Petition for Writ of Certiorari — Levy v. Resor

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SUPREME COURT, 0. & an _\ FILED

eee. NOV 28 1967

_ Supe Court of the United Sree ovis, cuerc

_.— Ocroszn Tznm, 1967 = A =

Howarp Brett Levy,

Petitioner,

—_— po

Staniey R. Resor, Secretary of the Army; Gives PEREz, Major

General; Commanding General, Fort Jackson, South Carolina;

E. B. Ropers, Brigadier-General, Acting Commander, Fort

Jackson, South Carolina; Jop—E Witson,. Lt. Colonel, Provost ~

Marshal, Fort Jackson, South Carolina ; and CHARLES JACKSON,

* Secohd Lieutenant, Confinement Officer, Fort Jackson, South

Carolina, ‘ .

, om ' Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE .

_ UNITED STATES COURT: OF APPEALS

FOR THE FOURTH CIRCUIT

- CHARLES Moraan, JR.

LAUGHLIN McDonaLp

' 5 Forsyth Street, NW .

_ , Atlanta, Georgia 30303

___-—- —-——_ Anrnony G. Amsrempam

: i ne School of Law

University of Pennsylvania

Philadelphia, Pennsylvania

ALAN H. Levine

E.LeaNork Hou~Mes Norton

Metvin L. Wor 3

* 156 Fifth Avenue .

‘New York, New York 10010

Attorneys for Petitioner

CHARLES M. SANDERS, JR. ae a eer ae

Captain, JAGC «

Military Defense Counsel —s_T. , none

_, Fort McClellan, Alabama . aa Pe

WALTER JONES |

Captain, JAGC |

Assistant Military Defense

Counsel

Fort Jackson, South Carolina

’

° | INDEX.

PAGE

Citations -to Opinions Below - Re Sanita a :

Jurisdiction. : aus ee i

Questions Presented . | e ,

Constitutional wt Statutory Provisions Involved . aR Shs 4:

Statement ..... : ae BOL ie eS

Reasons ‘for Granting the Writ < Fo

CONCLUSION :..... : 21

APPENDICES:

'A—Opinion _ Orde? of the United. States Court

of Appeals for the: Fourth Circuit la

B—Opinion of the United States District Court ee

the Eastern District of South Carolina : ae Se te

C—Opinion of the United States Court of Military 7

7 Appeals m ‘Levy v. Resor ladaeaih 9a

D—Opinion of the United States District Court ler

- the District of Columbia Circuit i in wed v. Me-

Namara aeajetevat SIL naan een Es | sociation

: E—Opinion of the United States Court of Appeals

for the District of Cotambia; Cireuit in Levy v.

Corcoran ...... mat SE ito a Pabst beikcccsaileeans .. Sla’

° : .

ee ”

;

ii Sie -

° .

~ TABLE oF AUTHORITIES

a PAGE

Cases: ne re

Aronson v. May, 8 S. Cte3 (1964) |. ae

Baggett v- Bullitt, 377 U.S, 360 (1964) 2... oe @

___ Bond v, Floyd, 385 U. 8: 116 (1966) .. Seiden 12

~- Burns v. Lovett, 202.F. 2d 335 (D. C. Gir. 1952), aff’d

sub nom. Burns: v. Wilson, 346 U. S. 137 (1953) ...:.... 15

Carbo v. United States, 82 S. Ct. 662 (1962). OR Fe og

Carroll v. Greenwich ineqranes Co., 199 U. S. 401

SOIT ‘healt saseslehdeibsanigesipidaciehilanddtelehididevaclciamdeitnedbieticesinsilaiased pane 15

' Curtis v. Booger, S61 F. 2d 675 (8th Cir. 1964) ............ 13

D’Aquino v. United States, 180 F. 2d 271 (1950) ........ 21

‘Dennis v. United States, 341 U.S. 494 (1951) ................ 14

Dombrowski,v. Pfister, 380 U.S. 479 (1965) ......:..:....212, 13

Douglas v. California, 372 U. S. 353 (1963) saTonesnencennte 18

_ Dowd v. United States, 340 U. G. 206 (1961) ....:............. 18

i Dresner Vv. separ ie No. — (5th Cir. _— 5,

1964) = ,

Elfbrandt v. Russell, 384 U. S211 (1966)... 12

Eskridge v. - Wraetngiens: Prison maeee, 357 U. 8. 214

(1958) - Saliaadaemialens 18

Ex parts Hull, 312 U.S. 546 (1941) , pemaescnees: >

—e v. Barber Asphalt Paving Co., 181 - S. 394

ee) ) ) diccestinianninoneienanmeteetinmeds 15

7 dessins v. . actin 379 U. Ss. 64 (1964) .. 14

' Gideon v. Wainwright, 372 U. S. 335 (1963) . we Die-tts , 18

Griffin v. Illinois, 351 U. S. 12 (1956) 16, 18

Guzick v. Schilder, 340 U. S. 128 (1950). 20... 11

PAGE

Harmon v. Brucker, 355 U. S: 579 (1958) 11; 20 -

Harvey v.. Mississippi, 340 F. 2d. 263 (5th Cir. 1965) -

“(unreported order of Nov. 10, 1964, Sth, Cir. No.

ED : cacentcsincenen Ginicipicietegbedindan lchuiliesicabiae Sea 13, 18

Hatfield v. Bailleaux, 290 F. 2d 632 (9th Cir. 1961) Roce 18

_ Hibben v. Smith, 191 U: 8. 310: (1903) .. — ~. 15

In re Johnson, 96 L.- Ed. 1377 (1952) ...... 20

In re Shuttlesworth, 369 U. 8. 35 (1962) " DE 13

Key ishian v. Board of rigente, 385 U.S. 589 (1967) .

Kovacs v. Cooper, 336 U. S. 77 (1949) .. pad m4

Lane v. Brown, 372 U.S. 477 (1963) .. aon

Leigh v. United States, 82'S. Ct. 994 (1962) inebiadinniale 13

Levine v. Willingham, 261 F. Supp. 743 as Kans. 1966) 19

Marsh v: Alabama, 326 U. S. 501 (1946) a oe

McCray v. Illinois, 386 U. S. 300 (1967). -evcoekl, 19

". ‘Mitchell v. United States, No.. 1012, cert. Wi os 35 LW

"3330; March 20, 1967 ........ . 10

Mora v. McNamara, No. 401, cert. den., 86. LW 3189, .

November 6, 1967 . , : 10 :

‘NAACP v. Button, 371 U. 8. 415 (1963) . Docent ‘ale

New York Times v. Sullivan, 376 U.S. 254 Om - sails 14 .

Orloff v. Willoughby, 345 U. S. 83 (1953). A 20

Overseas Media Corporation, et al. v.. Robert S.

McNamara, No. 20590, D. C. Gir, Oct. ‘ 1967, slip

op., n. 12, 12-14 ; . 14

COL ¥ AL AE CRN RANOULG OLM ISS LB LALLA PLIST ROOT SIGS OLIA

. , . : ©

iv .

PAGE —

Patton Vv. “North Carolina, 381 F. 2d 636 (4th Cir. .

1967) . ; 18

‘ Pilkington v. Circuit: Court, 324 F. 2d 45 (8th: Cir. :

RRA a Rea A , cea ae

“Reid v. Covert, 354 U. S. 1 (1957) .... _ . 14

| Robinson-v. California, 370.U. S. 660 (1962)... 15, 17

Saia v. New York, 334 U. S. 558 (1948) 12 °

Shapiro v. United States, 69 F. Supp. 205 (Ct. Cl. 1947) 15 - *

Smith v. Bennett, 365 U. S. 708 (1961) 020000 .. 18

Smith v. California, 361 U. S. 147 (1959) ee |

Smith v. Davis, No. 24649 (Sth Cir. April 12, 1967) .. 13. —C

Stromberg v. California, 823 U.S. 359 (1931) 20. 12

: Terminiello v. - Chicage, 337 U.S. 1 (1949) edcummaca aa

United States v. Knoss, 239 F. Supp. 118 (S. D. N. Y.

- 1965), aff'd, 345 F. 2d 533 (2d Cir. 1965) ........-------- ‘1b

United States v. McMahan, 6 U. S.C. M. A. 709, 21.

C. M. RB. 31 (1955) Sie 18

United States v. Tempia, 16 U. S. C. M. A. 625, ‘37.

C. M. R. 249 (1967) ' n «5

United States v. Warden, United States Pen., en:

worth, Kansas, 216 F’. Supp. 609 (D. Kans. 1963): ....18, 19

United States ex rel. Innes v. Hiatt, 141 F. 2d 664 (3rd_

Cir. 1944). ... Laiilcaialisihatalihesedippepinentbceimieiiutiioncins 15

Whelchel v. McDonald, 340 U. 8. 122 (1950) 0. 11

White v. Regen, 324 U. S. 760 (1945) +... 18

Williamson v. United States, 184 F. 2d 280 (2d Cir.

1950) he

- Yanish v. Barber, 7 73'S. Ct. 1105 (2958) . ae ice 13

ax ae | » PAGE

United States Constitution: . Rae

Article 1, Section 9, Clause: TD innipetticsainasiin 10 ea

rst Amendment eo vnnnewe-By 4y9, U1, 12, 18,14

Fifth Améndment ....... | S 3, 4, 9,11, 12, 14, 15,17

| Highth Amendment .ccuncrwnnenno-By 4 15,16, 17

| Ninth Amendment .......: a a.

Fourteenth Arnendment Jaca ae

Rules: ’ a ees : “

| Rule 38(a) (2), F. R. Crim, x. RARE ema: Bie

_ Rule me U. S. Supteme Court Rules .. weve 7, 18

bubiien: ee 5

OE RD) itn Be

28 U.S. C. §1254(1) .... : : 7 2

28.0.'S.C. §2241 cco mien

50 U. S.C. §454(a) App’x ieee Prono icinaeia nu

-50-U. S. C.'§890 (U. C. M. J, Article 90) a __.....5, 9,10, H

-,50 U. S.C. $933 (U. C. M. Jy Article 133) .........5, 9, 10, 11

"50 U. S: C. 4934 (U. C. M. J., Article 134) nn 5, 10,11

| Other Authorities: | | .

Army’s Law of Land Warfare, Field Manual 27-10 ....9, 10

Executive ‘Order’ 10450 .. = eel at ; V

Manual for Courts- Martial, Para. 21 wie; eee sta 12, 15

. PAGE

Miscellaneous:

: Warren, The’ Bill of Rights and the Military, ie

N. Y. U. L. Rev. 181 (1962) . 14

\< Allen, Griffin v. Illinois, Antecedents and Aftermath, .

_ * 25 U. Chi. L. Rev. 151 (1957) “ 16-17

' ° Henderson, Courts-Martial and the Constitution: The

_ Original Understanding, 71 Harv. L. Rev. 293, 316, :

_. m. 309, (1967) 16

Wiener, Courts-Martial and the Bill of Rights; the.

Original Practice, 72 Harv. L. Rev. 1, 286 sieaensies eaten 16.

Foote, The Coming Constitutional Crisis in Bail: II:

.f 030, Pa. L. Rev. 1125, 1182-1183 (1965) jeanne on oe

Foote, The Coming Constitutional Crisis. in Bail: “I

113 U. Pa, L. Rey. 959, 965-989 (1965) 16

Journal of Proceedings on June 12, 1967, 35 LW 3438... mi

Stern and Gressman, Supreme Court Praétice, ave Kd.,

1962, p. 414 cea, SG

Time, May 26, 1967, p. 5 atl | 21

Note: Servicemen| in Civilian Courts, 76 Yale L. J.

380, 398 ee we — 16

| IN THE &

Supreme Court of the Uuited States

; OctoseR TERM, 1967

;

Howarp Brett Levy, |

Petitioner,

Vv. |

—

STANLEY R. Resor, Secretary of the Army; Gines PEREz,

_ Major General, Commanding General, Fort Jackson,

South Carolina; E. B. Roserts, Brigadier-General, Act-

ing Commander; Fort Jackson, South Carolina; Jopz-

Witson, Lt. Cojonel, Provost: Marshal, Fort Jackson,

South Carolina; and Cuartes Jackson, Second Lieu-

tenant, ‘Confinement Officer, Fort Jackson, South Caro-

lina, .

; ee aie Respondents. :

aoe . :

PETITION FOR WRIT OF CERTIORARI TO THE —

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Howard Brett Levy prays that a writ of certiorari issue .

to review the judgment of the United States Court of Ap-

peals for the Fourth Ciref#t entered on October 27, 1967.

Citations to Opinions Below

The opinion and order of the United States Court of

Appeals for the Fourth Circuit, as yet unreported, are re-

produced in full and attached hereto as Appendix “A”.

The opinion of the United States District Court for the

Eastern District of South Carolina is unreported and a

copy thereof is attached hereto as Appendix “B”. The

opinion of the United States Court of Military Appeals in

Levy v. Resor is reported at 17 U. S.C. M. A. 135, 37 ©

C. M. R. 399; and a copy thereof is attached hereto as

Appendix oa

Copies of the opinions in related and unreported cases,

Levy v. McNamara (D: D. G. 1967) and Levy v. Cor-

coran (D. C. Cir. 1967), are attached hereto as Appendices

' “D” and “EK” respectively. Certiorari was denied ‘in: Levy

v. Corcoran, No. 576, on November 13, 1967.: 36 LW 3204.

Jurisdiction = ”

The judgment of the United States ‘Court of Appeals for

the Fourth Circuit was entered on October 27, 1967. The

jurisdiction of ‘this court is invoked under 28 U. S. C. .

§1254(1).

Questions Presented

. 1.. Whether petitioner whose military leniint expired

on July 8, 1967, and who is subject to military’ authority

for the sole purpose of serving a sentence imposed by court-

_ Magtial may be held in custody pending appeal when the

decision to do so was made without any hearing, was based

on allegedly subversive pre-service political associations.

and information related thereto and an alleged intention to

flee based thereon and on information gleaned from a con-

fidential informant who admittedly relied on hearsay state-

ments made by a second confidential informant in contra- |

vention of the First Amendment, the Due Process Clause

of the Fifth Amendment, the Confrontation Clause of the

Sixth Amendment, and the Kighth Amendment.

.2. Whether the First’ Amendment requires release of

petitioner pending appeal of his conviction by court-martial

and his appeal of the ruling of the sae Court denying

. relief.

3. Whether, when the denial of bail or other form of re-.

lease.to a person pending appeal of a conviction by court-

martial may have “a chilling effect on free expression”,

and substantial questions regarding the application of.

First Amendment freedoms are raised in that appeal which

is neither frivolous nor for the purpose of delay, such con-

‘finement is forbidden ‘by the First, Fifth and Kighth

Amendments.

4. Whether the Due Process Clause of the Fifth pany

ment includes the right to an intra-military or civil or any

hearing on the request of a military prisoner for release

on bail or otherwise pending appeal of a conviction by

" court-martial. —_. )

5. Whether the order of confinement of -petitioner pend-

ing appeal is reviewable by the civilian courts, and if re- .

viewable, whether the government abused its discretion

under the circumstances of this case.

