UNITED STATES, Appellee 

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 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Pope, No. 05-0077/AF

2

Judge BAKER delivered the opinion of the Court. 

After a contested general court-martial before members, 

Appellant, a recruiter, was convicted of a variety of offenses 

relating to inappropriate and unprofessional conduct with 

prospective applicants. The findings of guilt included four 

specifications of violating a lawful general regulation, one 

specification of maltreatment, and two specifications of 

assault, in violation of Articles 92, 93, and 128, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. §§ 892, 893, and 928 

(2000), respectively. The adjudged and approved sentence 

included a bad-conduct discharge, confinement for fifteen 

months, forfeiture of all pay and allowances and reduction to 

airman basic (E-1). The United States Air Force Court of 

Criminal Appeals affirmed in an unpublished decision. 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 

of the following three issues upon Appellant’s petition: 

I. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT 

APPELLANT OF SPECIFICATIONS 2, 3, AND 4 OF CHARGE I 

(VIOLATION OF A DIRECTIVE PROHIBITING SEXUAL HARASSMENT) 

BEYOND A REASONABLE DOUBT. 

II. WHETHER AIR EDUCATION AND TRAINING INSTRUCTION 36-2002, 

PARA. 1.1.2.2.5. (PROHIBITING INAPPROPRIATE CONDUCT AND 

UNPROFESSIONAL RELATIONSHIPS) BOTH FACIALLY AND AS 

APPLIED TO APPELLANT VIOLATES DUE PROCESS AND IS 

UNCONSTITUTIONALLY VOID FOR VAGUENESS. 

III. WHETHER THE MILITARY JUDGE ERRED WHEN SHE ADMITTED OVER 

DEFENSE OBJECTION, A PROSECUTION EXHIBIT OFFERED AS 
United States v. Pope, No. 05-0077/AF

3

SENTENCING AGGRAVATION EVIDENCE THAT ARGUED AIR FORCE 

CORE VALUES AND ENDORSED “HARSH ADVERSE ACTION” FOR THOSE 

WHO COMMITTED APPELLANT’S OFFENSES. 

For the reasons that follow, we hold the evidence was legally 

sufficient to support Appellant’s convictions. Further, we hold 

that the challenged instruction was not unconstitutionally vague 

and that it provided sufficient notice to Appellant that his 

conduct was subject to criminal sanction in the context of a 

recruiter’s relationship with applicants. Finally, we conclude 

that the military judge admitted an impermissible command view 

on punishment during presentencing. 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. Appellant completed recruiter 

training and graduated from “Recruiter Technical School” on June 

1, 2000. In response to a number of incidents of sexual 

harassment by Air Force recruiters, each graduating class of 

recruiters, including Appellant’s, was briefed about the problem 

of sexual misconduct and informed of the consequences if they 

engaged in such misconduct. Each recruiter was additionally 

given a letter signed by Brigadier General Peter U. Sutton, 

Commander of the Air Force Recruiting Service, stating that if 

they failed to treat applicants respectfully and professionally, 
United States v. Pope, No. 05-0077/AF

4

they “should not be surprised when, once you are caught, harsh 

adverse action follows.” 

After completing processing at Maxwell, Appellant was sent 

to a recruiting field office in Athens, Georgia. 

A. Appellant’s conduct with applicant J.R.B.1

 

J.R.B. first met Appellant at the recruiting office in 

Athens around September 2000 when she was a seventeen-year-old 

senior in high school. Appellant initially offered her food and 

started taking her information. When J.R.B. told Appellant she 

was an artist, Appellant mentioned that he needed some art for 

his apartment and stated that he would like to see her artwork. 

While J.R.B. did not think Appellant expressly stated that he 

wanted her to come to his apartment, she believed that he 

implied it. Nothing else unusual happened during this first 

encounter. 

 J.R.B. met with Appellant a second time at a recruiting 

fair outside her school cafeteria. Appellant called out her 

name and asked that she come to his booth. J.R.B. complied, and 

the two discussed whether rules in the Air Force were less 

 

1

 The specification on the charge sheet related to J.R.B. was drafted as 

follows: 

Specification 2: [D]id, at or near Farmington, 

Georgia, from on or about 1 September 2000 to on or 

about 31 October 2000, violate a lawful general 

regulation, to wit: paragraph 1.1.2.2.5.5, Air 

Education and Training Command Instruction 36-2002, 

dated 18 April 2000, by engaging in verbal conduct of 

a sexual nature with J.R.B. that created an 

intimidating, hostile or offensive environment. 
United States v. Pope, No. 05-0077/AF

5

strict than in the Marines. During the conversation J.R.B. 

asked whether her eyebrow ring would be permitted in the Air 

Force. Appellant, referring to the eyebrow ring, commented, 

“[t]hat’s driving me crazy, that [sic] so sexy.” J.R.B. 

reported the incident to her French teacher. 

 At trial, J.R.B. testified that she did not feel 

intimidated by Appellant, but felt extremely uncomfortable and 

that after his comments, her “skin was crawling” and she “was 

all shaky.” Upon defense counsel questioning, J.R.B. also 

testified that Appellant never asked her out on a date. 

