Opposition — Kehrli v. Sprinkle

No. 75-1170

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

GERALD V. KEHRLI, ETC., PETITIONER

Vv,

HoMER R. SPRINKLE, COMMANDANT, ETC.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

RoserT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

SIDNEY M. GLAZER,

ROBERT J. ERICKSON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

a”

INDEX

Page

Opinions below 1

Jurisdiction 2

Questions presented 2

Statément 2

Argument 6

Conclusion ie 17

CITATIONS

Cases:

Allen v. VanCantfort, 436 F. 2d 625,

certiorari denied, 402 U.S. 1008 8

Aguilar v. Texas, 378 U.S. 108 . 14

Avrech vy. Secretary of the Navy, 477 F.

2d 1237, reversed, 418 U.S. 676 . 6

Burns v. Wilson, 346 U.S. 137, rehearing

denied, 346 U.S. 844 7,8

Calley v. Callaway, 519 F. 2d 184, cer-

tiorari denied, No. 75-773 (April 5,

1976) sai | 8

Carafas v. LaVallee, 391 U.S. 234 6

Harris v. Ciccone, 417 F. 2d 479, certio-

rari denied, 397 U.S. 1078 ___. 8-9, 10

Humphrey v. Smith, 336 U.S. 695 9,10

Kasey v. Goodwyn, 291 F. 2d 174 _ 11

Levy v. Parker, 478 F. 2d 772, reversed

on other grounds, 417 U.S. 733 8

O'Callahan v. Parker, 395 U.S. 258 16

Parker v. Levy, 417 U.S. 733 7,14,15

Relford vy. United States Disciplinary

Commandant, 401 U.S. 355 16

Cases—( ‘ontinued Page Miscellaneous :

Secretary of the Navy v. Avrech, 418 Manual for Courts-Martial, United States

US. 67% ain 15 (1969 Rev.) :

Schlesinger v. Councilman, 420 U.S. 738 7 coe — roenedanmmanensoneenenenesewapeowens

-—-y States v. Augenblick, 393 U.S. . — ie 16,86

ee ‘ |» iC a

United States vy. Goeltz, 513 F. 2d 193, _

certiorari denied, 423 U.S. 830 _. 14

United States v. Kiffer, 477 F. 2d 349,

certiorari denied, 414 U.S. 831... 15

United States v. LaFroscia, 485 F. 2d

457 Chae ATT sta TS 15

United States y. Nieto, 510 F. 2d 1118,

certiorari denied, 423 U.S. 854 __. 14

United States v. Rodriquez-Camacho, 468

F. 2d 1220, certiorari denied, 410 U.S.

985 15

United States v. Spann, 515 F. 2d 579 15

United States v. Ventresca, 380 U.S. 102 14

United States y. Welebir, 498 F. 2d 346 14

Constitution and statutes:

United States Constitution, Eighth

a 16

Uniform Code of Military Justice:

Article 1(9), 10 U.S.C. 801(9) 11

Article 22(b), 10 U.S.C. 822(b) . 11

Article 32(a), 10 U.S.C. 832(a) 9

Article 32(b), 10 U.S.C. 832(b) i) |

Article 134, 10 U.S.C. 934. 2, 3,6,14,15

Article 137, 10 U.S.C. 937 15

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1170

GERALD V. KEHRLI, ETC., PETITIONER

Vv.

HoMER R. SPRINKLE, COMMANDANT, ETC.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

14a) is reported at 524 F. 2d 328. The opinions of

the district court (Pet. App. 15a-25a, 3la-46a) are

not reported. The opinion of the United States Air

Force Court of Military Review (Pet. App. 49a-58a)

is reported at 44 C.M.R. 582.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on October 20, 1975. On January 6, 1976, Mr. Jus-

tice White extended the time for filing a petition for

a writ of certiorari to and including February 18,

1976; the petition was filed on February 17, 1976.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether in this habeas corpus proceeding the

courts below, after having concluded that the mili-

tary courts had fully and fairly considered petition-

er’s claims of irregularities in his court-martial pro-

ceedings and that his arrest had not been based upon

probable cause, properly refused to engage in plenary

review of those claims.

2. Whether Article 134 of the Uniform Code of

Military Justice is constitutional as applied to the

possession, use and transfer of marijuana.