6. Whether the “special circum8tances” and “substan-

tial questions” existing here require the admission of peti-

tioner to bail pending appeal in this court. '

7. Whether in the event petitioner is. not released pend-

ing appeal and iis transferred from Fort Jackson, South

Carolina to Fort Leavenworth, Kansas such. transfer will

(a) deprive him of the right to adequate counsel on appeal |

in violation of the Sixth Amendment of the Constitution

of the United States, and (b) substantially alter the facts

upon which he was denied bail in the courts below in viola-:

‘tion of the Due Process Clause of the Fifth Amendment,

and (c) cause him to serve his sentence in full in the most

onerous of conditions while his appeal is pending, in viola-

tion of the Due Process Clause of. the Fifth Amendment

and the Cruel and Unusual Punishments Clause of the :

Highth Amendment.

Constitutional and Siatutory: suers Involved -

The constitutional | provisions oni this case involves are

the First, Fifth, Sixth, and Eighth Amendments of the

Constitution of the United States.

The regulation which this case iain is pazagraph

21(d) Manual for Courts-Martial which provides:

, “Responsibility for restraint after trial. Upon notifica-

tion from a trial counsel of the result of a trial 44e(2),

a commanding officer will take prompt and appropriate

action with respect to the restraint of the person tried.

- » Such action, depending on the circumstances, may: in-

volve the immediate release of the person from any

restraint, or the imposition of any necessary restraint

‘pending final action on the case.”

5 .

‘Related statutes, the -constitutionality of which is not

under attack in this proceeding, but which are attacked

either facially or in their a cea in military sionsl

proceedings are:

(1) 50 U. 8. C. §890 whieh reads as follows:

§890. Assaulting or willfully disobeying officer. Any

person subject to this code who— . . . (2) willfully dis-

- obeys.a lawful command of his superior officer; shall

be punished, if the offense is committed in time of

war, by death or such other punishment as a court-

martial may direct, and if the offense is committed at

any other time by such punishment, other than death,

‘as a court-martial may direct. |

(2), 50 U: S. C.°§933 which reads as follows:

$933. Conduct unbecoming an officer and gentleman. .

__ Any officer, cadet, or midshipman who is convicted of

emma aa ~ eonduet unbecoming an officer and eo shall be

"punished as a court-martial may direct. .

(3): 50 U. S. C. 4934 which reads as follows:

$934. General Section. Though not specifically men-

tioned in this code, 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 code may be guilty,

shall be taken cognizance of by a general or special -

or summary court-martial, according to the nature and

degree of the offense, and punished at the discretion

~ of such court. |

4. a

Statement

Following his conviction by general court-martial, aiai

after the denial to him of commandant’s parole (para. 21

(d) Manual for Courts- Martial) (MCM) or other release

pending appeal,” "and after the denial of his request for

release by the Secretary of the Army, petitioner totally

exhausted his intra-military remedies. On. June 20, 1967,

he sought relief by way: of habeas ‘corpus or alternatively

bail pending appeal, mandamus or other appropriate relief

_ from both the United States Court of Military Appeals.

and the United States District Court for the Eastern Dis-

trict of South Carolina (Columbia Division). On June 23,

‘ 1967,.the District Court issued an order for rule to show

cause. On June 26, 1967, the Court of Military Appeals

heard arguments and on July 7, 1967, denied relief. On

June 28, 1967, the respondents in the District Court filed |

their return, answer and memorandum including an affidavit

(identical with one filed in the Court of Military Appeals)

which alleged that among the “most serious” reasons for

denying release was a risk of flight based upon the follow-

ing: “considered as particularly crucial” : |

(a) Information received on or about 31 a 1967,

from a confidential source who has furnished reliable

information in the past, that Captain Levy had ex-

pressed the following to a close associate: his inten-

tion upon conviction to seek bail, and, having been °

released thereon, to flee the United States to a com-

munist country, seek political asylum therein, remain

absent from the United States for a period of several

years, during which time he would denounce the, United

States, and that after several years he would contact

an American embassy in the communist country and

request permission to return to the United States ;

and that’he fully expected this request would be granted

_* in view of the lenient treatment of defectors by the

. . United States. ee

(b) A statement by Captain Levy, appearing in the

Article 32 investigation, that he had been involved in

‘the activities of the Militant Labor Forum: (MLF), ©

and that he knew the MLF was related to the Socialist

Workers Party, an organization listed for considera-

tion in accordange with Execntive Order 10450 (R. -

Vol. I, p. 87). .

On July 6, 1967, with no evidentiary or other hearing, the

_ District Court denied relief and’ dismissed the petition. On

July 10, 1967 the petitioner moved for: (1) reconsidera-

_ tion, denied each of the averments~of the affidavit, alleged

bad faith ‘on the part of the affiant and sought an evi-

dentiary hearing; and (2) bail pending appeal: to the

United States Court of Appeals for the Fourth Circuit.

The District Court then denied the motion for reconsidera--

tion and the application for bail pending appeal and notice

of appeal was filed. Althotgh the United States Court of

Military Appeals in deciding against petitioner relied upon

’ the then existing circumstances of his confinement,’ repre-

' 1See Levy v. Resor, supra, at 140-141 (R. Vol. III, pp. 46-47)

where the Court said: “In the case at bar the petitioner was placed

not in a military stockade, with other convjcted prisoners, but in a

hospital room on the base, albeit under guard. In its brief, counsel —

alleged that the petitioner was subjected to harrassment [sic] by

the light in his room being on constantly and by the fact that his

guard followed. him whenever he left the room to use the toilet

facilities. We were told at the time of oral argument, however,

that these indignities have now been, removed.

(footnote continued on following page) —

fay.

‘.

sentations concerning the nature of that confinement hav-

ing been made there and in the District Court by the gov-

ernment,?,a motion to transfer petitioner was filed on Sep-

tember 1, 1967..On September 11, 1967, petitioner sought

bail pending appeal of the order dismissing the habeas

petition and filed a memorandum and affidavits, in opposi-

. tion to. the motion: to transfer (R. Vol. III, pp. 44-69).

On October 27, 1967 the United States Court of Appeals

for the Fourth Circuit affirmed the decision of the Dis-

trict Court, denied. petitioner’ s motion for bail and granted

-_Tespondent’s motion for transfer. »

.Petitioner, a Captain in the United States pon and a

physician, entered active duty on July 9, 1965 for a ‘period.

of two years. During the year 1966 he engaged i in private

Under the facts of this case and in ae of thé circumstances of

the petitioner’s present confinement, we do not find an abuse of

discretion on the part of the commanding officer in refusing to. re-

lease the petitioner from confinement under pom 21d, supra.”

[Emphasis supplied. }

2 See Brief of the Government, Affidavit, Pp. 3 (R. Vol. III, pp.

4748),stating:.

“The conditions of the accused’s chitin custody, also described

-- generally in my letter of 12 June, 1967 (Petitioner’s Exhibit J) are

constantly under review and have been modified on several occasions

to a considerably less rigorous restraint. They are not more rig-

orous than the circumstances required to insure his presence and

well being. The physical facilities are depicted in the photographs

attached hereto. (These photographs are found in the Record at

page 90.) Presently, only: one guard is assigned to watch over the

petitioner. The petitioner is allowed. to regulate his own hours of -

sleep, may supplement his meals, and. control thé lighting ‘in his

room. He has a telephone in his room on which to receive incoming

calls, is also allowed private access to his sounsel and other visitors,

is accorded unrestricted visiting privileges, and all mail received for

_. him is delivered to him unopened.” ;

See also letter from counsel for petitioner to government counsel,

_ which stated: “This will confirm our conversation of Friday, J uly

_ 14, 1967,.to the effect that the custody of Captain Levy would not

be disturbed pending appeal” (R. Vol. III; p.49). ~

and informal discussions with Army personnel, enlisted

men and officers, expressing disagreement with American

foreign policy in’ general and Vietnamese policy in par- _

ticular. He -critically discussed what he believed to be

| national policy regarding the rights of Negro citizens. He

ie made no public speeches, carried no picket signs, and par-

hae Ficipated in no demonstrations, ‘in or out of uniform.

| Based solely upon such conversations, petitioner was -

| _ egnvictéd by a general court-martial of violations of Arti-

cles 133 (“conduct unbecoming an officer and gentleman”)

and 134 (“the general article”) UCMJ, 50 U. S. C. §§933,

934.° Based upon his refusal to train Special Forces per-

sonnel in-the use of medicine he was convicted of the ~

violation of Article 90 UCMJ, 50 U. S. C. §890.‘ He was 7

sentenced to dismissal from the service, forfeiture of all = ~

pay and allowances, and confinement for three years at

- hard labor. :

‘Petitioner’s conviction is presefitly being reviewed by

the United States Army Board of Review, Washington,

D. C. ar Thee

* Two additional charges under Articles 133 and 134 UCMJ

based on a single letter written by petitioner to a member of the

armed forces in Vietnam were reduced by the court-martial and

dismissed by the law officer prior to sentencing.

* At trial, petitioner contended the order was unlawful: and in

contravention of the First, Fifth, Sixth, and Ninth Amendments,

| it being given solely for the purpose. of punishing him for pre-

i service political associations, expressions of political views and mat-

ter contained in a 180-page G-2 dossier, only 80 pages of which his

civilian counsel was permitted to see. He additionally contended

that the order contravened standards of ethical medicine and was

in violation of constitutionally protected standards of ethical medi-

in the Army’s Law of Land Warfare, Field Manual 27-10.

5 Counsel was notified: on ‘August 24, 1967, that the record had

been received and referred to the Board of Review, and that enu- ~

» ¥

' 10

From the date of his entry into military service itl

his sentencing on*June 3, 1967, peti tioner ‘resided. off poet 7

and remaingd free of all restraint.

The intra-military appeal of petitioner’ S- court-martial |

- conviction involves, among others, important First and .

Fifth Amendment problems relating to the facial uncon-

stitutionality of Articles 133 and 134 UCMJ and the un-

‘ constitutional sie ate of Articles 90, 133 and 138

UCMJ. |

The basis for federal jurisdiction in the District Court

was Article 1, Section 9, Clause 2 of the Constitution of ;

- the United States, and 28 U.S. C. acini

Reasons for Granting the Writ

. This case ‘ion ‘ot nivilive: the legality or the. consti-

tutionality of the Viet Nam conflict, questions of the ap-

plicability of decisions of the Nuremberg tribunal or the

commission of war crimes whether as defined by: the , Army’s

Law of Land Warfare, Field Manual 27-10, or otherwise,

rights of conscientious objectors to all or particular wars,

garden-variety aaa d duty assignments or intra-military

affairs.*

eration of errors and. brief were to be filed therein by September

12; 1967. Due to the voluminous nature of the record (18 volumes

pee ore than 4,000 pages), petitioner was forced to seek an exten-

sion of tinfe and must now file his enumeration of errors and brief.

therein by January 6, 1968. -

No. 401, cert. den., November 6, 1967, 36 LW 3189 and Mitchell v.

United ‘States, No. 1012, cert. den., March 20, 1967, 35 LW 3330,

were raised at the Levy court-martial and will be pressed in the

military appeal, assumjng that the expiration ‘of petitioner’s sen-

tence does not moot that appeal, they are not involved here.’

Pi CR

tt A AME LOALLEE -

‘

_ Nor does this case, in itself, contest the Sealil or ap-

'plicatory invalidity of Articles 90, 133 and, 134 UCMJ —

under the. First and Fifth Amendments. .

Nor is this a case where the petitioner would be subject ©

to any military authority.were it not for the attachment |

of court-martial jurisdiction and the service of the sen-

tence imposed'thereby. He-has been ordered to jail. The

- Army has no authority to.issue orders to him not con-

nected with his court-martial conviction for.the very simple

reason that his term of duty has expired. .

This case. does involve: important questions of federal ;

,law which lave not been, but should be, decided; This case

‘does involve the extent:to which the guaranties of the: Bill

of Rights apply to American citizens who enter the-armed —

forces under the Doctots Draft Law, 50 U.S. C. App’x

4 Sec. 454 (a) or under other pravisions of selective service

laws.

It does siaviden Yee ‘service,of a sentence at hard labor “

while a substantial, non-frivolous, non-delay appeal is

pending. And this (service of a sentence at hard labor) _ |

‘. “is based upon pre-service political associations, ef. Harmon

v. Brucker, 355 U. S. 579 (1958), plus a purported ‘inten-

tion to flee based upon oe hearsay from an un-

named “¢onfidential’ source,” a “close associate,” and

“observers.” And this tatentici to flee was ascertained

with no due process hearing in either military or. civil

courts. Cf. McCray v. Illinois, 386 U. S. 300 (1967).” In

1 Certiorari, was denied in Levy v. Corcoran, No. 576, November

"18,/1967, 36 LW 3204. Questions there involved were also raised at

. ‘the Levy court-martial and will be pressed i in the'military appeal, -

assuming that the expiration of x oh 8 sentence does not movt

that appea}:

a See also Whelchel v. McDonald, 340 U. 8. 122 (1950) and

Guzick v. Bohitder, 48.0). §. 128 (1950).

. 12

McCray there was but one informér and the person to

whom the information was given was subjected to cross-

examination. Here, unlike M sad i there has been no

_ “evidence,” no “open court,” no “cross-examination,” no

test of “credible,” no test of “reliable,” no “magistrate” —

to “doubt the credibility,” no “precise detail,” no “reason”

_why, no hearing at all. A military official has simply re-

lied on. the worst. kind of information in depriving a_

prisoner of his right to release whether under para.

21 (d) MCM or otherwise. In short, he has been denied

bail or other relief*in a manner resembling but perhaps “

providing fewer Fifth and Sixth Amendment —* than

_ the Star Chamber.

As importantly, First Amenduseat rights are said to be —

_ preferred rights., Marsh v. Alabama, 826 _U. S: 501, 509

(1946); Terminiello v. Chicago, 337 U. S. 1, 4 (1949);

Bond v. Floyd, 385 U. S. 116 (1966); Stromberg v. Cali-

fornia, 823 U. 8. 359,-367 (1931); Smith v. California, 361

U. S. 147, 169 (1959) ; Sata v. New York, 334 U. S. 558, 562

(1948) ; Kovacs v. Cooper, 336 U.S. 77 (1949): ‘This court

has not hesitated to strike down statutes overbroad in the

area of the First Amendment which create a “chilling effect

upon the exercise of First Amendment rights.” Dombrow-

ski v. Pfister, 380 U: S. 479, 487 (1965). See also NAACP

v."Button, 371 U. S. 415, 4382-433 (1963) ; Elfbrandt v. Rus-

sell, 384 U. S. 11 (1966) ; Baggett v. Bullitt, 377 U. S. 360,

378-379 (1964); and Keyishian v. Board of Regents, 385

U. S. 589 (1967). The Dombrowski line of cases was au-

thored to protect the valuable rights of free expressien and

dissent. The heart of Dombrowski is that a defendant is not

required-to submit to unconstitutional prosecution affect-

ing First Amendment:-rights upon the theory .that ultimate

ato.

vindication of constitutional rights can never be achieved

in such cepommaatamege. |

“For ‘(t]he threat a sanctions may deter’. . almost,as

potently as the actual applications of saneiinia.; eva

[citations ee [Emphasis supplied. ], 380 U. S.:

- at 486.

In Dombrowski criminal proceedings were threatened.