B. Appellant’s conduct with applicant P.M.B.2 

 P.M.B. was sixteen years old when she first met Appellant 

at the recruiting office in October 2000. Appellant commented 

that she was “pretty” and also that she had “a lot going for 

[her].” On one occasion when P.M.B. was riding back with 

Appellant in his car from an Air Force entrance exam, he again 

commented that she was pretty and placed his hand around her 

knee area for a couple of seconds. P.M.B. testified that 

 

2

 This specification was drafted on the charge sheet as follows: 

Specification 3: [D]id, at or near Athens, Georgia, 

on divers occasions from on or about 1 October 2000 

to on or about 27 December 2000, violate a lawful 

general regulation, to wit: paragraph 1.1.2.2.5, Air 

Education and Training Command Instruction 36-2002, 

dated 18 April 2000, by engaging in verbal and 

physical conduct of a sexual nature with P.M.B. that 

created an intimidating, hostile or offensive 

environment. 
United States v. Pope, No. 05-0077/AF

6

Appellant’s actions could have been done in a conversational 

way, but that his actions made her feel uncomfortable and 

intimidated. 

C. Appellant’s conduct with applicant A.D.R.3 

 A.D.R. was eighteen years old when she first met Appellant 

at the recruiting office in July 2000. A.D.R. testified at 

trial that Appellant was professional initially, but then he 

started to get uncomfortably personal. Appellant inquired why 

A.D.R. did not have a boyfriend and why her past relationships 

with boyfriends had failed. Appellant began looking at his 

computer, and when A.D.R. asked what he was looking at, 

Appellant stated it was a picture, but “not the kind you take 

home to your grandmother.” Appellant repeatedly told A.D.R. 

that he wanted her to come over to his house at nighttime to 

take pictures of her, and A.D.R. testified at trial that as she 

got up to leave, Appellant “look[ed] her up and down.” She also 

testified that his comments made her “very uncomfortable” and 

that she never returned to the recruiting office. 

 

3

 This specification was drafted as follows: 

Specification 4: [D]id, at or near Athens, Georgia, 

from on or about 18 April 2000 to on or about 1 

November 2000, violate a lawful general regulation, 

to wit: paragraph 1.1.2.2.5.5., Air Education and 

Training Command Instruction 36-2002, dated 18 April 

2000, by engaging in verbal conduct of a sexual 

nature with A.R. that created an intimidating, 

hostile, or offensive environment. 
United States v. Pope, No. 05-0077/AF

7

DISCUSSION 

A. Sufficiency of the evidence 

Regarding his conduct with the three applicants mentioned 

above, the Government charged Appellant with violating 

paragraphs 1.1.2.2.5. and 1.1.2.2.5.5. of Air Education and 

Training Command, Instr. 36-2002, Recruiting Procedures for the 

Air Force (Apr. 18, 2000) [hereinafter AETCI 36-2002].4 

Appellant renews his argument before this Court that the 

evidence was not legally sufficient to support his conviction. 

 

4

 The portions of AETCI 36-2002 that are at issue in this case state the 

following: 

1.1.2.2.5. Recruiting personnel will maintain high standards of 

conduct and be totally professional in their 

relationships with applicants. Inappropriate conduct 

and unprofessional relationships include, but are not 

limited to, the following: 

1.1.2.2.5.1. Developing or attempting to develop or maintain an 

intimate personal relationship with an applicant. 

1.1.2.2.5.2. Making sexual advances towards applicants or seeking 

or accepting sexual advances from applicants. 

1.1.2.2.5.3. Dating or attempting to date any applicant whose 

processing has begun and has not been terminated due 

to the applicant’s own withdrawal or one of the 

grounds of unacceptability outlined elsewhere in this 

instruction. . . . 

1.1.2.2.5.4. Using grade or position, threats, pressure, or 

promise of return of favors or favorable treatment in 

an attempt to gain sexual favors from applicants. 

1.1.2.2.5.5. Engaging in any verbal or physical conduct of a 

sexual nature that creates an intimidating, hostile, 

or offensive environment. 

1.1.2.2.5.6. Using personal resources to provide applicants with 

lodging or transportation. 

1.1.2.2.5.7. Accepting an applicant’s personal belongings or 

household goods for storage or any other reason. 
United States v. Pope, No. 05-0077/AF

8

 In determining whether the evidence is legally sufficient, 

we “‘view[] the evidence in the light most favorable to the 

prosecution’” and decide whether “‘any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.’” United States v. Brown, 55 M.J. 375, 385 

(C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S. 307, 319 

(1979)). The assessment of the legal sufficiency of the 

evidence is limited to the evidence presented at trial. United 

States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). 

The elements of an Article 92, UCMJ, violation for failure 

to obey a lawful general order or regulation are: (a) a certain 

lawful general order or regulation was in effect; (b) the 

accused had a duty to obey that order or regulation; and (c) the 

accused violated or failed to obey the order or regulation. 

There is no question that AETCI 36-2002 was in effect at 

the time of Appellant’s offenses. The instruction became 

effective April 18, 2000, over two months prior to his 

interactions with the applicants involved in this case. 

