Opposition — Stearsman v. United States

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MAY @ (978

No. 77-1193 MICHAEL RODAK,

re

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

MICHAEL R. STEARSMAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

BARBARA ALLEN BABCOCK,

Assistant Attorney General,

RONALD R. GLANCZ,

MICHAEL KIMMEL,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinion below ated

Jurisdiction

Questions presented

Statutes involved

Statement

Argument

Conclusion 10

ann NS SS

CITATIONS

Cases:

Augenblick v. United States, 206 Ct. Cl.

74, 509 F.2d 1157, certiorari denied,

422 U.S. 1007 4,7,9

Gosa v. Mayden, 450 F.2d 753, affirmed,

413 U.S. 665 4, 6, 8,9

Gross v. United States, 209 Ct. Cl. 70, 531

F.2d 482

Hooper v. Laird, 482 F.2d 784

Lichtenstein v. Schlesinger, 495 F.2d

1382

Mercer v. Dillon, 19 U.S.C.M.A. 264, 41

C.M.R. 264

O’Callahan v. Parker, 395 U.S. 258_4, 5, 6, 7, 8,

Orloff v. Willoughby, 345 U.S. 83

Parker v. Levy, 417 U.S. 733

Relford v. Commandant, 401 U.S. 355 ___

Schlomann v. Moseley, 457 F.2d 1223, cer-

tiorari denied, 413 U.S. 919

United States ex rel. Flemings v. Chafee,

458 F.2d 544 reversed sub nom. Gosa

v. Mayden, 413 U.S. 665 6

ve) “100 0 © © Ne) oo >

II

Cases—Continued Page

United States v. Henderson, 18 U.S.C.M.A.

is Se NE clcenitineee 6

United States v. McGonigal, 19 U.S.C.M.A.

Ww ft - See eee eee 6

United States v. Sharkey, 19 U.S.C.M.A.

ee Fk ean 7

United States v. Shockley, 18 U.S.C.M.A.

es Ce I SU ie ii cise 6

Williams v. Froehlke, 490 F.2d 998 ___. ae 9

Statutes:

Uniform Code of Military Justice, 10

U.S.C. 801 et seq.:

Article 130, 10 U.S.C. 930 3

Article 134, 10 U.S.C. 934. 2,3

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1193

MICHAEL R. STEARSMAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The unpublished opinion of the Court of Claims

(Pet. App. la-4a) is noted at 566 F.2d 1192.

JURISDICTION

The judgment of the Court of Claims was entered

on November 25, 1977. The petition for a writ of

certiorari was filed on February 22, 1978. The juris-

diction of this Court is invoked under 28 U.S.C.

1255(1).

(1)

2

QUESTIONS PRESENTED

1. Whether the commission of adultery by a staff

sergeant with the wife of, and in the house of, an-

other serviceman, constitutes a “service connected”

offense.

2. Assuming petitioner’s offense is not “service-

connected” under O’Callahan v. Parker, 395 U.S. 258,

whether O’Callahan should be applied retroactively.

STATUTE INVOLVED

Article 134, Uniform Code of Military Justice,

10 U.S.C. 984, provides:

Though not specifically mentioned in this

chapter, all disorders and neglects to the preju-

dice of good order and discipline in the armed

forces, all conduct of a nature to bring dis-

credit 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 de-

gree of the offense, and shall be punished at the

discretion of that court.

STATEMENT

Petitioner is a non-commissioned officer with the

Air Force, and has been continuously in that service

since 1956. In early 1963 he was a Staff Sergeant

stationed at an Air Force Base in Alaska. He was

convicted in 1963 by court-martial under Article

134 of the Uniform Code of Military Justice (UCMS).

That provision proscribes “all disorders and neglects

to the prejudice of good order and discipline in the

armed forces, [and] all conduct of a nature to bring

discredit upon the armed forces * * *.” 10 U.S.C.

934. The particular charge was that petitioner had

engaged in sexual intercourse with the wife of an-

other Air Force sergeant stationed at the base, in

the house of the other sergeant, which was located

off-base (Pet. App. la-2a).*

The court-martial record shows that petitioner and

his partner committed the adulterous act in the other

sergeant’s house, while the latter was sleeping on a

nearby couch. Afterwards, the wronged husband

apparently awakened and overheard the adulterous

pair conversing. The two sergeants worked at the

same base and were apparently in frequent contact

(Pet. App. 4a n.1).

As a result of the court-martial conviction, pe-

titioner was stripped of his sergeant’s rank, reduced

to the rank of airman basic, confined for approxi-

mately five and a half months, and compelled to

forfeit approximately two and a half months’ pay

and allowances (Pet. App. 2a). After petitioner’s

release from confinement and return to duty in late

1 Petitioner was also convicted by the same court-martial

under Article 180, UCMJ, of unlawfully entering another’s

house (in January 1963) with intent to commit a criminal of-

fense, viz. adultery with another married woman. However,

this conviction was set aside on procedural grounds by the

military review authority.