Here they have been concluded. In Dombrowski it was.

the threat which was enjoined. Here the petitioner is ac-:

tually incarcerated and that incarceration is absent a due

.. process hearing and on the face of the record the direct.

result of political associations, expressions and fourth-hand

information from a confidential informant. The very least

Dombrowski requires is release of the petitioner pending

appeal.® For as long as he remains inéarcerated, jailed at

hard labor, he stands as a symbol of repression, awarning _

to all that despite the First Amendment, dissent from our

national policy is not tolerated; the military process may

be utilized to quiet those who disagree. The importance

of petitioner’s case to the millions.of Americans in the

-Armed Forces and the. countless millions more who may .

enter them is evident. As the Supreme Court has made

clear, in our constitutional system the government is re-

® Release pending appeal in cases involving substantial First

Amendment questions seems a matter of right. In re Shuttlesworth,

369 U. S. 35 (1962); Dresner v. Stoutamire, No. 21802 ‘(5th Cir

August 5, 1964); Smith v. Davis, No. 24649 (5th Cir. April 12, |

- 1967). And the nevative implication of Aronson v. May, 85 S. Ct.”

- 8 (1964) and Yanish v. Barber, 73 S. Ct. 1105 (Douglas, Circuit

Justice, 1953) is that bail pending appeal should be allowed when- ”

ever there are substantial questions presented. See also Harvey. v.. °

Mississippi, 340 .F. 2d 263 (5th Cir. 1965) (unreported order of -

November 10, 1964; 5th Cir. No. 22005), Curtis v. Boeger,-331 F.

2d 675 (8th Cir. 1964), and Leigh v. United — 82 8: Ct: 994,

996 (1962). -

quired to accept the “danger” inherent in free expression

even in time of war.

“[E]ven the all embracing power and duty of self

preservation is not absolute. Like the war power,

_ which is indeed an aspect of the power of. self preser-

vation, it is subject to applicable constitutional limita-

tions. See Hamilton v..K entucky Distilleries Co., 251

U. S. 146: Our Constitution has no provision lifting

restrictions upon government authority during periods

of emergency, although the scope of a restriction may

depend upon the circumstances in which it is invoked.

The First’ Amendment is such a restriction. It ex-

acts obédience even during periods of war; it is appli-

_ table when war clouds are not figments of the imagina-

‘ tion no less than when they are.” Dennis v. United

' States, 341 U. S. 494, 520 (1951) (concurring opinion).

. See also Reid v. Covert, 354 U. S. 1, 14 (1957).°

When the Supreme Court has ruled against claimed First ,

Amendment rights, it has been only after exhaustive ex-

amination of the facts and. circumstances, As Mr. Chief

Justice Warren has said, the military necessity must be

“striking,” not simply present to warrant irivasion of con-

‘stitutional rights.” In the instant case one can only specu-

late as to the governmental interest (save silencing the

__ petitioner and others who think like him) served by peti-

tioner’s confinenient.

° Cf. New York Times v. willis. 376 v. s, 254 (1964) and -

Garrison v. Louisiana, 379 U. S. 64 (1964).

P 10 Warren, The Bill of Rights and the Militory, my my Ss Ur a

Rev. 181 (1962). ;

10a Cf. Overseas Media Corporation, et al. v. Robert S. McNamara,

No: 20590, D. &. Cir.; October 3, 1967, “~ opinion, n. 12, 12-14.

as aay j

Furthermore it seems clear that the concept of Due

Process of Law under the Fifth Amendment is at least

as broad as that Fourteenth Amendment Due Process.

‘Indeed it has been said that the Due Process Clause of the

Fourteenth Amendment “.. . operates to extend ... the

same protection against arhiivaey state legislation, affect-

ing life, liberty and property, as is afforded by the Fifth,

Amendment.” Hibben v. Smith, 191 U.S. 310, 325 (1903).

See also Carroll v. Greenwich Insurance Co., 199 U. S. 401,

410 (1905), and French v. Barber Asphalt Paving Co., 181

U. S. 324, 328 (1901). In addition, it is no longer open to

argument but that the basic guarantees of the Due Process

« Clause of the Fifth Amendment apply to intra military

proceedings. United States ex rel. Innes’ v. -Hiatt, 141

F. 2d 664, 666 (3rd Cir. 1944); Burns v. Lovett, 202 F. 2d i

335, 339 (D. C. Cir.. 1952), aff’d sub nom. Burns v. Wilson,

346 U. S. 187 (1953) ; United States v. Tempia, 16 U. S.C.

M. A. 625, 37 C. M. R. 249 (1967) ; Shapiro v. United States,

69 F’. Supp. 205, 207 (Ct. Cl. 1947).

The applicability of the Eighth Amendment to the mili-

tary seems equally clear. In Robinson v. California, 370

U. S. 660 (1962), the Cruel and Unusual Punishments

Clause was applied to the states. A similar assumption with

respect to the Excessive Fines Clausé was made in United

| States v. Knoss, 239 F. Supp. 118, 119 n. 3 (S. D. N.Y. |

1965), aff’d, 345 F. 2d 533 (2d Cir. 1965) and the Bail Clause

was applied in Pilkington v. Circuit Court, 324 F. 2d 45,

46 (8th Cir. 1963).

It is inconceivable that the Framers ied that the

Kighth Amendment should apply to the states but not to

. the military arm of the federal government. But, unless

para. 21 (d) MCM provides for bail there is no statutory :

or other provision for military bail. Indeed, the Bail Re-

bee

we Ri 16

form Act (18 U. S. C. Sec. 3152 (2)) excludes offenses

“triable by court-martial.” Henderson" commented that

“bail ... is inappropriate in the military where the indi-

vidual has no freedom of movement but is at all times

subject to control by his superiors.” But here petitioner

is at no time “subject to control by his superiors” except —

for the jurisdiction’ of the court-martial and the service

of his sentence. Thus the reason for Henderson ’s rule (if

it were a rule) falls.

It has been said that appeal itself is not a constitutional

right: Griffin v. Illinois, 351 U. S. 12, 18°(1966). For all ©

practical purposes appeal did not exist at the time of adop-

tion of the Eighth Amendment. But, once appeal rights

have been granted they must be equally applied to all.

Griffin v. 7 supya. And, as Professor Foote’? has

said: ‘

The Appeal. problem [bail pending appeal] as a right

- guaranteed by the Eighth Amendment is simpler and

the proper answer to me-seems self-evident. The ques- —

tion did not arise when the 2 Tights involved in the Kighth

Amendment were being “forged simply because the

criminal appeal can be regarded almost [as] a modern

innovation which was “very largely a. product of the

nineteenth century. [Citing Allen, Griffin v. Illinois,

Antecedents and Aftermath, 25 U. Chi. L. Rev. 151, 154

11 Henderson, Courts-Martial and the Constitution: The Original

Understanding, 71. Harv. L. Rev. 293, 316, n. 309 (1957). Cf..

_ Wiener, Courts-Martial and the Bill of "Rights ; the Original Prac-

tice, 72 Harv. L. Rev. 1, 286. See also Note: Servicemen in Civilian

Courts, 76 Yale L. J. 380, 398 (1966).

12 Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa.

L. Rev. 1125, 1182-1183 (1965). For the most complete historical

_analysis of the right to bail and the Eighth Amendment, see Foote,

The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev.

* 959, 965-989 (1965).

fn ES

7”

(1957).] As appeal has now become an integral part

of the judicial process in criminal cases, the same con- °

stitutional protection should be applied pending appel-

late disposition as prior to conviction, a result dictated

not only by the logic of the Eighth Amendment, but

“ also by unsatisfactory experience with discretionary

power to deny bail pending appeal.

Other Fifth, Sixth ‘and Eighth Amendment questions

arise from the government’s current desire to transfer peti-

tioner from Fort Jackson, South Carolina to Fort Leaven-.

_ worth, Kansas. Such transfer would (a) deprive him of

the right to adequate counsel on appeal in- violation of the

_ Sixth Amendment of the Constitution of the United States,

and (b) substantially. alter the facts upon which. he was

denied bail in violation of the Due Process Clause: of the

Fifth Amendment. Additionally he will serve at hard labor .

a sentence for crimes which may be non-existent.”

Petitioner’ S- transfer is not sanctioned by the rules of-

this Court. Rule 49 (1) provides that pending review of a

decision refusing a writ of habeas corpus “.... the custody

of the prisoner shall not be disturbed, except by order of

the court wherein. the case is then pending, or.of a judge

or justice thereof, upon showing that custodial considera-- «.

tions require his removal” [emphasis supplied].’* The “cus- —

18 For. “even one day in prison would .be a cruel and unusual

pumshment for the ‘crime’ of having a common cold.” {Emphasis .

‘ supplied.) Robinson v. California, supra, at 667. And, that “one

day in prison” would be even more cmnel if exacted for the com-

mission of no crime at all.

14'While the rules of the Supreme Court have been recently re-

vised the altered wording of the rale regarding grounds for seeking

transfer seems not substantively changed. In any case the matter ©

here at issue is governed by éxisting rule 49 (1). Journal of Pro-

ceedings on June 12, 1967, 35 LW 3438. :

| a. |

todial considerations” upon which a transfer may be based °

as contemplated by Rule 49 (1) “.’. . are illness or jntract-

able behavior on the part of the prisoner, requiring his

removal for medical treatment or for closer confinement.”

~—-e--- Stern and Gressman, Supreme Court Practice, 3rd Ed.,

1962, p. 414. [The Army does ‘not aver that Captain Levy’s

behavior in confinement has been intractable nor is he ill.

Captain Levy is sole prisoner in a hospital room, the con-

‘ finement being as close as possible to the very facility. to

which he would be transferred for medical treatment if ill.

It is a settled constitutional doctrine that prisoners have

a right of “reasonable access to the courts,” ** including

the right of effective counsel pursuant to the Sixth Amend-

ment as well as the rights to due process and equal pro-

tection on appeal.’® The thrust of these principles of con-

stitutional law seems merged in United States v..Warden, —

United States Pen., Leavenworth, Kansas, 216 F. Supp. -

609 (D. Kans. 1963). There the prisoner had been convicted

and sentenced in the Southern District of New York.

Pending his appeal he was transferred from New York to

Leavenworth, Kansas. The prisoner then filed a petition |

for writ of habeas corpus claiming that confinement some

15 Hatfield v. Bailleauz, 290 F. 2d 632, 636 (9th Cir. 1961)

dictum ; Ex parte Hull, 312 U. 8. 546 (1941) ; ; White v. Regen, 324

U. S. 760, 762, n. 1 ( 1945) and cases cited; Dowd v. United States, .

340 U. 8. 206 (1951) ; Smith v. Bennett, 365 U, S. 708 (1961) ;

_ Patton v. North Carolina, 381 F. 2d 636 (4th Cir. 1967). .

16 See e.g., Douglas v. California, 372, U. S. 353 (1963) ; ; Griffin v. .

Illinois, 351 U. 8. 12 (1956) ; Eskridge v. Washington Prison Board,

357 U. 8. 214 (1958) ; Lane v. Brown, 372 U. 8S. 477 (1963) ;

Gideon v. Wainwright, 372 U. 8. 335 (1963) ; Harvey v. Mississippi,

340 F. 2d 263 (5th Cir. 1965); and United States v. Molfenen,

6 U. 8. C. M. A. 709, 717, 21 C. M. R. 1 (1955):

fifteen hundred miles from New York operated to deny

him the assistance of counsel on appeal in violation of the

Sixth Amendment. Even though the appeal had been

lodged in the Court of Appeals and the appellate brief

filed, the court nonetheless ordered petitioner returned to

New York stating that the appeal was still pending and... .

the petitioner was“. . . entitled to ‘the guiding hand of

counsel at every step in the proceeding’ Powell v. Alabama, -

287 U. S. 45, 60 (1932).” 216 F. Supp. at 611. The Dis-

trict Court stated: ‘ a

“Interference with the confidential relationship between

an attorney and his client makes the assistance of the

attorney ineffective. In this case, opportunity for per-

sonal consultation has been removed, or at least seri-

ously hampered, by the transfer of the petitioner from

New York to Leavenworth.” 216 F. Supp. at 611.

United States v. Warden, United States Pen., Leavenworth,

Kansas, supra, has been followed. In Levine v. Willing- __—

ham, 261 F. Supp. 743, 746 (D. Kans. 1966) the court again

stated that the prisoner has a right under the Sixth Amend-

ment to the effective assistance of counsel. In Levine the

- court allowed transfer while appeal was pending but only

after pointing out that the prisoner “. . . had remained

nea: his place of trial for a.period reasonably necessary —

to permit him to assist his counsel in preparation for his

appeal...” 261 F. Supp. at 746.7 Counsel represents

"United States v. Warden, United States Pen., Leavenworth,

Kansas, supra, was governed by old Rule 38 (a) (2) F. R. Crim. P. -

which provided for an election whether or not to commence service

' of sentence when bail was denied. In Levine v. Willingham, supra,

revised Rule 38 was applicable ; however, the court in the latter case

| rejected any possible Rule 38 construction as grounds for its deci-

| _ Sion basing its ruling rather on the Sixth Amendment right to coun-

sel. Ibid., p. 746.. ;

—

| that such a condition has not been met in the instant case.

There, only one appeal was involved and that on the sub-

stantive issue of the case, and the prisoner had remained

near the place of trial for approximately 24 months.”*

Transfer to Fort. Leavenworth would additionally sub-

stantially alter the facts upon which this case was decided

“by military and civilian courts in- denying petitioner bail. _

Indeed, the government seems to seek a change not merely *

in the rules ofthe game, but perhaps 1 more er

to move the stadium itself. )

~ Petitioner contends that he has been denied release pend-

ing appeal for his pre-service political associations and his

political views. Administrative action otherwise taken on

' the basis of non-service activities may not constitutionally

e form the basis for actions presumably taken upon service

activities. Harmon v. Brucker, swpra, 580, and Orloff v.

Willoughby, 345 U. S. 83, 96-97 (1953), dissenting opinion

of Black, J. joined by Frankfurter, J. and Douglas, J. |

The importance of not penalizing a man for his political

views (the essence of the criminal charges against Dr.

Levy and the affidavit of the government) was explained by

Mr. Justice Douglas who quoted from Williamson v. United

States, 184 F. 2d 280, 283 (2d Cir. 1950) and said: |

“If the courts embark upon the practice of-granting or

withholding discretionary privileges or procedural ad-

vantages because of expression® of attitudes of politi-

18 See i re Johnson, 96 L. Ed. 1377 (1952) where Mr. Justice

Douglas refused to issue an order requiring that the prisoner not

be moved from the Southern District of California but only upon

accepting the Solicitor General’s representation that the prisoner

would not be removed for eight weeks, noting that there was

“... no danger at present that petitioner’ Ss appellate proceedings

will be jeopardized. ” 96 L. Ed. at 1861. :

- eal nature, it is not difficult to see that within the -

‘limits of its logic the precedent could:be carried to

extremities to. suppress. or disadvantage political op-

position which I am sure the Department itself would |

deplore.” Carbo v. Umted States, 62 S. Ct. 662, 667

(1962).

_ The government’s affidavit facially demonstrates its de-

sire and willingness to stifle petitioner’s free speech,

to smother dissent, and to jail those who disagree, not-

withstanding that they may ultimately be exonerated upon

appeal. In the context of our own lives we will have walked

a tragic path from 1950 when even’ Tokyo Rose-could go

. free pending appeal’ to a sadder day a scant 17 years

— later when an American citizen may be jailed by military -

' authority for fear of his expressing deviant political views.