Moreover, there is no issue concerning Appellant’s duty to obey 

the instruction. AETCI 36-2002 is the primary instruction used 

by the Air Force Recruiting Service in providing guidance to 

recruiters and listing recruitment procedure. It informs all 

recruiters in the field of their duties, and outlines prohibited 

conduct with prospective applicants. AETCI 36-2002 expressly 
United States v. Pope, No. 05-0077/AF

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states that “[f]ailure to observe the prohibitions and mandatory 

provisions . . . may result in punishment under Article 92, or 

other articles, of the [UCMJ].” 

The element in question is whether the evidence proved 

beyond a reasonable doubt that Appellant failed to obey AETCI 

36-2002. 

1. Conduct with J.R.B.

Regarding his conduct with J.R.B., Appellant was found 

guilty of violating AETCI 36-2002, paragraph 1.1.2.2.5.5. This 

provision proscribes “[e]ngaging in any verbal or physical 

conduct of a sexual nature that creates an intimidating, 

hostile, or offensive environment.” Appellant argues that 

because he never expressly invited J.R.B. over to his apartment, 

he cannot be guilty of engaging in verbal conduct of a sexual 

nature that creates an offensive environment. We disagree. 

Comments need not be expressly or explicitly sexual to be of a 

sexual nature. Sexual innuendo, or a recruiter’s implied 

invitation to an applicant that latently suggests sexual 

activity, may be sexual in nature. Moreover, reasonable triers 

of fact could have found that Appellant’s sexually laden 

comments to J.R.B. that her eyebrow ring was “driving [him] 

crazy,” and that it was “so sexy,” were expressly sexual and 

contributed to the creation of the offensive environment. 
United States v. Pope, No. 05-0077/AF

10

2. Conduct with P.M.B.

Regarding Appellant’s interaction with P.M.B., he was 

charged with violating paragraph 1.1.2.2.5. of AETCI 36-2002. 

That paragraph states that “[r]ecruiting personnel will maintain 

high standards of conduct and be totally professional in their 

dealings with applicants.” The instruction incorporates an 

unexhausted list of prohibited behavior, including making or 

accepting sexual advances from applicants, attempting to date 

applicants, using threats, promises, or pressure to gain sexual 

favors, or engaging in verbal conduct of a sexual nature that 

creates an intimidating, hostile, or offensive environment. 

In this case, a reasonable member could have found that 

Appellant engaged in conduct of a sexual nature with a sixteenyear-old that was in the position of needing to ride alone with 

Appellant in his car. Reasonable triers of fact could have 

concluded that by placing his hand on P.M.B.’s knee shortly 

after commenting on her appearance, Appellant engaged in conduct 

of a sexual nature and created an intimidating or offensive 

environment. 

3. Conduct with A.D.R.

With respect to A.D.R., Appellant was charged with 

violating paragraph 1.1.2.2.5.5. of AETCI 36-2002. Under the 

circumstances of this case, a rational trier of fact could 

determine that Appellant created an offensive environment by 
United States v. Pope, No. 05-0077/AF

11

implying that he was looking at inappropriate images while he 

was conversing with A.D.R.. Based on A.D.R.’s testimony, the 

members could also have reasonably concluded that Appellant’s 

invitation to A.D.R. to come to his home alone at night to “take 

pictures” was anything but a request for an innocent rendezvous, 

especially in the context of how A.D.R. stated Appellant looked 

at her. 

 4. Conclusion 

Viewing the evidence in the light most favorable to the 

prosecution, we conclude that a rational trier of fact could 

have found beyond a reasonable doubt that Appellant violated 

AETCI 36-2002 with respect to J.R.B., P.M.B, and A.D.R. by 

engaging in verbal conduct of a sexual nature that created an 

intimidating, hostile, or offensive environment. 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. AETCI 36-2002 requires as much. Applicants expect 

a recruiter to evaluate them for their skills, potential, and 

ability to contribute to the Air Force, and not for their sexual 

appeal. 

B. Constitutionality of the instruction 

We now turn to Appellant’s constitutional challenge to the 

instruction. Appellant argues that subjecting him to criminal 
United States v. Pope, No. 05-0077/AF

12

sanction for violating AETCI 36-2002 infringes upon his due 

process rights because the instruction was vague, and he lacked 

fair notice that sexually offensive conduct could be subject to 

criminal sanction. In addition, he argues that a reasonable 

person could not conclude that his particular statements were 

unacceptable and could subject him to criminal sanction. 

To withstand a challenge on vagueness grounds, a regulation 

must provide sufficient notice so that a servicemember can 

reasonably understand that his conduct is proscribed. United 

States v. Moore, 58 M.J. 466, 469 (C.A.A.F. 2003). See also

United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) 

(holding due process requires fair notice that an act is 

forbidden and subject to criminal sanction). This Court 

recognizes that possible sources of “fair notice” include: 

federal law, state law, military case law, military custom and 

usage, and military regulations. Id. at 31. Training, 

pamphlets, and other materials may also serve as sources of 

notice because they may give context to regulations and explain 

the differences between permissible and impermissible behavior. 

See Brown, 55 M.J. at 384. 

