United States v. Gonzalez

This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ UNITED STATES Appellee v.

Jonny GONZALEZ, Lieutenant Colonel

United States Army, Appellant

No. 25-0032 Crim. App. No. 20230632

Argued April 30, 2025—Decided September 15, 2025 Military Judges: Maureen A. Kohn (arraignment and motions) and JavierE. Rivera-Rosario (motions and trial) For Appellant: Captain Eli M. Creighton (argued); Captain Patrick McHenry and Scott R. Hockenberry, Esq. (on brief).

For Appellee: Captain Vy T. Nguyen (argued); Colo- nel Richard E. Gorini and Major Lisa Limb (on brief).

Judge JOHNSON delivered the opinion of the Court, in which Chief Judge OHLSON, Judge SPARKS, Judge MAGGS, and Judge HARDY joined.

_______________ Judge JOHNSON delivered the opinion of the Court. Appellant was convicted by a panel of members, con- trary to his pleas, of conduct unbecoming an officer and a gentleman in violation of Article 133, Uniform Code of Mil- itary Justice (UCMJ), 10 U.S.C. § 933 (2018). We granted review to determine whether Appellant had fair notice the charged conduct was subject to criminal sanction as con- duct unbecoming an officer. We hold that the Manual for Courts-Martial, United States (2019 ed.) (MCM), 1 Army regulation, and military custom and usage provided Appel- lant fair notice that kissing a junior enlisted trainee who was not his wife on the lips was prohibited conduct unbe- coming an officer. Accordingly, we affirm the judgment of the United States Army Court of Criminal Appeals (ACCA).

I. Background

In August 2021, Appellant was at a bar in San Antonio, Texas, celebrating his upcoming retirement from the Army with a couple of friends. Appellant struck up a conversation with Seaman Recruit (SR) JT, an enlisted Navy trainee who was at the bar with a group of junior enlisted sailors. Appellant asked SR JT what she did for a living. She jok- ingly responded, “Oh, I’m a stripper.” Appellant told her he was an active-duty lieutenant colonel in the Army sta- tioned at Fort Sam Houston as “an instructor or teacher of some sort” and was “coming up on retirement.” He showed her his Common Access Card, drawing attention to his rank.

Upon seeing Appellant’s rank, SR JT admitted she was not a stripper, but rather, an enlisted sailor in training to become a hospital corpsman. Appellant remarked that she had “to have at least been a Lieutenant.” She responded, “[N]o way, I’m at the lowest totem pole, I’m an E-1, I’m like the very lowest you can get.” SR JT testified she felt “flat- tered” and “giddy” that “someone of his stature” was talk- ing to her.

After a couple of drinks, some conversation, and flirting, Appellant and his friends suggested SR JT and one of the other sailors continue the night with them at another es- tablishment. They set out to walk to a nearby bar but got lost and asked a passerby for directions. The passerby, a professional photographer, escorted the group to the bar where he took photographs of them as they socialized. In one such photograph, Appellant and SR JT can be seen kissing each other on the lips. SR JT testified that “it was a long extended kiss for the photo to be taken, but there was . . . no tongue involved, no make out session.”

Appellant was charged with two specifications of con- duct unbecoming an officer and a gentleman in violation of Article 133, UCMJ. He was acquitted of Specification 1, al- leging misconduct with the other sailor. Relevant to this appeal, Specification 2 alleged:

In that [Appellant], U.S. Army, a married man, did, at or near San Antonio, Texas, on or about 1 August 2021, engage in conduct unbecoming an officer and a gentleman, to wit: while knowing that Seaman Recruit (E-1) J.T. was a junior en- listed trainee and a woman who was not his wife, he kissed her cheek and lips.

Contrary to his pleas, a panel of members found Appel- lant guilty of Specification 2, excepting the word, “cheek,” and sentenced him to a reprimand. The convening author- ity issued a reprimand and otherwise took no action on the findings or sentence. The ACCA summarily affirmed the findings and sentence. United States v. Gonzalez, No. ARMY 20230632, 2024 CCA LEXIS 488 (A. Ct. Crim. App. Nov. 13, 2024) (per curiam) (unpublished). 2

We granted review to determine “[w]hether Appellant had fair notice that the portions of Specification 2 of the Charge alleging an Article 133 violation for an extramari- tal kiss constituted conduct that was forbidden and subject to criminal sanction.” United States v. Gonzalez, 85 M.J. 336 (C.A.A.F. 2025) (order granting review). Finding no er- ror, we affirm the judgment of the ACCA.

