout most of this period.

Capt LK, a female nurse anesthetist on her first assignment in

the Air Force, worked in the operating room. 1Lt VC, a female

nurse also on her first assignment, initially worked on the 3 United States v. BROWN, No. 00-0295/AF

Medical Surgical Floor and subsequently was assigned to the

operating room.

Capt TT met appellant when she was assigned to the

operating room in April 1995. Approximately 10 months later,

she mentioned to the operating room supervisor, Lieutenant

Colonel (Lt Col) B, that appellant had made personal comments

that she considered to be offensive. The record is unclear as

to precisely when Capt TT brought this matter to Lt Col B's

attention. Lt Col B responded by discussing the following

options with Capt TT: he could address the situation in his

supervisory capacity or he could allow Capt TT to handle it by

herself. According to Lt Col B, he offered Capt TT the option

of addressing the matter informally on her own because he

thought that “maybe they were just having a personality

problem.” Neither Capt TT nor Lt Col B treated this as a formal

complaint requiring official action, and neither brought these

concerns to appellant's attention.

In March 1996, appellant had a discussion with Capt TT and

other operating room personnel regarding the procedure for

counting medical instruments. Appellant noted that Capt TT had

made an incorrect count on the previous evening, and reminded

everyone present of the accountability procedure required by

hospital policy. Capt TT, who believed that her counting method

was superior, was embarrassed because appellant singled her out 4 United States v. BROWN, No. 00-0295/AF

for criticism. She became defensive and asked appellant to

discuss the issue in private. The conversation escalated into a

shouting match.

Soon thereafter, on March 22, Capt TT decided to call upon

Lt Col B and provide him with the details of her personal

interactions with appellant over the past 10 months, but he was

not in his office. She then returned to the recovery room and

had a conversation with 1Lt VC, the substance of which is a

matter of dispute. Capt TT testified that 1Lt VC initiated a

conversation about appellant, asking, “How can you stand to work

with him?” 1Lt VC specifically contradicted Capt TT's

recollection. 1Lt VC denied making the remark, and instead

expressed her belief that Capt TT was prompted to approach her

as a result of the dispute over counting medical instruments.

Both agree, however, that they discussed appellant's conduct.

The two nurses then met with Lt Col B and related incidents

during the past year that they viewed as inappropriate. Neither

Capt TT nor 1Lt VC advised Lt Col B, at that time, of the

dispute concerning the medical instruments. Capt TT also had a

separate conversation with Lt Col B during which she advised him

that appellant, an African-American, had accused Lt Col B, a

Caucasian, of racism.

As a result of his conversation with Capt TT and 1Lt VC

about their interaction with appellant, Lt Col B became 5 United States v. BROWN, No. 00-0295/AF

concerned that they had raised a sensitive issue for the Air

Force and the Department of Defense that was “out of [his]

league” and that had to be addressed “in light of Air Force

policies on harassment.” He reported his concerns to higher

authorities, which resulted in a formal investigation.

In the meantime, Lt Col B learned of the dispute about

counting medical instruments. He met with appellant on March 28

to discuss that dispute and an unrelated staffing matter. He

did not mention the information he had received from Capt TT and

1Lt VC about their personal interaction with appellant.

According to Lt Col B, appellant remained calm throughout the

conversation. Twenty minutes later, however, appellant returned

and called Lt Col B a racist, complained that Lt Col B was

soliciting lies about him, and threatened to file a complaint

with the Inspector General.1 At about 5:45 a.m. the next morning, appellant asked Lt Col

B if he could go home early because he had worked the previous

night. Lt Col B told him he could not leave at that time.

Appellant returned shortly thereafter and advised Lt Col B that

his wife and child had been in a car accident during the night

and that he needed to go home. Lt Col B again told him he could

1 Lt Col B testified that appellant had been upset with him several months earlier and threatened to go to the Inspector General because Lt Col B had delayed his entry into Squadron Officer School. Appellant was first on the list in terms of seniority, but Lt Col B asked the command to place appellant last for staffing reasons. Appellant entered the next available class.

6 United States v. BROWN, No. 00-0295/AF

not leave. At this point, appellant became upset and began to

yell at Lt Col B. Lt Col B started to escort appellant to his

office and ordered him to stop talking. Appellant complied.

While waiting for the elevator, appellant said, three times,

“I'm not your nigger boy.” Lt Col B, appellant, and a witness

to this remark then went directly to the Commander’s office

without further incident. When asked by the Commander if Lt Col

B had ever overtly discriminated against him or uttered racial

slurs, appellant replied that Lt Col B had not.

Appellant subsequently was charged with and convicted of

disrespect toward Lt Col B under Article 89 and with conduct

unbecoming an officer under Article 133 for his interaction with

the other nurses. The issues raised by appellant in the present

appeal pertain to the Article 133 charges and do not challenge

his conviction for disrespect to Lt Col B.

APPELLANT'S INTERACTION WITH HIS COLLEAGUES 1. Appellant's Interaction With 1Lt VC 1Lt VC met appellant in February 1995, during a 3-day CPR-

Instructor course she attended shortly after she arrived at the

hospital. According to 1Lt VC, appellant sat next to her on 2

of the 3 days. He made complimentary remarks about her

appearance, and asked her a number of questions, including where

she was from, whether she had a boyfriend, whether she worked 7 United States v. BROWN, No. 00-0295/AF

out, how much she weighed, and what type of men she liked.2 She

stated that during these conversations, he touched her hair and

the top of her kneecap.3 Other than moving away from his touch,

she did not manifest concern about his remarks or conduct.

At the time of the CPR course, 1Lt VC and appellant worked

in different sections of the hospital. A year later, in March

1996, she was transferred to appellant’s section of the

hospital, the operating room. According to 1Lt VC, appellant

made several comments that she viewed as inappropriate,

including a statement that her supervisor, Lt Col B, was a

racist.4 She did not respond to him or speak to anyone else

about these comments.

Subsequently, 1Lt VC was approached by another operating

room nurse, Capt TT, who asked her if anyone had made her

uncomfortable. She told Capt TT about appellant’s behavior at

the CPR course the year before and the two then met with Lt Col

B.

2 Appellant was convicted of violating Article 133 by "persistently direct[ing] comments and questions of a personal or sexual nature" to 1Lt VC, including: “You have pretty hair," “You have pretty eyes,” “How much do you weigh?,” “What size are you?,” “What is your phone number?,” “Do you have a boyfriend?,” “Does your boyfriend live in Montgomery?,” and “What type of men do you like?” 3 This physical contact resulted in appellant's conviction under Article 133. 4 Appellant was acquitted of the specification of disrespect to a superior officer that encompassed these comments. Appellant was also acquitted of the specification of conduct unbecoming an officer and a gentleman that entailed “inappropriate” comments he made to 1Lt VC after she began working in the operating room.

8 United States v. BROWN, No. 00-0295/AF Although 1Lt VC later testified that appellant's behavior

made her feel "uncomfortable" and that she found it

"inappropriate," she did not communicate these feelings to him,

nor did she tell anyone else about appellant's conduct.

According to her testimony, she did not feel that appellant was

attempting to become sexually intimate with her. She added that

appellant's manner of communicating involved standing very close

to people when he talked, and that it was his habit to touch

people when he talked to them. She viewed this as an invasion

of her private space, which made her uncomfortable. She stated

that she had not told anyone about her interaction with

appellant at the CPR course because “I was afraid to. I was new

here. He was a captain; I was just a second lieutenant. I

didn’t see him any more. I had no more contact with him.”

Although 1Lt VC testified that she viewed appellant's style

of communication, which included touching, to be inappropriate,

she emphasized that she did not view his actions towards her as

sexual harassment, as morally unfitting, or as criminal conduct.

She added that in her view, the matter had been blown out of

proportion.

