UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 TAYLOR J. CRAWFORD 

United States Army, Appellant 

ARMY 20120527 

Headquarters, V Corps 

Christopher T. Fredrikson and Wendy P. Daknis, Military Judges 

Colonel Mark D. Maxwell, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; JA; Major Amy E. Nieman, JA; Captain 

Matthew M. Jones, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief). 

30 September 2014 

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SUMMARY DISPOSITION 

--------------------------------- 

Per Curiam: 

A panel of officer and enlisted members, sitting as a general court-martial, 

convicted appellant, contrary to his pleas, of one specification of willful 

disobedience of a superior commissioned officer, one specification of assault by 

intentionally inflicting grievous bodily harm, one specification of assault 

consummated by battery, one specification of drunk and disorderly conduct, and two 

specifications of obstruction of justice, in violation of Articles 90, 128, and 134, 

Uniform Code of Military Justice, 10 U.S.C. §§ 890, 928, 934 (2006) [hereinafter 

“UCMJ”]. The convening authority approved the adjudged sentence of a 

dishonorable discharge, confinement for five years, and forfeiture of all pay and 

allowances. 

 This case is before us for review under Article 66, UCMJ. One of appellant’s 

assignments of error warrants discussion and relief. In particular, appellant’s claim 

that the military judge should have given instructions regarding conflicting orders 

has merit. Appellant’s personal submissions pursuant to United States v. Grostefon, 

12 M.J. 431 (C.M.A. 1982) do not warrant relief. 
CRAWFORD—ARMY 20120527 

2 

BACKGROUND 

 In July 2011, appellant savagely beat a German national, TM. After 

consuming a significant amount of alcohol, appellant and some fellow soldiers began 

walking down a German street, acting aggressively toward others and damaging a 

vehicle. Eventually, appellant walked up behind TM and tapped him on the 

shoulder. As TM turned around to look, appellant punched TM in the face. 

Appellant and TM had never met before this moment. TM stumbled to the ground 

and appellant began kicking him. TM managed to throw his wallet in the air, get up, 

and try to run away. Appellant chased him across the street and began kicking him 

again. After the beating stopped, appellant turned to his confederates and said, “Did 

y’all see me fuck that guy up?” TM suffered a multiple upper arm fracture on his 

right side and a massive soft part injury on his upper arm. 

 As a result of this attack on TM, appellant’s company commander issued a 

written order to appellant to, among other restrictions, not to have any contact with 

Specialist (SPC) TMcC. Appellant was to stay at least fifty feet away from SPC 

TMcC. However, less than two weeks later, appellant and SPC TMcC were placed 

on a work detail to clean and organize a CONEX box. Both appellant and SPC 

TMcC were aware of the order to stay at least fifty feet away from each other. 

While working on the detail, appellant pulled SPC TMcC aside, put his arm around 

his shoulder, and said, “So what are you talking to CID about? You shouldn’t be 

talking to them. If it’s about me, that’s bullshit. You know, you shouldn’t screw 

your friends over.” This conduct formed the basis for appellant’s conviction for 

willful disobedience of a superior commissioned officer (Specification 1 of Second 

Additional Charge I) and one of appellant’s obstruction of justice convictions 

(Specification 1 of Additional Charge II). 

The government charged appellant with willfully disobeying the lawful 

command “to remain at least 50 feet away from [SPC TMcC],” but the specification 

did not state with particularity how appellant willfully disobeyed the order. At trial, 

SPC TMcC admitted that he knew that working on the CONEX box detail would 

place him within fifty feet of appellant. However, SPC TMcC thought that “because 

[the CONEX box detail order] was given to me by my chain of command . . . that 

was all right.” Either a platoon sergeant or a platoon leader gave SPC TMcC the 

order to work on the CONEX box detail. 