II. Standard of Review

When an accused raises the issue of fair notice for the first time on appeal, we review the forfeited issue for plain error. United States v. George, 2025 CAAF LEXIS 577, at *9, 2025 WL 2079302, at *3 (C.A.A.F. July 21, 2025). On plain error review, we must determine whether “ ‘(1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of [Appel- lant].’ ” Id. (alteration in original) (quoting United States v. Rocha, 84 M.J. 346, 349 (C.A.A.F. 2024)). “ ‘[T]he failure to establish any one of the prongs is fatal to a plain error claim.’ ” United States v. Feliciano, 76 M.J. 237, 240

In that [appellant], U.S. Army, a married man, did, at or near San Antonio, Texas, on or about 1 August 2021, engage in conduct unbecoming an officer and a gentleman, to wit: while knowing that Seaman Recruit (E-1) J.T. was a junior en- listed trainee and a woman who was not his wife, he kissed her lips.

Gonzalez, 2024 CCA LEXIS 488, at *1 n.1 (alteration in original). (C.A.A.F. 2017) (alteration in original) (quoting United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)).

III. Law

“Due process requires ‘fair notice’ that an act is forbid- den and subject to criminal sanction” before a person can be prosecuted for committing that act. United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citation omitted). “The ‘touchstone’ of fair notice ‘is whether the statute, ei- ther standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.’ ” Rocha, 84 M.J. at 349 (quoting United States v. Lanier, 520 U.S. 259, 267 (1997)). “Potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations.” United States v. Warner, 73 M.J. 1, 3 (C.A.A.F. 2013) (citing Vaughan, 58 M.J. at 31). “A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

We have long recognized that a “ ‘higher code termed honor’ ” holds military officers “ ‘to stricter accountability’ ” than enlisted and civilian personnel. United States v. Ted- der, 24 M.J. 176, 182 (C.M.A. 1987) (quoting Fletcher v. United States, 26 Ct. Cl. 541, 563 (1891), rev’d on other grounds, 148 U.S. 84 (1891)). Article 133, UCMJ, embodies this standard, providing that “[a]ny commissioned officer, cadet, or midshipman who is convicted of conduct unbecom- ing an officer and a gentleman shall be punished as a court- martial may direct.” In order to obtain a conviction under Article 133, UCMJ, the government must prove that the accused did or omitted to do a certain act, and that under the circumstances this conduct constituted conduct unbe- coming an officer. MCM pt. IV, para. 90.b.; see United States v. Brown, 55 M.J. 375, 382 (C.A.A.F. 2001) (noting that the MCM provision defining conduct unbecoming “re- flects traditional military law”).

“ ‘The gravamen of the [Article 133, UCMJ,] offense is that the officer’s conduct disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission.’ ” United States v. Lofton, 69 M.J. 386, 388 (C.A.A.F. 2011) (quoting United States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009)). Conduct unbecoming is “indicated by acts of dishonesty, unfair dealing, indecency, indecorum, law- lessness, injustice, or cruelty.” MCM pt. IV, para. 90.c.(2).

A determination whether conduct is unbecoming re- quires a court to take all of the circumstances into consid- eration. United States v. Diaz, 69 M.J. 127, 136 (C.A.A.F. 2010). In determining whether a servicemember had fair notice that conduct violates Article 133, UCMJ, the ques- tion is whether “a reasonable military officer would have no doubt that the activities charged in this case constituted conduct unbecoming an officer.” United States v. Frazier, 34 M.J. 194, 198-99 (C.M.A. 1992) (footnote omitted).