2. Appellant's Interaction with Capt LK Capt LK arrived at Maxwell AFB in January 1996. Shortly

thereafter, appellant offered to show her around town. A month 9 United States v. BROWN, No. 00-0295/AF

later, Capt LK ran into appellant and his family at a Black

History Festival. The next day, appellant called Capt LK, and

she agreed to join him on a sightseeing tour. On the tour,

which included lunch, appellant asked her what kind of men she

liked. On the trip home, appellant put his hand on Capt LK’s

leg above the right knee. She did not respond, but she asked

him to take her home so she could pick up her daughter at

school. On a subsequent occasion, when they were together

outside the operating room, appellant touched her face with the

back of his hand. Capt LK also testified that appellant made

various comments to her at work, such as telling her he “was

coming over” to her house, she looked fit, and asking her

several times what kind of men she liked.5 Capt LK testified that despite feeling uncomfortable when

appellant put his hand on her knee, she never made him aware of

this. She testified that his offer to go sightseeing did not

offend her because it reflected customary interaction with new

arrivals, nor did she find his comments on fitness to be

inappropriate. Although she found other remarks by appellant to

be inappropriate and unprofessional, she did not tell appellant

5 Appellant was convicted of violating Article 133 by "persistently direct[ing] comments and questions of a personal or sexual nature" to Capt LK, including: “I’m coming over tonight,” “What kind of man are you attracted to?,” “Are you dating anyone?,” “You look fit,” “Would you like to go sight- seeing?,” and “You don’t need to work out because you look fine.” He was also convicted of violating Article 133 as a result of touching Capt LK's knee, and was acquitted of violating Article 133 with respect to touching Capt LK's face.

10 United States v. BROWN, No. 00-0295/AF

that she had any concerns about his comments, nor did she

communicate any concerns to other officers or the chain of

command. She testified that she believed she could handle any

concerns that she had about appellant by herself. Typically,

she reacted to his remarks by responding in kind. For example,

when he said “I’m coming over,” she replied that she would tell

his wife where “to pick up her stray dog.”

In late March, Capt TT called Capt LK to ask whether

anyone had ever made her feel uncomfortable at work. When she

named appellant, Capt TT informed Capt LK that security police

would be in touch with her.

3. Appellant’s Interaction with Capt TT When Capt TT arrived at Maxwell AFB in April 1995, she was

the only female nurse assigned to the operating room. She

worked directly with appellant from June 1995 until March 1996.

Capt TT testified that she felt uneasy from the moment she met

him because of the way he looked at her body, although she did

not mention it to appellant or anyone else during this period.

She and appellant had numerous discussions of a personal nature

during the period in which they worked together. In June 1995,

they discussed their families while sitting next to each other

in an operating room. According to Capt TT, appellant asked if

she was happily married, winked in a “sort of joking” fashion, 11 United States v. BROWN, No. 00-0295/AF

and put his hand on top of her thigh, toward the inside. She

did not say anything, but she brushed his hand off, stood up,

and walked away. She testified that she was “a little bit

flabbergasted” by the touch, but not angry.6 Capt TT testified that on a separate occasion in June 1995,

she walked into the operating room lounge while appellant and

several others were talking and eating lunch. According to Capt

TT, they were talking about Hollywood and about California and about people having affairs - - extramarital affairs. And I sat down with my food, and Captain Brown looked over at me and said, “Have you ever had an affair?” And I said, “No, I’m not that kind of girl, and why are you such a nibby guy?”[7]

She testified that the question embarrassed her and that she

finished her lunch quickly and left the room while the others

continued the conversation.

According to Capt TT, she and appellant subsequently were

engaged in a conversation, in either June or July 1995, that

covered a number of topics, including families and exercise.

During that conversation, appellant, who had previously shown

Capt TT a picture of his daughter, asked to see a picture of

Capt TT’s daughter. After viewing the picture, appellant asked

6 Appellant was convicted of violating Article 133 as a result of this conduct. 7 Capt TT testified that “nibby” was an “Indiana term” for nosey.

12 United States v. BROWN, No. 00-0295/AF

her a number of questions, including her clothing size, whether

she wore the same size clothing as her daughter, and whether she

worked out. He then commented on her appearance and said that

he could tell she worked out. Capt TT later testified that she

considered his question about her size to be inappropriate, but

she did not express any concern to him at the time.

During this same period, appellant had a number of

conversations with Capt TT during which he put his hand on her

shoulder.8 In August 1995, Capt TT decided to inform appellant

of her discomfort with the touching. She did so in the course

of a casual conversation by raising the topic of sexual

harassment and telling appellant that at her previous base, a

doctor had been “kicked out” of the Air Force for molesting a

patient and sexual harassment. She then told appellant, “By the

way, I don’t like the way you touch me sometimes.” Capt TT

testified that when appellant replied that he did not know this

bothered her, she confirmed that it did and that it made her

uncomfortable.9 Although Capt TT testified that she expressed

her concern to appellant about the touchings, she did not advise

8 Appellant was acquitted of the charge resulting from this contact. 9 According to Capt TT, this conversation took place in the presence of another male nurse. The other nurse, however, testified that he did not recall this conversation.

13 United States v. BROWN, No. 00-0295/AF

appellant of any concern she might have had about the remarks he

had made.

Shortly after this conversation, appellant touched Capt

TT’s right buttock while they were standing side-by-side

interviewing a patient. Capt TT initially characterized the

touch as a “soft squeeze,” but agreed on cross-examination that

it was “a touch.” Afterward, appellant softly said he was

sorry. As appellant walked away, she twice said in a lowered

voice, “Don’t do that again.” She could not be certain whether

appellant heard her.10 Capt TT testified that another touching incident occurred

in October 1995. While interviewing a patient together,

appellant reached in front of Capt TT for part of the medical

record and, in the course of doing so, his hand and forearm

brushed her breast. Capt TT backed up and “[g]ave him a really

hateful look” and appellant apologized. She testified that she

thought the contact may have been accidental and acknowledged on

cross-examination that people often worked “elbow to elbow” in

the operating room and that accidental contact could occur.11

10 Appellant was convicted of violating Article 133 as a result of this contact.

11 The members acquitted appellant of the specification concerning this incident.

14 United States v. BROWN, No. 00-0295/AF Capt TT testified about several other conversations with

appellant. On one occasion, Capt TT entered the operating room

lounge while appellant and others were engaged in a discussion

about the sexual practices of the popular entertainer, Madonna:

We were all in the OR [operating room] lounge, and there was a bunch of people--a group of people in there again during break. And there was a magazine there--a picture front magazine cover was of Madonna, ... and they were talking about--I guess she has a video and a book, and Madonna--I don't know; I've not seen it--but that Madonna masturbates, and they were talking about it. And Captain Brown looked at me and said, "Do women masturbate?" And I looked at a person sitting next to me, and I said, "Not the girls I know," or something to [sic] that sort.

Capt TT testified that conversations of a sexual nature were not

unusual at work at that time.

In the fall of 1995, Capt TT was in the operating room

lounge, showing another person a picture of her daughter, when

appellant asked what size pants she wore. According to Capt TT,

she made a "sarcastic" response and asked rhetorically, “Are you

writing another book?” Appellant then replied “I’m sure other

people have told you how nice looking you are.” Capt TT

testified that in response, she “walked him off. Just walked

away.”

In January 1996, Capt TT was having a conversation with Lt

Col B about an upcoming vacation in Florida when appellant asked 15 United States v. BROWN, No. 00-0295/AF

whether she liked to go in the ocean and whether she wore a one

or two-piece swimsuit. She asked him why he wanted to know, and

he replied that he guessed she wore a two-piece suit. When

asked about Lt Col B's reaction to these comments, Capt TT said

that Lt Col B "didn’t respond to it at all. Honestly, a lot of

people ignored what Captain Brown said to other people because a

lot of times it was out of line.” Lt Col B testified that he

had no recollection of appellant's comments, although he

acknowledged that the remarks might have been made.