No victory on a battlefield in Southeast Asia or elsewhere

- compensate for a loss of freedom at home. Those who .

. try to stifle dissent are seeking to destroy one of

is. very freedoms we’re defending” said one American

soldier in Viet Nam. Time, p. 5, = 26, 1967. That i is what

this case is all about. .

CONCLUSION

On July 8, 1967 Captain Levy was to have been dis-,

charged. He is now being held at Fort Jackson, South |

‘Carolina prior to being sent to Leavenworth, Kansas for —

the service of a sentence which may be reversed on appeal.

The inherent vice of the Army’s present course in denying

D’Agiino v. United States, 180 F. 2d 271 (Douglas, Circuit

Justice, 1950).

him-bail is that even though petitioner may ultimately be

found innocent of the charges against him he will not-.

withstanding have, served all or a substantial portion of

the sentence imposed updn him. His injury will be ir-

reparable, Such a result is both unconstitutional and un-

conscionable. It is no hallmark of democracy. .

_ Wherefore for the above and foregoing reasons this petit

tion for a, writ, of certiorari should be granted.

Respectfully submitted,

Cartes Morgan, JR.

LaveHun McDonatp .

‘5 Forsyth Street, NW

Atlanta, Georgia 30303

AntTHony G. AMSTERDAM

. University of Pennsylvania

School of Law

Philadelphia, Pennsylvania

Avan H. Levine

Exeanor H. Norton

Meivin L. WutF

156 Fifth- Avenue

New York, New York

Cuartes M. Sanvers, JR.

Captain, JAGC ©

Military Defense Counsel

Fort Jackson, South Carolina

WattTER JONES

Captain, JAGC

Assistant Military Defense Counsel

Fort Jackson, South Carolina

_ow

oa General, : Comma

~ Bonth Carolina, HB. . Rone

‘i. |

APPENDIX A

Opinion ‘and Order of the United States Court —

of Appeals for the Fourth Circuit

UNITED STATES COURT OF APPEALS

For tHe Fourta Cicuir

No. 11,581. °

_ Howarp Brerr Levy, es

. -* ere

eer —versus— eat

Stawuzy R. Resor, Secretary of the Army; ‘iain PEREZ, |

‘Major General, Commanding General, Fort Jackson, °

- South Carolina; E. B. Roszrts, Brigadier General, Act-

° . ‘ing Commander, Fort Jackson, South Carolina; JODE

Wuson, Lt. Colonel, Provost Marshal, Fort Jackson,

South Carolina ; and CHaRLEes Jackson, Second Lieu-

tenant, Confinement Officer, Fort Jackson, South Caro- .

ey lina, pores ; . .

as Appellees.

‘Appeal From the me States District Court for the

' District of South Carolina, at Columbia. J. Robert Mar-

° tin, Jr., Chief Judge.

-— (Argued October 4, 1967 - ‘Decided October 27, 1967.)

Before:

Bryan, Wives and ButTznepr, -

Circuit Judges.

., CHartzs _Moraa®, . J B. (Laughlin McDonald,

Anthony G. Amsterdam, Alan. H. Levine,

Eleanor Holmes Norton, Melvin L. Wulf,

Charles M. Sanders, Jr., and Walter Jones,

on brief) for Appellant, and —

Wistar D. Srvoxsy,. Assistant United. States

-. Attorney (Terrell L. Glenn, United States

Attorney, on brief) for Appellees.

Per Curiam: P

Howard Brett Levy, a captain in the United States —

Army, on June 2, 1967 at Fort Jackson, South Carolina,

was convicted by a general court-martial, of the violation

‘of Articles 90, 134 and 133 of the Uniform Code of Military

Justice, 10 USC 890, 934 and 933—the wilful disobedietice

of a lawful command of his superior officer, the promotion _

of disloyalty among the troops and the utterance of in-

temperate, defamatory, provoking and disloyal statements

to enlisted personnel. His sentence was dismissal from the

service; forfeiture of all pay and allowances and confine-

ment for three years at hard labor.

Following sentence, counsel for Levy advised ihe court-

martial of his intention to appeal and requested his client’s

‘release on Commandant’s Parole “as permitted by the

Manual for Courts-Martial, paragraph 21(d). That provi-

sion reads:

| 3a

“Upon notification from a trial counsel of the result of

a trial ..., a commanding officer will take prompt and.

appropriate | action with respect to the restraint of the

person tried. Such action, depending on the circum-

stances, may involve the immediate release of the per-

_ . gon from any restraint, or the imposition of any neces-

oary restraint pending final action on the case.” eat

‘The request was denied by the cunning. ine at Fort.

Jackson; and Levy was thereupon, and is now, confined to

a room in the hospital there.

He then sought habeas corpus or other appropriate writ

in the Federal district court in South Carolina to procure

his release on bail pending disposition of his appeal from -

the court-martial conviction. The Court denied his petition —

. on the ground that the prisoner was not entitled as a matter.

of right to bail or other release pending appeal, that re-

straint after conviction was a matter within the discretion

- of the commanding officer, and that no abuse of * had

been shown. .

On appeal from the order of the District, C Cit 3 we are

‘asked to grant the petitioner bail or direct that Court to do

_ s0..We decline, for the reasons stated by the District Court

and, in a like ruling, by the United States Court of Military

' Appeals, to whom Levy had also applied for bail, in the _

‘ease styled Levy v. Stanley R. Resor, Secretary of the

Army et al. and aan as Miscellaneous Docket No.

67-9.

In the ime case the defendants-appellees have moved

this court'for an order permitting them to transfer the ap-

‘pellant Levy from the hospital at. Fort Jackson to the

‘United States Disciplinary Barracks, Fort Leavenworth,

_ Kansas. As the latter institution, unlike the stockade at

| | 4a | ,

Fort Jackson; has suitable facilities for the custody of .

officer prisoners, and since the transfer would be in accord-

ance with the customary handling of such prisoners, the

motion will be granted, the court finding no Prejudice to

the appellant in this action.

Orders will be entered accordingly.

™% ¢

; 5a |

APPENDIX B

Opinion of the United States District Court for the

- Eastern District- of South Carolina -

UNITED STATES DISTRICT COURT

For tHe Distaict or Sourn CaroLina

Co.umB1a Division

Civil Action No. 67-442’

ORDER :

Howarp Brett Levy,

Petitioner,

Srantey R. Resor, Secretary of the Army; Gras —

Major General,‘Commanding General, Fort Jackson,

South Carolina; E. B. Rosests, -Brigadier General,

Acting Commander, Fort Jackson, South Carolina; |

JopvE Wuson, Lt. Colonel, ‘Provost Marshal, Fort Jack-

son, South Carolina; and CHartes Jackson, Second

Lieutenant, Confinement Officer, Fort Jackson, Sotith

Carolina,

Respondents.

<> =

The Petitioner in this case filed a Petition on June 20,.

1967, for-a Writ of Habeas Corpus, or in the Alternative,

_, Bail Pending Appeal, or, in the Alternative, Relief in the

nature of Mandamus, or, in the Alternative, Such. Other

and Further or Different and Appropriate Relief as may

be required. This Court, by Order filed’ June 23, 1967,

required ‘the Respondents to show cause within five days

of service why a hearing should not be held and the prayer’

of the Petition be granted. The Respondents filed their

Return and Answer on June 28, 1967.

The Petition and Return in this case show the following.

facts: The Petitioner in this-case is a Commissioned Offi- —

cer holding the rank of Captain in the United States Army

stationed at Fort Jackson, South Carolina. On June 2,

» 1967, the Petitioner was convicted by General Court-

Martial of willful disobedience of the order of his superior,

making public utterances designed to promote disloyalty

or disaffection among the troops, and of conduct unbe-

_eoming an officer and a gentleman in violation of Articles

90, 134 and 133, respectively, Uniform Code of Military

Justice. The Petitioner was on June 3, 1967, sentenced to .

be confined at hard labor for three years, to forfeit all pay

and allowances, and to be dismissed from the Army. On

that date, Brigadier General EK. B. Roberts was Acting

Commander, Fort Jackson, South Carolina, and as such

was on this date of June 3, 1967, the convening authority

in the General Court-Martial case of United States vs.

Levy, and the Petitioner’s Commander. Shortly after

adjudgment of the sentence, General Roberts approved the

confinement of the Petitioner pending post-trial review

and action of the convening authority. The Petitioner is

, now under restraint at the United States Army Hospital,

Fort Jackson, South Carolina.

- Ta = |

The sole question to be considered by this Court is

whether Petitioner is entitled ‘as a matter of right to bail

or release pending the appeal of the Court-Martial convic-

tion and sentence. There is therefore no necessity for an ;

evidentiary hearing, the question being one > to be decided ‘ .

_ .by this Court as a matter of law.

Assuming, without deciding, that this question is ‘appro-

priate in this proceeding, I find no law which grants mili- ~

tary personnel the absolute right to bail or release. To

the contrary, the Eighth Amendment.is not applicable to

.. military personnél, U. S. vs. Vissering, 184 F. Supp 529 |

(1960) ; 72 Harvard Law Rev. 285 (1958)._

Petitioner’s contention that the rules pertaining to bail

in ‘civil courts should be applied to military tribunals is

negated by the express exclusion contained in the statutory .

provision, in the implementation of which such rules were

_. adopted. The- offenses for which bail may be taken are

ae those “other than an offense triable by Court-Martial...” *-

. Bail. Reform Act of 1966 (80 Stat. 216) 18 U.S.C. 3152(3).

Paragraph -21(d) of: the Manual for Courts-Martial |

(1951) would be controlling as to Petitioner’ x right to bail

pending appeal.

“Upon notification from a trial counsel of the result

of a trial (44e (2)), a commanding officer will take

prompt and appropriate action with respect to the

restraint of the person tried. Such action, depending

en the circumstances, may involve the immediate re-

lease of the person from any restraint, or the imposi- —

tion of any necessary restraint pending final action

on the case.”.

This clearly confides the nature of restraint to be imposed

upon a person convicted and sentenced by Court-Martial

within the discretion of the Commanding Officer. United

States v. Petroff-Tachomakoff (1955) 5 USCMA 824, 826,

19 CMR 120, 122; United States v. Teague (1953), 3

USCMA 317, 12 CMR 73, 80 and see United States v.

_ Howard (1953), 2 USCMA 519, 10 CMR 17, 19. The affi-

davit of General Roberts attached to and as part of the

Respondents’ Return reflects such exercise of discretion

delegated to him as the Commanding Officer of the Peti-

tioner pursuant to Paragraph 21(d) of the Manual for

Courts-Martial (1951). |

- Ir Is Tuererore Orverep that the relief prayed for by

Petitioner be denied and the Petition dismissed. |

J. Rost. Manrim, in

‘Umted States District Judge

Charleston, 8. C.

July 5, 1967

APPENDIX Cc

' Opinion of the United States Court of Military Appeals

in Levy v. Resor eae

(17 U. $C! M.A. 135, 37 C. M. R. 399) .

Miscellaneous Docket No. 67-9

UNITED STATES: COURT OF MILITARY APPEALS

Howarp Bretr Levy, — U. S. .

n Petitioner,

—_—V.—— a.

ee R. Resor, ‘ditt of the hoe: ; Gines Perez,

Major General, Commanding General, Fort Jackson,

South Carolina; E. B. Roserrs, Brigadier General, Act--

ing Commander, Fort. Jackson, South Carolina; Jopz

Wuson, Lieutenant Colonel, Proved Marshal, Fort

Jackson, South Carolina; Cuartes Jackson, Second -

Lieutenant, Confinement Officer, Fort J jackson, South

Carolina, . .

: , PRR a

On Petition for Writ of Habeas Corpus, or, in the alter-

native, bail pending appeal, or, in the alternative, Relief

in the Nature of Mandamus, or, in. the alternative, such

other further or different and appropriate relief as may be |

- required. .

10a

Jul 7 1967

_ Charles Morgan, Jr., Esquire, argued the cause for Peti-

tioner. With him oa the brief were Laughlin McDonald,

Esquire, Anthony G. Amsterdam, Esquire, Alan H. Levine,

Esquire, Mrs. Eleanor H. Norton, Melvin L. Wulf, Esquire, —

‘Captain Charles M. Sanders, Jr., and Captain Walter

Jones.

Captain L. ems Moore’ argued the cause for cain

dents. With him on the brief was Lieutenant Colonel David

Rarick:

Opinion of the Court

Per CurIAM: -

Petitioner was arraigned before a general court-martial

convened at Fort Jackson, South Carolina, charged with

disobedience of an order ‘of a superior officer, promoting

disloyalty among the troops, and making intemperate, de-

_ famatory, provoking, and disloyal statements to enlisted

personnel, in violation of Articles 90, 134, and 133, Uni-

form Code of Military Justice, 10 USC §§ 890, 934, and 933,

respectively. He was convicted as charged and sentenced

to be dismissed from the service, total forfeitures, and

. to confinement at hard labor for three years. Pursuant to

the judgment and sentence, the petitioner is being detained.

in the United States Army Hospital at Fort Jackson, await-

ing action ‘by the conv authority under Article 64 of

the Code, supra, 10 USC § 864...

On June 20, 1967, counsel for Captain Levy filed with

this Court a Petition for Writ of Habeas Corpus, or, in

the alternative, bail pending appeal, or, in the alternative,

. Relief in the Nature of Mandamus, or, in the alternative,

such other further or different and appropriate relief as

may be required. In its brief, counsel allege that the peti-

ila

tioner’s continued confinement pending final disposition

_ of his appeal is unlawful and unconstitutional because it is

in violation of (a) Manual for Courts-Martial, United

States, 1951, paragraph 21d; (b) the Due Process clause

of the Fifth Amendment to the Constitution of the United

States; (c) the excessive bail provision of the Eighth

Amendment; (d) Rule 46(a)(2), Federal Rules of. Crimi-

nal Procedure; and (e) the First Amendment to the Con-

stitution. ¥

Petitioner seeks the issuance of writs of halons corpus

os or mandamus. In a proper case, this Court has the author- ©

ity to issue. such writs. United States v. Frischholz, 16

USCMA 150, 36 CMR 306. The former would test the

legality of petitioner’s ‘restraint, while the latter is ad

. dressed to the enforcement of that judgment and _ discre-

tion which a public officer, duty bound in law, has failed

- to exercise. Since the question involved in both of these

writs concerns-the granting of bail, or release from | e-

ment without bail, pending appeal, also sought ' he

‘petitioner, our decision necessarily will be dictated by the

answer to the question whether bail is available to a mili-

tary prisoner. . a

In tracing the history. of bail in the United States, we

quite naturally begin with the Eighth Amendment to the -

Constitution of the United States, which provides : :

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusuai punishments in-

flicted.”

In Carlson v. Landon, 342 US 524, 545, 96 L ed 547, 563,

72 S Ct 525 (1952), the Supreme Court of the United States

obsérved :

prea os aie no ee ote | oe

= “The bail clause [of the Eighth Amendment] was:

. lifted with slight ‘changes from the English Bill of

. Rights Act. [1 Wm. & Mary II, ch 2, $1 (10).] In

Aca England that clause has never been thought to accord

ig’? @ right to bail in all cases [Petersdorff, on Bail, 483

| “s set seq.], but merely to provide that bail shall not be | b

_ excessive in those “cases. where it is proper to grant bail. _ °

When this clause was carried over into our ‘Bill of

*. Rights,’ ‘nothing was said that indicated any different

ae concept. {1 Annals of Congress. 753.) The Eighth.

a4 Amendment. has not prevented Congress. from defin-.