 1. Notice of criminal sanction 

As a threshold matter we note that the instruction as well 

as the recruiter school placed Appellant on notice that his 

conduct was subject to criminal sanction. Appellant completed a 
United States v. Pope, No. 05-0077/AF

13

recruiter training course in which he was instructed on proper 

comportment with applicants and informed of rules prohibiting 

sexual misconduct. The Staff Judge Advocate (SJA), Major Robert 

Mitchell, testified at trial that he interacted with recruiters 

from July 1998 through July 2000 as they came through “Recruiter 

Technical School” training, and that he warned applicants, 

including Appellant’s June 2000 class, about the consequences of 

engaging in misconduct.5

 Major Mitchell discussed several high 

profile sexual misconduct cases with recruiters in training to 

“let them see if they decide not to obey . . . what’s going to 

happen.” Upon graduation from training, every recruiter in the 

Air Force Recruiting Service was given a folder with a letter 

signed by Brigadier General Peter U. Sutton, Commander of the 

Air Force Recruiting Service, stating that such misconduct “will 

not be tolerated.”6

 Major Mitchell testified that the issue was 

 

5

 Although Major Mitchell testified on sentencing, his testimony is 

nonetheless relevant to our analysis and resolution of the constitutional 

issue. 

6

 Paragraph two of the letter states: 

There is an important reason that AFI [Air Force 

Instruction] 36-2002 forbids recruiters from engaging 

in unprofessional relationships with applicants. 

Whether you feel powerful or not, each recruiter is 

in what is viewed as an influential position. The 

bulk of our applicants are vulnerable young people, 

often teenagers. You hold substantial power in their 

lives . . . at least in their minds, as well as in 

the eyes of their parents. Even in cases where the 

facts indicate consensual sexual activity, the 

victims often feel like an agent of the Air Force 

took advantage of them. You must keep your 

relationships with applicants professional -- period! 

 

Paragraph four of the letter states: 
United States v. Pope, No. 05-0077/AF

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so important that “almost every Commander gave it to them a 

second time when they got to their units.” Moreover, the 

instruction itself is a source of notice. The instruction 

expressly states that failure to observe its prohibitions may 

result in punishment under Article 92, UCMJ, and that compliance 

is mandatory. 

2. Was the regulation vague as applied in context?

Appellant primarily argues that even if he were on notice 

as to the general criminal prohibition regarding sexual contact 

with applicants, the instructions were too vague to provide him 

with fair notice as to what specific types of conduct would be 

prohibited. He contends that the vagueness of AETCI 36-2002 is 

apparent when compared with other sexual harassment directives 

in the armed forces that provide specific examples of prohibited 

conduct. For example, Appellant posits Dep’t of the Navy, Sec’y 

of the Navy Instr. 5300.26C, Policy on Sexual Harrassment (Oct. 

17, 1977) [hereinafter SECNAVINST 5300.26C], discussed in United 

States v. Jones, No. NMCM 200000845, 2003 CCA LEXIS 4, at *8-

*16, 2003 WL 131691, at *3-*7 (N-M. Ct. Crim. App. Jan 16, 2003) 

 

Remember, “integrity first” and “service before self” 

are two of our core values. These two types of 

misconduct violate those principles. The citizens of 

this country demand that we treat our applicants 

respectfully, equitably, and ethically. This command 

and the US Air Force will accept no less. If you 

choose to ignore these 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. 
United States v. Pope, No. 05-0077/AF

15

(unpublished), as a proper model of clarity. Unlike AETCI 36-

2002, SECNAVINST 5300.26C provides a detailed summary of the 

criteria for sexual harassment. It discusses “the range of 

workplace behaviors that may constitute sexual harassment” and 

“utilizes a ‘traffic light illustration . . . in which behaviors 

are divided up into three zones, corresponding to a traffic 

light.’” Jones, 2003 CCA LEXIS 4, at *15, 2003 WL 131691, at *6 

(citing SECNAVINST 5300.26C, enc. (2), para. 4). Behavior 

falling in the “yellow zone,” which may or may not constitute 

sexual harassment, includes violating personal space, whistling, 

questions about personal life, lewd and suggestive comments, 

repeated requests for dates, and sexually suggestive touching or 

gesturing. Jones, 2003 CCA LEXIS 4, at *15-*16, 2003 WL 131691, 

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 recruiter’s 

conduct with applicants. In the context of recruiting, an 

instruction as detailed as SECNAVINST 5300.26C is not required. 

AETCI 36-2002 is clear that sexual conduct by recruiters with 

applicants is prohibited, and recruiters must be “totally 

professional in their relationships with applicants.” AETCI 36-

2002, 1.1.2.2.5. It was not necessary for the Air Force 
United States v. Pope, No. 05-0077/AF

16

recruiting instruction to identify every possible nook and 

cranny in the line of conduct, for the line is straight and 

narrow. 

Moreover, this introductory paragraph of the regulation 

incorporates the subordinate paragraphs that follow. The 

subordinate paragraphs provide a range of illustrative, but not 

exhaustive conduct that would violate the regulation. For 

example, recruiters are prohibited from “attempting to date any 

applicant” or “making sexual advances towards applicants.” Id. 

at 1.1.2.2.5.3; 1.1.2.2.5.2. With such notice, a reasonable 

servicemember need not have pondered whether placing his hand on 

an applicant’s knee while riding alone with her in a car, 

inviting an applicant to his apartment at night to take 

pictures, or telling an applicant that her appearance was 

“driving [him] crazy” and was “so sexy,” were prohibited. 