IV. Discussion

The granted issue asks whether Appellant had fair no- tice that an extramarital kiss was subject to criminal sanc- tion. Appellant acknowledges that a kiss may constitute fraternization, and he wisely concedes “the uncontroversial proposition that there are sources of fair notice as to frat- ernization.” However, he argues that this case was pre- sented as an extramarital sexual conduct case, and nothing in the UCMJ, military regulation, or military custom pro- vided notice that a kiss may constitute prohibited extra- marital sexual conduct. According to Appellant, the Gov- ernment cannot use a “novel” Article 133, UCMJ, specification to criminalize conduct that “doesn’t quite” meet the definition of extramarital sexual conduct prohib- ited under Article 134, UCMJ, 10 U.S.C. § 934.

Appellant’s argument fails for two reasons. First, we re- ject the premise that the underlying misconduct was extra- marital sexual conduct. And second, the Government’s charging scheme was not novel. Although the granted issue refers to the extramarital nature of the charged conduct, the specification as a whole alleged fraternization. Because it is well established that fraternization may be charged as conduct unbecoming an officer, 3 we hold any reasonable of- ficer would have no doubt that fraternizing with a junior enlisted trainee by kissing her on the lips can be sanctioned as conduct unbecoming an officer in violation of Article 133, UCMJ.

A. The gravamen of the charged conduct is fraternization

As an initial matter, we accept the parties’ position at trial that this case involves fraternization. See George, 2025 CAAF LEXIS 577, at *9, 2025 WL 2079302, at *4 (adopting on appeal the reasonable interpretation of the charge and specification adopted by the parties at trial). Accordingly, we reject Appellant’s contention on appeal that “the processing and litigation of this case below show it was intended as an adultery case, charged like an adul- tery case, litigated like an adultery case, and the panel members treated it like an adultery case.” 4

The specification alleged that Appellant, “while know- ing that Seaman Recruit (E-1) J.T. was a junior enlisted trainee and a woman who was not his wife, . . . kissed her cheek and lips.” During an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session to address pretrial motions, the military judge asked the Government to clarify its theory of the case—adultery or fraternization. Trial counsel’s response sounded in fraternization:

Just that the accused, being a Lieutenant Colonel, still on active duty, still subject to the UCMJ, was out on the Riverwalk in San Antonio, Texas, met two persons who told them their status in the Navy being enlisted, junior enlisted, and that he

The defense did not challenge the Government’s character- ization, voice any concerns, or request a bill of particulars to clarify the Government’s theory.

After findings, prior to instructing the panel members on sentencing, the military judge sought confirmation of his understanding that the applicable offense was fraterni- zation, not adultery. Trial counsel affirmed that the most analogous offense was fraternization; trial defense counsel agreed, stating, “[I]t’s not adultery.” The parties agreed that the maximum sentence was that prescribed for frater- nization under Article 134, UCMJ.

We decline to recast the charged conduct on appeal as an extramarital sexual conduct offense by considering only the portions of the specification alleging an extramarital kiss on the lips. “Our test will be: If it looks like fraterniza- tion and the parties treated it like fraternization, it is frat- ernization.” United States v. Arthen, 32 M.J. 541, 545 (A.F.C.M.R. 1990). Considering the language of the specifi- cation in its entirety, the Government’s articulated theory of the case, and the defense’s agreement that fraternization was the most analogous offense, we conclude the gravamen of the charged conduct is fraternization.

B. Appellant had fair notice that the charged conduct is prohibited conduct unbecoming an officer Having concluded this case involves fraternization, we must next determine whether Appellant had fair notice that the alleged fraternization was actionable as conduct unbecoming an officer. We accept Appellant’s concession that he had fair notice that fraternization is an actionable offense. We conclude that the MCM, Army regulations, and military custom provided fair notice that the charged conduct was conduct unbecoming. We address each source in turn. 5

First, fraternization is an enumerated Article 134, UCMJ, offense. MCM pt. IV, para. 101. 6 As explained in the MCM:

The gist of this offense is a violation of the custom of the armed forces against fraternization. Not all contact or association between officers and en- listed persons is an offense. Whether the contact or association in question is an offense depends on the surrounding circumstances. Factors to be con- sidered include whether the conduct has compro- mised the chain of command, resulted in the

(1) That the accused was a commissioned or warrant officer;

(2) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;

(3) That the accused then knew the person(s) to be (an) enlisted member(s);

(4) That such fraternization violated the cus- tom of the accused’s Service that officers shall not fraternize with enlisted members on terms of mil- itary equality; and

(5) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

MCM pt. IV, para. 101.b. appearance of partiality, or otherwise under- mined good order, discipline, authority, or morale. The facts and circumstances must be such as to lead a reasonable person experienced in the prob- lems of military leadership to conclude that the good order and discipline of the armed forces has been prejudiced by their tendency to compromise the respect of enlisted persons for the profession- alism, integrity, and obligations of an officer.