. ing the classes of cases in which bail shall be-allowed

in this country: Thus:i in criminal .cases bail is. not com>.

|| -pulsory where: the punishment may be death. [1 Stat. ™

"91, § 83; Rules of Criminal Procedure, 46 (a).] Indeed,

‘the’ very ‘language of the Amendment fails to bia all--

“arrests must be bailable. m2 £

mw :

Adin Black ¥ Boyle, 342 US 1, 96 Led 3, 6,728 Ctl

i eae the court said: Pa ES

. . From the passage of the J judiciary Act ‘of 1789, es

a Stat 73, 91, to the present Federal Rules of Criminal aed

Procedure, Rule 46 (a)(1), federal law has unequivo- :

cally provided. that a person arrested for a non-capital = |

... Offerise shall be admitted to bail. This traditional right ° .

ae to freedom before conviction permits the unhampered -

_-!-- preparation of a defense, and serves to prevent the

infliction of punishment. prior to conviction. See Hud-

Py son oe Parker, 156 US 277, 285, 39 L, ed’ 424, 426, “15

“S.Ct 450-4895). Unless this right to bail before trial.

-\ © | is -preserved, the. presumption of innocence, secured

4) only: after. centuries of struggle, would lose- its. mean-

p—: ing. ” = {phasis ‘supplied.} 3 - bot

“~~

aad

‘

13a : p .

It is clear, from the interpretation placed upon it by the

, Supremé Court, that the excessive bail provision of the

Eighth Amendment, taken from the English Bill of Rights,

' was concerned only with the right to bail prior.to eonvic- —

_tion,- That the English Bill of Rights was also so limited

‘is borne out by the following statement frém Blackstone —

in his Commentaries on the Laws of England, Book IV,

Chapter 22, Of Commitment and Bail, at page 295 :

“Let us next see, who may not be admitted to bail,

or, what offences are not bailable. And here I shall

not consider any one of those cases in which bail is —

ousted by statute, from prisoners convicted of par-

ticular offences; for then such imprisonment without

bail is part of their sentence and punishment. .. .”

The First Congress, by enacting the Judiciary Act, 1

Stat 73 (1789), established the Judicial Courts of the United -

States and the rules under which they were to operate.

With reference to the granting of bail, the Act provides:

. And ‘upon all arrests in criminal cases [for any

crime or offense against the United States], bail shall

be admitted, except where the punishment may be

death, in which cases it shall not be admitted but by

the supreme or a circuit court....” [1 Stat 73, 91.]

. The Act is silent with regard to bail after conviction.

The Supreme Court, organized under the Judiciary Act, .

subsequently adopted specific rules for practice and pro- —

cedure in courts of the United States. In that connection, .

the Circuit Court for the Northern District of Florida, in

Ex parte Harlan, 180 Fed 119, 135 (ND Fla) (1909),

(affirmed 218 US 442, 54 L ed 1101, 31S Ct 44), stated with —

reference to bail:

14a

“Supreme Court rule 34 (29 Sup. Ct. xxi) as to bail,

when a writ of habeas corpus has issued and: been

discharged, leaves the bailing of the prisoner pending

appeal entirely within the discretion of the ‘court

which issued the writ. It is needless to say that there |

is no constitutional right to bail in any case, after

conviction. After all that has been said and written

on the subject, the only mle which ‘ean be deduced

from the. authorities is that bail should be granted

or denied as best effects exact justice between the gov- x

érnment and the defendant according to the character

and urgencies of the instant case, determined in the

light of the-principles of the common law as affected

by the enactments of Congress.” [Emphasis supplied.]

_ See also the Annotations in 19 ALR 807 and 77 ALR 1235,

_ “Constitutional right to bail pending appeal from convic-

tion,” for additional authority, both State and Federal, —

in support of the proposition that the right to bail after

conviction is not a matter of constitutional right.

By authority of Congress, Act of June 29, 1940, 54 Stat

_ 688, the Supreme Court was given specific authority to

prescribe rules of pleading, practice, and procedure in.

criminal courts of the United States. Rule 46 pertains to

f bail. As originally enacted, Rule 46(a)(2) of the Federal |

} Rules of Criminal Procedure provided in pertinent part:

“Bull may be allowed pending appeal or certiorari

only if it appears that the case involves a substantial

question which should be determined hid the eit

court.” .

‘1Ba -

This was substantially a. restatement of the previously

promulgated Rule VI of the Supreme Court, Rules * Prac-

tice and Procedure in Criminal Cases. ;

Rule 46(a)(2) was amended in 1956 and the present rule

reads:

| “Bail may be allowed pending appeal or certiorari —

unless it appears that the appeal is frivolous or taken

- for delay. ¥ . . ‘

°°

Justice ‘Frankfurter = in speaking of the change in the

rule observed:

“Obviously, as the Government recognizes, the

amendment has greatly liberalized the. basis for ad-

mission to bail in the federal courts s pending an appeal

from conviction. oe

. I think the Government is aa in saying.

7 that the granting of bail is called for more readily -

under the new standard than it was under the old

concept of ‘substantial question.’ It is also right in

indicating that the new Rule effectuates a shift from ©

putting the burden on the convicted defendant to: es-

tablish eligibility for bail, to requiring the Govern-

ment to persuade the trial judge that the minimum

standards for allowing bail have not been met.” [Ward

v. United States, 1 L ed 2d 25, 76 S Ct 1063 (1956) ;

Annotated at } L ed 2d 1564, Right to bail before con-

viction or upon review thereof, under Federal Crimi-- -

nal Procedure Rule 46(a)(1) and (2).].

16a -

It is apparent, therefore, that if a military prisoner is *

entitled to bail, the burden is on the Government to show

why it should not be granted. ae

“In an earlier annotation. entitled “Bail pending appeal

from conviction,” 45 ALR 458, covering Federal cases, the

majority of the States, as:well as England and Canada,

it is stated that:

“Under the common’ law bail pending an iad

from a conviction was nots a matter of’ right. “Rex -v

‘Wilkes (1770) 4 Burr. 2527; 98 Eng. Reprint, 327;

- Rex v Waddington (1800) 1 East, 143, 102 Eng. Re-

_ print, 56. And see the various American cases cited

Bee te. throughout this annotation for dicta to the same effect.

“But generally in the United States, and even to

- some extent in England, bail pending an appeal from

a conviction seems to be a creature of statute.” [J bid.,

at page 459. ]

Having established that the right to bail pending appeal

from conviction\is not of constitutional dimensions. but

statutory only, we must look to the statutory law and the

rules of. procedure. governing. the military to determine ®

whether the appellant should prevail in his fetition. ;

At the present time, courts-martial are governed by the

_ provisions of the Uniform Code of ‘Military Justice, 10

USC §§ 801 to 940. As. recently‘as United States v. Gal-

lagher, 15 USCMA 391, 35 CMR 363, we had occasion to

- trace military law from its inception prior to the adoption

‘of the Constitution to the present, and the same need not

‘be repeated here. Suffice to say that the First Congress

“specifically provided, “That the said troops shall be gov-

erned by the rules and articles.of war which have been

established by the United States in Congress assembled,

‘1la ;

or by such rules and articles of war, as may‘hereafter by

law* be established.” Act of: September 29, 1789, 1 Stat

95, 96. We have not found, nor has any instance been

called to our attention, wherein the guarantees of bail, .

existing in the civilian jurisdictions, have been extended

to military personnel, sentenced to confinement pursuant —

to conviction by courts-martial,. either by statute, rule or ©

regulation ‘promulgated by the President, or judicial de-

cision. As we’ stated in United States v. Hangsleben,- 8

USCMA 320, 323, 24 CMR 130, “in the military bail is not

available.” Cf. United erates v. Bayhand, 6 USCMA 762,°

21 CMR 84.

Federal courts have also recognized the absence of the

right to bail pending appeal from a conviction by courts-

martial. In United States v. Vissering, 184 F Supp 529,

_ 5380 (ED Va) (1960), that court stated:

. the Eighth Amendment is not applicable to

military personnel, and bail is wholly. unknown to the

‘military law and practice. 72 Harv. Law Rev. 266,

284, 285; United States ex rel. Woodard v Deahl,

D.C.. W.D. Ark., 60 F Supp 666; 29 Temple “Law

Quarterly, 1, 5; United States v Bayhand, 6 U.S.C.M.A.

762, 21 C.M.R. 84 (1956).” ao all

Civilian statutes, « on occasion, are not intended to apply

to the military.. Pertinent to the problem at hand is the

Bail Reform Act of. 1966, 80 Stat 214, 18 USC §3146,

- et seq. This Act sets forth the current guidelines to be

followed by the Federal courts in determining whether an

accused should be released pending appellate review, and -

specifically excludes -courts-martial from its provisions.

18 USC §3152-(2). 7 wr.

Similar to its grant of authority to the Supreme Court

to prescribe rules of practice and procedure in Federal

—)

2° ~

18a.

_ Civilian cases, which have the forge of statutory law, the

_ Congress, by Article 36 of the Code, supra, 10 USC 4$ 836,

granted to the President the parallel power to make such

rules ‘for the military courts. By virtue of this authority,

the President prescribed by Executive Order 10214 of

February 8, 1951, the “Manual for Courts-Martial, United

States, 1951.” The rules contained therein are similar to,

and in some instances identical with, those of the Supreme

Court. See United States v. Smith, 13 USCMA 105, 32

CMR 105. No express provision respecting bail is found.

therein. However, paragraph’ 21d of the Manual, in es-

sence a parallel provision to Rule 46(a)(2), supra, called

to our attention by the appellant, provides:

“Responsibility for restraint after trial. —Upon no-

tification from a trial counsel of the result of ‘a trial

-(44e (2)), a commanding officer will take prompt and

appropriate action with respect to the restraint of the

person tried. Such action, depending on the circum-

stances, may involve the immediate release of the per-

son from any restraint, or the imposition of any neces-

sary restraint pending final action on the case.”

While it seems more likely that that portion of the para-

‘graph relating to “the immediate release of the person

from any restraint” applies to those accused who have. been

acquitted by judgment of the court (see paragraph 22), we

will assume that it also applies to convicted persons await- —

ing final action. Had the President intended to institute

a system of bail for the military, it being within his power

to do so, it seems evident that this would have been the

logical point at which it would havé been provided. Not

having done so, we will not speculate as to his reasons

eee.

| 19a |

_ Congress is apparently aware of this omission for, as

noted, it specifically excluded courts-martial from the pro-

visions of the Bail Reform Act. We are informed by Gov-

ernment counsel that this 1 was a considered action. In its

brief it states:

“In 1965, the House of: Representatives 2 and the Sen-

ate developed parallel bills on bail reform, H.R. 10195

and S. 1357. The Senate bill excluded all military

tribunals and the House bill did not. The Attorney.

- General of the United States brought this difference .

to the attention of the House Judiciary -Committee.

‘In 1966, the House accepted the Senate version and

the bill was enacted with the express provision for the

exclusion of all military tribunals (See Senate Report

No. 750, 16 September 1965 and House. mayest No.

1541, 18 May 198). ,

The absence of a —_ provision for bail does not

fully ariswer the question for paragraph 21d of the Manual,

" gupra, reposes in the commanding officer a discretion in

- dealing with a convicted prisoner—he may release him on

“his own recognizance—similar to that reserved to the civils__.

ian courts under Rule 46(a)(2). Each case must be de-

cided on its own merits and only where there is a showing

of an abuse of discretion will the judgment be reversed.

As noted in United States v. Williams, 253 F 2d 144, 148

(CA 7th Cir) . (1958) :

“It is obvious that where there is no showing that

- the appeal is frivolous or taken for delay, and under

the plain language of the Rule that bail may be al-

lowed, there are some cases where, under the facts, the

court is allowed to exercise some discretion in passing

ee upon om a motion as before us here.”

PPE LATTA TTUEB TSM. Ui

20a Se

The character and extent of a series of offenses afford a

proper basis for the exercise of discretionary power to “_

deny bail under Rule 46(a)(2). United States v. Wilson,

257 F 2d 796 (CA 2d Cir) (1958). In accord,:see addi-

tional citations in note 49 (Discretion of the court). to

-Rule 46, 18 U. S. Code Annotated.

In the case at bar the petitioner was placed not in a mili-

tary stockade, with other convicted prisoners, but in a

hospital room on the base, albeit under guard. In its brief,

counsel alleged that the petitioner was subjected to har-

assment by the light in his room being on constantly and

by the fact that his.guard followed him whenever he left

the room to use the toilet facilities. We were told at the

time of oral argument, however, that these indignities have

now been removed. 3

Under the facts of this case and in the light of the cir-

cumstances of the petitioner’s present confinement, we do”

not find an abuse of discretion on the part of the command-

ing officer in refusing to release the petitioner from con-

finement under paragraph. 21d, supra.

We are also urged by counsel to hold the ‘petitioner’ s

confinement illegal under the due process clause of the

‘Fifth Amendment, “because other officers, except those

convicted of helinetes crimes, are not confined pending ap-

peal”; and under the First Amendment, “because it has

had and will have the effect of ‘deterring others from

exercising their constitutionally ordained rights of free

expression and association.” For the purpose of this peti-

tion, we: find the arguments on these issues unpersuasive.

Accordingly, the petition for writs of habeas corpus or . -

mandamus is denied. And, in accord with our comments —

above, petitioner’s request for bail, or release without bail,

is also denied. |

2la

| _ APPENDIX D

Opinion of the United States District Court for the

District of Columbia in Levy v. McNamara

UN ITED STATES DISTRICT COURT

For THE District oF CoLuMBIA

Civil Action No. 953-67

—

Captain Howarp Brett Levy, e¢ al.,

| Plaintiff,

—e

Ropert S. McNamara, et al., meer

Defendants.

i ; .

OPINION AND ORDER

Captain Howard.Brett Levy, plaintiff, is-a 1 Commissioned |

Officer in the United States Army. He brings this action

hd on behalf of himself and others similarly situated, under

. Rule 23 of the Federal Rules of Civil Procedure. He re-

quests the convocation of a three-judge court (28 U.S.C.

. § 2282) from: which might i issue a preliminary injunction to

restrain the defendants from proceeding with a general |

court-martial scheduled to commence against him on:-May —

10, 1967. |

Argument on the issues presented was heard on —_

28, 1967.

Captain Levy is charged with violation of Articles 133,

134 and 90 of the Uniform Code of Military Justice (herein-

ET TN NLT I

22a

_ after called “U.C.M.J.”). He challenges the constitutior-

: ality of Articles 133 and 134 on grounds: of vagueness in

violation of the Fifth Amendment. He' further asserts that

Articles 133 and 134 are being utilized to prosecute or

threaten to prosecute him for exercise of rights of free

expression guaranteed by the First Amendment of the .