At the conclusion of the government’s case-in-chief, appellant’s civilian 

defense counsel raised a Rule for Courts-Martial [hereinafter R.C.M.] 917 motion 

for a finding of not guilty for willful disobedience of a superior commissioned 

officer. Civilian defense counsel specifically raised the conflicting orders as the 

basis for the motion. The government argued that appellant broke the no-contact 

order when he placed his arm around SPC TMcC and spoke to him. Viewing the 

evidence in the light most favorable to the government, the military judge denied the 
CRAWFORD—ARMY 20120527 

3 

motion, stating “[t]here was testimony that [appellant] pulled him aside and that may 

be the moment the accused willfully disobeyed the no contact order.” 

When instructing the panel for findings, the military judge instructed the 

panel that the no-contact order was a lawful command as a matter of law. Although 

civilian defense counsel challenged the lawfulness of the no-contact order, he did 

not ask for, and the military judge did not provide, an instruction on any special or 

affirmative defense for this Article 90 offense. Civilian defense counsel argued at 

findings that appellant was in a “Catch-22” between two orders. 

LAW AND DISCUSSION 

 Military law has long recognized that a “criminal prosecution for 

disobedience of an order cannot be based upon a subordinate's election to obey one 

of two conflicting orders when simultaneous compliance with both orders is 

impossible. An individual cannot be expected to remain and depart at the same 

time.” United States v. Patton, 41 C.M.R. 572, 573 (A.C.M.R. 1969); United States 

v. Clausen, 20 U.S.C.M.A 288, 289 43 C.M.R. 128, 129 (1971) (appellant entered 

improvident plea of guilty where he disobeyed an original order by following a 

countermanding order); see also William Winthrop, Military Law and Precedents 40 

(2d ed. 1920 reprint) (noting that orders cannot conflict with the Constitution, 

statutes, and regulations). The precise contours of conflicting orders as a defense or 

defense tactic are less clear. Conflicting orders may be relevant to the defense in 

several ways. First, conflicting orders possibly can raise reasonable doubt to the 

evidence, particularly the element as to whether appellant willfully disobeyed. 

Second, an issue of conflicting orders possibly could raise a question as to the 

legality of an order.1

 Third, conflicting orders possibly can create an affirmative 

defense, where, while “not denying that an accused committed the objective acts 

constituting the offense, denies, wholly or partially, criminal responsibility for those 

acts.”2 R.C.M. 916(a). Our reasoning in Patton indicates that conflicting orders can 

establish such an affirmative defense.3

 These possibilities are not necessarily 

mutually exclusive, nor are they present in every case. 

 

1

 Although appellant challenged the lawfulness of the no-contact order, we are 

convinced that both the no-contact order and the CONEX box detail orders were 

lawful. The problem is not the lawfulness of the orders, but the conflict between 

two lawful orders. 

2

 Conflicting orders possibly could raise a mistake of fact as to whether one of the 

orders was no longer in effect. 

3

 Put another way, in the general context of conflicting orders, a rational panel might 

conclude that by obeying one order, an accused necessarily yet intentionally defies 

the authority of the other order. Despite this factual finding, criminal liability 

(continued . . .) 
CRAWFORD—ARMY 20120527 

4 

 In this case, the government did not specify on the charge sheet how appellant 

willfully disobeyed the lawful command. Neither R.C.M. 307(c)(4), nor the model 

specification in the Manual for Courts-Martial, nor the model specification in the 

Military Judge’s Benchbook require such specificity. See Manual for CourtsMartial, United States (2008 ed.), pt. IV, ¶ 14.f.(4); Dep’t of Army, Pam. 27-9, Legal 

Services: Military Judges’ Benchbook [hereinafter Benchbook], para. 3-14-2.b. (1 Jan. 

2010). The effect of this charging decision, however, is an ambiguity as to how 

appellant disobeyed the order. The defense argued that appellant could not help but 

disobey the no-contact order by participating in the CONEX box detail. The 

government argued that the willful disobedience occurred when appellant put his 

arm around SPC TMcC and spoke to him about talking to CID. 