Given the evolving and innumerable ways in which sexually 

offensive conduct may occur in the recruiting context, the Air 

Force was not required, as a matter of law, to expressly set 

forth all conceivable instances of impermissible conduct. In 

our view, the language of AETCI 36-2002 provided ample 

discussion of the types of behavior prohibited by the regulation 

and a reasonable person would have been on notice that 

misconduct of the sort engaged in by Appellant was subject to 

criminal sanction. 
United States v. Pope, No. 05-0077/AF

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3. First Amendment Challenge

Finally, Appellant argues that AETCI 36-2002 impermissibly 

curtails a recruiter’s First Amendment rights to expression. 

While intimidating, hostile or offensive speech may be tolerated 

in civilian society, in the armed forces, other considerations 

also come to bear. Restrictions on speech may exist that have 

no counterpart in civilian society. Parker v. Levy, 417 U.S. 

733, 759 (1974). “‘[T]he right of free speech in the armed 

services is not unlimited and must be brought into balance with 

the paramount consideration of providing an effective fighting 

force for the defense of our Country.’” United States v. Brown, 

45 M.J. 389, 396 (C.A.A.F. 1996) (quoting United States v. 

Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972)). Proper 

relations between recruiters and applicants in the armed forces 

are indispensable in attracting young people to serve their 

country and in maintaining military discipline. Intimidating, 

hostile, or offensive conduct of a sexual nature by recruiters 

drives potential applicants away from military service and 

undermines the effectiveness of the armed forces.7

 

C. Admission of the commander’s letter 

 During the sentencing phase of Appellant’s trial, the 

Government moved to admit in aggravation the letter from 

 

7

 The record reflects that all three of the applicants involved in this case 

dropped out of the recruitment process following their interactions with 

Appellant. 
United States v. Pope, No. 05-0077/AF

18

Appellant’s commander, Brigadier General Peter U. Sutton, 

Commander of the Air Force Recruiting Service.8

 According to the 

trial counsel, this exhibit was in support of the anticipated 

testimony of the SJA of the Recruiting Service, Major Mitchell. 

The theme of the letter as it related to Appellant’s charged 

misconduct was that “unprofessional relationships with 

applicants . . . will not be tolerated.” After explaining how 

such misconduct, specifically sexual misconduct, erodes the 

integrity and effectiveness of the recruiting effort, the letter 

concluded with the following: “If you choose to ignore these 

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 counsel’s position was that Major Mitchell would 

testify that this letter was provided to every recruiter coming 

through “Recruiting Technical School,” including Appellant. The 

Government’s argument was that the letter demonstrated the 

aggravating nature of Appellant’s conduct because he had 

knowledge of what standard of conduct was expected of 

 

8 This letter was also discussed above in Part B, and was introduced during 

the sentencing phase as a source of notice that Appellant’s 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. 
United States v. Pope, No. 05-0077/AF

19

recruiters, and notwithstanding, chose to conduct himself 

otherwise. 

Defense counsel objected on the basis of Rule for CourtsMartial (R.C.M.) 403 and argued, among other things, that the 

letter impermissibly introduced command policy into the 

sentencing process. Defense counsel’s specific concern was the 

statement seemingly endorsed “harsh adverse action.” The 

military judge disagreed and admitted the letter, concluding 

that she discerned “[no] type of policy argument, or policy 

statement in the letter like in drug offenses where a Commander 

might say ‘You will not remain in the Air Force’. . . . I don’t 

see any . . . policy . . . statement that says ‘You’re going to 

be kicked out of the Air Force.’” 

 We review a military judge’s decision to admit evidence on 

sentencing for a clear abuse of discretion. United States v. 

Manns, 54 M.J. 164, 166 (C.A.A.F. 2004). We have long 

recognized “the need in the service for a broad regulatory 

authority for the maintenance of discipline.” United States v. 

Fowle, 7 C.M.A. 349, 351, 22 C.M.R. 139, 141 (1956); United 

States v. Hawthorne, 7 C.M.A. 293, 299, 22 C.M.R. 83, 89 (1956). 

“A policy directive may be promulgated to improve discipline; 

however, it must not be used as leverage to compel a certain 

result in the trial itself.” Fowle, 7 C.M.A. at 351, 22 C.M.R. 

at 141. Thus, we have condemned references to command policies 
United States v. Pope, No. 05-0077/AF

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or views “which in effect bring[] the commander into the 

deliberation room.” United States v. Grady, 15 M.J. 275, 276 

(C.M.A. 1983). Such a practice invades the province of the 

sentencing authority by raising the spectre of command 

influence. Id. 