Constitution. As to. the charge under Article 90 of the

U.C.M.J., although it deals with refusal to obey lawful

orders, it too is challenged in the context of this case on

grounds that it will deprive the plaintiff of his right: of

free expression and association under the First Amend-

‘ment. :

Captain Levy was a medical doctor in civilian life. He

was commissioned as an officer in the United States Arniy

' Reserves on January 29, 1962 and was assigned to the

Medical Corps. He was permitted to defer his active service

in order to complete his.resident training as a dermatolo-

gist and entered active military service’on July 9, 1965.

His initial and present assignment is Chief of Dermatology

at the United States Army Hospital, Fort Jackson, South @

Carolina, where at times pertinent hereto the United States

Army conducted a medical training program for Special

Forces Aidmen. On or about October 11, 1966 the plaintiff

_ Levy was directed to establish and operate a particular

phase of that training program. He refused to obey that _

order and his refusal is the basis of the charge against him.

under Article 90 of the U.C.M.J. (10 U.S.C. ¢ 890). \ :

A second charge alleges that Captain Levy uttered dis-

loyal statements to divers enlisted personnel at Fort Jack-

_ son with the design to promote disloyalty and disaffection

among the troops. This charge was brought under Article

134 of the U.C.M.J. (10 U.S.C. § 934). ve

_ The foregoing charges were preferred against the li

_ tiff'on December 23, 1966 by Captain Levy’s Commanding

23a

Officer, Colonel Henry F. Fancy. The charges were for-

- warded to the Commanding General of the United States

”. Training Center, Fort Jackson, South Carolina, with a

Teeommendation of trial by general.court-martial. There-

_ after. various investigations and preliminary procedures

were carried out under Article 32 of the U.C.M.J. (10 U.S.C.

§ 832). As a result of this investigation three additional

charges were brought against Captain Levy. Substantially

these three additional charges relate to disloyal and dis-

respectful statements allegedly made by Captain Levy: to

various enlisted, personnel based upon his. views as to the

conduct of the war in Vietnam. Two such charges were

brought under’ Article 133 of the U.C.M.J. (10°U.S.C. § 933)

(“conduct unbecoming an officer and gentleman”) and the .

third was based on Article 134, supra, general article cover-

ing all disorders and conduct deemed prejudicial to the

Armed Forces... The particular statutes relevant to these -

proceedings and charged as being unconstitutional are at-

tached as Appendix: A. |

On March 3, 1967 the Commanding General of ‘the United |

States Army Training Center, Fort Jackson, South Caro-

lina issued an order convening the court-martial on the

several charges levied against Captain Levy. This court-

‘martial is scheduled to begin May 10, 1967. |

The defendants oppose both the motion for a preliminary

injunction and convening of a three-jydge court as sought

by the plaintiff. They assert inter alia. that a three-judge

court is clearly unwarranted since this Court lacks juris-

diction over the subject matter of the action and no sub-

stantial constitutional: issue is presented. :

‘The initial question before the Court is whethek it h

jurisdiction of the subject matter.

gy fy lle

The Congress has taken great care to define the rights |

| of those subjett to military law and to provide a complete

system of appellate review: within themilitary system to

secure those rights. Within this framework, however, it is

acknowledged that courts-martial are not designed to pro- —

vide the same protection of the rights of the individual as

is provided in the civilian courts. Out of necessity, as Con-

gress has recognized, “. .. [T}he military system must

emphasize the iron hand of dedizline more than it does the

\. even scales of justice.” Reid v. Covert, 354 U.S. 1 (1957).

‘Historically, Federal courts recognizing the doctrine of.

separation of powers and exhaustion of remedies doctrines,

have treated petitions for injunctions of court-martial pro-

ceedings as exceeding the Court’s jurisdiction. It has been

. the reiterated policy that “(T]he courts cannot command

or regulate the Army. ” Reaves v. Ainsworth, 219 U. s. 296,

306 (1910). As stated in Burns v. Wilson, 346 U.S. 137 at

140 (1953) :

“Military law, like ‘state law, is a juriapridence

which exists separate and apart from the law which

governs in“our federal judicial establishment. This

Court has played no role in its development; we have

exerted no supervisory power over the courts which

enforce it; the rights of men in the armed forces must

perforce be conditioned to meet certain overriding de-

mands of discipline and duty, and the civil courts are

not the agencies which must determine the precise

_ balanee to be struck in this adjustment. The Framers

expressly entrusted that task to Congress.”

This policy has been emphasized by the Supreme -Court

in Orloff v. Willoughby, 345 U.S. 83 at 98 (1953), a case

involving a habeas corpus petition by an Army doctor.

de a TI

nine barf Ratha inica Stes Banarvt ad

25a

Therein the Court ‘aushioet

“We know that from top to sonme of the Army the

complaint i is often made, and sometimes with justifica- -

tion, that there is discrimination, favoritism or other he

objectionable handling of men. But judges are not

given the task of running’ the Army. The responsi-

bility for setting up channels. through which such griev-

ances can be considered and fairly settled rests upon

~ the Congress and upon the President of the United ©

_ States and his subordinates. The military constitutes

_ a specialized community governed by a separate disci-

. pline from that of the civilian. Orderly government —

_requires that the judiciary be as scrupulous not to in-..

terfere with legitimate Army matters as the Army must

be scrupulous not to intervene in judicial matters.”

Recently, our Court of Appeals i in Luftig v: McNamara,

. etal., C.A.D.C,, No. 20,129, Feb, ‘6, 1967, applied the princi-*:

ples cfted deve. There a lawfully inducted. private in. the

U.S. Army sought to enjoin the ablgad of Defense from

sending him to Vietnam. The Court stated:

“It is difficult to think of an area less suited for

.Judicial action, than that into which Appellant would

have us intrude. The fundamental division of authority -

and power established by the Constitution precludes

' judges from overseeing . .. the use and. disposition

of military power; these matters are plainly the ex-

clusive province of ‘Congress and the Executive.”

‘It is significant that the plaintiff has not shown any in-

stance of the issuance of ‘an injunction to interfere and

prevent the conduct of a court-martial proceeding. .

26a

Plaintiff will have ample opportunity to raise his.con-

tentions in the manner provided by the U.C:M.J. The fact

that the court-martial has neither considered nor had the

opportunity to: consider. the plaintiff’s claim precludes the

-Court from acting to circumvent established procédures.

Wales y.-Whitney, 114 U.S. 564 (1885); Gusik v. Schilder,

_ 840 U.S. 128 (1950); Beard v. Stahr, 370 U.S. 41. (1962).

» The exhaustion of remedies doctrine applied to Military.

tribunals is analogous to that applicable to State court

proceedings. In Gustk v. Schilder, (340 U:S. 128. (1960) the :

Court said at page 131: _

“If Article 53 had been in force when the habeas cor-

/ pus proceedings were instituted, the District Court

-would not have been justified in entertaining the peti-' |

tion unless the remedy afforded by the Article had |

first been exhausted. An analogy is a petition for

habeas corpus in the federal court challenging the —

jurisdiction of a state court. If the state procedure

provides a remedy, which though-available has not been

exhausted, the federal courts will not interfere. This

is not only the holding of the Court in a long line of

cases [citing cases]; it is the rule which Congress. re-

_ eently wrote into the Judicial Code. 28 U.S.C. § 2254, —

BUSCA, § 2254.” -

SS eee eS

While these cases do not deal apecitieally with application ;

for convening a three-judge court, the principles enunciated

do speak loudly for the proposition that this Court has no -

jurisdiction, by way of a three-judge court or otherwise, to.

interfere with the operation of the military. 7

_ The plaintiff seeks to avoid the force of these precedents |

by relying on Dombrowski v. Pfister, 380 U.S. 479 (1965)

and as applied by our own Court of Appeals in Reed

- Ta. ;

Enterprises v. Corcoran, 354 F.2d 519 (D.C. Cir. 1965).

. These decisions have no force on the subject matter before

the Court in the instant case. In both Dombrowski and

Reed there was never any question that the Court pos-

sessed jurisdiction over the subject matter of the actions.

There’ the sole question was whether the case presented

a substantial constitutional question, whether injunctive

relief was necessary, and whether there was @ case or

controversy. :

This opinion constitutes the e findings of fact and conclu-

| sions of law of the Court.

In the light of such findings and conclusions, it is this

- 8rd day of May, 1967, ae ;

Orperep thatthe petition for ’ a picliminary ‘atidinlhen | ae.

and convening of a three-judge court is denied.

Judge

i a

an id

28a -

APPENDIX A

- Statutes Involved >.

Article 90, U. C: M. J. 10 U.S.C. 890, provides :

§ 890. Art. 90. Assaulting or -willfully disobeying

superior commissioned officer.

Any person subject to this denies who— .

7 | (1) strikes his superior commissioned officer or

‘ draws or lifts up any weapon or offers any violence

against him while he is in the execution of his office ;

or | ‘ ;

| (2) willfully disobeys a lawful command of his —

superior commissioned officer ;

‘shall be punished, if the offense is committed in time: of

war, by death or such other punishment as a court-martial

may: direct, and if the offense is committed at any other

time, by such — other than | death, as a court- ~

martial may direct... ‘.

‘Article 133, U.C.M.J., 10 U.S.C. 933, provides:

§ 933. Art. 133. Conduct unbecoming an officer and ;

a gentleman. -

Any commissigned officer, cadet, or midshipman who

is convicted of conduct unbecoming’an officer and a —

= shall-be*punished as a court-martial may

ee ee direct. .

Article 134, U. C.M. J., 10 U.S.C. 934, provides:

%§ 934. Art. 134. General article. Oe

Though not specifically mentioned in this chapter, -

all. disorders and neglects to the prejudice of good

a a oo ia aD

- 29a

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

a and shall be — a the discretion alin %

COMET,

Orper List ~ - a

-Monpay, May 22, 1967 |

ecg ORDERS IN Prnpine CasEs

es Howarp Brett Levy v. Corcoran |

The application: for a stay. caiaied’ to Mr... -—

Chief Justice Warren, . and by him referred oe

the Court, is denied.

on wee Lupizen Burns WALLACE V. Lan ET AL.

The application for a stay presented to Mr.

Justice Black, and by him referred, to the

Court, is denied.

895 Karz v.. Unrrep Srarzs -

The motion of he scien for ‘leave. to

proceed further herein in forma pauperis is . -

granted.. |

CERTIORARI GRANTED *

1218 Invern’, LoncsHoremen’s Ass’x, Loca 1291 v.

Pura. Marine Trapve Ass’N

_ The petition: for a writ of certiorari is

‘ granted. The case is placed on the summary

calendar. and set for oral argument immedi-

ately following No. 892.

SR ERE ERE FAIRS ROL OTT APT LOIS

e =

. . ° . .*) . «

NN AND Ki nici AR htm hk lat ta tS A en tte Nata Bg tad

Vv é

‘1122 Brown v. Usiren Srarzs

30a

Cunriorant DenrED ~

1124 Bisseu v. McExzicorr

/1130 Norew v. McCarrey ni ,

1150) Goopman Vv. Unrrep Srares | | -— |

1151) Couen v. Unirep States —s- ee

~~ 1152) Covent v. Unrrep States

bri shack lh laces Di i ahh osninaen

“Before:’

dla.

APPENDIX E.

ues

- Opinion of the United States Court of ‘Appeals for the |

District of Columbia Circuit. in Levy v. Corcoran

FoR THE District OF CoLumsta Circuit,

_ No. 20,972—September Term, 1966

Civil 953-67,

— >

CAPTAIN Howarp Brett Levy, ‘for himself and -

for all others similarly situated,

‘ | Petitioner, -

v. ,

Honoraste Howarp F. Corcoran;

_ United States District Judge, ie? j

—-* ‘Respondent.

Bazeton, Chief Judge; and

*Tamm and LeventuaL, Circuit Judges.

‘ ‘ - Sti ; cs ro

ORDER

This cause came on for hearing on petitioner’s petition |

for writ of mandamus and application for a stay and said

petition. and application were argued by counsel,

Upon consideration whereof, it is

OrpzreD by the court that petitioner's aforesaid peti-

tion for writ of mandamus and application for a stay are

denied.

Per Aili: | :

bs Pte a eal v .

p -

os ; 32a i

Chief Judge Bazelon dissents from ‘the foregoing order

_ for the reasons. stated in his dissenting opinion filed here-

eS ony olay ae : :

| “Tan, C Nireuit Julaage: I join in denying the application —

for the stay and the petition for writ of mandamus. I am of

_ the view that this case is not properly before this court at

the present time. I am of the opinion that the record dis-

closes that our present petitioner has an adequate remedy -

at law. It is my view that he cannot at this ‘time show

= imminent, irreparable injury. In the event of his convic- a

-tion by a court martial, which at this time is problematical, - .

there is then available to him, through court martial pro-

.. ceedings, review of those proceedings as specifically pro-

vided hy law, including an ultimate appeal to the United

States Court of Military Appeals, which is in itself.a court

' entirely composed of civilians and which court within the |

last week has ruled that the principles of the Supreme

~ Court’s holding:in the Miranda case are applicable to court

martial proceedings. United States v. song, 35 L. W. -

2625 (April 25, 1967). mee,

In addition, there is available to this petitioner, in due __

course and if he is convicted, the right of appeal to the

civil courts through habeas corpus or other appropriate

proceedings. 7

Against this background, I feel that at. this- time this |

court | is without any perme | in this matter. — E

LEvENTHAL, Circuit Judge: The refusal of the District

Judge to take steps to convene a three-judge court seems |

tor me sound for want.of equity jurisdiction to restrain de-

. ‘ ° . ;

. ; ‘ ’ / ; .

. * t ° ' a, a . .

» : s . ,

» -

\ /

. d8a.

: 4fendant$ from . ssieitaiibias. with a geteral court-martial

schedule to commence May 10, 1967. . fe

| The lack of equity jurisdiction to issue ‘an injunction

| - + . seems to me to inhere i in the relationship of the civil courts.

and military tribunals, a relationship which looks to habeas

corpus or kindred remedies as the’ technique by which

the‘tivil courts exercise such limited intervention as may be

i; —__.. proper in cases taken before military tribunals. There may

' be want of equity jurisdiction for such reasons of gov-

ernmental relationships even where there is no truly ade-.

| quate remedy at law.’ But the conclusion is strengthened

i. _ by our awareness that petitioner can preserve his constitu-

7 ‘tional defenses before the general court-martial, and’ in

a, peals. That court has indicated its readiness. to apply to.

x men in the military service the. protection of pertinent .

ae ee Supreme Court/ decisions based on constitutional grounds.’ :

ae ee These considerations do not wholly answer- petitioner ce

|. + contention that the ability of the military to use the broad

im provisions of articles 133 and 134 of the Uniform Code of

| Military Justice (10 U.S.C. $§ 933, 934). -to punish expres-

sions of views within the continental United States fore-

bodes such a “chilling effect” on speech that is protected

by the Constitution as‘to call for the application of mon

- browski ¥. Pfister, 380 U.S. 479 (1965).

-- The argument is: not without logic. Where it breaks — pe

down, it seems to me, is where it runs into a judicial tradi.

-' tion which for more than 150 years has resisted all efforts _

to | issue mandates intended to. obviate exposure to court-.

, naa eet eter at 122 U.S. App. a C. 113, 351 F. 2d 810

? United States v. Tempia, April 25,1967. | 2” ?

are ot 7 ° ae

j 4

34a :

_ martials or anticipate - i“ results. of proceedings before

=. tribunals.* .