In March 1996, according to Capt TT, appellant approached

her in the medication room and told her about an unpleasant

encounter he had just had with a patient, in which he was

concerned that a female patient was “coming on” to him. He told

Capt TT that the patient commented on how good he looked in his

scrubs and asked if he was going to be the one who took her

panties off. The patient made him uncomfortable, and he asked

another nurse to take over.12 He then asked Capt TT if she had

ever experienced something similar. She testified that she was

“bothered” by this conversation because “he kept talking about

it . . . . [H]e called his pants ‘drawers’ and stuff like that,

and I just didn’t want to hear it, and so I walked away.”13

12 Lt Col B testified that appellant had also informed him of the encounter with a patient. 13 As a result of this conversation and the various conversations between appellant and Capt TT over the 10-month period, he was convicted of violating 16 United States v. BROWN, No. 00-0295/AF Prior to the March 1996 dispute between Capt TT and

appellant over the procedure for counting medical instruments,

Capt TT did not voice any objections or otherwise express

concern about appellant’s remarks. With respect to physical

contact, she conveyed her dislike of the touching in August

1995. Following the dispute about the medical instruments, she

complained to Lt Col B. He referred the matter to higher

authorities, which led to an investigation and the Article 133

charges against appellant. At trial, Capt TT testified that her

interaction with appellant routinely made her feel

uncomfortable, angry, or inferior. With respect to his

comments, she testified: “The things that he said, I just -- I

didn’t want to make a scene. I didn’t say anything. I usually

just walked him off.” She also testified: “I didn’t acknowledge

to him it was okay. I think he knew I didn’t like it. [W]hen I

would shrug my shoulder away and get up and walk away from him

during a conversation, I think that was -- I made my point.”

When asked why she had not reported the matter earlier, she

said that although she was aware of Air Force policies on sexual

harassment, including the pamphlet introduced into evidence at

Article 133 by "persistently direct[ing] comments and questions of a personal or sexual nature" to Capt TT, including: “Have you ever had an affair?,” “You look like a size 4,” “You have a very good shape and look very good for your age,” “Do you wear a one piece or two piece swim suit?,” “I bet you wear a two piece [swim suit],” “A patient told me I look good in my pants.” “Are you happily married?.” “Do you get along with your husband?,” “Would you like to go out for lunch?,” and “Do women masturbate?”

17 United States v. BROWN, No. 00-0295/AF

trial, she felt that she got along well with appellant and

wanted to handle the matter herself. Capt TT, who is Caucasian,

also testified that she was afraid of starting a racial issue

and having appellant call her a racist, apparently because he

frequently called their supervisor a racist.14 She summed up her

position by testifying:

I didn’t want to start a fuss. I was new there. I worked with all men. I didn’t want to be the new female coming in starting a fuss. I didn’t want my husband to know because I thought my husband might want to go confront him and do something that maybe he shouldn’t. I didn’t want [Lt Col B] to know because Captain Brown and [Lt Col B] were having a problem anyway that Captain Brown told me was racist [sic]. I didn’t want to start a racial issue. I thought I was the only person involved in all this. I didn’t want to say that he was touching me or accuse him of anything, thinking that I was the only person involved. I honestly thought he would say, “That’s just her word against mine.” I thought I could take care of it myself by just letting him know and pushing him away and letting him know nonchalantly – I wanted to get along with him. We did get along well. We – we got along very well when we worked together as long as I kept my cool and . . .[Pause.] There was times [sic] where we had some disputes, but it wasn’t over the touching. You know, over personal stuff. It was over something to do with business. [Pause.] I didn’t want to tell anyone honestly.

14 Capt TT testified that she and appellant discussed racism frequently. Appellant was acquitted of the specification of disrespect to a superior that 18 United States v. BROWN, No. 00-0295/AF II. BACKGROUND: CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN Article 133 prohibits "conduct unbecoming an officer and a

gentleman." In civilian life, this broadly-worded statute would

be subject to challenge as unconstitutionally vague in a

criminal law proceeding. See Parker v. Levy, 417 U.S. 733 , 753-

56 (1974). The Supreme Court has held, however, that Article

133 is constitutional as applied to members of the armed forces,

so long as the accused has received "fair warning of the

criminality" of his or her conduct. Id. at 756 . In this

regard, the language in the Manual for Courts-Martial has

"narrowed the very broad reach of the literal language of

[Articles 133 and 134 (the General Article)] . . . , and at the

same time has supplied considerable specificity by way of

examples of the conduct which they cover." Id. at 753-54 . The

Supreme Court also noted that "further content may be supplied .

. . by less formalized custom and usage." Id. at 754 .

The Manual for Courts-Martial notes with respect to the

offense of conduct unbecoming an officer and a gentleman:

There are certain moral attributes common to the ideal officer and the perfect gentleman . . . . Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot

encompassed comments he made to Capt TT about Lt Col B being a racist.

19 United States v. BROWN, No. 00-0295/AF fall without seriously compromising the person's standing as an officer, cadet, or midshipman or the person's character as a gentleman. This article prohibits conduct by a commissioned officer, cadet, or midshipman which, taking all the circumstances into consideration, is thus compromising.

Para. 59c(2), Part IV, Manual for Courts-Martial, United States

(2000 ed.).15 The Manual reflects traditional military law.

Winthrop, in his authoritative treatise, noted with respect to

an earlier version of the statute:

Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.

. . . [I]f the act, though ungentlemanlike, be of a trifling character, involving no material prejudice to individual rights, or offence against public morals or decorum, it will not in general properly be viewed as so affecting the reputation of the officer or the credit of the service as to be made the occasion of a prosecution under the Article.

William Winthrop, Military Law and Precedents 711-12 (2d ed.

1920 Reprint) (footnotes omitted). Article 133 is not violated

by conduct that falls short of the attributes of an "ideal

officer and the perfect gentleman" or by "slight deviations

15 All Manual provisions are identical to the ones in effect at the time of appellant's court-martial.

20 United States v. BROWN, No. 00-0295/AF

constituting indecorum or breaches of etiquette," but by conduct

that exceeds the "limit of tolerance" set "by the custom of the

service to which the officer belongs." James Snedeker, Military

Justice Under the Uniform Code 890 (1953); see generally Keithe

E. Nelson, Conduct Expected of An Officer and a Gentleman:

Ambiguity, 12 A.F. L. Rev. 124 (1970).

III. DISCUSSION A. CONSIDERATION OF AIR FORCE POLICY ON DISCRIMINATION AND SEXUAL HARASSMENT Appellant argues that the military judge erred when he

permitted the Government to introduce into evidence Air Force

Pamphlet (AFP) 36-2705, Discrimination and Sexual Harassment (28

February 1995). We review this ruling for an abuse of

discretion. United States v. McElhaney, 54 MJ 120, 129 (2000).

At the time of the events that are the subject of the

present case, the Air Force did not have a punitive regulation

proscribing sexual harassment. Conduct amounting to sexual

harassment could be punished as a military offense if it

constituted maltreatment of a subordinate under Article 93,

UCMJ, 10 USC § 893 ; see para. 17c(2), Part IV, Manual, supra.

The Government, however, chose not to prosecute the present case

under Article 93, and has not argued at trial or on appeal that 21 United States v. BROWN, No. 00-0295/AF

appellant violated regulatory or customary norms regarding

superior-subordinate relationships.

Because the Government chose to prosecute the case under

Article 133 as conduct unbecoming an officer and a gentleman, it

sought to introduce into evidence the Air Force pamphlet setting

forth policy on sexual harassment to show notice of the type of

conduct that was prohibited and to establish a benchmark for

conduct deemed unbecoming an officer and a gentleman in the Air

Force community. As noted in the Government's final brief in

the present appeal, "[t]he pamphlet was relevant in establishing

the standard of conduct expected of Air Force officers," and

introduction of the pamphlet was "necessary to establish that

Appellant was aware that his behavior was impermissible."

Answer to Final Brief at 5, 24.

The pamphlet describes various examples of conduct that may

raise concerns, but does not purport to identify any particular

action as prohibited. Instead, it relies upon the following

definition of sexual harassment to establish notice of the

standard of conduct:

Sexual harassment. A form of sex discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

• Submission to or rejection of such conduct is made either explicitly or implicitly a 22 United States v. BROWN, No. 00-0295/AF term or condition of a person’s job, pay or career, or • Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive work environment.

