# Petition for Writ of Certiorari — Levy v. Resor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1060%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 389 U.S. 1049 ## Text 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 ee ’ & ° | 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 —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 a 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 © Sixth” Amendment 0 ceceennseeene By 4, 9, 12, 17, 19 | 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 \ Howarp Brett Levy, Petitioner, Ve 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 a “~~ 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: J 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 id . 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).]. 3) Ne 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). , oe 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. a 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.” - e 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 — J 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 : a “Before:’ s. dla. APPENDIX E. ~ f > ues - Opinion of the United States Court of ‘Appeals for the | District of Columbia Circuit. in Levy v. Corcoran _ UNITED STATES COURT OF APPEALS © 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. a = 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 i due course can present them to the Court of Military Ap- © 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 (1 ? 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 _bring discredit upon the armed forces, and crimes and of- © 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. ee 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 es inabsaRdSBIa de ete 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: - — 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 fer si She ... 19...., wrongfully and unlawfully leave’ the scene © of the (accident) (collision) without [rendering assistance © OP indians who: had been struck (and injured) by’ the said vehicle] —" his’ identity known]. \. . , eg | ) (in wee) WFongfully and unlawfully. (make) (subscribe) under lawful (oath) (affirmation) a Q 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 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 ccnditiativebeei ) (unit mail box of ....... Laiasioiaiians ) (custody of © me “=.)] [on the (bunk of ) ( ).]], [had previously been committed to ............ haesoncs » (a representative OP sient Sneaans ,) an official agency © 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 ot 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 about 19...., break said medical. quarantine. © 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 ]. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1060%3A1. Public record. Not legal advice.