It is not necessary to consider. now whether this pat-. -

: - of decisions is absolutely inviolate. It is formidable

ugh to obviate injunctive relief based on an expansion

ot e implications of Dombrowski. Notwithstanding the

. language of Dombrowski, some individuals and: -groups will

‘ be denied injunctions: and relegated to protecting their

First Amendment freedoms by way of defense in other.

proceedings.‘ - Furthermore, I cannot accept petitioner’s

argument that a court should be as ready to enjoin the pro-

ceeding of a military tribunal as a Federal court to enjoin a

state court proceeding. .

Freedoms of speech and expression enna on the highest

constitutional ground. And- the fact of war does not ob-

literate freedom to dissent from the war. It may be as-

sumed at least for discussion that although the balance

between freedom and discipline i is different fer men in the

military service than for civilians, at least some part “of :

these freedoms is retained when civilians enter the military

service. It may further be assumed that if these freedoms *

' are unlawfully disregarded by military tribunals, there may

in due course be recourse to the civil courts. But that does

‘not compel this récourse to be by way-of injunctive relief. —

Whether the foregoing’ decision ‘was reserved by Con-

_ gress for three judges, rather than one, is.not an easy

question. It suffices to'say that when the district judge is

presented with a motion that is insubstantial insofar as it

requests injunctive relief, the law does not contemplate a —

* Wales v. Whitney, 114 U. S. 564 (1885) ; Gusik v, Schiller, 340

U. 8. 128 (1950) ; Beard y. Stahr, 370 U. 8. 41 (1962) ; Gorko v.

_ Commanding Officer, 314 F. 2d 858 (10th Cir. 1963).

°* 4W. E. B. DuBois Clubs v. Katzenbach, Civil Action 1087-66,

April 18, 1967 (Dist. Ct. Dist. of Col. , Sjudge).

ata Sik - awn . .

3 : - . J

: ‘ F : r

“35a

three-judge court. The district judge can preclude a three-

judge court only when it is clear that injunctive relief is

not available. I think this is such @ case.

‘Bazeton, Chief Judge, dissenting: Petitioner filed his

papers at 5:00 p.m. yesterday evening. The Government fi

filed its response at 11:00 a.m. today, and we heard this .

ease at 11:45 a.m. Consequently, there has not been suffi-

cient time for the consideration which the case deserves.

However, as presently advised, I am compelled to dissent

from the order issued today. aes xs

On September 10, 1965, Captain Howard Brett Levy

wrote.a letter to Sergeant Geoffrey Hancock, Jr. who was

‘then stationed in Viet Nam. The letter strongly, and pner-

haps intemperately, eriticized the foreign policy of the

United States. Between February and December, 1966, -

~ Captain Levy made similar criticisms to various military

personnel at his hospital base in South pease = age the

. basis of these two incidents, Levy’s commahding officer :

charged him with violating Article 133 (“conduct: unbe- -

coming an officer and a gentleman”) and Article 134 (“all

disorders and neglects to the prejudice of good order and

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

fenses not capital, of which personggsubject to this chapter

may be guilty, ...”) of the Uniform Code of Military

Justice. 10 U.S.C. §§ 933, 934 (1964). Levy was .also

charged with a violation of Article 90 (wilfully disobeying

“a lawful command of his superior, commissioned officer”)."

*Apparent'y Levy would not give Special Forces: Aidmen in-

_ struction in uermatology because the instruction would have in-

o ‘volved exposing the private parts of his female patients who were

- suffering from venereal diseases. Levy thought this exposure, with-

out the consent of the patients, violated professional ethics.

36a . vt

10 U.S.C. § 890 (1964). The court martial, at which Levy

faces the possibility of a life sentence, begins tomorrow.

Levy claims that Articles 133 and 134 are unconstitu-

_ tionally vague and that Article 90. is unconstitutional as

applied to him.. On April 17, 1967, he moved in our Dis-

. trict Court to have a three-judge District Court convened

to decide the question and to issue an injunction against |

his pending court martial. On May 3, the District Court

denied the motion.

Under Idlewild Bon Von yage Liquor Corporation v.

Epstein, 370 U.S. 713 (1962), a three-judge District Court

- must hear and determine the case when (1) “the constitu-

tional question raised is substantial” and (2) “the com- -

plaint at least formally alleges a basis for equitable re-

lief.” 370 U.S. at 715.

- Recent cases in this Circuit have interpreted the. first

requirement to mean that the constitutional claim must be

- “patently frivolous” before. one judge can dispose ‘of it.

Reed Enterprises v. Corcoran, 122 U.S. App. D.C. 387,390,

354 F.2d 519, 522 (1965) ; Hobson ¥. Hansen, 252 F.Supp.

4,7 (D.D.C. 1966). Levy argues that Articles 133 and 134

are overly broad, and that their breadth impermissibly im-

pinges upon First. Amendment freedoms.: A simple reading

of the Articles shows. that they are quite broad. Indeed,

the Manual for Courts-Martial interprets Article 134 to

include more than fifty different offenses ranging from

abusing public animals to wearing an unauthorized in-

signia.? Levy argues also that Article 90, though not: un-

__ # One of the evils of an everty broad statute is that it Soave the

definition, and. therefore the creation, of crimes to the discretion of

. minds executive or military officials. The attached appendix (the

Manual’s suggested forms for drafting charges and specifications

under Article 134) shows exactly how broad the discretion is. And

_the —— forms do not es to be exclusive.

37a .

constitutional on its face, is being applied as wer of a

scheme to punish him for exercising his First Amendment

rights in the past and prevent him from exercising them in

the future.* For our present purposes we must take these .

-. allegations as true. And if they are true, the constitu-

tionality of Article 90, as applied to Levy, is questionable.

Dombrowski v. Pfister, 380 U.S. 479, 490 (1965). |

The second requirement for convening a three-judge

court is that the complaint allege a basis for equitable re-_

lief.: Here Levy says that. First Amendment rights will be

“chilled” if his prosecution proceeds on the basis of two

statutes which are unconstitutional on their face and one

which is being applied in order to harass people who exer-

cise their First Amendment rights.‘ This chilling effect,

Levy: claims, constitutes irreparable -injury under Dom-

browski-v. Pfister, supra. If Article 90, though constitu-

tional on its face, is being ‘applied to harass Levy, then

that part of his case fits within the first ground for the

Dombrowski decision. 380 U.S. at 490. And if Articles

- 133 and 134 are unconstitutionally broad then that part

of Levy’s case fits within the second ground for the Dom-

browski decision. 390 U.S. at 490-491.

Of course all of this assumes that Dombrowski would. be:

read to allow interference with military courts. The Dom- |

browski opinion itself suggests no reason why it should —

not be read,in this way, though there may be other rea-

3 He alleges, among other things, that at first his commanding

officer decided upon a minor form of non-judicial discipline and.

that only after he learned of Lev y’s political ae was the court .

martial decided upon. - .

*The problem concerns not only Levy’s First Amendment rights

but also the First Amendment rights of others, both military per-

sonnel and civHians, who may view Levy’s court martial as govern-

mental dissatisfaction with dissent.

38a

sons why its scope would be limited® In any event, the

applicability. of Dombrowski to our case has never been

decided and is not a frivolous issue.’ |

Since neither the constitutional attack on the Articles

nor the claim of irreparable injury is frivolous, this case

should be heard-and determined. by a three-judge District

Court. I think this much is abundantly clear. If Levy does

have a right to have his case heard and determined by a

three-judge District Court, then I think it is equally clear

that the right must be made meaningful by a short stay of

the court martial proceedings. Otherwise, with the be-

ginning of the court martial tomorrow morning, the three- —

judge District Court would be left with a moot case.

These questions, whether the statutes are unconstitu-

tional, whether there is irreparable injury, whether Dom--

browski applies to military courts, are not easy, and they

are not made any easier by the extreme time-pressure which

confronts us. Moreover, they are not questions for us.

They are for a dheeinasia District Court. I do not in- se

simply to preserve the peeren of the three-judge Dis-

trict Court. Once that court is convened it. can ‘decide

whether to issue a temporary restraining order or a tem-

porary injunction while it considers the merits., Our re-

sponsibility is simply to preserve jurisdiction for the

court Congress intended to hear this case.

5 The cases cited in Footnote 3 of Judge Leventhal’s opinion do

_not deal with statutes which impinge upon ‘First Amendment

inabsaRdSBIa de ete

39a

APPENDIX .ATTACHED TO ORDER

| Argticie 1340 °~— Sent

Abusing publie animal |

i On... Fh, (at) (on bonis’) ;

“on or about ........ 19...., wrongfully (kick a public

horse in the belly) ( ile, Sa

- Adultery

119. In. that (, a married. man,) did, (at): :

‘(on board) .... , on or about ; eg

wrongfully have sexual intercourse with » (a

- married woman) (a woman) not his wife.

Assault:

—Indecent ee | Be a or ale

__ 120,In‘that ...... did, (at) (on board) aaa

on or about . . 19...., commit an indecent assault

upon.. by z... , with intent to°gratify his

(lust) (sexual desires).

—Upon a commissioned officer

121. In that did, (at) (on board) -..... ;

on or about. | .19...., assault , a com .

missioned officer of [the Army of the United States]

SC ccapiasinanene .» a friendly foreign power]. [the United States

(Navy) (Marine Corps) (Air Force) (Coast Guard)], by |

Nore.—That the accused did not know the commissioned é@leer to be such ~

is a defense to, this kind of assault—but not to an menaued assault in. which .

. the official position of the victim is immaterial...

40a

—Upon a warrant, non-commissioned, or petty officer

122. In that ............ did, (at) (on board) .........-..--- :

on or about .. 19...., assault ---» & (war-

rant) (noncommissioned) (petty) officer of’ [the Army ‘of

the United States] [the United States (Navy) (Marine

Corps) (Air Forced (Coast. Guard)], by.

. Nore.—That the accused did not know the warrant, etc., officer to be. such -

is a defense to this kind of assault—but not to an included assault in in_which

the official — of the victim is immaterial. ale

—Upon a person. in the execution of ‘aiiles d ties

123. In that ......... did, (at) (on board) ............. ay

_on or about : 19...., assault. , & person

then having and in the execution of (air police) (military

_ police) (shore patrol) (civil law enforcement) duties, by

——With intent to commit certain offenses,

124. In that did, (at) (on board) b

on or about ...... 19...., with intent to commit (mur-

der) (voluntary manslaughter). (rape) (robbery) (sodomy)

- (arson) (burglary) (housebreaking), commit an assault

ee OO iccnetnntiien |

Assault (consummated by a may upon a child under

the age of 16

125. In that did, (at) (on board) .. a

-on or about 19...., unlawfully (strike) .(-...........

ei ) , a child under the age of sixteen years,

(in) (on) the . pecipnadtalaaieilin with

4la .

Bigamy

126. In that ws .. did, at wewseseeeee » ON OF about

> Rar Bs 19...., wrongfully and bigamously marry ........

sail , having at the time of his said marriage to ...........-

ee lawful wife. then living, to wit:

Bribery and graft:

- —<Asking, ete.

127. In that .......:..... , being at the time (a contract-

ing officer for ; .) (the personnel officer of .......... es

eS ese ), did, (at) (on board) , on

OP CI sii 19..... wrongfully and unlawfully (ask)

‘(aecept) (receive)’ from , (a contracting com-

. . pany engaged in DB ciel ....), (the sum of

$ gee , of a value of about $............

oo See es ), [with intent to have his (decision) (ac-

tion) influenced with respect to] [(as compensation for)

(in recognition of) services (rendered) (to be rendered)

(rendered and to be rendered) by him the said

in relation to] an official matter in which the United States |

was and is interested, to wit: (the purchasing of military

supplies from ................ ) (the transfer’ of: .................... to

duty with ... : )¢ sissimuuape.”

_ —Promising, ete.

128. In SERIE oesicwenipernnncneve did, (at) (on board) ................ ;

on or about ...................- 19...., wrongfully and unlawfully

(promise) (offer) (give) to ................, (his commanding

officer) (the claims officer of aaa Foe cae. 7

(the sum of $....... )¢ sasgeseee- , Of a value of about

ie adicatecceiie ) (2 ), [with intext to influence the.

(decision) (action) of the said with respect

_: 42a

- to] [(as compensation for) (in recognition of) services

. (rendered) (to be rendered) (rendered arid to be rendered)

|. fee in relation to] an official matter in

which the United States was and is interested, to wit: (the

granting of leave to -...:..........-.2:. ..) (the processing of a claim

against the United States in favor of wane

cadena . 7 Kh ore ake .

‘Cheek, worthless, making and uttering.

129. In that... v- did, (at) (on board) 8...

on or about ... A9...., [with intent to deceive,

wrongfully and unlawfully] make and utter to

a-certain check, in words and figures as follows, to wit:

ans , (in payment of a debt in the amount of $......:.

cceentsliag ). (for .....2i2......) [, he, the said ..:...: , then

not intending to have sufficient funds_in the ...... }

bank av ailable to. meet payment of said check upon its

’ presentment for payment in due course], and did thereafter

wrongfully and dishonorably fail to (place) (maintain) .

_- sufficient funds in ‘(the -----) (said) bank for pay-

ment of such check upon its presentment for payment. —

Note.—Both allegations intclosed in brackets should be ‘used in a case in

which the aecused had given the check in purported payment of a.debt not

. intended to have sufficient funds in the bank available to meet payment upon

‘presentment in due course, but had not thereby obtained: any money, personal ~

property, or article é6f value. Obtaining money, personal. property, or an article

of value by means of giving a check, without intending to have sufficient

funds in the bank available to meet payment upon presentment in due course,

may be charged as larceny or wrongful appropriation, as the case may be, in

violation of Article 121 (see 200). Without the material in brackets, this

specification may be used to denounce merely a wrongful and dishonorable

failure to place or maintain sufficient funds in the bank for payment of the —

check. os X

Debt, failing to pay

130. In that ...........:....... , being indebted to a

the sum of $ .................... for 7 . which a amount be-

43a

- came due and payable (on) (about) in or about) . bac

Pisa , did, (at) ‘(on board) sia , from .

19... i 19... ey wrongfully ad dishonorably fail.

to pay said debt’ =,

Pisloyal statements |

131. In that ............... = did, (at) (on board) of

~ on @ about .... ...- 19...., With design to [promote (dis-

loyalty) (disaffection) (disloyalty and, disaffection) among

(the troops) (the civilian populace) (the troops and the

civilian populace) ] [......... ], publicly utter the follow-

- ing statement, to wit: ””, or words to that ef-

fect, which statement was disloyal to the United States.

Disorderly, drunkenness, ete. :

—In command, quarters, ete. or under service dis-

crediting cireumstances

132. In that .. was, (at) (on board) ‘cau cami ri

on or about ....... 19...., (drunk) (disorderly) (drunk

(camp). (... )] [on board ship] [in uniform in a

public place, to wit: eons }.

—Drinking liquor with prisoner

133. In that . w..., & (sentinel) ( ) in

charge of prisoners, did, (at) (on board) ,onor

about 19...., unlawfully drink intoxicating liq-

uor with , @ prisoner under his charge.

—Drunk, prisoner found

134. In that | ,a prisoner, was, (at) (on heard)

, on or about w.:-- 19...., found drunk.

~ ae pete ~~

| 44a.

—Incapacitating oneself for performance of duties

through prior indulgence in intoxicating liquors

185. In that ......2....... was, (at) (on boatd) 5

_. dulgence in intoxicating liquor, incapacitated for the a

_ performance of his duties. —

Drugs, habit forming, or marihuana:

‘ —Wrongful possession _

136, In that. id, (at) (on board) eeeeceeenn 5

‘on or about ..... 19...., wrongfully have in his pos-

session .-++e02 OuNCeS, More or less, of (a habit form-

_dng narcotic drug, to wit: ....... ...) (marihuana). ,

—Wrongful use . : a .

137. In that — did, (at) (on board) ..:...........:....- y

- on-or about s-cesees--- 19...., wrongfully use {a habit form-

ing narcotic drug, to wit: ......) (Marihuana).

' False or unauthorized pass, making, ete.

138. In that .................. did, (at) (on board) CROAT ;

on or about. 19..:. - were {and falsely

(make) (forge) (alter by ) (counterfeit), (tam-

per With DY .ceoZecccceee w...)] [sell to : ] [give to

RACAL aonb ] F(use) (have in his possession) with intent

to (defraud) (deceive)] (a eertain instrument purporting

tobe) (a) (an) (another’s) (naval) (military) (official)

(pass) (permit) (discharge certificate) ( | ) in

. words’ and figures as follows: ..: , , [he, the ‘said.

| eiacgieadiamsaniiies , then well knowing the same to Wve (false) (un-..

sittitae’) cs a a

ower ail aaOees

;

_ False swearing

139. In that ee: sbabiisl —— (at) (on enh. 7 ‘s

on or about AE ...y (in ari affidavit) Gin} his testi-_

* mony before a court-martial at the trial of

statement in substance 'as follows: .... » Which state-

ment he did not then believe to be true.

Firearm, discharging :

—Through carelessness ae ’ aes

140. In that ; sevseseeeeeeee Gid, (At) (on board) . é

on or about ....... 19...., through carelessnéss, dis-.

| - charge a (service rifle) sae istlicnigass ) in the (squadroom)

(tedit) getacis ( — compartment) (..........5.:......)

I cccenass ; : Re

—Willfully, under. such circumstances as ve endanger life -

141. In that :.... did, (at) (on board). m nage

on or about -. me 19... .; wrongfully and willfully dis-

> charge a firearm, to wit: Sood (in the mess hall of

) ( ; , under circumstances such as to

endanger human life. Tac ,

_, Fleeing seene of accident . ce

142. In that ....... iaieaalitat ..., being (the ‘driver of) (a pas-

‘senger’'in) (the senior dilieer in) a vehicle at the time of

(an accident) (a collision), did, at .:.... , on or about

of the (accident) (collision) without [rendering assistance

said vehicle] —" his’ identity known].

\. .

, eg

| ) (in wee) WFongfully and unlawfully.

(make) (subscribe) under lawful (oath) (affirmation) a

46a .

| Gambling with subordinate

143. In that (Sergeant) (........: ) .w.... (, boat-

swain’s mate, first élass, U. S. Navy,) (, .-), did, .

(at) (on board) 3..........c.c<70-- , on or about . "719... ,

gamble with (Private) (....... -) .. (, Seaman

apprentice, U. S."Navy) (, )s «

~ Homicide, negligent

144. In that .................... did, (at): (on board) ,

on or about 19...., unlawfully kill . ; ;

[by negligently ..... the said .... ..-- (in). (on)

the vesseeee. With a ] [by driving a (motor

vehicle) (..2.:.2...........) against the said. si aaus anew

negligent manner] [... ain 8 a,

Impersonating an officer, ete.

‘145. In that ....... did, (at) (on board) sues’

on or- about ..............:.... 19..:.,.wrongfully and unlawfully

impersonate an [(officer) (warrant officer) (noncommis-

_sioned officer) (petty officer) (agent or superior authority)

of the (Army) (Navy) (Marine Corps) (Air Force) (Coast

- »Guard)] [an official of the Government of - ]}: by.

[publicly wearing the uniform and insignia of rank of a

(lieutenant of the ees )] [showing the

credentials of ia ee ] (with intent to de-

fraud : by ). eens

Indecent acts. with a child Z ye : |

aie, 146. In that .. .... did, (at) (on board) ae

on or about ......, . 19...., [take (imméral) (improper)

(indecent) liberties with] [commit a (lewd) (lascivious) act

(upon) (with) the body of] ..---- » & (feniale) (male)

47a

| under sixteen years of fige, by [fondling (her) (himy and

placing his hands upon Ther) (his) leg and private parts]

i lanceasisiaaeassat ], with intent to (arouse) (appeal to) (gratify)

the (lust) (passions) (sexual desires) of the said ............ F

pees and oan |

Indecent exposure | |

:: 447. In that ........... did, (at) (on board) Sy?

on or about . ..-- 19...., While (atsa barracks window)

IDO ): willfully and wrongfully expose in an inde-

cent manner to public view his

Indecent, insulting, or obscene language communicated by

_ a male to a female

a 148. In ee did, (at) (on Board) , ,

on or about , -19....,_(orally) (in writing) com-

municate tO ..........-.-+--+--- , a female, certain (indecent) (in-

sulting) capaci language, to wit:

Indecent, lewd os with nd

7 149. * | Reon _.. did, (at) (on saci | ‘.

on or about .............-....:. 19...., wrongfully commit an inde-

cent, lewd, and lascivious act with ...... by

Loaning money at. usurious rate

150. In that .. (, for and in behalf of one ........ |

vusteeery) Gid, (at) (on board) | -, ON Or about.

shnetascniiilas 19...., loan to $ , under .

an agreement “née Be IE aoesigtness , Was to re-’

ceive for the use of said money for ..... ... (ionths)

(days) [interest at the rate of acess’ PEF cent per -

Oe ee ee

48a:

(annum) (month) ] [the sum of $ | ], thereby (de-

manding) (receiving) (demanding and receiving) an usuri-

' ous and unconscionable rate of interest for said loan. -

}

;

Mail, taking, opening, etc.

151. In that .................... did, (at) (om board) ......-..----0+---- :

OE OE IE cncieccteenstiemncee 19...., wrongfully and unlawfully

~ take (a) certain [letter(s)] [postal card(s) ]/[package(s) ],

addressed: to ............ , [out of the (x............... Post

. Office .. .) (orderly room of ) (unit mail

gt OL, cee )] [from -.... 2] be-

fore (it) (they) (was) (were) - (delivered) (actually re-

ceived) (to) (by) the person(s) to whom (it) (they) (was)

(were) directed, with design to [obstruct the correspond-

ence] [pry into the (business) (secrets)] of

152. In that :.... did, (at) (on board) ......... -

OE I cicecicrirnee 19...., [wrongfully and unlawfully

(open) (secrete) (deotvos)} [steal] (a) certain Letter(s)

[postal card(s)] [package(s)], addressed to ’

which said [letter(s)] [ ] [(was) (were) then

_ [in the (., Cae: |” ) (orderly room

me “=.)] [on the (bunk of )

( ).]], [had previously been committed to ............

for the transmission of communications,] before said [let- —

. ter(s)] [. ] (was) (were) (delivered) (actually

received) (to) (by) the person(s) to whom (it) (they)

| (was) (were) directed.

Mails, depositing, etc., obscene matter in .

153. In that did, (at) (on board)

_on or about esos 19...., wrongfully and knowingly

49a

(deposit) ‘ae to be deposited) in the (United States)

& cctngeeesemeniens ) mails, for mailing and delivery to :

a (letter) (picture) ( ) (containing) (portray-

ing) (suggesting) ( ) certain obscene, lewd, and

lascivous matter, to-wit:

Misprision of felony

; = > So , having knowledge that ....... dace

Siieeiad had actually eomuaiel a felony (at) (on board) ........

‘jiaieaias , on or about .....:..:........... 19...» to wit: (the ‘murder -

of | ee )s did, iva | AEC rer

19... to about ..... 19...., wrongfully and unlawfully

conceal such felony and fail to make the same” known ‘to

the civil or military ae.

Nuisance, committing

155. In that................. did, (at) (on board) ’

_ on or about ....... 19...., wrongfully (urinate) (defe-

Bene ) [on the floor of the squadroom] [on the

(deck) (bulkhead) of ..... iD Ras powers de

Pandering 4

156. in that . ; did, (at) (on board)-... Sy

‘on or about : 19...:, wrongfully and unlawfully |

[ (compel) (induce) (entice) loreours}) [attepppt to (com-

pel) (induce) (entice) (procure) ] to engage in

(acts of prostitution) (sexual intercourse for hire and re-

ward) with persons to be directed to (him) (her) by the

said ,

157. In thet —...... did, (at) (on board) nnn ,

on or about 19...., wrongfully and unlawfully

[receive valuable consideration, to. wit: .. , on

e o0a

account of arranging for] [arrange gb Sees ) (un-

named persons) to engage in (sexual intercourse) (sodomy)

SE siceecienadnesonies »(a prostitute) (................ ).

Parole, violation of

158. In that - pricariabtgiaiahiniia , @ prisoner on parole, did, (at)

(on board) . wemevivtecpiumit » GR OF Ghent ..... a 19.... ; vio-

late the conditions of his parole by ................-..: a

Perjury, statutory

BNO GIO saenceicceacdietten , having taken a lawful oath [in

_ a proceeding before (a board of officers) (a court of in-

- quiry) concerning .................... ] [upon the making of an

affidavit as to ...................] [ ], a case in which a —

law. of the United Statés authorized an oath to be adminis-

tered, that [he, the said , would (testify) (de-

clare) (depose) (certify) truly] [a written (declaration)

(deposition). (certificate) subscribed by him was true], did,

(at) (on board) ...:.:...... , on or about ...« ae

willfully and contrary to such oath (state) (subscribe) a .

material matter, to wit: , which matter he did

not then believe to be true.

Norte.—If the matter falsely stated or subscribed under lawful oath is -not

‘. material, the offense woe be charged as false swearing.

Perjury, subornation of

160. In that did, (at) (on board) ................... >

on or about ....... PBs 19...., procure .... to com-

. mit perjury by-inducing him, the said ....... ...., to take’

a ‘lawful (oath) (affirmation) in a (trial. by

court-martial of ) (trial by a court of competent

jurisdiction, to wit: — aa ) (deposi-

‘tion for use in a trial by . of | ae

dla

Erica ) that he, the said , would (testify) (de-

pose) ( ) truly, and to (testify) (depose) (-.......

Popes ....) willfully, corruptly, and’ contrary to such (oath)

(affirmation) in substance that sevseeweeesre 9. Which (testi-

mony) (deposition) ( ......) Was upon a material mat-

_ ter and which the said and the said

did not then believe to be true. | |

_ Prisoner, allowing to do unauthorized act

161. In.that - , (a sentinel) (overseer) (........

Ponte ea ..) in charge of prisoners, did, (at) (on board) -......._

reek eke , on or. about eesseieeee 19...., Wrongfully allow |

Y , , @ prisoner under his charge, to [(go to) (en-

ter) (go to and enter) an unauthorized place, to wit: -......

Fie el oa ] ((hold unauthorized conversation with )

(loiter) (negleet his task by .............----.-- ) (obtain intoxicat-'.

ing liquor) ( am iF

Public record,, eel mutilating, ete.

162. In that “ (at) (on board) :

on or about ; , willfully and caleutaliy *

[(conceal)- (remove) rr (obliterate) (destroy) }

: [appropriate with intent to (conceal) (remove) (mutilate)

(obliterate) (destroy)] a public record, to wit: [the (de-

scriptive list) (rough deck log) (quartermaster’ . note book)

of 1 { . ].

Quarantine, medical, breaking

163. In that .......-, having been duly placed in

medical quarantine (in the isolation ward, .... Hos-.

> RRR ), did (at) (on board) ...,...............- , OM OF

52a

. Refusing, wrongfully, to testify

i ee eee , being it in the présence of a

[ (general) (special) everiahavtial [duly appointed board —

~ Of officers] [ ] of .the United States, of which

paledlidealaas was (law officer) (president) ( ‘eee (and

having been: directed by the said .. to qualify as

a witness) (and having qualified'as a witness and having

been directed by the said to answer the follow-.

ing quuestions put to him as a witness, “ a

(at) (on board) , on or about 19...

wrongfully refuse (to qualify as a witness) (to answer

. Said questions). ! :

Restriction, breaking

165. In that , having been’ duly restricted to _

the limits of , did, (at) (on board) Ssiitions

on or about 19...., break said restriction.

Sentinel, lookout, offenses. against and by

166: In that | | - (at) (on board) P

on or about ...» [(attempt) (threaten) to]

(unlawfully strike) (estas “ » a (sentinel)

(lookout) in the execution of his duty, ead (on) the

| ] with (a) (his), :

167. In that wen @ prisoner), did, (at) (on

board) ... .-, ON Or about 19...., wrong-

- fully [use the following (threatening) (insulting) (threat-

ening and insulting) language] [béhave in an (insubordi-

nate) (disrespectful) (insubordinate and disrespectful)

manner] toward .. , @ (sentinel) (lookout) in the

. execution of his duty, [“...... »” or words to that

| a [by , ].

53a

168. In that ‘, while posted as a (sentinel)

(lookout), did, (at) (on board) , on or about

19...., (loiter) (wrongfully sit down) on his

post.

Stolen property, knowingly receiving - |

169. In that .. eee Cid, (at) (on board) .......: :

om or about ...... 19...., unlawfully (receive) (buy) .

(conceal) . , of a value of about $................, the

property of » which property, ‘as he, the ald

, then well knew, had been stolen.

Straggling : | :

170. In that .... did, at : , on or about

19...., while accompanying his organization on

(a practice march) (maneuvers) ( ), without

just cause, straggle.

‘Threat, mania

171. In that ars. did, (at) (on board) ..... re

on or about : 19...., wrongfully communicate to

a threat to (injure .... by =

(accuse .... woke OF having committed the offense of

A eS ee ne) ( “i mee aa

- Unclean accouterment, arms, ete.

172. In that...., was, (at) (on board) ,

on or about 19...., found with an unclean (rifle)

(uniform) ( . ); i. being at fault in failing to

maintain such property in a clean condition.

54a af

- Uniform, unclean, improper, appearing in

173. In that | did, on or about .......... ie etl

19...., wrongfully appear (at) (on board) seseeeereee (With-

OR cass ....-) (in an unclean wweceee) (With an

unclean bah BRT ).

Unlawful entry

iM net... did, (at) (on board) o.com,

on or about .,.....@........19...., unlawfully enter the (dwelling

. house) (garage) (warehouse) (tent) (vegetable garden)

(orchard) (stateroom) ( ) of

Weapon, concealed, carrying

' 175. In that did, (at) (on board)

on or about 19...., unlawfully carry a concealed

weapon, to wit: a cee

Wearing unauthorized insignia, ete.

176. In that ieeesees Cid, (at) (on board) ..:,.2.c-cé.--- y

on. or about .................... 19...., wrongfully and without au-

thority wear upon his:(uniform) (civilian clothing) [the

insignia of grade of a (master sergeant of ........................ ).

(chief gunner’s mate of a )]. [the Combat In-

fantryman Badge] [the Distinguished Service Cross] [the

ribbon representing the Silver Star] -[the lapel button

' . representing the Legion of Merit] C. TEEN ].

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.