UNITED STATES, Appellee

v.

James E. SPRINGER, Staff Sergeant

U.S. Air Force, Appellant

No. 02-0237

Crim. App. No. S29803

___________________________________________________________

United States Court of Appeals for the Armed Forces

Argued December 10, 2002

Decided March 21, 2003

BAKER, J., delivered the opinion of the Court, in which

CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.

Counsel

For Appellant: David E. Wheeler, Esq. (argued); Colonel

Beverly B. Knott, Major Maria A. Fried, Major Terry L.

McElyea, and Major Jeffrey A. Vires (on brief).

For Appellee: Captain Steven R. Kaufman (argued);

Lieutenant Colonel LeEllen Coacher, Lieutenant Colonel

Lance B. Sigmon and Major Linette Romer (on brief);

Colonel Anthony P. Dattilo.

Military Judge: Kurt Schuman

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Springer, 02-0237/AF

2

Judge BAKER delivered the opinion of the Court.

Appellant was tried by a special court-martial.

Contrary to his pleas, he was found guilty of two

specifications under Article 92, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. § 892 (2002), for

providing alcohol to a trainee and for making sexual

advances toward a trainee. He was also convicted of two

specifications of maltreatment under Article 93, UCMJ, 10

U.S.C. § 893 (2002), based on physical body searches that

he performed on female trainees. The adjudged and approved

sentence was a bad-conduct discharge and reduction to the

lowest enlisted grade. The Court of Criminal Appeals

affirmed the findings and sentence. United States v.

Springer, ACM S29803 (A.F. Ct. Crim. App. Oct. 25, 2001).

We granted review on the following issues:

I

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S

MOTION TO SUPPRESS INFORMATION UNLAWFULLY OBTAINED WHEN

APPELLANT’S SEALED LETTER WAS REMOVED FROM A DESIGNATED

PLACE FOR OUTGOING MAIL AND ITS CONTENTS EXAMINED.

II

WHETHER CHARGE II IS LEGALLY INSUFFICIENT BECAUSE

APPELLANT’S CONDUCT DID NOT CONSTITUTE CRUELTY OR

MALTREATMENT AS INTENDED BY ARTICLE 93.

For the reasons stated below we affirm.
United States v. Springer, 02-0237/AF

3

Issue I: Appellant’s letter

A. Facts

Appellant was a Combat Skills Course instructor at

Lackland Air Force Base (AFB) and at Camp Bullis, both in

San Antonio, Texas. Among other duties, Appellant served

as a primary instructor for trainee squads attending the

Security Officers Apprentice Course at Camp Bullis, a

twenty-one day course of instruction in combat arms for

military policemen. Camp Bullis is an “austere” Army post

located 16-18 miles north of Lackland AFB. There were no

formal mail facilities at Camp Bullis at the time of the

events at issue. As a result, trainees would leave their

mail at a front office desk within the dormitory building

where the military training leader collected it and

delivered it to Lackland AFB.

Between the summer and November of 1998, Staff

Sergeant (SSgt) Payne, a non-commissioned officer (NCO)

assigned to the front office, noticed Appellant’s name as

the return addressee on a letter as he was flipping through

the outgoing mail. SSgt Payne testified that it was his

practice to flip through the mail in the morning to ensure

that students had placed postage and return addresses on

outgoing mail. He had no official duty to do so, but did

so “out of kindness” to help the airmen and to prevent
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4

their mail from being returned. Specifically, SSgt Payne

testified that he was

[j]ust checking to make sure that the envelopes that

were there had stamps and return addresses on there

and placing them in the window . . . . [N]ormally

students are rushed in the morning. They are in a

hurry to get out – get out to formation, otherwise,

they get in trouble for being late to formation. And

a lot of times, they will just throw an envelope on

there with nothing on it to mail it – just forgetting

to put a stamp or forgetting to put an address on it .

. . . [T]hat’s when I saw Sergeant Springer’s name on

the envelope, and I thought that it was kind of

peculiar . . . . I thought it was kind of peculiar for

NCOs and instructors to be mailing something from the

office . . . . [W]hen I saw it was his name, I looked

at the student’s name. I recognized the student’s

name as being a previous student. And then at that

time, Sergeant Rodriguez walked in, and I said

something to him.