3. Whether petitioner’s sentence is constitutional.

STATEMENT

1. Following the convening of a general court-

martial in the former Republic of Viet Nam, peti-

tioner was convicted on three specifications charging

use of marijuana, two specifications charging the

transfer of marijuana, and one specification charg-

ing possession of marijuana, in violation of Article

134 of the Uniform Code of Military Justice

PD -

(“U.C.M.J.”), 10 U.S.C. 934. He was sentenced to

four years’ imprisonment at hard labor. In lieu of

the fourth year of confinement, petitioner was given

the option of paying a $15,000 fine.’

2. The evidence at the court-martial showed that

during the fall of 1970, petitioner, a full colonel, was

the commanding officer of the 616th Military Airlift

Support Squadron, which was then stationed at the

Tan Son Nhut Air Base near Siagon. In early Octo-

ber of that year, petitioner met Lieutenant Peter

Jackson, an Army intelligence officer (R. 127-129).

Petitioner confided to Jackson that he used mari-

juana and that he had converted a junior officer

under his command to the use of marijuana (R.

129). Later that same night, petitioner smoked two

marijuana cigarettes in Jackson’s presence (R. 130-

132).

1 Article 134 of the U.C.M.J., 10 U.S.C. 934, provides

as follows: ¢

Though not specifically mentioned in this chapter,

all disorders and neglects to the prejudice of good order

and discipline in the armed forces, all conduct of a nature

to bring discredit upon the armed forces, and crimes and

offenses not capital, of which persons subject to this

chapter may be guilty, shall be taken cognizance of by a

general, special, or summary court-martial, according to

the nature and degree of the offense, and shall be punished

at the discretion of that court.

* Petitioner began serving his sentence in January 1972. He

was released on parole in May 1973, and remained in that

status until January 1975. Petitioner completed payment of

the fine in January 1976 (Pet. 7).

4

Upon returning to his unit the following day,

Jackson briefed his superiors concerning petitioner’s

use of marijuana (R. 132, 135). When petitioner

subsequently invited Jackson to meet him in Saigon

on November 20, Jackson alerted military authori-

ties and arrangements were made for surveillance

of the meeting (R. 135). Jackson was instructed to

signal the surveilling officers with his handkerchief

if he found that petitioner possessed marijuana (R.

43-44, 136).

Jackson met petitioner in Saigon on November 20,

as scheduled, and the two went to the latter’s quar-

ters. Once there, petitioner stated that he expected

a delivery of marijuana, but that if the delivery was

not made Jackson need not worry “because he [peti-

tioner] had four in his room” and “two apiece would

be more than enough to do it” (R. 137). When the

delivery did not take place, petitioner went into his

bedroom and returned carrying a crumpled cigarette

package. Petitioner then suggested that Jackson ac-

company him to the officer’s club, “smoke two in the

parking lot, go downtown and have a few drinks,

and smoke two downtown” (ibid.).

As Jackson and petitioner were leaving the latter’s

quarters, Jackson signaled the surveilling officers.

The officers arrested petitioner before he had gotten

out of his car outside the officer’s club (R. 45-46,

138). As petitioner got out of his car, the arresting

officer noticed a cigarette package fall from petition-

er’s hand onto the door ledge of the car (R. 35-36).

4

Jv

The officer seized the package and found that it con-

tained four marijuana cigarettes (R. 36).

Five enlisted airmen, assigned to petitioner’s

squadron, testified at petitioner’s court-martial for

the prosecution. In sum, they related that petitioner

had invited them to his quarters on several occasions

and that on those occasions they had smoked mari-

juana with petitioner. The airmen further testified

that petitioner sometimes provided the marijuana,

while on other occasions the marijuana was provided

by petitioner’s guests. One of the airmen also testi-

fied that he had twice purchased marijuana for peti-

tioner, once after having been specifically requested

to do so by petitioner (R. 85-90, 96-99, 107-110, 115-

116, 122-123).

3. Following petitioner’s conviction by general

court-martial, the case was reviewed on behalf of the

convening authority by the Staff Judge Advocate of

the 22d Air Force and the convening authority there-

after approved the conviction (Pet. App. 59a-81la).