AFP 36-2705 at 29. The pamphlet adds that the abuse "need not

result in concrete psychological harm to the victim, but rather

need only be so severe or pervasive that a reasonable person

would perceive, and the victim does perceive, the work

environment as hostile or abusive." In addition, the pamphlet

notes that with respect to military personnel, the term

"'[w]orkplace' is an expansive term. . . and may include conduct

on- or off-duty, 24 hours a day." Id.

The pamphlet provides detailed guidance for dealing with

improper conduct. The guidance emphasizes the preference for

informal resolution at the lowest possible level, but does not

preclude formal actions, including military justice proceedings.

Id. at 6-15.16 The pamphlet does not prohibit personal or sexual

16 Other Air Force regulations note that the military Equal Opportunity and Treatment Program has primary responsibility for sexual harassment complaints and that attempts at informal resolution are encouraged before initiating the formal complaint process. See para. 4.9, AFI 36-2706, Military Equal Opportunity and Treatment Program (1 December 1996)(the purpose of the complaint process is to “[e]ncourage early reporting of problems at the lowest level and promote fair resolution”); para. 3.37, AFI 90-301, Inspector General Complaints (12 August 1999)(Military Equal Opportunity has primary responsibility for sexual harassment complaints and all such complaints filed through IG channels will be immediately referred to MEO); para. 1.10, AFI 71- 23 United States v. BROWN, No. 00-0295/AF

relationships among officers, nor does it establish a general

prohibition against comments of a personal or sexual nature

among officers. Only "unwelcomed" comments which affect

employment or create a hostile work environment are prohibited.

At trial, defense counsel argued that the pamphlet was not

relevant under Mil.R.Evid. 401 and 402, Manual, supra, and that

its probative value was outweighed by the danger of unfair

prejudice under Mil.R.Evid. 403. Counsel asserted that the

pamphlet could not be used in a criminal prosecution because it

was not a punitive regulation and did not accurately define what

legally constitutes sexual harassment. Counsel expressed

additional concern, which is reflected in Granted Issue II, that

the examples in the pamphlet might be viewed as conclusively

establishing sexual harassment, and that any material used in

that fashion would improperly influence the members to

appellant’s detriment.

After considering detailed argument from both parties, the

military judge admitted the pamphlet, finding it relevant to

establish whether appellant’s conduct constituted a violation of

Article 133. He addressed defense concerns about prejudice

through an instruction to the members, in which he advised them

that appellant was not charged with a dereliction of duty by

101, Criminal Investigations (1 December 1999)(unless it involves a specific criminal offense, like rape, or a person in the grade of Colonel or above, AFOSI does not investigate complaints of sexual harassment).

24 United States v. BROWN, No. 00-0295/AF

failing to follow the pamphlet, and that if they should decide

that appellant’s behavior contradicted the pamphlet’s guidance,

“it does not automatically follow that his conduct was

unbecoming an officer.”

We agree with the military judge that the pamphlet was

relevant to establish notice of prohibited conduct and the

applicable standard of conduct in the Air Force community. See

United States v. Boyett, 42 MJ 150 (CMA 1995). Such notice was

particularly important in the present case. As a general

matter, personal interactions among military officers are not

prohibited by law, regulation, policy, or custom. On the

contrary, the unique conditions of military service --

frequently involving long working hours, lengthy deployments for

training and operations, harsh working and living conditions,

and dangerous assignments -- tend to break down the distinctions

between personal and professional associations prevalent in

civilian society. As noted in the pamphlet, for military

personnel, the term "workplace" is an expansive term that may

include "off-duty" conduct, 24 hours a day. AFP 36-2705 at 29.

As a general matter, military officers are not precluded

from engaging in conversations with a fellow officer of the

opposite sex involving the type of comments made in the present

case with respect to physical appearance, social contacts, or

sexual matters absent a pertinent custom or policy placed in 25 United States v. BROWN, No. 00-0295/AF

evidence. This is not particularly remarkable, given the

variety of comments that are likely to be made in conversations

between officers of the opposite sex who may have relationships

ranging from casual acquaintance through dating, courtship, and

marriage.

Under these circumstances, the existence of pamphlets or

other evidence of customs and standards limiting such

communications are of particular importance in providing notice

of the distinction between permissible banter and impermissible

remarks. Cf. United States v. Rogers, 54 MJ 244, 256 (2000)

(citing an Air Force Instruction as establishing a standard for

dating relationships among officers by limiting the prohibition

to relationships between senior and junior officers within the

same command).

The focus on "unwelcomed" comments in the pamphlet was

relevant in the present case because it provided notice of the

standard for making the critical distinction between permissible

and impermissible speech. Given the wide variety of

personalities and relationships that may exist among officers,

there is likely to be an equally wide variety of reactions to

comments of a personal or sexual nature. The standard in the

pamphlet emphasizes the need to focus on the personal

interactions at issue to determine whether the remarks were

"unwelcomed." In some cases, the comments may be so egregious 26 United States v. BROWN, No. 00-0295/AF

that any reasonable officer would know that they would be

unwelcome. In most cases, however, it is necessary to examine

the nature of the interaction between the parties to the

conversation to determine whether the person making the remarks

had reasonable notice that the comments would be regarded as

unwelcome, particularly when the comments are not overtly sexual

or demeaning, for the standard also requires that the content of

conduct be sexual.

Likewise, given the wide variety of personalities present

in the service, co-workers may be offended from time to time by

the behavior of their colleagues. But offensive conduct does

not necessarily constitute criminal conduct. The pamphlet

appropriately sets a higher standard, requiring that conduct be

so severe or pervasive that it creates a hostile work

environment. By structuring such an analysis, the pamphlet

establishes a standard for distinguishing between permissible

and impermissible speech. Therefore, the pamphlet was

admissible because it fulfilled the requirement under Article

133 to establish a standard of conduct and notice of the

standard.

We recognize that there is a countervailing consideration -

- the danger that introduction into evidence of examples of

proscribed conduct could be used to impermissibly introduce

command policy into the deliberation room, leading the members 27 United States v. BROWN, No. 00-0295/AF

to reach a conclusion based upon the published examples rather

than their application of the relevant standard to the facts of

the case. See, e.g., United States v. Grady, 15 MJ 275 (CMA

1983). When it is necessary to introduce the custom of the

service to prove an element of an offense, however, it is likely

that the probative value will outweigh the prejudicial effect.

Mil. R. Evid. 403. In some cases, it may be necessary to redact

examples or to provide tailored instructions explaining the

difference between examples and standards of conduct, and

further explaining the manner in which the standards of conduct

apply to the elements of proof. The defense did not request

either step in the present case, and we do not find that the

possibility of confusion was so great that the military judge

was required to redact material or give tailored instructions on

his own motion. Accordingly, we hold that the military judge

did not abuse his discretion by admitting the pamphlet.

B. LEGAL SUFFICIENCY OF THE EVIDENCE In considering whether the evidence in this case is legally

sufficient to sustain appellant’s conviction for conduct

unbecoming an officer and a gentleman, we must “view[] the

evidence in the light most favorable to the prosecution” and

determine whether “any rational trier of fact could have found 28 United States v. BROWN, No. 00-0295/AF

the essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

In the present case, it was necessary for the Government to

prove beyond a reasonable doubt that appellant committed the

charged acts and that under the circumstances, the acts

constituted conduct unbecoming an officer and a gentleman. As

noted in section III. A., supra, the Government relied upon AFP

36-2705 to establish the applicable standard of conduct. Under

the circumstances of the present case, the Government endeavored

to show that appellant's conduct fell within the pamphlet's

proscriptions; that is: (1) appellant's conduct was

"unwelcomed"; (2) it consisted of verbal and physical conduct of

a sexual nature; and (3) it created an intimidating, hostile, or

offensive work environment that was so severe or pervasive that

a reasonable person would perceive the work environment as

hostile or abusive, and the victim of the abuse perceived it as

such.17 We shall first consider the verbal remarks and then

consider the physical activity.