4

1963, however, he again rose through the ranks and

is presently a Master Sergeant.*

Some six years later, after the decision of this

Court in O’Callahan v. Parker, 395 U.S. 258, peti-

tioner sought to have his 1963 conviction nullified

on the ground that his offense was not “service con-

nected” under the O’Callahan ruling. This request

was denied by the Air Force. Petitioner filed this

suit in the Court of Claims in May 1975, asserting

that the offense for which he was convicted in 1963

was not service connected, and that O’Callahan

should be applied retroactively to void that convic-

tion. Petitioner sought back pay amounting to ap-

proximately $30,000,* and moved for summary judg-

ment (Pet. App. 2a).

In January 1975, before petitioner filed this law-

suit, the Court of Claims had already ruled that

O’Callahan was not retroactive, following the plu-

rality opinion of this Court in Gosa v. Mayden, 413

U.S. 665. See Augenblick v. United States, 206 Ct.

Cl. 74, 509 F.2d 1157, 1159-1160, certiorari denied,

422 U.S. 1007. In 1976 the Court of Claims adhered

to this view in Gross v. United States, 209 Ct. Cl.

70, 79-80, 531 F.2d 482, 488.

2? The 1963 court-martial conviction also ordered a bad con-

duct discharge. However, the Air Force administratively re-

mitted this penalty in 1964, permitting petitioner to continue

in service, and to reenlist.

* This sum allegedly represents what petitioner would ad-

ditionally have earned if he had not temporarily lost rank

as a result of his conviction.

5

In view of the fact that the non-retroactivity of

O’Callahan was plainly settled in the Court of Claims,

the government cross-moved for summary judgment in

petitioner’s lawsuit, arguing only the non-retroactivity

of O’Callahan. The government made no separate

argument that petitioner’s offense was in fact “serv-

ice connected,” but no concession was made that the

offense was not “service connected.” *

In a decision issued on November 25, 1977, the

Court of Claims granted the government’s motion

for summary judgment. The court ruled (Pet. App.

2a-3a) :

Plaintiff’s first point is that the court-martial

was without jurisdiction because the off-the-

base offense involving a civilian dependent of a

serviceman was not service-connected, and there-

fore under O’Callahan v. Parker, 395 U.S. 258

(1969), could not have been tried by court-

martial in 1963. This court has already re-

jected comparable arguments in Augenblick v.

United States, 206 Ct. Cl. 74, 509 F.2d 1157

(1975), cert. denied, 422 U.S. 1007 (1976), and

Gross v. United States, 209 Ct. Cl. 70, 79-80,

531 F.2d 482, 488 (1976), and we see no sig-

nificant differences here.'*!

*For purposes of its argument on non-retroactivity of

O’Callahan the government “assume[d] arguendo” that peti-

tioner’s offense was not service connected (Defendant’s Cross-

Motion for Summary Judgment, p. 8 n. 5).

* The Court of Claims also rejected petitioner’s separate

argument that the 1968 conviction violated his constitutional

right of privacy (Pet. App. 3a-4a). Petitioner does not seek

further review of this ruling (Pet. 7).

6

ARGUMENT

The decision of the Court of Claims is consistent

with the ruling of this Court in Gosa v. Mayden, 413

U.S. 665, and with final rulings of the Court of Mili-

tary Appeals and every court of appeals that has

decided the question of retroactivity of O’Callahan.

There is no present conflict among the lower federal

courts on O’Callahan’s retroactivity; hence there is no

occasion for further review of that question by the

Court at this time. Nor does this case present

any basis for an “exception” to the rule of non-

retroactivity of O’Callahan.

1. Preliminarily, it should be pointed out that

there is a substantial argument that, in the partic-

ular circumstances of this case, the offense for which

petitioner was convicted was indeed “service con-

nected.”

Petitioner points to cases where the Court of Mili-

tary Appeals has ruled that sex offenses by service-

men occurring off-base, even where involving the

dependent of another serviceman, are not service con-

nected under O’Callahan. See United States v. Mc-

Gonigal, 19 U.S.C.M.A. 94, 41 C.M.R. 94; United

States v. Henderson, 18 U.S.C.M.A. 601, 40 C.M.R.

313; United States v. Shockley, 18 U.S.C.M.A. 610,

40 C.M.R. 322. See Pet. 8 n. 4. But they are distin-

guishable. Those cases each involved serious civilian

crimes committed off-base (statutory rape of a minor,

sodomy between a serviceman and his stepson, and

sexual acts with a child). The civilian authorities

7

have an obvious and important interest in prosecut-

ing serious civilian offenses of this nature, have “tra-

ditionally prosecuted” such crimes, and undoubtedly

will continue to do so. See Relford v. Commandant,

401 U.S. 355, 365. We agree thai such prosecutions

should be in the civilian courts, and wuat the normal

rules of criminal procedure (including trial by jury)

should apply.°

In the present case, on the other hand, the offense

for which petitioner was convicted (adultery) hardly

amounts to a “serious crime” under civilian law.’