The United States Air Force Court of Military Re-

view subsequently affirmed petitioner’s conviction and

sentence (Pet. App. 49a-58a), and the United States

Court of Military Appeals denied a petition seeking

further review (Pet. App. 47a-48a).

Having exhausted his remedies within the military,

petitioner initiated the present habeas corpus pro-

ceeding in June 1972 in the United States District

Court for the District of Kansas.’ He alleged in his

’ Since petitioner was “in custody” at the time he petitioned

for habeas corpus (see n. 2, supra), the district court had

6

petition fifteen errors, including alleged procedural

defects in the convening of his court-martial and

challenges to the legality of his arrest and to the

constitutionality of Article 134 of the U.C.M.J. After

having reviewed the materials submitted by peti-

tioner, the district court denied the petition (Pet.

App. 3la-46a).

The court of appeals subsequently remanded the

ease to the district court for consideration of the

constitutionality of Article 134 of the U.C.M.J. in

light of Avrech v. Secretary of the Navy, 477 F. 2d

1237 (C.A. D.C.)—which had been decided after the

district court’s decision in this case. The district court

thereafter again denied the petition (Pet. App. 15a-

27a), and the court of appeals affirmed (Pet. App.

la-l4a).

ARGUMENT

1. Petitioner first contends (Pet. 16-25) that the

district court and the court of appeals erred in re-

fusing to consider de novo his claims that irregular-

ities in his court-martial deprived him of due process

and that his arrest was not based upon probable

cause. According to petitioner, the refusal of the civil-

ian courts to consider those claims on their merits

proceeded from a misapprehension of this Court’s

jurisdiction to entertain the petition. His unconditional release

from custody in January 1976 did not defeat jurisdiction.

E.g., Carafas V. LaVallee, 391 U.S. 234.

*The court of appeals’ decision in Avrech v. Secretary of

the Navy, supra, was reversed by this Court (418 U.S. 676)

after the district court’s decision on remand denying peti-

tioner’s habeas petition.

7

decision in Burns v. Wilson, 346 U.S. 137 rehearing

denied, 346 U.S. 844, and is a matter requiring re-

view by this Court.

Under settled principles, however, the questions

whether petitioner’s court-martial was infected by

procedural irregularities and whether his arrest was

based upon probable cause are resolvable only on the

basis of the evidence introduced at the court-martial.

The courts below correctly held that the scope of re-

view on habeas corpus does not extend to the redeter-

mination of facts found in military proceedings, but

is limited instead to determining whether the mili-

tary courts fully and fairly considered such claims.

2. This Court repeatedly has recognized that mili-

tary law constitutes a different jurisprudential sys-

tem from the law governing civilian conduct. F.9.,

Schlesinger v. Councilman, 420 U.S. 738, 746; Par-

ker v. Levy, 417 U.S. 733, 744. Review of convic-

tions by courts-martial on habeas corpus is accord-

ingly limited. As stated in Burns v. Wilson, supra,

346 U.S. at 142 (citations omitted): -

The military courts, like the state courts, have

the same responsibilities as do the federal courts

to protect a person from a violation of his con-

stitutional rights. In military habeas corpus

cases, even more than in state habeas corpus

cases, it would be in disregard of the statutory

scheme if the federal civil courts failed to take

account ef the prior proceedings—of the fair

determinations of the military tribunals after

all military remedies have been exhausted. Con-

gress has provided that these determinations are

“final” and “binding” upon ail courts. We have

8

held before that this does not displace the civil

courts’ jurisdiction over an application for

habeas corpus from the military prisoner. * * *

But these provisions do mean that when a mili-

tary decision has dealt fully and fairly with an

allegation raised in that application, it is not

open to a federal civil court to grant the writ

simply to re-evaluate the evidence. * * *

Petitioner apparently concedes (see Pet. 16-18)

that Burns precludes de novo review on habeas cor-

pus of questions raising factual, as opposed to purely

legal, issues already fully and fairly considered by

the appropriate military tribunals. But while peti-

tioner’s claims of procedural irregularities and his

Fourth Amendment claim call ultimately for legal

conclusions, such conclusions necessarily require—

and are directly dependent upon—detailed factual

determinations. Thus, rather than presenting purely

legal issues, petitioner’s claims would have required

the courts below “to re-examine and reweigh each

item of evidence of the occurrence of events which

tend[ed] to prove or disprove [his] * * * allegations.”

Burns v. Wilson, supra, 346 U.S. at 144. The courts

below properly declined to engage in such reevalua-

tion. Calley v. Callaway, 519 F. 2d 184, 198-203

(C.A. 5) (en banc), certiorari denied, No. 75-773

(April 5, 1976); Levy v. Parker, 478 F. 2d 772, 783

(C.A. 3), reversed on other grounds, 417 U.S. 733;

Allen v. VanCantfort, 436 F. 2d 625, 629 (C.A. 1),

certiorari denied, 402 U.S. 1008; Harris v. Ciccone,

417 F. 2d 479, 481 (C.A. 8), certiorari denied, 397

8 el al

9

U.S. 1078; see also United States v. Augenblick, 393

U.S. 348, 349-352.

3. The military courts fully and fairly considered

the variety of procedural errors in the convening of

the court-martial that petitioner claimed had de-

prived him of due process. They also properly reject-

ed his contention that his arrest was not based upon

probable cause.°

a. Before charges may be referred for trial by

general court-martial, Article 32(a) of the U.C.M.J.

requires that “a thorough and impartial investiga-

tion” be conducted. 10 U.S.C. 832(a). During such

investigation, which is analogous to a preliminary

hearing (see Humphrey v. Smith, 336 U.S. 695, 698),

the accused is afforded the right to counsel, to cross-

examine adverse witnesses and to proffer evidence

on his own behalf. 10 U.S.C. 832(b). Petitioner con-

tends (Pet. 21) that he was denied due process be-

cause the inquiry officer conducted ex parte inter-

views of persons who later testified at the inves-

tigation. But no provision of the U.C.M.J. or the

Manual for Courts-Martial proscribes such a prac-

tice. When, as here, petitioner was represented at the

formal investigatory hearing by counsel and—as he

* Petitioner suggests (Pet. 20 n. 6) that these issues were

not fully and fairly considered by the military courts because

of reliance by the Court of Military Review upon the analysis

of the Staff Judge Advocate. As the district court correctly

noted, however, “[t]here is no requirement that an Appellate

Court reiterate what has already been said at a lower level,

if it agrees with the prior determination which is of record and

is readily available to the interested parties” (Pet. App. 40a).

10

concedes (Pet. 21)—afforded full rights of cross-

examination, the requirements of a “thorough and

impartial investigation” and of due process were

satisfied.°

b. Petitioner next contends (Pet. 22) that the

charges against him were improperly processed be-

cause his immediate superior officer, who could have

exercised summary court-martial jurisdiction over

him, was by-passed. Again, however, neither the

U.C.M.J. nor the Manual for Courts-Martial re-

quires that charges be processed at each command

level.

Contrary to petitioner’s suggestion, moreover, the

officer authorized to exercise general court-martial

jurisdiction—in petitioner’s case, the commander of

the Seventh Air Force—was not limited to referring

charges for trial by general courts-martial. Such

officer “may take any action on the charges which

the immediate commander * * * or the officer exer-

cising summary court-martial jurisdiction * * * is

authorized to take.” Manual for Courts-Martial, para.

35a (1969 Rev.). Thus, the by-passing of petition-

er’s immediate superior officer did not preclude any

disposition of the charges that would otherwise have

been available—and did not deprive petitioner of any

statutory or constitutional rights.

* Even assuming that the prehearing interviews conducted

in this case departed in some way from the requirements of

Article 32, that fact would not provide grounds for invali-

dating petitioner’s conviction. See Humphrey V. Smith, supra,

236 U.S. at 698-701; Harris v. Ciccone, supra, 417 F. 2d at

483.

11

c. The record does not support petitioner’s con-

tention (Pet. 22) that the court-martial may have

been affected by improper command influence. Peti-

tioner bases this claim on a speech that was given by

Genera! Lucius Clay, Commander of the Seventh Air

Force, three weeks prior to petitioner’s arrest. Gen-

eral Clay stated in that speech that drug abuse de-

tracted from the mission of the military and could

not be tolerated; that offenders of different ranks

would be treated differently; that more was expected

from senior NCO’s and officers than from others;

and that persons who deviated from standards of

required conduct could expect to be punished (R. 20).

But petitioner has not shown that General Clay’s

remarks affected the impartiality of his court-

martial. The speech in question was made before a

group of junior officers, and there is no evidence that

members of the court were even aware of the speech.

Moreover, petitioner has not claimed that he was

denied adequate opportunity to question prospective

members of the court to ascertain whether they were

aware of the speech. The speech occurred well before

charges were brought against petitioner and was

framed in general terms. It was not directed against

petitioner and did not relate to the case against him.

Compare Kasey v. Goodwyn, 291 F. 2d 174 (C.A. 4).

d. Petitioner also argues (Pet. 22-23) that Gen-

eral Clay was not authorized to convene his general

court-martial because he was petitioner’s de facto

accuser. See Articles 1(9) and 22(b), 10 U.S.C. 801

(9) and 822(b). This claim is directly refuted by the

12

stipulated testimony of General Clay and General

Bennett, Chief of Staff of the Seventh Air Force,

who brought the charges against petitioner. As the

Staff Judge Advocate summarized this testimony

(Pet. App. 66a-67a) :

The parties to the trial agreed that General

Clay would have testified that, as the general

court-martial convening authority for Seventh

Air Force, between 20 and 29 November 1970,

he was briefed by Colonel Archie Henson,

Seventh Air Force Staff Judge Advocate, on the

aileged conduct giving rise to the charges in the

accused’s case. General Clay directed that charg-

es be preferred and that the case be referred to

trial by general court-martial. He directed that

Colonel Henson do what was necessary to proc-

ess the case (App. Ex. 2). The parties to the

trial agreed that Brigadier General Charles I.

Bennett, Jr., would have testified that on 29

November 1970 and on 23 December 1970, he

preferred charges against the accused, having

obtained personal knowledge of the results of

the investigation into the accused’s conduct, pur-

suant to Colonel Henson’s recommendations and

because of the accused’s unique duty status. He

did not know whether General Clay knew of or

consented to his preferring these charges. He

was not ordered to prefer the charges; and,

prior to signing the charge sheets, he discussed

the matter with no one save Colonel Henson

* «= *€

These procedures fully comported with applicable re-

quirements, as outlined in the Manual for Courts-

Martial, para. 5a(4) (1969 Rev.):

13

Action by a commanding officer which is merely

official and in the strict line of duty cannot be

regarded as sufficient to disqualify him [from

convening a court-martial]. For example, a

commanding officer may, without becoming an

accuser in the case, direct a subordinate to in-

vestigate an alleged offense with a view to for-

mulating and preferring appropriate charges if

the facts disclosed by the investigation should

warrant preferring charges. The commanding

officer may thereafter refer the charges for trial

as in other cases.

General Clay’s action in this case was the same as

that of the commanding officer in the situation de-

scribed in the Manual.

e. The record also refutes petitioner’s contention

(Pet. 24-25) that his arrest was not based upon prob-

able cause. As noted, Lieutenant Jackson had previ-

ously observed petitioner smoking marijuana. On the

night of his arrest, petitioner told Jackson that he

was expecting a delivery of marijuana, but that he

had four marijuana cigarettes in his quarters in the

event the expected delivery did not occur. Before

leaving petitioner’s quarters, Jackson observed peti-

tioner enter his bedroom and return with a crumpled,

open cigarette package. Petitioner stated at that

time that they could “smoke two” in the parking lot

of the officer’s club and later “smoke two” downtown.

Based upon these events, Jackson had probable cause

to believe that petitioner possessed a prohibited sub-

stance.’

’ Petitioner’s arrest and the consequent seizure of the mari-

juana cigarettes that he dropped upon getting out of his car

14

4. The district court and the court of appeals care-

fully considered, and correctly rejected, petitioner’s

contention (Pet. 25-31) that Article 134, 10 U.S.C.

934, is unconstitutional as applied to the possession,

use and distribution of marijuana. While there may

be areas with respect to which application of Article

134 is uncertain (Parker v. Levy, supra, 417 U.S.

at 754), there can be little doubt that the article

prohibits repeated marijuana offenses in a combat

zone. As noted in Parker v. Levy, almost all acts

charged under Article 134—most notably, drug of-

fenses—are acts that ordinary soldiers know are

punishable offenses.“ 417 U.S. at 763 (Blackmun, J.,

concurring).

Indeed, the inclusion of marijuana offenses within

Article 134’s general proscrijftion of conduct “to the

prejudice of good order and discipline in the armed

forces” is specified in the Manual for Courts-Mar-

tial. In explaining conduct within the reach of Arti-

cle 134, the Manual states that “[i]t is a violation

of this article wrongfully to possess or use marijuana

outside the officer’s club were not made unlawful by the fact

that Lieutenant Jackson had not previously supplied the

arresting officer with similar information or because the

arresting officer did not himself observe the events supplying

probable cause. See United States v. Ventresca, 380 U.S. 102,

111; Aguilar v. Texas, 378 U.S. 108, 114-115; United Stetes v.

Goeltz, 513 F. 2d 193, 197 (C.A. 10), certiorari denied, 423

U.S. 830; United States v. Nieto, 510 F. 2d 1118, 1120 (C.A.

5), certiorari denied, 423 U.S. 854; United States v. Welebir,

498 F. 2d 346, 349 n. 2 (C.A. 4).

8 Petitioner has never claimed that he did not know that the

use of marijuana violated Article 134 (see Pet. App. 13a).

15

* * *.’ Manual for Courts-Martial, para. 2135

(1969 Rev.). In view of petitioner’s status as a com-

manding officer and his concomitant responsibility

to explain the scope of the general article to enlisted

men under his command (see Article 127, 10 U.S.C.

937), it can hardly be said that petitioner lacked

fair notice that his possession, use and distribution

of marijuana violated Article 134. See Parker v.

Levy, supra, 417 U.S. at 756-757; Secretary of the

Navy v. Avrech, 418 U.S. 676.

Petitioner’s contention (Pet. 31) that the prohibi-

tion against the use and possession of marijuana vio-

lates his right to privacy is also without merit. No

federal court has ever found such a privacy interest

in a civilian setting—much less in a military one.

Petitioner’s further suggestion (Pet. 27) that the

offenses of which he was convicted may not have been

® Petitioner also argues (Pet. 29-30) that proscriptions

directed against the use or possession of marijuana are arbi-

trary. This argument has been universally rejected by the

federal courts that have considered it. E.g., United States v.

Spann, 515 F. 2d 579, 583-584 (C.A. 10); United States v.

LaF roscia, 485 F. 2d 457 (C.A. 2); United States v. Kiffer,

477 F. 2d 349, 355-357 (C.A. 2), certiorari denied, 414 U.S.

831; United States v. Rodriquez-Camacho, 468 F. 2d 1220

(C.A. 9), certiorari denied, 410 U.S. 985.

The Manual for Courts-Martial does distinguish, contrary to

petitioner’s assertion (Pet. 29), between habit-forming and

nonhabit-forming drugs, such as marijuana. Paragraph 127c

of the Manual provides that the maximum punishment

for a single use of a habit-forming drug is ten years’ im-

prisonment and that the maximum penalty for a use of

marijuana is five years’ imprisonment.

16

“service-connected” is similarly unavailing. As the

court below concluded, “the military certainly has a

vital interest in the use of drugs by service personnel

in combat zones, and on or near military installa-

tions” (Pet. App. 9a). See Relford v. United States

Disciplinary Commandant, 401 U.S. 355, 365; O’Cal-

lahan v. Parker, 395 U.S. 258, 273-274. This is

particularly so in the case of a commanding officer

of petitioner’s high rank.

5. Finally, petitioner contends (Pet. 31-32) that

his sentence constituted cruel and unusual punish-

ment, in violation of the Eighth Amendment. While

petitioner’s personal possession and use of marijuana

were serious offenses, he a..o transferred the drug

to enlisted men. Such misconduct increased the haz-

ards to his men, who were serving in a combat zone,

and encouraged disobedience of the law and disre-

spect for superior officers. Petitioner’s sentence was

well within the maximum punishment allowable un-

der the Manual for Courts-Martial, para. 127c

(1969 Rev.), and is constitutional.

17

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

SIDNEY M. GLAZER,

ROBERT J. ERICKSON,

Attorneys.

JUNE 1976.

WU. 6. GOVERNMENT PRIPiiNG OFFicE; 1976 208249 260