1. The Allegations Involving Appellant's Remarks The Government charged appellant with "persistently

direct[ing] comments and questions of a personal or sexual

17 The prosecution did not contend that appellant's conduct violated those portions of the policy involving unwelcomed sexual advances that are made a condition of employment or that affect career or employment decisions.

29 United States v. BROWN, No. 00-0295/AF

nature" to three of his fellow nurses. He was not charged with

maltreatment under Article 93, or abuse of a superior-

subordinate relationship under Article 133. In that regard, we

note that the Government preferred a charge of maltreatment

under Article 93 against appellant but did not refer it to

court-martial. According to the prosecution, this decision was

made because “none of the three victims named in the . . .

specifications were . . . subject to the orders of the accused

in this case.”

The prosecution emphasized that the heart of each

specification was the allegation that appellant, a married man,

acted "persistently" in communicating personal or sexual matters

to the other nurses. The term "persistent" in this context

refers to "continuing in a course of action without regard to

opposition or previous failure," Webster's Third New

International Dictionary 1686 (1981), which echoes the policy

set forth in the pamphlet. As noted in Part III. A., supra, the

pamphlet does not establish a general prohibition against

remarks of a personal or sexual nature. Only "unwelcomed"

remarks so severe or pervasive that they create a hostile or

abusive environment are proscribed. The limitation of the

proscription to "unwelcomed" comments is a critical component of

the policy, because it separates speech that will be tolerated

from speech that is prohibited.

30 United States v. BROWN, No. 00-0295/AF Under the policy in the pamphlet, impermissible speech

could be shown by demonstrating that: (1) appellant’s remarks

were “unwelcomed” and (2) the comments were “so severe or

pervasive” that a reasonable person would perceive that the

remarks created a “hostile or abusive” environment, and the

victim perceived them as such.

The record is clear that none of the nurses with whom

appellant conversed advised him that his remarks were not

welcome. On the contrary, the record reflects that his remarks

usually produced a straightforward response or a response in

kind, but he was never told that the remarks were unwelcomed.

It is noteworthy that Capt TT, who firmly voiced her objections

to his physical contact with her, did not mention any concerns

to him about the tenor of his remarks, either at that time or

thereafter. Likewise, none of his other colleagues or

supervisors advised him that he was engaging in inappropriate

behavior -- even though many of the conversations were observed

by others.

The record reflects a working atmosphere in and around the

operating room and lounge which accepted discussions involving

physical appearance and sexual matters. For example,

appellant's question to Capt TT about extramarital affairs did

not occur in isolation, but in the context of an ongoing

discussion among the personnel in the lounge about extramarital 31 United States v. BROWN, No. 00-0295/AF

affairs in Hollywood. Similarly, his question to Capt TT about

masturbation occurred during a discussion among personnel of

sexually explicit materials produced by a popular entertainer,

including the topic of masturbation. Capt TT testified that

conversations involving sexual topics were commonplace at that

time in the operating room, and she acknowledged that she had

been known to make an off-color joke.

An even more telling example involves appellant's reference

to Capt TT in a two-piece swimsuit. Again, these remarks were

not made in isolation, but occurred in the presence of the

supervisor, Lt Col B. Appellant made the swimsuit comment in

the course of interrupting Capt TT's conversation with Lt Col B.

According to Capt TT, Lt Col B not only failed to express any

concern about the interruption, he said nothing to indicate that

he regarded appellant's remarks as inappropriate, indicating the

degree to which comments about physical appearance were

tolerated.18 Although the standard in the pamphlet does not require a

recipient of sexual remarks to tell the speaker that the remarks

were unwelcome, the recipient’s action or inaction in response

18 While this arguably could show a failure of leadership on the part of Lt Col B, we note that Lt Col B testified that he did not recall the swimsuit remark incident, but stated that if he did not think a comment was improper he would not approach the individual about it. We reach no conclusion as to whether the incident occurred and, if so, how he responded. We accept Capt TT's testimony solely for the purposes of considering the legal sufficiency of the evidence under Jackson, supra.

32 United States v. BROWN, No. 00-0295/AF

to the remarks is relevant to determining whether the speech was

unwelcome and whether it was “so severe or pervasive that a

reasonable person would perceive, and the victim does perceive,

the work environment as hostile or abusive.” The record of the

responses of the recipients in the present case does not support

a finding that appellant’s remarks violated this standard.

We note that disparity in rank or supervisory relationships

may be relevant to a determination as to whether the standards

in the pamphlet have been violated. The mere existence of such

factors, however, does not establish that speech was unwelcome

or that it created a “hostile or abusive” work environment.

Although appellant served in a supervisory position with regard

to 1Lt VC and was superior in rank to Capt TT for most of the

period encompassing the charged offenses, he was not charged

with an abuse of rank offense. In fact, the prosecution dropped

the only charge dealing with an abuse of rank. Moreover, the

prosecution’s case did not rely on disparity in rank to prove

that appellant’s comments violated Air Force standards.

Finally, we note that the record does not support a finding

that appellant’s comments created “an intimidating, hostile, or

offensive work environment.” The pamphlet defines what type of

conduct creates a hostile work environment:

The above definition emphasizes that workplace conduct, to be actionable as “abusive environment harassment,[”] need not 33 United States v. BROWN, No. 00-0295/AF result in concrete psychological harm to the victim, but rather need only be so severe or pervasive that a reasonable person would perceive, and the victim does perceive, the work environment as hostile or abusive.

AFP 36-2705 at 29.

The subjective component of the standard requires evidence

that the recipient perceived his or her work environment as

hostile or abusive as a result of severe or pervasive conduct.

The testimony of the three nurses falls short of the standard.

1Lt VC testified that appellant’s behavior was inappropriate,

but did not amount to sexual harassment. Capt LK testified that

some of appellant’s comments were inappropriate and made her

uncomfortable, others did not offend her, and that she felt she

could handle the situation herself. Capt TT testified that she

had a good working relationship with appellant. In light of the

fact that the recipients of the charged comments testified that

the verbal conduct was merely inappropriate or unprofessional

and that the situation was manageable, the evidence is legally

insufficient to demonstrate that the victims perceived the work

environment as hostile or abusive according to the standard

relied upon by the Government in the Air Force pamphlet.

The rigorous standard in the pamphlet shows that it is not

merely a civility code for policing the workplace. Only severe

conduct with harsh effects constitutes sexual harassment under

the pamphlet; comments or questions that offend one’s 34 United States v. BROWN, No. 00-0295/AF

sensibilities and make one uncomfortable do not create a hostile

work environment under the standard in the pamphlet.

Appellant's breaches of etiquette may well have warranted

"instruction, counseling or other types of administrative

corrective action," United States v. Wolfson, 36 CMR 722 , 731

(ABR 1966), but his comments did not violate the standard relied

upon by the Government at trial to establish the custom of the

Air Force for purposes of Article 133. Accordingly, the

findings of guilty with respect to specification 7 of Charge II

and specification 1 of the Additional Charge will be set aside,

and those specifications will be dismissed. Specification 1 of

Charge II will be modified as described in Section IV, infra.

2. The Allegations Involving Physical Contact We reach a different conclusion with respect to the

incidents involving physical contact. There is greater latitude

of permissible action with respect to speech than physical

contact because of the manner in which the interplay of words

may be used to establish the parameters of a relationship. In

the circumstances of the relationship between appellant and his

fellow nurses, it was not reasonable for him to assume that they

would consent to physical contact of an intimate nature absent

some communication of receptivity or consent.

35 United States v. BROWN, No. 00-0295/AF In the present case, it is noteworthy that although the

members convicted appellant of four instances of physical

contact, they acquitted him of three other instances. We take

into consideration the fact that the members, who heard the

testimony and observed the demeanor of the witnesses, viewed the

evidence as distinguishing between permissible and impermissible

contact. The convictions involved intimate contact with members

of the opposite sex that was not incidental, collegial, or

innocuous and did not take place where there was any verbal or

nonverbal indication of consent. Accordingly, we will affirm

appellant's convictions under Article 133 as set forth in

specifications 3 and 6 of Charge II, specification 3 of the

Additional Charge, and the portion of specification 1 of Charge

II concerning physical contact. Because we have dismissed or

modified the only charges affected by Granted Issue I, it is not

necessary to address Issue I in this opinion.

IV. CONCLUSION The decision of the United States Air Force Court of

Criminal Appeals is affirmed in part and reversed in part, as

follows: the findings of guilty are affirmed with respect to

specification 3 of Charge I, specifications 3 and 6 of Charge

II, specification 3 of the Additional Charge, and specification 36 United States v. BROWN, No. 00-0295/AF

1 of Charge II, as modified.19 The findings of guilty with

respect to specification 7 of Charge II and specification 1 of

the Additional Charge are set aside, and those specifications

are dismissed. The sentence is set aside. The record of trial

is returned to the Judge Advocate General of the Air Force. A

rehearing as to sentence may be ordered.

19 Specification 1 of Charge II is modified to read as follows: "Did, at or near Maxwell Air Force Base, Alabama, on divers occasions from on or about 1 February 1995 to on or about 3 February 1995, wrongfully and dishonorably touch the hair and knee of [1Lt VC], a woman not his wife, without the consent of the said [1Lt VC], that, under the circumstances, these acts constituted conduct unbecoming an officer and a gentleman."

37 United States v. Brown, 00-0295/AF SULLIVAN, Judge (concurring):

I concur with the excellent opinion of my brother, Judge

Effron. As I have said before, “When the Government makes speech * a crime, the judges on appeal must use an exacting ruler.” In

this case, I particularly find disturbing the Additional Charge

(specification one), where over a 10-month period, appellant is

charged with directing 11 questions and comments to Capt TT --

statements like: “You look like a size 4,” “Would you like to go

out for lunch?,” and “Are you happily married?” These

statements were never reported to authorities when they happened,

but were allegedly noted as they happened by Capt TT in a journal

written in her “own little code.” (R. 169). The journal was

used by Capt TT to make her harassment complaint in a memorandum

for record to Lt Col B immediately after appellant had an

unpleasant dispute with Capt TT over the procedure for counting

medical instruments in the operating room. (R. 193, 200-01, 392).

The journal disappeared before trial. (R. 170).

Did appellant commit a crime with each of the questions or

comments? Were there 11 crimes consolidated by the Government

into one charging specification? Or did the cumulative effect of

* United States v. Brinson, 49 MJ 360, 361 (1998). United States v. Brown, No. 00-0295/AF

these 11 statements constitute one crime in the eyes of the jury?

Like Judge Effron, I find that these comments need to be looked

at carefully in the context of when they were spoken in order to

find criminality. Viewing the comments of appellant, I find the

comments may not be appropriate, but in this case, they are not

criminal. A different result might have been obtained if a

strict superior-subordinate relationship was the backdrop for

these comments. But that is not this case, where the

conversations were among professional nurses of more or less

equal rank.

2 United States v. Brown, No. 00-0295/AF

CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

I agree with the majority that the military judge did not

err with respect to Issue II. With regard to Issue I, like the

court below, I find that appellant’s requested instruction was

confusing and erroneous. Accordingly, I would find no abuse of

discretion by the military judge in refusing to give this

instruction. As I find the evidence to be legally sufficient to

support the findings of guilt of the various specifications of

Charge II and the Additional Charge, like the Court of Criminal

Appeals, I would affirm appellant’s convictions and sentence.

At the conclusion of the evidence on findings, civilian

defense counsel asked the military judge for a special

instruction, as follows:

The Government is not required to prove all of the means or methods alleged in a particular specification.

At least two-thirds of the members, or ___ of the members, must agree with each other, however, that the same means or method alleged in a particular specification was, in fact, engaged in or employed by the Accused in allegedly committing the offense alleged in that particular specification. The two- thirds of the members need not unanimously agree on each means or method, but, in order to convict, must unanimously agree upon at least one such means or method as one engaged in by the Accused. United States v. Brown, No. 00-0295/AF Unless the Government has proven the same means or method to at least two-thirds of the members, beyond a reasonable doubt, you must acquit the Accused of the offense alleged in that particular specification.

The military judge rejected the defense’s request and

instructed as follows:

If you have doubt about the time or specific manner alleged but you are satisfied beyond a reasonable doubt that the offense was committed at a time or in a particular manner which differs slightly from the exact time or manner in the Specification, you may make minor modifications in reaching your findings by changing the time or manner described in the Specification, provided you do not change the nature or identity of the offense. If you discuss doing that, you can come and ask me for more suggestions on how to go about doing that.

A military judge has substantial discretion in deciding

which instructions to give. United States v. Damatta-Olivera, 37 MJ 474, 478 (CMA 1993). See RCM 920(c), Discussion, Manual

for Courts-Martial, United States (1995 ed.).1 The test to

determine whether denial of a requested instruction is error is

whether: (1) the proposed charge is correct; (2) “it is not

substantially covered in the main charge”; and (3) “it is on

such a vital point in the case that the failure to give it

deprived defendant of a defense or seriously impaired its

1 All Manual provisions are cited to the version in effect at the time of appellant’s court-martial. The current version is unchanged. 2 United States v. Brown, No. 00-0295/AF

effective presentation.” Id., quoting United States v. Winborn, 14 USCMA 277, 282 , 34 CMR 57, 62 (1963).

In Schad v. Arizona, 501 U.S. 624, 631 (1991), Justice

Souter, writing for a four-Justice plurality, answered

appellant’s objection:

Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. In Andersen v. United States, 170 U.S. 481 (1898), for example, we sustained a murder conviction against the challenge that the indictment on which the verdict was returned was duplicitous in charging that death occurred through both shooting and drowning. In holding that “the Government was not required to make the charge in the alternative,” id. at 504 , we explained that it was immaterial whether death was caused by one means or the other. Cf. Borum v. United States, 284 U.S. 596 (1932) (upholding the murder conviction of three codefendants under a count that failed to specify which of the three did the actual killing); St. Clair v. United States, 154 U.S. 134, 145 (1894). This fundamental proposition is embodied in Federal Rule of Criminal Procedure 7(c)(1), which provides that “[i]t may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means.”

The Supreme Court recently reiterated this point in

Richardson v. United States, 526 U.S. 813, 817 (1999):

... a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an 3 United States v. Brown, No. 00-0295/AF element of the crime. Schad v. Arizona, 501 U.S. 624, 631-632 (1991) (plurality opinion); Andersen v. United States, 170 U.S. 481, 499-501 (1898). Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement - - a disagreement about means -- would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force. See McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring).

The Courts of Appeals are in agreement. United States v.

Reeder, 170 F.3d 93, 105 (1st Cir. 1999); Bae v. Peters, 950 F.

2d 469, 480 (7th Cir. 1991); United States v. Kim, 196 F.3d 1079,

1083 (9th Cir. 1999); Williamson v. Ward, 110 F.3d 1508, 1523

(10th Cir. 1997); Sims v. Singletary, 155 F.3d 1297, 1313 (11th

Cir. 1998); United States v. Vidal, 23 MJ 319, 324 (CMA 1987);

United States v. Garner, 43 MJ 435, 437 (1996).

Accordingly, two-thirds of the members of the court-martial

adjudicating appellant’s guilt or innocence had to agree that

appellant committed the underlying offense. Two-thirds of the

members did not have to agree on the method by which appellant

committed his misconduct. As the proposed instruction did not

comport with the law and was also confusing, the military judge

did not abuse his discretion in denying the defense counsel’s

request that he give it.

4 United States v. Brown, No. 00-0295/AF Issue III questions the legal sufficiency of the evidence.

In the case of legal sufficiency of the evidence, the standard

of review is “whether, considering the evidence in the light

most favorable to the prosecution, a reasonable factfinder could

have found all the essential elements beyond a reasonable

doubt.” United States v. Turner, 25 MJ 324 (CMA 1987); see

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Further, “[i]n

resolving legal-sufficiency questions, this Court is bound to

draw every reasonable inference from the evidence of record in

favor of the prosecution.” United States v. Blocker, 32 MJ 281,

284 (CMA 1991); see United States v. McGinty, 38 MJ 131 (CMA

1993)(determination that one witness is more believable than

another is sufficient).

In order to maintain a finding of conduct unbecoming an

officer and gentleman, it must generally be shown (1) that “the

accused did or omitted to do certain acts” and (2) that, “under

the circumstances, these acts or omissions constituted conduct

unbecoming an officer and gentleman.” Para. 59b, Part IV,

Manual, supra. As the Manual explains:

Conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial or private capacity which, in 5 United States v. Brown, No. 00-0295/AF dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer. There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person’s standing as an officer, cadet, or midshipman or the person’s character as a gentleman. This article prohibits conduct by a commissioned officer, cadet, or midshipman which, taking all the circumstances into consideration, is thus compromising.

Para. 59c(2), Part IV, Manual, supra (emphasis added). Clearly,

when viewed in its entirety, appellant’s behavior exemplifies a

standard against which a charge of conduct unbecoming an officer

can be measured.

As this Court has said on prior occasions, we assess

criminality under Article 133 by looking at whether the conduct

charged is dishonorable and compromising, not whether it

otherwise amounts to a crime. See United States v. Giordano, 15

USCMA 163, 168 , 35 CMR 135, 140 (1964); United States v. Rogers, 54 MJ 244 (2000). I disagree with the majority’s piecemeal

assessment of appellant’s remarks to his three female co-

workers, instead of examining the totality of his relationship 6 United States v. Brown, No. 00-0295/AF

with these three officers and his sustained pattern of

inappropriate comments.

The majority errs by concluding that unless appellant’s

remarks were “unwelcomed,” as required by Air Force policy, his

language was not a violation of Article 133.2 While none of the

three officer victims ever looked appellant in the eyes after he

made one of his sexually suggestive remarks and said, “Your

comment is unwelcome,” that lack of a rebuke is not

determinative of the issue. When one looks at the various

comments that appellant made to his three nursing co-workers,3 I

find a predatory pattern of comments that are so pervasive as to

2 Following his admission of Prosecution Exhibit 1, AFP 36-2705, which we all agree was properly admitted, the military judge gave the following cautionary instruction: “If you find that the accused did engage in the alleged conduct and that his conduct was contrary to the provisions of Prosecution Exhibit 1, it does not automatically follow that his conduct was unbecoming an officer. Prosecution Exhibit 1 is simply one piece of evidence for you to consider in determining if the accused’s conduct, should you determine that it occurred, was unbecoming an officer.” Unfortunately, it appears that the majority finds that Pros. Ex. 1 is the only piece of evidence that is determinative of whether or not appellant’s conduct was unbecoming an officer and a gentleman. 3 “Specification 1, Charge II: In that CAPTAIN MICHAEL C. BROWN, United States Air Force, 42d Medical Operations Squadron, Maxwell Air Force Base, Alabama, a married man, did, at or near Maxwell Air Force Base, Alabama, on divers occasions from on or about 1 February 1995 to on or about 3 February 1995, wrongfully and dishonorably persistently direct comments and questions of a personal or sexual nature to First Lieutenant [VC], to wit: “You have pretty hair,” “You have pretty eyes,” “How much do you weigh?,” “What size are you?,” “What is your phone number?,” Do you have a boyfriend?,” “Does your boyfriend live in Montgomery?,” and “What type men do you like?,” or words to that effect.... that, under the circumstances, these comments [and] questions ... constituted conduct unbecoming an officer and gentleman.”

“Specification 7, Charge II - In that CAPTAIN MICHAEL C. BROWN, United States Air Force, 42d Medical Operations Squadron, Maxwell Air Force Base, Alabama, a married man, did, at or near Maxwell Air Force Base, Alabama, on divers 7 United States v. Brown, No. 00-0295/AF

compromise appellant’s standing with his colleagues as an Air

Force officer, as well as creating an abusive work environment.

As Capt TT, one of the victims, said in response to questioning:

“There was often times that he said things that were

inappropriate....” Another victim, 1Lt VC, sums up the

situation best. When asked about appellant’s remarks to her,

she responded: “I don’t think it would be appropriate for

anyone to ask those type of questions, if you’re in the Air

Force or not.” Taking the evidence in the light most favorable

to the prosecution, I have no trouble finding that the triers of

fact in this case could have found all the essential elements of

occasions from on or about 12 February 1996 to on or about 29 March 1996, wrongfully and dishonorably persistently direct comments and questions of a personal or sexual nature to Captain [LK], to wit: “I’m coming over tonight,” “What kind of man are you attracted to?,” “Are you dating anyone?,” “You look fit,” “Would you like to go sight-seeing?,” and “You don’t need to work out because you look fine,” or words to that effect, that, under the circumstances, these comments and questions constituted conduct unbecoming an officer and gentleman.”

“Specification 1, Additional Charge: In that CAPTAIN MICHAEL C. BROWN, United States Air Force, 42d Medical Operations Squadron, Maxwell Air Force Base, Alabama, a married man, did, at or near Maxwell Air Force Base, Alabama, on divers occasions from on or about 1 June 1995 to on or about 29 March 1996, wrongfully and dishonorably persistently direct comments and questions of a personal or sexual nature to Captain [TT], a married woman not his wife, to wit: “Have you ever had an affair?,” “You look like a size 4,” “You have a very good shape and look very good for your age,” “Do you wear a one piece or two piece swim suit?,” “I bet you wear a two piece [swimsuit],” “A patient told me I look good in my pants,” “Are you happily married,” “Do you get along with your husband,” “Would you like to go out for lunch?,” “Would you like to come over to my house?,” and “Do women masturbate?,” or words to that effect, that, under the circumstances, these comments and questions constituted conduct unbecoming an officer and gentleman.” 8 United States v. Brown, No. 00-0295/AF

the crime beyond a reasonable doubt. Accordingly, I would

affirm the findings and sentence.

9 United States v. Brown, 00-0295/AF

BAKER, Judge (concurring in part and dissenting in part):

I concur with the majority's handling of Issues I and

II. On Issue III, I agree with the majority that this is a

close case whose resolution revolves around the application

of Jackson v. Virginia, 443 U.S. 307 (1979), to specific

facts. However, I disagree with the majority opinion’s

conclusion and, therefore, dissent on Issue III. For the

reasons that follow, I would affirm the court below with

respect to the charges of verbal harassment, as well as

those involving physical contact.

The Government has charged appellant with conduct

unbecoming an officer based on persistent verbal comments

in violation of Air Force policy on sexual harassment. As

a result, the majority’s analysis rightly hinges on whether

or not appellant was on notice that his verbal conduct was

unwelcome. Air Force policy defines sexual harassment as [a] form of sex discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: * * * • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive work environment.

AFP 36-2705 at 29 (28 February 1995). The policy directive

also states: “Sexual harassment isn’t about sex or healthy

personal relationships. It is an expression of power by United States v. Brown, 00-0295/AF

one individual over another that can be personally

devastating to the recipient and others.” Id. at 19.

Having been placed on notice by Air Force policy as to what

behavior was expected, was appellant on notice that his

verbal and physical contact with 1Lt VC, Capt LK, and Capt

TT was unwelcome?

I agree with the Chief Judge. In certain

circumstances, a relationship may be of a nature that a

comment or touching should be presumed to be unwelcome and

contrary to service custom, even where the recipient is

silent.1 This is particularly likely to be the case where

there is a difference in pay-grade between the recipient

and protagonist of an unwelcome communication, or where

there is a supervisory relationship between the two. 1Lt

VC’s testimony illustrates why recipients of unwelcome

remarks may not overtly manifest their disapproval. Asked

whether she had told anybody about appellant’s touching

during the CPR course, 1Lt VC responded: “No, I didn’t. I

was afraid to. I was new here. He was a captain; I was

1 For all the reasons we have seen play out in this court-martial, the pamphlet also exhorts: “To help combat discrimination and sexual harassment in your work environment, never ignore the problem, speak up and seek help.” AFP 36-2705 at 11. The pamphlet also contemplates any number of resolutions short of court-martial. Certainly, a court- martial is no substitute for good leadership.