In this case, the military judge’s rationale for concluding 

that no impermissible command policy was being introduced, while 

partially accurate, did not reach far enough. While the letter 

does not suggest that one convicted of this type of misconduct 

should be punitively separated, “‘the appearance of improperly 

influencing the court-martial proceedings’” is troubling because 

it conveys the command’s view that harsh action should be taken 

against an accused. Id. (quoting Hawthorne, 7 C.M.A. at 297, 

22 C.M.R. at 87). It is just such an appearance that we have 

cautioned against in the past. Id. “A trial must be kept free 

from substantial doubt with respect to fairness and 

impartiality.” Id. at 276; Fowle, 7 C.M.A. at 352, 22 C.M.R. at 

142. Moreover, the letter was admitted without the benefit of 

an instruction to the members as to how such a view should be 

considered. Consequently, consistent with this Court’s 

practice, we are not convinced beyond a reasonable doubt that 

these members were not influenced by the letter. United States 

v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). 
United States v. Pope, No. 05-0077/AF

21

DECISION 

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed with respect to the findings but 

reversed as to the sentence. The sentence is set aside. The 

record of trial is returned to the Judge Advocate General of the 

Air Force. A rehearing on the sentence is authorized. 
United States v. Pope, 05-0077/AF 

ERDMANN, Judge (dissenting): 

The majority holds that paragraph 1.1.2.2.5.5. of Air 

Education and Training Command, Instr. 36-2002, Recruiting 

Procedures for the Air Force (Apr. 18, 2000) [hereinafter AETCI 

36-2002] is not unconstitutionally vague and therefore does not 

violate Pope’s constitutional right to due process. Because I 

find that the language in this instruction prohibiting “verbal 

or physical conduct of a sexual nature that creates an 

intimidating, hostile, or offensive environment[]” failed to put 

Pope on notice that the conduct in which he engaged would 

subject him to criminal sanctions and failed to provide adequate 

enforcement standards, I respectfully dissent. As I would find 

the language in the instruction unconstitutionally void for 

vagueness, I would set aside the findings for Specifications 2, 

3, and 4 of Charge I and the sentence.1

AETCI 36-2002 provides: 

1.1.2.2.5. Recruiting personnel will 

maintain high standards of conduct and be 

totally professional in their relationships 

with applicants. Inappropriate conduct and 

unprofessional relationships include, but 

are not limited to, the following: 

. . . . 

1.1.2.2.5.5. Engaging in any verbal or 

physical conduct of a sexual nature that 

 

1

 Because I would reverse on Issue II, I would not reach the 

remaining issues. 
United States v. Pope, 05-0077/AF 

2

creates an intimidating, hostile, or 

offensive environment.2

“No person shall be . . . deprived of life, liberty, or 

property, without due process of law.” U.S. Const. amend. V. 

“It is a basic principle of due process that an enactment is 

void for vagueness if its prohibitions are not clearly defined.” 

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

The void-for-vagueness doctrine requires that a penal 

statute define the criminal offense with sufficient 

definiteness that ordinary people can understand what 

conduct is prohibited and in a manner that does not 

encourage arbitrary and discriminatory enforcement. 

Kolender v. Lawson, 461 U.S. 352, 357 (1983). The 

same facets of a statute usually raise concerns of 

both fair notice and adequate enforcement standards. 

Hence the analysis of these two concerns tends to 

overlap. The Supreme Court, however, while recently 

recognizing the second concern as more important, 

continues to treat each as an element to be analyzed 

separately. See id. at 357-58. 

The degree of specificity which the Constitution 

demands depends on the nature of the statute. 

Criminal statutes must be more precise than civil 

statutes because the consequences of vagueness are 

more severe. . . . Finally, the Constitution demands 

 

2

 Specification 3 of Charge I alleges that Pope violated 

paragraph 1.1.2.2.5. of the instruction while Specifications 2 

and 4 of Charge I allege that Pope violated paragraph 

1.1.2.2.5.5. of the instruction. However all the specifications 

were treated as if they charged a violation of paragraph 

1.1.2.2.5.5. All of the specifications charge him with 

“engaging in verbal conduct of a sexual nature with [the victim] 

that created an intimidating, hostile, or offensive 

environment.” The military judge’s instructions to the members 

stated that to find Pope guilty they had to find that he 

violated paragraph 1.1.2.2.5.5. 
United States v. Pope, 05-0077/AF 

3

more clarity of laws which threaten to inhibit 

constitutionally protected conduct, especially conduct 

protected by the First Amendment. 

United States v. Gaudreau, 860 F.2d 357, 359-60 (10th Cir. 1988) 

(footnotes omitted).3

This court has recognized that a regulation is void for 

vagueness if it does not provide sufficient notice for a 

servicemember to reasonably understand that his conduct is 

proscribed. United States v. Moore, 58 M.J. 466, 469 (C.A.A.F. 

2003).4

 Paragraph 1.1.2.2.5.5. of AETCI 36-2002 fails on both 

the “notice” and “adequate enforcement standards” grounds. The 

broad language in the instruction does not enable ordinary 

people to understand what conduct is prohibited. Other 

administrative and criminal provisions addressing this type of 

conduct recognize a need for further definition. Further, AETCI 

 

3 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

 While the majority relies in part on the conclusion that a 

reasonable member could have found that Pope’s conduct resulted 

in sexual conduct that created an intimidating or offensive 

environment, that is simply not the correct test in a 

constitutional void for vagueness analysis. United States v. 