As petitioner observes, such an “offense” would prob-

ably not have been prosecuted at all by the State of

Alaska (Pet. 15). Indeed, the military itself would

probably not wish to prosecute in a case where a

serviceman commits adultery with a woman having

no connection with the service, and there is no ad-

verse effect on the service. However, this case involves

the commission of adultery with the wife of another

serviceman attached to the same military base as the

petitioner, and, moreover, in the other serviceman’s

own house, while he was present. In these unusual

* See the concurring opinion of Judge Nichols in Augenblick

v. United States, 206 Ct. Cl. 74, 509 F.2d 1157, 1163 (“[the

military] interest in deterring [a serious offense by a soldier

against a civilian] and [the military] interest in trying it are

two different things”).

* Cf. United States v. Sharkey, 19 U.S.C.M.A. 26, 41 C.M.R.

26 (O’Callahan doctrine does not deprive military courts of

jurisdiction to try offenses that would be dealt with as petty

offenses in the civilian world, not requiring jury trial).

circumstances, the incident had a greater impact upon

military than civilian interests. It was an offense

affecting the military order, morale and working re-

lationship of the two soldiers involved (and their

military associates who knew of the offense). Both

soldiers were attached to the same military base and

were part of the same “military community.” In

these circumstances, petitioner’s conduct was, we sub-

mit, appropriately dealt with as a violation of Article

134, which embraces “all disorders and neglects to

the prejudice of good order and discipline in the

armed forces, [and] all conduct of a nature to bring

discredit upon the armed forces * * *.” Parker v.

Levy, 417 U.S. 733, 756; Orloff v. Willoughby, 345

U.S. 83, 94.°

2. Assuming arguendo that petitioner’s offense

was not “service connected,” and could not today be

punished by military courts-martial, the question

arises whether O’Callahan should be applied retro-

actively. We adhere to the negative answer that we

submitted in Gosa v. Mayden, 413 U.S. 665. In light

of the full opinions by members of the Court in that

case, it is unnecessary to repeat the arguments here.

“For the reasons which differentiate military society

from civilian society, we think Congress is permitted to legis-

late with greater breadth and with greater flexibility when

prescribing the rules by which the former shall be governed

than it is when prescribing rules for the latter.” Parker v.

Levy, supra, 417 U.S. at 756.

“The military constitutes a specialized community governed

by a separate discipline from that of the civilian.” Orloff v.

Willoughby, supra, 345 U.S. at 94,

We stress that the lower federal courts are, at this

time, in accord in holding that O’Callahan is not ap-

plicable to earlier courts-martial. See Gosa v. May-

den, 450 F.2d 753, 758 (C.A. 5), affirmed, 413 U.S.

665; Hooper v. Laird, 482 F.2d 784 (C.A. D.C.);

Lichtenstein v. Schlesinger, 495 F.2d 1382 (C.A. 9);

Schlomann v. Moseley, 457 F.2d 1223, 1226-1228 (C.A.

10), certiorari denied, 413 U.S. 919; Augenblick v.

United States, 206 Ct. Cl. 74, 509 F.2d 1157, certio-

rari denied, 422 U.S. 1007; Mercer v. Dillon, 19 U.S.

C.M.A. 264, 41 C.M.R. 264.° And we submit that

until such time as a conflict of decisions should arise,

this Court may appropriately forego considering the

problem once again.

We do not appreciate the force of petitioner’s ar-

gument that O’Callahan should be retroactive at least

for those servicemen still in the service (Pet. 12-14).

It seems to us that a serviceman who was in fact

discharged as a result of a pre-O’Callahan court-

martial—generally entailing a “bad conduct” or “dis-

honcrable” discharge—arguably has a greater, not a

lesser, interest in retroactive application of O’Calla-

han than a soldier who, as here, was court-martialled

but never discharged. Nor is it obvious why those

who happen to be still in the service should receive

® The contrary decision in United States ex rel. Flemings V.

Chafee, 458 F.2d 544 (C.A. 2), was reversed sub nom. Gosa

v. Mayden, 413 U.S. 665, on alternative grounds on non-

retroactivity (4 justices) and service connection of the of-

fense (3 justices). In Williams v. Froehlke, 490 F.2d 998,

1000-1001, the Second Circuit considered Flemings no longer

controlling in that circuit on O’Callahan retroactivity.

10

more favorable treatment than those similarly situ-

ated who have meanwhile voluntarily decided to sep-

arate or retire. The fact that petitioner stayed in

the service and is now at a relatively high level in the

enlisted ranks demonstrates that his former convic-

tion no longer has any adverse “impact upon * * *

petitioner in his present military service” (Pet. 13).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.,

Solicitor General.

BARBARA ALLEN BABCOCK,

Assistant Attorney General.

RONALD R. GLANCZ,

MICHAEL KIMMEL,

Attorneys.

May 1978.

W ov. S. COVERKWENT PRinTiNe OFrice; 1978 264349 6