2 United States v. Brown, 00-0295/AF

just a second lieutenant. I didn’t see him any more. I

had no more contact with him. That’s why.” Again, when

asked whether she had ever conveyed to appellant her view

that his comments were unprofessional, 1Lt VC responded

“No, I didn’t. . . . I wanted – really, I didn’t want to

get involved, and he was my assistant supervisor, and I

didn’t feel comfortable reporting it.”

Capt TT’s testimony provides similar insight. Asked

how appellant’s actions made her feel, Capt TT responded:

“Inferior. Like I was – I felt like I was a little

lieutenant that was being touched by the captain that

shouldn’t have been.” When asked why she did not say

anything until March of 1996, Capt TT responded: “I didn’t

want to start a fuss. I was new there. I worked with all

men. I didn’t want to be the new female coming in starting

a fuss. I didn’t want my husband to know because I thought

my husband might want to go confront him and do something

that he maybe shouldn’t.”

Notwithstanding the majority opinion’s conclusion that

“the standard in the pamphlet does not require a recipient

of sexual remarks to tell the speaker that the remarks were

unwelcome,” _MJ at (32), I disagree with the opinion’s

conclusion that appellant was “never told the remarks were 3 United States v. Brown, 00-0295/AF

unwelcome” and, therefore, was not on notice the remarks

were unwelcome.2 Appellant’s additional conduct, and the reaction of

1Lt VC and Capts TT and LK to it should have fairly put

appellant on notice that his verbal conduct was unwelcome.

The Air Force pamphlet, if not the general norms of

society, military or civilian, should have already put

appellant on notice that this particular conduct was wrong

and unbecoming an officer.

With respect to 1Lt VC, the majority opinion states

that in response to appellant's verbal communication,

appellant "touched her hair and the top of her kneecap.

Other than moving away from his touch, she did not manifest

concern about his remarks or conduct." __ MJ at (8)

(emphasis added). What this text and the record make clear

is that 1Lt VC made appellant aware that his remarks were

unwelcome. She moved away.3 Nowhere in the Air Force

2 The majority opinion concludes that “[t]he record is clear that none of the nurses with whom appellant conversed advised him that his remarks were not welcome. On the contrary, the record reflects that his remarks usually produced a straightforward response or a response in kind, but he was never told that the remarks were unwelcome.” __ MJ at (31).

3 1Lt VC’s specific testimony was as follows: “Q: And when you claim Captain Brown touched your hair, did you move your head away from him so he couldn't do it any longer? A: I remember doing that. I have a tendency – I just don’t like people touching my hair, and when someone comes up to touch my hair, I – I know I move my head because I’ve done that before. Q: And when you claim Captain Brown touched your knee, you moved your knee away from his hand, correct? A: Correct.”

4 United States v. Brown, 00-0295/AF

policy on sexual harassment does it require the victim of

an offensive touch or word to specify in a given context

which particular words or touchings were unwelcome. A

reasonable person would understand that moving away in

response to physical and/or verbal contact is a signal that

such contact is unwelcome.

The verbal charges pertaining to Capts TT and LK are

closer cases, in part, because officers of the same grade

should share fewer inhibitions about communicating their

views to each other. Restated, a reasonable person might

well interpret silence differently when the person who is

silent is an officer on an equal footing rather than an

officer of subordinate grade. In addition, when given an

apparent opening to communicate her disapproval, Capt TT

did not do so, as when appellant made the swimsuit comment

in front to Lt Col B.

Nonetheless, applying the test for legal sufficiency

expounded in Jackson, when viewed in a light most favorable

to the Government, the evidence is such that a reasonable

factfinder could have found all of the essential elements

of proof beyond a reasonable doubt, and in particular, that

appellant’s comments were unwelcome and that he knew they

were. Moreover, the Jackson standard of review is

particularly applicable where the demeanor of witnesses is 5 United States v. Brown, 00-0295/AF

important in establishing credibility and critical

testimonial phrases may be cryptic to the appellate eye.

In response to appellant’s comment regarding how nice

looking she was, Capt TT responded, “I walked him off.

Just walked away.” (Emphasis added.) Again, Capt TT

stated, “The things that he said, I just – I didn’t’ want

to make a scene. I didn’t say anything. I usually just

walked him off. . . . I didn’t acknowledge to him it was

okay. I think he knew I didn’t like it. I – when I would

shrug my shoulder away and get up and walk away from him

during a conversation, I think that was – I made my point.”

(Emphasis added.)

Capt LK also communicated to appellant that his

remarks and physical touching were unwelcome. When

appellant said to Capt LK that he would come over to her

house, she responded “Well, what is your wife’s name

because I will call her and tell her where to pick up her

stray dog because I don’t pick up strays.” (Emphasis

added.) When appellant touched the back of his hand to

Capt LK’s cheek, she immediately walked away and backed up

from him. Only if we view appellant’s statements as

individual, isolated communications, without relation to

what has gone before or what comes after, can it be said

under Jackson that 1Lt VC, Capt TT, and Capt LK failed to 6 United States v. Brown, 00-0295/AF

signal to appellant that his comments were unwelcome. But

they were not isolated. A reasonable person, and a

reasonable factfinder, could conclude that they were

pervasive and they interfered with the work environment of

1Lt VC and Capts TT and LK.

Moreover, in the case of Capt TT, there was also a

disparity in grade with appellant during much of the time-

period in question. Capt TT was not promoted to Captain

until March 1996. And as was made clear when the

differences in instrument counting methodology were

discussed, appellant remained Capt TT’s assistant

supervisor throughout the events in question.

Rightly wary of criminalizing the day-to-day fabric of

life, the majority describes the wide range of comments

that are likely to be made between officers in the Air

Force. The opinion illustrates this point with reference

to a wide range of contexts involving interaction between

officers. But the contexts are all social (casual

acquaintance through dating, courtship, and marriage),

where one might reasonably expect some discussion of sex or

sexual innuendo. This is a case about whether comments

made in the workplace –- an operating room -- as part of a

professional relationship involving two officers of junior

grade with whom appellant had a supervisory function, were 7 United States v. Brown, 00-0295/AF

unwelcome, and if they were unwelcome, whether appellant’s

actions amounted to conduct unbecoming an officer.

Moreover, while the majority opinion cites to Air

Force restrictions on dating between officers to illustrate

the depth of relationships tolerated and accepted between

officers of different grades, those same regulations also

address more broadly unprofessional relationships between

officers. The per se rule with respect to dating is

limited to the same chain of command; however, the

prohibition on unprofessional relationships extends to all

personnel. AFI 36-2909 (1 May 1999), the successor to the

Instruction cited in United States v. Rogers, 54 MJ 244

(2001), states in paragraph 3.3:

Dating and Close Friendships. Dating, courtship, and close friendships between men and women are subject to the same policy considerations as are other relationships. Like any personal relationship, they become matters of official concern when they adversely affect morale, discipline, unit cohesion, respect for authority, or mission accomplishment. Members must recognize that these relationships can adversely affect morale and discipline, even when the members are not in the same chain of command or unit. The formation of such relationships between superiors and subordinates within the same chain of command or supervision is prohibited[.]

Like foxhole whispers, office banter is good for

morale and unit cohesion. Likewise, humor can serve to

promote mission accomplishment in the field, as well as in

the operating room. However, sexual harassment is not a 8 United States v. Brown, 00-0295/AF

component of esprit de corps or unit morale. Officers

should not confuse the two, particularly in the duty

setting and particularly where the officer is on notice

both as to expected behavior and that his remarks are

unwelcome.

9