Pope, 62 M.J. __ (10-12) (C.A.A.F. 2006). 
United States v. Pope, 05-0077/AF 

4

36-2002 fails to provide any standards to guide those charged 

with enforcement of the instruction which encourages arbitrary 

or discriminatory enforcement. 

In order to be prohibited under the language of paragraph 

1.1.2.2.5.5., AETCI 36-2002, it is not enough that the conduct 

is of a sexual nature, it must also create an intimidating, 

hostile or offensive environment. While the instruction does 

limit the scope of the prohibition to a recruiter’s relationship 

with an applicant, it does not further define “conduct of a 

sexual nature”. It also fails to define or further explain what 

constitutes an “intimidating, hostile, or offensive 

environment”. The “conduct of a sexual nature” and 

“intimidating, hostile, or offensive environment” language is 

familiar to those who deal with sexual harassment issues in both 

the civilian and military context, as it comes from the 

definition of “sexual harassment” adopted by the Equal 

Opportunity Employment Commission (EEOC): 

Unwelcome sexual advances, requests for 

sexual favors, and other verbal or physical 

conduct of a sexual nature constitute sexual 

harassment when (1) submission to such 

conduct is made either explicitly or 

implicitly a term or condition of an 

individual’s employment, (2) submission to 

or rejection of such conduct by an 

individual is used as the basis for 

employment decisions affecting such 

individual, or (3) such conduct has the 

purpose or effect of unreasonably 

interfering with an individual’s work 
United States v. Pope, 05-0077/AF 

5

performance or creating an intimidating, 

hostile, or offensive working environment. 

29 C.F.R. § 1604.11(a) (2005). However, in sharp contrast to 

AETCI 36-2002, the EEOC regulation is accompanied by extensive 

policy guidance as to what constitutes “conduct of a sexual 

nature” and a “hostile” environment. See EEOC Notice No. N-915-

050, Policy Guidance on Current Issues of Sexual Harassment 

(Mar. 19, 1990) [hereinafter EEOC Policy Guidance]. The EEOC 

Policy Guidance notes that “[u]nless the conduct is quite 

severe, a single incident or isolated incidents of offensive 

sexual conduct or remarks generally do not create an abusive 

environment.”5 Id. at para. C(2) 

The EEOC Policy Materials also adopts an objective 

“reasonable person” standard to evaluate when harassment is 

sufficiently pervasive or severe to constitute a hostile 

environment and whether challenged conduct is of a sexual 

nature. Id. at para. C(1). It is constitutionally troublesome 

that the EEOC regulation provides more definition than does 

AETCI 36-2002, yet the EEOC regulation does not subject an 

individual to criminal sanctions as AETCI 36-2002 does. 

It is also instructive to compare the language of AETCI 36-

2002 to policies and regulations adopted by the Air Force and 

 

5

 The EEOC Policy Guidance also notes, “sexual flirtation or 

innuendo, even vulgar language that is trivial or merely 

annoying, would probably not establish a hostile environment.” 

Id. at para. C. 
United States v. Pope, 05-0077/AF 

6

other branches of the armed forces that are derived from the 

EEOC definition.6 Similar to AETCI 36-2002, these service 

regulations can provide the basis for criminal sanctions under 

Article 92, UCMJ, 10 U.S.C. § 892 (2000). Unlike AETCI 36-2002, 

however, these service regulations provide further explanation 

and guidance as to what type of conduct is prohibited and what 

type of conduct is allowed under the regulation. 

The military has generally adopted a standard that not only 

utilizes the “objective reasonable person” standard similar to 

the EEOC, it also has added the subjective viewpoint of the 

victim.7 Dep’t of Defense Dir. 1350.2, Military Equal 

Opportunity (MEO) Program E2.1.15.3 (Aug. 18, 1995) [hereinafter 

DoD Directive 1350.2] defines “sexual harassment” using the EEOC 

language and provides that the conduct must be “so severe or 

pervasive that a reasonable person would perceive, and the 

victim does perceive, the work environment as hostile or 

offensive.” The directive goes on to define the “[w]orkplace” 

environment as including conduct, “on or off duty, [twenty-four] 

hours a day.” Id. The Air Force has also adopted this same 

 

6

 See J. Richard Chema, Arresting “Tailhook”: The Prosecution of 

Sexual Harassment in the Military, 140 Mil. L. Rev. 1, 7-8 

(1993). 

7

 For a discussion as to the difficulty in adopting the EEOC 

language into the military context, see Michael F. Noone, 

Chimera or Jackalope? Department of Defense Efforts to Apply 

Civilian Sexual Harassment Criteria to the Military, 6 Duke J. 

Gender L. & Pol’y 151 (1999). 
United States v. Pope, 05-0077/AF 

7

standard in Dep’t of the Air Force, Instr. 36-2706, Military 

Equal Opportunity Program (July 29, 2004) and Dep’t of the Air 

Force, Pamphlet 36-2705, Discrimination and Sexual Harassment 

(Feb. 28, 1995). The lack of definition and enforcement 

guidance in AETCI 36-2002 is inconsistent with general Air Force 

policy. 