 We need not decide the precise limits of how an accused can use conflicting 

orders in his or her defense. However, under the facts of this case, two matters are 

clear. First, appellant cannot be guilty of willful disobedience under Article 90 

because the panel is convinced appellant came within fifty feet of SPC TMcC solely 

because of the duty to participate in the CONEX box detail. Second, appellant can 

be guilty under Article 90 under the government’s more limited theory, if the panel 

is persuaded beyond a reasonable doubt. The military judge did not instruct the 

panel on this distinction, and failure to do so is error under the facts of this case.4

 

Put another way, to the extent that the orders were conflicting, appellant had an 

affirmative defense to Article 90. Criminal liability should not attach under Article 

90, simply because a panel determined that appellant willfully disobeyed the no 

contact order by participating in the CONEX box detail. Appellant could also argue 

– and did argue – that the conflicting orders raised reasonable doubt as to the 

strength of the government’s case. At the same time, the government’s limited 

theory of criminality was a viable ground for the panel to convict. 

 If an affirmative defense is reasonably raised by the evidence, the military 

judge has a sua sponte duty to instruct the members on that defense.”5

 United States 

v. MacDonald, 73 M.J. 426, slip op. at 22 (C.A.A.F. 2014) (citing United States v. 

Davis, 53 M.J. 202, 205 (C.A.A.F. 2000)); see also R.C.M. 920(e). Although 

appellant did not specifically request an instruction about the conflicting orders, 

 

(. . . continued) 

should not attach in this general context. Hence, conflicting orders might be an 

affirmative defense. 

4

 Although the Benchbook does not have an instruction for this situation, the 

military judge could have crafted one based in part on the language in Patton. 

5

 In MacDonald, our superior court recently noted that the special defenses listed in 

R.C.M. 916 are an illustrative rather than exhaustive list of defenses. Slip op. at 23-

24. 
CRAWFORD—ARMY 20120527 

5 

“waiver does not apply to ‘required instructions . . . such as affirmative defenses[.]’” 

United States v. Stanley, 71 M.J. 60, 63 (C.A.A.F. 2012) (quoting Davis, 53 M.J. at 

205). “Where an instructional error raises constitutional implications, this Court has 

traditionally tested the error for prejudice using a “‘harmless beyond a reasonable 

doubt’ standard.” United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 2014) (quoting 

United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006)). 

 We are not convinced that this error was harmless. In denying appellant’s 

R.C.M. 917 motion, the military judge noted that “[t]here was testimony that 

[appellant] pulled him aside and that may be the moment the accused willfully 

disobeyed the no contact order” (emphasis added). As our superior court noted in 

MacDonald, “[w]here the evidence can support multiple arguments, the accused is 

entitled to have the trier of fact, in this case the members, and not an appellate court, 

hear and test the credibility of the evidence based on proper instructions.” Slip op. 

at 36. We are not confident that the panel convicted appellant solely based upon the 

government’s theory. 

We are able to reassess the sentence on the basis of the errors noted, and do 

so after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated in United States v. 

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 

305 (C.M.A. 1986). The gravamen of appellant’s criminal conduct is unchanged, 

and appellant remains convicted of obstructing justice for his conduct in the CONEX 

box. Thus, we find no dramatic change in the penalty landscape. Lastly, based on 

our experience, we are familiar with the remaining offenses so that we may reliably 

determine what sentence would have been imposed at trial. 

CONCLUSION 

On consideration of the entire record, the matters submitted pursuant to 

Grostefon, and the assigned errors, the findings of guilty of Specification 1 of 

Second Additional Charge I and Second Additional Charge I are set aside. Second 

Additional Charge I and Specification 1 of Second Additional Charge I are 

dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the 

sentence on the basis of the error noted and the principles of Winckelmann, the 

sentence is AFFIRMED. All rights, privileges, and property, of which appellant has 

been deprived by virtue of that portion of the findings set aside by this decision, are 

ordered restored. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: