Académique Documents
Professionnel Documents
Culture Documents
v.
Keith E. POPE, Staff Sergeant
U.S. Air Force, Appellant
No. 05-0077
Crim. App. No. 34921
United States Court of Appeals for the Armed Forces
Argued November 8, 2005
Decided April 14, 2006
BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD and EFFRON, JJ., joined. ERDMANN, J., filed
a dissenting opinion.
Counsel
For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, and Captain Martin L.
Powell (on brief).
For Appellee: Captain Kimani R. Eason (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs,
Lieutenant Colonel William B. Smith, Major Michelle M. McCluer,
and Major Lane A. Thurgood (on brief).
Military Judge:
Sharon A. Shaffer
United
States v. Pope, No. ACM 34921, 2004 CCA LEXIS 204, 2004 WL
1933210 (A.F. Ct. Crim. App. Aug. 30, 2004).
We granted review
II.
III. WHETHER THE MILITARY JUDGE ERRED WHEN SHE ADMITTED OVER
DEFENSE OBJECTION, A PROSECUTION EXHIBIT OFFERED AS
Further, we hold
Finally, we conclude
Consequently, a rehearing
on sentence is authorized.
BACKGROUND
Appellant was a thirty-five-year-old staff sergeant
assigned to the 331st Recruiting Squadron at Maxwell Air Force
Base, Gunter Annex, in Alabama.
encounter.
J.R.B. met with Appellant a second time at a recruiting
fair outside her school cafeteria.
the two discussed whether rules in the Air Force were less
1
J.R.B.
Appellant commented
that she was pretty and also that she had a lot going for
[her].
A.D.R. testified at
A.D.R. did not have a boyfriend and why her past relationships
with boyfriends had failed.
She also
The portions of AETCI 36-2002 that are at issue in this case state the
following:
1.1.2.2.5.
1.1.2.2.5.1.
1.1.2.2.5.2.
1.1.2.2.5.3.
1.1.2.2.5.4.
1.1.2.2.5.5.
1.1.2.2.5.6.
1.1.2.2.5.7.
United
(a) a certain
It informs all
This
We disagree.
Under the
10
Conclusion
See Brown, 55
M.J. at 385.
Appellant was in a position where prospective applicants
had a right to expect that they would be treated with dignity
and respect.
Applicants expect
instruction.
11
United
See also
This Court
Id. at 31.
Training,
12
Appellant completed a
13
Moreover, the
The instruction
14
Behavior
at *6.
In another context it may be prudent to have specific
prohibitions illustrated with examples in order to identify
criminal conduct; however, the question here is whether the
regulation is constitutionally vague as applied to a recruiters
conduct with applicants.
AETCI 36-
15
The
For
Id.
In
16
Proper
Intimidating,
The record reflects that all three of the applicants involved in this case
dropped out of the recruitment process following their interactions with
Appellant.
17
According to the
important rules for the sake of your own pleasure or esteem, you
should not be surprised when, once you are caught, harsh adverse
action follows.
Trial counsels position was that Major Mitchell would
testify that this letter was provided to every recruiter coming
through Recruiting Technical School, including Appellant.
The
This letter was also discussed above in Part B, and was introduced during
the sentencing phase as a source of notice that Appellants conduct was
subject to criminal sanction. However, a different question presented here
is whether the letter should have been admitted on sentencing, in light of
its apparent reference to a command policy, without providing the members
with an instruction as to how the command view should be considered.
18
The
United States v.
We have long
United States v.
19
Id.
Id.
Id.
20
United States
The
21
Because I
As I would find
The
Other
Further, AETCI
In Parker v. Levy, 417 U.S. 733, 756 (1974), the Supreme Court
stated: Because of the factors differentiating military
society from civilian society, we hold that the proper standard
for review for a vagueness challenge to the articles of the
[Uniform Code of Military Justice (UCMJ)] is the standard which
applies to criminal statutes regulating economic affairs. Pope
does not challenge an article of the UCMJ, but rather an Air
Education and Training Command (AETC) instruction adopted by an
executive branch agency. The deference that the Supreme Court
granted to Congress in regulating conduct in the military should
not apply to an instruction adopted by a military commander
which has criminal consequences.
4
The EEOC
It is constitutionally troublesome
Id.
It
With no standards to
I disagree
This conflict
Generally, unless a
United
10
See United States v. Harriss, 347 U.S. 612, 617 (1954) (in
reviewing the definiteness of a criminal statute the Court was
not concerned with the sufficiency of the information as a
criminal pleading but with the statute on its face).
10
The lack
11