MCM pt. IV, para. 101.c.(1).

Second, Army regulations supply specificity to the stat- utory prohibition on fraternization by describing prohib- ited acts and relationships. See MCM pt. IV, para. 101.c.(2) (stating that “[r]egulations, directives, and orders may also govern conduct between officer and enlisted personnel on both a Service-Wide and a local basis”). Dep’t of the Army, Reg. 600-20, Personnel-General, Army Command Policy para. 4-14.b. (July 24, 2020) [hereinafter AR 600-20], warns that “Soldiers of different grades must be cognizant that their interactions do not create an actual or clearly pre- dictable perception of undue familiarity between an officer and an enlisted Soldier.” (Emphasis added.) This prohibi- tion extends to interactions of soldiers with “personnel of other military services,” id. para. 4-14.a., and violations of the prohibition are punishable under the UCMJ, id. para. 4-16. Although the several “examples” of undue familiarity listed in para. 4-14.b. do not specifically mention kissing, we are persuaded that Appellant’s kissing a junior enlisted member, who was not his wife, on the lips was an “interac- tion” that “clearly” showed “undue familiarity.” 7

Third, to the extent the MCM and Army regulations leave any doubt as to whether a reasonable officer would have known that kissing a junior enlisted trainee on the lips was subject to sanction, “ ‘the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of [Articles] 133 and 134.’ ” United States v. Appel, 31 M.J. 314, 319 (C.M.A. 1990) (plu- rality opinion) (quoting Parker v. Levy, 417 U.S. 733, 743 (1974)). Although fraternization was not enumerated as an offense under the UCMJ until 1984, “[t]he proscription against improper relationships between servicemembers of different ranks, now commonly referred to as fraterniza- tion, descended from the Roman ranks.” United States v. Boyett, 42 M.J. 150, 154-55 (C.A.A.F. 1995) (plurality opin- ion) (first citing Balthazar Ayala, Three Books on the Law of War and on the Duties Connected with War and on Mili- tary Discipline (Book The Third) 175, 180 (John Pawley Bate trans., Carnegie Institution 1964) (1582); and then citing William Winthrop, Military Law and Precedents 716 (2d ed., Government Printing Office 1920) (1886). This so- cial separation between officers and enlisted personnel has been the custom in this country since its inception. See United States v. McCreight, 43 M.J. 483, 485 (C.A.A.F. 1996) (“Since Revolutionary War days, it has been consid- ered unlawful for officers to drink alcohol with enlisted men in public places and to treat them on terms of military equality.”). Thus, custom of the service is an additional source of notice to Appellant that fraternization with a jun- ior enlisted sailor is prohibited. 8

Finally, the MCM makes clear that under the circum- stances of this case, fraternization is subject to sanction as conduct unbecoming an officer. The MCM’s discussion of Article 133, UCMJ, explicitly states that “[t]his article

“Obviously, there will be many gradations of relation- ships and associations between servicemembers that will not put the parties fairly on notice that the conduct might be inappropriate.” United States v. Rogers, 54 M.J. 244, 257 (C.A.A.F. 2000). This is not such a case. Where, as in this case, “there is extant such a wealth of tradition and usage, case law, and administrative guidance defining with rea- sonable specificity the parameters of officer enlisted rela- tionships,” Van Steenwyk, 21 M.J. at 808-09, we conclude that “[a]ny officer would be on notice that this type of be- havior was punishable.” Rogers, 54 M.J. at 257. Under the circumstances, there was no error, plain or otherwise. Ac- cordingly, we affirm the decision of the ACCA. v. Page, 43 M.J. 804, 805 (A.F. Ct. Crim. App. 1995) (affirming a conviction under Article 133, UCMJ, for engaging in an intimate relationship by hugging and kissing an enlisted airman who was married to another servicemember).

V. Judgment

The decision of the United States Army Court of Crimi- nal Appeals is affirmed.