The current Navy regulation on sexual harassment, Dep’t of 

the Navy, Sec’y of the Navy Instr. 5300.26D, Policy on Sexual 

Harassment (Jan. 3, 2006), contains the same prohibitions as the 

EEOC regulation quoted above, but goes even further than DoD 

Directive 1350.2 in providing guidance as to that language. It 

includes a definition of the “reasonable person standard” as an 

“objective test used to determine if behavior meets the legal 

test for sexual harassment,” along with a three-page discussion 

of the “range of behaviors which constitute sexual harassment” 

that includes the traffic light illustration described by the 

majority. Id. at enc. (1) and (2). The Army also has 

regulation which contains a version of the EEOC definition and 

provides examples of different categories of sexual harassment 

including verbal conduct, nonverbal conduct, and physical 

contact. See Dep’t of the Army, Reg. 600-20, Personnel-General, 

Army Command Policy Ch. 7 (Feb. 1, 2006). In contrast, AETC has 

not developed any further definition or explanation of the same 

terms used in the instruction in question. 
United States v. Pope, 05-0077/AF 

8

The EEOC and the branches of the armed forces have 

determined that the “conduct of a sexual nature” and “hostile 

environment” language requires further definition and 

explanation in order to be understood by those to whom the 

language is applied. If persons who are subject to the EEOC and 

other military service policies and regulations on sexual 

harassment require further definition and explanation to know 

what conduct is prohibited in those contexts, there is no reason 

that a “person of ordinary intelligence” who is subject to AETCI 

36-2002 would not also need those additional definitions and 

explanations. 

In addition to the lack of definition, there is no guidance 

in AETCI 36-2002 as to what standard is to be applied by those 

who enforce the instruction. For example, questions such as 

should an objective or subjective standard be used and should 

the incident be viewed through the eyes of the victim or a 

reasonable person are left unanswered. With no standards to 

rely upon, those who initiate criminal sanctions for violation 

of AETCI 36-2002 must necessarily do so in an arbitrary manner. 

See City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing 

Kolender v. Lawson, 461 U.S. 352, 358 (1983)). 

I agree with the majority that sexual harassment should not 

be tolerated in the recruiting context –- just as it should not 

be tolerated in any military context. But if AETC intends, as 
United States v. Pope, 05-0077/AF 

9

the majority holds, to have a zero tolerance policy for sexual 

harassment that differs from the sexual harassment policy 

utilized by the rest of the Air Force, the other services and 

the EEOC, their instruction should make that clear. I disagree 

with the majority that in the context of recruiting a lack of 

definitions and standards for conduct that constitutes a sexual 

harassment criminal offense is acceptable.8

I do not reach a conclusion as to whether Pope’s actions 

violated the language of the instruction. The question before 

this court is whether the instruction was adequate to inform him 

what conduct would be prohibited and whether the instruction 

provides adequate enforcement standards. Which definitions and 

standards are utilized is crucial to determining whether Pope’s 

conduct violated the instruction. Under the commonly accepted 

definitions and standards of the EEOC and other service 

regulations, Pope’s conduct may not have violated the 

instruction. Under the vague standard affirmed by the majority, 

his conduct did violate the instruction. This conflict 

illustrates the problems presented where there is a lack of 

notice and inadequate enforcement standards. 

 

8

 While the majority recognizes that it might be prudent in other 

contexts to provide further guidance in order to identify 

potential criminal conduct, it concludes that it is somehow not 

necessary in a recruiting context. 
United States v. Pope, 05-0077/AF 

10

The majority finds that the language of the instruction, 

along with the directions against misconduct given to Pope 

during his recruiter training, were sufficient to provide Pope 

with notice that his behavior would subject him to criminal 

sanctions. Pope, 62 M.J. at __ (13).9

 Generally, unless a 

statute infringes on First Amendment rights, it will be 

evaluated “in light of the facts of the case at hand.” United 

States v. Mazurie, 419 U.S. 544, 550 (1975). Pope raises First 

Amendment concerns in his brief that should limit the analysis 

to the language of the statute.10 However, even if the statute 

were evaluated “in light of the facts of the case at hand”, at 

best Pope was informed that nonspecific misconduct could result 

in harsh consequences. The record does not reflect that he was 

informed at any time during his training as to what constitutes 

“conduct of a sexual nature”, or what constitutes an 

“intimidating, hostile, or offensive environment” under AETCI 

36-2002. 

Pope could not have known whether his conduct would fall 

under AETCI 36-2002 without being aware of the definitions and 

 

9 This finding addresses only the “notice” prong of the vagueness 

analysis and does not impact the “adequate enforcement standard” 

prong.

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”). 
United States v. Pope, 05-0077/AF 

11

the standards to be applied. Similarly, with no further 

definitions and standards, those charged with enforcement of the 

regulation have no guidance to ensure uniform enforcement that 

results in arbitrary enforcement of the instruction. The lack 

of definitions and standards does not create more certainty, it 

creates the very ambiguity that the void for vagueness doctrine 

is designed to address. As I find the language of AETCI 36-

2002, paragraph 1.1.2.2.5.5., to be unconstitutionally void for 

vagueness, I would set aside the findings for Specifications 2, 

3, and 4 of Charge I and the sentence.