SSgt Payne described his reaction as one of “shock and

amusement because it was – it was the strict policy of the

squadron and of [Air Education and Training Command] is

absolutely no contact and absolutely no relations at all,

and it was quite an amazing – you know, it was like, wow,

this is kind of silly to be doing this.” Master Sergeant

[MSgt] Daryl Leboeuf, Appellant’s supervising Senior Staff

NCO at Camp Bullis, stated: “[I]ndividuals got briefed on

personal relationship policy a minimum of once a month,

sometimes more . . . . [T]here will be no personal

relationships with the airmen. Trainees are a non-issue. .

. . Sergeant Springer was aware of that.”
United States v. Springer, 02-0237/AF

5

With respect to the contents of the letter, SSgt Payne

testified that “once you turned the envelope over, you

could see through the back of the envelope, and you could

see a picture that was drawn.” (Emphasis added.) SSgt

Payne did not testify as to the nature of the “picture.”

However, Appellant’s motion to suppress states that the

picture depicted a heart with two extended arms saying, “I

love you this much.”

SSgts Payne and Rodriguez subsequently encountered

SSgt Stephanie Schaaf and told her about the letter. She

then went back to the dormitory and examined the letter in

the same manner as SSgt Payne had done. When later

questioned by Ms. Catherine Jeffryes, a Security Forces

investigator, SSgt Schaaf told the investigator that she

saw the words, “I love you BeBe” inside the letter and that

it was written to a former trainee with a Hispanic last

name. When Ms. Jeffryes interviewed Appellant and asked

about the letter, he admitted to having written Airman

First Class (A1C) Mendez (now Humphries). Ms. Jeffryes

also testified that “but for” information from SSgt Schaaf,

she would not have asked Appellant about A1C Humphries.

Subsequently defense counsel moved to suppress the

contents of the letter and A1C Humphries’ testimony as

evidence derived from it. On appeal, Appellant argues that
United States v. Springer, 02-0237/AF

6

he had a reasonable expectation of privacy in his

correspondence to A1C Humphries that was violated when

SSGTs Payne and Schaaf viewed the outside of the envelope

and saw both the return address and subsequently the

internal contents described above. As a result, any

testimony regarding the contents of the letter as well as

A1C Humphries’ testimony should have been suppressed as

fruit of an unlawful search.

B. Discussion

We review a military judge's decision to admit

evidence for abuse of discretion. If the military judge

makes findings of fact, we review the findings under a

clearly erroneous standard of review. We review

conclusions of law de novo. United States v. Alameda, 57

M.J. 190, 198 (C.A.A.F. 2002).

The Fourth Amendment to the Constitution states that

“[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated[.]” U.S. Const. amend.

IV. However, a Fourth Amendment violation occurs only when

the government violates a reasonable expectation of

privacy. A reasonable expectation of privacy exists where

a person “exhibit[s] an actual (subjective) expectation of

privacy and, second, that expectation [is] one that society
United States v. Springer, 02-0237/AF

7

is prepared to recognize as "‘reasonable.’" Katz v. United

States, 389 U.S. 347, 361 (1967)(Harlan, J., concurring).

See United States v. Britton, 33 M.J. 238, 239 (C.M.A.

1991). “What a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth

Amendment protection. But what he seeks to preserve as

private, even in an area accessible to the public, may be

constitutionally protected.” Katz, at 351 (citations

omitted).

The Supreme Court long ago recognized that sealed

letters sent through the postal system are “papers” within

the meaning of the Fourth Amendment. See Ex Parte Jackson,

96 U.S. 727, 733 (1877). Courts have also recognized that

a reasonable expectation of privacy generally exists in the

contents of sealed letters sent through the United States

Postal Service. See United States v. Van Leeuwen, 397 U.S.

249, 251 (1970)(citing Jackson, 96 U.S. at 733)(noting that

first class mail can only be “opened and examined” in

accordance with the Fourth Amendment); United States v.

Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996).1 However, no

reasonable expectation of privacy exists in the information

visible on the outside of an envelope. “Letters and sealed

 

1

 The application of Department of Defense postal regulations was not

argued, briefed, or discussed in this case, and we do not address their

applicability.
United States v. Springer, 02-0237/AF

8

packages are as fully guarded from examination and

inspection, except as to their outward form and weight, as

if they were retained by the parties forwarding them in

their own domiciles.” Ex Parte Jackson, 96 U.S. at 733

(emphasis added). The military judge recognized this

distinction by dividing his analysis into two parts: (1)

“the envelope itself and the writing on the envelope” and

(2) “the contents of the sealed envelope.” We consider the

two issues in turn.

Application of the Fourth Amendment is necessarily

fact intensive. A person may have an objectively

reasonable expectation of privacy in one context, but not

another, based on small variations in material fact or

circumstance. Moreover, the analysis is multidimensional

including consideration of the scope of the search, the

location of the search, and the object searched. In this

case, Appellant placed his outgoing letter with the

trainees mail for subsequent delivery to be mailed at

Lackland AFB. Appellant’s name and address on the outside

of the envelope prompted SSgt Payne to visually examine the

envelope. The testimony indicates that certain words and a

picture were visible to the naked eye through the outside

of the envelope. There is no evidence in the record that
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9

SSGT Payne or SSgt Schaaf used special means to look at the

contents of the envelope.

Under Katz, the addressee and return address

information on the outside of a sealed letter are not

private because this information is knowingly exposed to

the public. Katz, 389 U.S. at 351. Disclosure of this

information is necessary for the delivery of mail and a

reasonable person has no expectation that it will remain

private. See Smith v. Maryland, 442 U.S. 735, 742-44

(1979)(finding no reasonable expectation of privacy in

phone numbers dialed since telephone users assume the risk

that the phone company will reveal numbers called to the

police); United States v. Hinton, 222 F.3d 664, 675-76 (9th

Cir. 2000)(finding no reasonable expectation of privacy in

address information on the outside of a mailed package or

in a post office “parcel locker that cannot be individually

rented, and from which the contents can be moved at

employees’ discretion”); United States v. Choate, 576 F.2d

165 (9th Cir. 1978)(finding no Fourth Amendment protection

afforded to information that would foreseeably be available

to postal employees); see also 1 Wayne R. LaFave, Search

and Seizure A Treatise on the Fourth Amendment § 2.7

Surveillance of Relationships and Movements (3d. ed. 1996 &
United States v. Springer, 02-0237/AF

10

Supp. 2002).2 Based on this precedent, the military judge

correctly held that Appellant did not have a reasonable

expectation of privacy in the address information on the

outside of the letter. Appellant left his letter for

others to mail thus knowingly exposing the envelope to

public view.

The contents of the letter raise a more difficult

Fourth Amendment question. Trainees and soldiers in the

field often do not have direct access to a post office and

often rely on others to transport their mail. As a general

rule, persons joining the armed forces do not forfeit the

same reasonable expectation of privacy in the contents of

their mail enjoyed by the other members of American society

they serve and protect. See Manual for Courts-Martial,

United States (2002 ed.) [hereinafter MCM] Part IV, para.

93 (criminalizing unauthorized taking and opening of mail

pursuant to Art. 134, UCMJ, 10 U.S.C. § 934 (2002)).

However, this general rule is not blind to circumstances,

just as the Fourth Amendment is not absolute in

 

2 The Supreme Court has also held that there is no reasonable expectation

of privacy in discarded trash left at the curb to be picked up. See

California v. Greenwood, 486 U.S. 35, 40 (1988). While many people

would be offended by the notion that someone is examining garbage left

for collection or letters left for others to deliver to postal

facilities, a reasonable person is aware of the potential risk and

knows that what is plainly visible to anyone viewing the outside of an

envelope, such as address information, is “knowingly expos[ed] to the

public.” Katz v. United States, 389 U.S. 347, 351 (1967)(citations

omitted).
United States v. Springer, 02-0237/AF

11

application, but adjusts to that which society, as measured

through our courts, is prepared to accept as objectively

reasonable in the context presented.

Under the circumstances of this case, Appellant may

have had a subjective expectation of privacy in the

contents of his letter that were visible through the

envelope, but such an expectation was not objectively

reasonable. At trial Appellant likened the office desk at

Camp Bullis to a mailbox and thus SSgt. Payne’s actions to

those of someone rummaging through the contents of a

mailbox. We disagree. If Appellant had desired to afford

his letter greater protection, he could have mailed the

letter himself or used a thicker, more opaque envelope. By

failing to do so, he took the risk that others would see

the information that was visible through the envelope. The

contents at issue here were seen with the naked eye by a

person who was not unlawfully viewing the outside of the

letters and had reason to consider the envelope further

after seeing Appellant’s name in light of the command

policy on social contact with trainees. Therefore, we hold

based on the facts of this case, that Appellant’s

expectation of privacy in the parts of his letter that were

readily visible to the naked eye through the envelope was

 
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12

not one that society would recognize as reasonable.3 Katz,

389 U.S. at 361.

Issue II: Maltreatment

A. Facts

MSgt Lebouef was the field supervisor and team chief

for Appellant at Camp Bullis. In this capacity, MSgt

Lebouef was responsible for the training of approximately

100 airmen as well as the supervision of 17 instructors

assigned to the apprentice course. As part of the training

regimen at Camp Bullis, MSgt Lebouef encouraged his primary

instructors assigned to each squad to conduct “just-intime” training. This training consisted of ad hoc classes

conducted during downtime between formal periods of

instruction, such as during those times when recruits were

awaiting their turn on a range or at a training station.

Among the ad hoc classes MSgt Lebouef encouraged his

instructors to teach, was a class on Enemy Prisoner of War

 

3

 Appellant does not argue that his letter was seized in violation of

the Fourth Amendment. Appellant’s suppression motion and the

Government’s response, indicates that after viewing the letter, Staff

Sergeant (SSgt) Schaaf instructed SSgt Payne to return the letter to

the pile and subsequently “took the issue of the letter up the chain of

command.” Based on the facts of this case, including Appellant’s

voluntary decision to place his letter on the office table for someone

else to mail, SSgt Payne’s “inspection and detention” of the letter

did not amount to a seizure within the meaning of the Fourth Amendment.

Appellant did not have a sufficient possessory interest in the letter

at the time of SSgt Payne’s “inspection;” nor was the detention of

sufficient duration to amount to a seizure. See Maryland v. Macon, 472

U.S. 463, 469 (1985); United States v. Van Leeuwen, 397 U.S. 249, 253

(1970).
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(EPW) searches. As described by MSgt Lebouef, the EPW

search is a fast, aggressive full-body search used to check

a person for weapons and booby traps and to determine if an

individual is dead or alive in combat conditions. An EPW

search is substantially more invasive than a protective

police “frisk.” A proper EPW search involves sitting

astride a body lying facedown, grabbing and squeezing skin

and checking under clothing, rolling the body over, and

performing the same search on the front of the body,

including cavity searches between the legs and the bra area

for females.

Given the nature of the EPW search, MSgt Lebouef

“specifically told everybody on the team at least once or

twice a quarter that males search males, females search

females.” SSgt Valarie Ramirez, another instructor,

testified that she always demonstrated the search on other

females to avoid any appearance of sexual harassment, since

anyone being searched in this way could feel “violated.”

SSgt Schaaf testified that she learned the EPW search by

watching demonstrations by MSgt Lebouef and that she and

other instructors taught the search technique to trainees.

However, she stated that the Career Development Course

taught that opposite sex searches were inappropriate and

should not be performed except in emergency situations,
United States v. Springer, 02-0237/AF

14

where no one of the same sex was available. Finally, Ms.

Jodie Slattum (formerly Airman Daniel), a former trainee

who witnessed Appellant’s search of A1C Emilee Delvalle,

testified that Appellant himself told her at an earlier

point in training that opposite sex searches should not be

performed.

Appellant’s maltreatment specifications arose out of

his actions toward three trainees, A1C Delvalle, A1C

Melanie Schira, and A1C Humphries, in the context of EPW

training. All three testified at trial.

1. A1C Delvalle

A1C Delvalle testified that Appellant demonstrated the

EPW search on her on two occasions. In the first instance,

Appellant had the squad form a “360,” in this case a circle

facing outward, and performed the search on her with her

consent in front of two other female airmen, Airmen Daniel

and Doe. According to A1C Delvalle, Appellant was going to

have one of the female airmen search her, but did so

himself since Airman Daniel “didn’t really know what to

do.” In response to Appellant’s request to search her, A1C

Delvalle gave her permission, but also testified that “I

felt that [yes] was the only answer I could say. He was my

instructor, and I felt that he knew what he was doing.”

She also testified that she had never seen the search
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15

performed before and did not know what to expect when

Appellant told her to lie down on the ground.

Appellant then demonstrated the EPW search on A1C

Delvalle, including “pouncing” on her back, placing his

boot between her legs under her pelvis, “brush[ing]” his

hand, palm down across her body, including her breasts and

vaginal area. Appellant explained his actions to the other

trainees as he performed them.

The next day, Appellant again performed an EPW search

on A1C Delvalle. This time, he did so when the trainees

were practicing moving through “dense” bushes in a wedge

formation (i.e., a “backward V”). Appellant and A1C

Delvalle were at the rear of one of the wings of the wedge

when Appellant ordered the trainees to drop to the ground

in a prone position. Appellant then told her to take off

her “LBE gear” and “play dead.” He brought one of the

female airman to the back of the “V,” explaining that he

was going to demonstrate the search again. The other

trainees remained where they dropped, “spread out in the

wedge formation.”

During this second search Appellant did not ask A1C

Delvalle’s permission. Rather, when another female airman

moved to perform the search, but had not yet touched A1C

Delvalle, Appellant said, “I’m going to show you how to do
United States v. Springer, 02-0237/AF

16

the search again.” He then searched her again, doing in

A1C Delvalle’s words “the same exact search, but it was

more of a grab. It wasn’t so much of a brush this time.”

This included “grabbing and squeezing” her breasts and

groin.

2. A1C Schira

A1C Schira testified that Appellant “searched” her on

more than one occasion. She stated that she could not

remember whether Appellant asked for her consent before

searching her and that she felt “violated.” However, A1C

Robertin-Meridith, a fellow trainee, later testified that

A1C Schira volunteered to be searched.

A1C Schira testified that she played the role of the

“dead body,” lying face down, and having the EPW search

performed on her. She stated that Appellant touched her

back, legs, inner thigh, and buttocks and that he

unbuttoned some of the top buttons of her shirt. A1C

Schira further testified that she felt “violated” while

Appellant’s hands were going over her body. On crossexamination, A1C Schira testified that Appellant did not

touch her breasts or vaginal area with his hands during the

search. She also stated that all the searches were

performed in front of the whole squad.
United States v. Springer, 02-0237/AF

17

3. A1C Humphries

A1C Humphries also testified to two body searches

performed on her by Appellant. She was chosen by Appellant

and told to “play dead on the ground” to demonstrate the

“dead body” search. Appellant did not ask for her consent

and the search was performed with the rest of her squad “in

a half circle observing.” A1C Humphries testified that

Appellant did not remove any of her clothing, but went down

the side of her body with his palms. She stated that he

also “grab[bed and] squeez[ed]” her breasts and buttocks.

He also made a “knife sweep” of her vaginal area and

touched her there with his fingers. A1C Humphries said

that she felt “humiliated,” “angry and shocked and

confused” by Appellant’s touching. When asked why she did

not say anything to him at the time, she responded that

“[g]oing through training, basic and tech school,

instructors just try to push upon you how high ranking an

NCO is, how much more powerful and high ranking they are

over an airman, so I didn’t say anything.”

Appellant also performed a second search of A1C

Humphries that was “the same as the first.” Regarding this

search, she stated, “I was more angry because I didn’t know

why I was being chosen.” She did not report the incident

because she “didn’t think . . . [she] would be believed.”
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Appellant was acquitted of the maltreatment

specification involving A1C Schira, but convicted on the

other two specifications.

B. Discussion

Independent of his Fourth Amendment claim, Appellant

argues that the evidence is legally insufficient to find

him guilty of maltreatment based on his EPW searches of

female trainees. The test for legal sufficiency of

evidence “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 M.J. 324,

325 (C.M.A. 1987)(citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)). “Furthermore, we will draw every reasonable

inference from the evidence of record in favor of the

prosecution.” United States v. Davis, 56 M.J. 299, 300

(C.A.A.F. 2002).

The elements of maltreatment are:

(1) That a certain person was subject to the

orders of the accused; and

(2) That the accused was cruel toward, or

oppressed, or maltreated that person.

MCM Part IV, para. 17.b.

“[C]ruelty, oppression, or maltreatment, although not

necessarily physical, must be measured by an objective
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19

standard. . . . The imposition of necessary or proper

duties and the exaction of their performance does not

constitute this offense even though the duties are arduous

or hazardous or both.” Id. at para. 17.c.(2). There is no

need to show actual harm, rather “[i]t is only necessary to

show, as measured from an objective viewpoint in light of

the totality of the circumstances, that the accused’s

action reasonably could have caused physical or mental harm

or suffering.” United States v. Carson, 57 M.J. 410, 415

(C.A.A.F. 2002).

Appellant contends that his body searches of female

trainees were proper demonstrations of the EPW search

technique, and that his acquittal on the specification

involving A1C Schira, indicated that the members applied an

improper subjective standard rather than Carson’s objective

standard. Although A1C Schira testified that she felt

“violated,” A1C Robertin, a fellow trainee, testified that

A1C Schira volunteered to be searched. Appellant therefore

claims that the members clearly used the wrong standard

because they only convicted him of maltreatment against the

two trainees subjectively upset by his conduct.

However, Appellant’s acquittal as to A1C Schira does

not prove that the members used an improper subjective

standard, because other differences exist in the testimony
United States v. Springer, 02-0237/AF

20

that might justify different results. Most importantly,

A1C Schira testified on cross-examination that Appellant

did not touch her breasts or vaginal area with his hands

during the search. In contrast, A1Cs Delvalle and

Humphries testified that Appellant’s search included

“grabbing and squeezing” their breasts and touching their

vaginal areas. A reasonable panel applying an objective

test could find that the searches of A1C Delvalle and A1C

Humphries rose to the level of maltreatment, while the

search of A1C Schira did not. Moreover, testimony

indicated that the airmen in question were trainees subject

to Appellant’s orders as their primary instructor. Both

A1C Humphries and A1C Delvalle stated that Appellant’s

grade as an NCO influenced the manner in which they reacted

to his touches.

Further, Appellant’s claim that the searches were

“necessary or proper duties” for training and not

maltreatment is rebutted by the testimony of MSgt Lebouef,

SSgt Schaaf, SSgt Rodriguez, and Ms. Slattum. The EPW

search is a legitimate subject of instruction, which

necessarily is demonstrated in an aggressive and violating

manner. In a deployed context EPW searches might well be

performed as a matter of military necessity on persons of

the opposite sex. But for the purposes of training at Camp
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21

Bullis these four witnesses testified that same sex EPW

searches were inappropriate or prohibited.

A reasonable panel could therefore find that

Appellant’s opposite sex EPW searches were not necessary or

proper, as a training mechanism. Further, a reasonable

factfinder could find that Appellant’s intrusive body

search of female trainees, objectively viewed, reasonably

could have caused mental harm or suffering based on, among

other testimony, that of SSgt Ramirez, who stated that a

person subject to an EPW search could feel “violated,” and

that of A1C Humphries, who stated that she felt humiliated

by the search.

Decision

For these reasons, we affirm the findings and sentence

of the Air Force Court of Criminal Appeals.