# Levy v. Parker > Court of Appeals for the Third Circuit · April 18, 1973 · 478 F.2d 772 URL: https://www.frixlaw.com/law-library/cases/8890128 ## Case - **Full name:** Howard B. LEVY v. Jacob J. PARKER, as Warden of the United States Penitentiary, Lewisburg, Pennsylvania, and Stanley R. Resor, as Secretary of the Army - **Court:** Court of Appeals for the Third Circuit - **Decided:** April 18, 1973 - **Citations:** 478 F.2d 772 - **Precedential status:** Published - **Opinion:** Concurring in part by Seitz - **Judges:** Aldisert, Seitz - **Cited by:** 36 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by Parker v. Levy, 417 U.S. 733 (1974). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8890128 ## How later opinions describe it (automated extraction) - noting that the Burns standard is “easy to state, but difficult to define and to apply” ## Opinion text SEITZ, Chief Judge (concurring in part and dissenting in part). While I agree with the well-reasoned opinion of the majority finding Articles 133 and 134 unconstitutionally vague, I cannot join in the majority’s ultimate disposition of the case. I believe that despite the joinder of the Article 90 charge with the Articles 133 and 134 charges, there was no substantial prejudice to Captain Levy’s constitutional right to a fair trial on the Article 90 charge. As pointed out in the majority opinion, Captain Levy defended against the Article 90 charge on three counts: (1) the order was illegal because primarily motivated by a desire to increase punishment — a defense cognizable under the Uniform Code of Military Justice; 1 (2) the order was illegal because it ordered *809 the defendant to commit a war crime — a defense likewise cognizable under the UCMJ; and (3) the order was illegal because it forced the defendant to violate his medical ethics — a defense not recognized under the UCMJ. It is to be noted that it was never contended by Captain Levy that he did in fact obey the order. As a matter of law, only (1) and (2) were sustainable defenses, and only (1) was submitted to the court-martial. Point (2) was tried outside the hearing of the court-martial and only before the law officer because it involved an initial determination of law. Since that determination was made adversely to defendant by the law officer, it was never submitted to the court-martial for its consideration. Point (3) was ruled not to be a legal defense, and the law officer instructed the jury that even if they found such a conflict, they would not be entitled to acquit Captain Levy on that basis. Against this background, this court’s inquiry should be two-fold: (A) whether evidence introduced on the two unconstitutional charges substantially prejudiced Captain Levy’s constitutional right to a fair trial on the Article 90 charge; and (B) whether the presumption of validity attaching to a general sentence is rebutted by direct evidence on this record, where there was joint consideration of the Article 90 charge with the other two unconstitutional convictions for sentencing purposes. A. The first inquiry necessarily must be whether the evidence on the unconstitutional charges prejudiced defendant’s right to a fair trial on the Article 90 charge in derogation of his right to Fifth Amendment Due Process. However, because of the peculiarities of a court-martial proceeding, the applicable standard of review is by no means clear. There are two elements not present in normal civilian proceedings which complicate our task on review in determining whether or not there was sufficient prejudice to warrant reversal. The first is that, as here, there can be joinder in one trial of offenses which have neither a common legal nor a common factual basis. Thus, Captain Levy was tried in one proceeding for violations of one set of Articles — 133 and 134 — which had common legal elements and could be proven by the introduction of similar evidence, and for violation of another Article — 90—which involved completely separate legal elements and required totally different evidence for conviction. Federal rules of procedure would prohibit such a joinder in a federal civilian proceeding. Fed.R.Crim.P. 8. Thus, federal civilian courts would rarely, if ever, be faced with reviewing the type of situation with which we áre here confronted. The second element peculiar to the military judicial system is that a defendant can take the stand and limit testimony to any one charge, or any number of charges less than the whole, of his own choosing. This would seem to be a compensating factor for the military policy to join all serious offenses against a defendant into one trial, discussed above. Manual for Courts-Martial j[.f[30h, 33f (1951). For example, in the instant case, Captain Levy could have taken the stand solely to defend against the Article 90 charge without subjecting himself to examination on the Articles 133 and 134 charges. Thus, taking the witness stand in a court-martial proceeding does not operate as a complete waiver of one’s Fifth Amendment right against self-incrimination. Instead, it operates as a waiver only as to those charges specified by the defendant. Because of these peculiarities extant only in the military system, and the resultant lack of actual similarity to seemingly analogous situations in civilian proceedings, the cases relied upon by the majority are not particularly enlightening. One line of cases involves introduction of unconstitutionally seized evidence probative of guilt on the offense charged. The second line of cases in *810 volves joined charges where incriminating evidence is introduced on one count which is subsequently determined unconstitutionally tainted, and that evidence overlaps as to elements of proof on the otherwise valid charge. However, none of these cases involve the type of situation present here where there is no overlap of probative evidence because of the joinder of distinct charges involving distinct and different legal and factual elements of proof. The standard of review applied here by the majority — “reasonable possibility of prejudice” — was enunciated by the Supreme Court in Fahy v. Connecticut, 375 U.S. 85 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963). Examination of that case only illustrates the differences confronting the Court there and that confronting the court here. In Fahy , the unconstitutional element was the introduction into evidence of a can of black paint which had been seized in violation of the Fourth Amendment. Defendant was charged with painting swastikas on synagogues. Therefore, the illegally seized evidence tended to show participation in the criminal conduct charged. Necessarily, careful scrutiny was called for, since the tainted evidence directly reflected on an inference of guilt. Development of this standard of close scrutiny, in fact, can be traced to the highly analogous situation involving introduction at trial of a coerced confession. However, those factual and legal situations are not analogous to the operative facts of the trial and evidence introduced in the instant case. In Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), we have an example of the second type of cases, involving a joinder of charges. There, the defendant had been tried on two related charges: burglary and larceny. The Court held the larceny conviction had been obtained in violation of defendant’s constitutional right against double jeopardy. Because it was a direct appeal, the Court remanded the case for a determination of whether there was any prejudicial effect on the otherwise valid burglary conviction by reason of the joint trial. However, unlike the situation here with the joined Article 90 charge, there were similar and overlapping elements of proof between the larceny and burglary charges. Some of those elements which might have been related but inadmissible as evidence of guilt on the burglary charge may have been introduced as relevant evidence on the larceny charge. Further, joinder of the charges may have inhibited defendant’s ability to offer exculpatory testimony on the burglary count. Similarly the joinder of the two related charges may have indicated to the jury a propensity to engage in such conduct. Consequently, substantial potential for prejudice inhered in the very nature of the joinder there reviewed. An interesting hybrid of these two types of cases is revealed in the case relied upon by the majority — United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), cert. denied, 383 U.S. 913 , 86 S.Ct. 896 , 15 L.Ed.2d 667 (.1966). There, the court faced a petitioner who had been tried once for first degree murder and had been convicted of second degree murder. On appeal, the state court reversed his conviction. In a subsequent trial, he was again charged with first degree murder and found guilty of second degree murder. On collateral attack, the court of appeals annulled the conviction as having been obtained in violation of petitioner’s right against double jeopardy. In making its review, the court applied the “reasonable possibility of prejudice” standard set out in Fahy . I submit that that situation differs markedly from the one before, us. The entire proceeding in Hetenyi was a product of a violation of defendant’s constitutional right against double jeopardy. The second trial was grounded upon the constitutionally tainted charge — first degree murder, and it was only because of the doctrine of lesser included offenses that the jury was able to bring in a lesser conviction. However, none of these *811 various elements appear in the instant case. The evidence which was introduced as to defendant’s criminal conduct under the two unconstitutional articles was completely separable from the evidence used to convict on the Article 90 charge. Further, there is ample indication that the court-martial did in fact separate out the elements of the various charges and brought in independent convictions on the unrelated counts. Additionally, Captain Levy could have exercised his right to take the stand and testify only concerning the Article 90 charge without waiving his right not to testify on the other charges. Consequently, his ability to offer personally exculpatory evidence was not infringed by reason of the joinder. In fact, the law officer carefully made clear to defendant that he had the right to select those charges on which he would and would not testify. Finally, because of our limited scope of review in military habeas corpus, we should stay our hand unless the requisite prejudice is established. In light of these considerations, I cannot agree with the majority that the applicable standard of review as to the Article 90 charge is whether there is a “reasonable possibility of prejudice.” Rather, I believe the applicable standard of review should be whether defendant’s right to a fair trial on the Article 90 charge was substantially prejudiced by its joinder with the unrelated unconstitutional charges. Applying this standard of review, the critical determination becomes whether the joinder of the charges affected the ability of the fact finders to separate out the component charges and to make a factual determination of guilt on the Article 90 charge based solely on the evidence relevant to that charge. Even assuming the burden of proof to be on the Government, after an extensive examination of the record, I am satisfied the joinder of the charges at trial did not substantially prejudice Captain Levy’s constitutional right to a fair trial on the Article 90 charge. I consider four points dispositive in reaching this conclusion. First, defendant never contended that.he obeyed the order. Nor was any rebuttal offered to the Government’s proof that the order was not obeyed. Therefore, the court-martial could find conclusively that the order in fact was not obeyed. Secondly, I note that the court-martial was presented with overwhelming evidence that the order did not have as its primary motive the increasing of defendant’s punishment. Not only did the court-martial have the benefit of extensive testimony by Colonel Fancy, the commanding officer of the hospital, who gave the order, but it had the benefit of examining the order of events in reaching a sustainable conclusion on this point. These events showed that while the order was given in early October, Colonel Fancy continued his efforts to persuade Captain Levy to comply with the order even after the initial refusal to obey. Only after several attempts at such persuasion had been rejected by Captain Levy did Colonel Fancy finally press charges. Colonel Fancy initiated this action in November, a month after the giving of, and initial refusal to comply with, the order. The court was not presented with a situation where the order was given one day and the charges drawn up the next. Thirdly, of the five charges and specifications brought against Captain Levy under the three Articles — 90, 133 and 134, the court-martial brought back verdicts consistent with the indictment on only the three charges here under review. On the two remaining charges, the court brought in verdicts for lesser offenses, tantamount under the UCMJ to an acquittal on those charges. However much the majority may discount it, this shows a discrimination by the members of the court-martial as to the evidence relating to the various charges; such discrimination is extremely relevant in light of the presence of the other elements which I find militate in favor of upholding this conviction. *812 Fourthly, much of the allegedly inflammatory evidence introduced at trial was brought out by the defense in its effort to prove the improper motivation behind the order. On retrial, I do not see how an effective defense to the Article 90 charge could be predicated upon this ground without a similarly exhaustive examination of this subject matter by defense counsel. This last conclusion is not based upon mere speculation as to what might happen, as contended by my colleagues. Rather, it is based upon a frank examination of applicable military law. Captain Levy defended on three grounds. None of these involved the defense that he attempted to obey the order; instead, they were exculpatory defenses for his failure to obey the order. The third defense raised — that the order was against medical ethics — would not appear to be a valid defense under the UCMJ. Further, I agree with the majority’s conclusion that the law officer’s refusal to recognize this defense raises no substantial constitutional question. The second defense — that defendant was ordered to commit war crimes —was decided adversely to defendant as a matter of law outside the hearing of the court-martial; elements of the third defense could conceivably be subsumed into the second. I do not understand the majority to contend that the law officer was prejudiced in his conduct of the trial by the joinder of charges into one trial, nor do I believe such a position sustainable. Neither do I think the refusal to recognize this second defense resulted in constitutional error. Thus, defendant was relegated — and at a future trial would be relegated, accepting the validity of the law officer’s conclusions on the war crimes issue as we must — to predicating a successful defense upon proving the order was illegal because given primarily to increase punishment — the first defense. Because of this, because of the overwhelming evidence against defendant on this point the first time around, and because the joinder of charges did not prejudice Captain Levy’s right to offer testimony in defense to this charge only, I conclude that no substantial prejudice to Captain Levy’s constitutional right to a fair trial on the Article 90 charge appears on this record. B. Having made this initial determination, the next issue is whether the presumption of validity which attaches to the general sentence under the Claasen rule is rebutted. Claasen v. United States, 142 U.S. 140 , 12 S.Ct. 169 , 35 L.Ed. 966 (1891). 2 If there be a valid charge found on review, and the general sentence imposed does not exceed the statutory maximum which could be imposed on that charge, a presumption attaches that the court • sentenced only on the valid charge. Therefore, the test becomes whether, from direct evidence on the record, the presumption of validity which here attaches to the general sentence is rebutted by the court-martial's consideration of the valid Article 90 conviction together with the two constitutionally invalid convictions for sentencing purposes. This is to be distinguished from the initial determination made in (A). There, the issue was whether the joinder of the charges prejudicially affected the ability of the fact finders to separate out the particular charges and to make a factual determination as to the Article 90 charge solely on the evidence relevant to that charge. Here, however, the question is whether there is affirmative evidence on the record that once a determination of guilt was made as to each of the charges, the court-martial considered the invalid convictions together with the valid Article 90 conviction in arriving at the general sentence ultimately imposed. It is to be emphasized that much more is required to rebut the presumption than the mere fact that the court-martial retired to consider the sentence having all three convictions before them. Rather, strong and convincing evidence *813 rebutting the presumption under Claa-sen would have to appear on the face of the record; the burden of proof is on the defendant. Absent such evidence, the presumption becomes conclusive in this case since the three year general sentence imposed was within the statutory maximum available for conviction under Article 90. In my scrutiny of the record, I have not found any such direct manifestation of impropriety in the sentencing sufficient to rebut the Claasen presumption. Consequently, I find no basis on which to vacate this sentence. In short, I believe this record reflects no substantial prejudice to defendant by reason of a joint trial on all the charges; neither do I find the presumption attaching to the general sentence rebutted. Thus, while I agree with the majority that Articles 133 and 134 are unconstitutional, I find the Article 90 conviction unimpugned. Therefore, I would affirm the judgment of the district court denying the writ. . Hereinafter cited as UCMJ. . See discussion in majority opinion at 779. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8890128. Public record. Not legal advice.