Opposition Brief — Lebron v. Secretary of the Air Force

INDEX

Page

GS BEI oecccecencecenesinissnittnnsmpeiiiaan l

PUTIN sronscecscsensersscoatsdisiiguiniadsia l

dg I

III acecccencsceseisensonsiesiiscodaiaigummmdatiia nn 2

FOI cnccccscnnscsnersiscsicncocassisinimmsiaa ne 3

IID accnccnscnsnencistnsitcindncebiieasummmia mae 1]

CITATIONS

Cases:

Apodaca v. Oregon, 406 U.S. 404 20000000 7

Burns v. Wilson, 346 U.S.137 ooo. 5

Committee for GI Rights v. Callaway,

FOO PDD cvcccssnsnisiensnia en 5

Diorio v. McBride, 431 F.2d 730 «0.000 4

Grafton v. United States, 206 U.S. 333... 3

Greer v. Spock, No. 74-848, decided March 24.

FTP <nneassssisimansiiincntabtsipdemenasiaissien en 5

Jackson v. Taylor, 353 U.S. 569 .......... 10-11

Johnson v. Louisiana, 406 U.S. 356 |... 6-7

Kahn v. Anderson, 255 U.S.1 oooccccccccccccc- 6

Middendorf v. Henry, No. 74-175, decided March

iy PEEP nicnniactenectenicacehinnpadageaedee a 5

O'Callahan v. Parker, 395 U.S. 258 ......... 6

Parker v. Levy, 417 U.S. 733 ............................ 4.5

Peterson v. Goodwin, 512 F.2d 479. certiorari

Cet, 4 SS OS ns 4

Quirin, Ex parte, IT US.OV cocccccccccccccecececcc 6

Relford v. United States Discliplinary

Commandant, 401 U.S. 355 ooocccccceccccccceeccce 4

Schilder v. Gusik, 195 F.2d 657, certiorari

ste ciation 6

Schlesinger v. Councilman, 420 U.S. WE deities 4,5

United States v. Beeker, 18 U.S.C.M.A. 563... 4

United States v. Greene, 20 U.S.C.M.A. 232 6

United States v. Hartsook, 15 U.S.C.M.A. 291... 6

United States v. King, 36 C.M.R. 929. petition for

review denied, 36 C.M.R. 541 oo. 6

United States v. Mac Farland, 19 U.S.C.M.A.

UEP inuineiasnenaninntin aoe en hts 6

United States v. Rogers, 388 F. TD. BO oonsccesisess 6

Wallis v. O’Kier, 491 F.2d 1323, certiorari denied,

a Sg a TN I 6

Whelchel v. McDonald, 340 US. MD tsebonictenntaddieiea 6

Constitution and statutes:

United States Constitution:

sng Shy, SRO Oa ON an Ae 6

WUE FUMING a cascosescemcess sacs. 5

Sixth Amendment .0....0.0...ccccceccccccecececss. 6, 7

Uniform Code of Military Justice, as

amended, 10 U.S.C. 801 e7 seq.:

Article 1(9), 10 U.S.C. SSR ae 8

Article 22(b), 10 U.S.C. 822(b) oo... 8

Article 52(a)(2), 10 U.S.C. a 6

il

BLEED THROUGH

wee

Article 63(a), 10 U.S.C. 863(a) oo..cccccccccceee. Y

PURE GR, GB G.I. GID crvvcisncssenscvecctdccsesaenass 10

Article 66(b), 10 U.S.C. 866(b) ........................ 2

Meee, WSL. OF 2

Pe Fa, TUBE. GF isco 7

Partecde 02B, 10 U.S.C. GBB oocccccscsccccceececsosses. 3

Article 134, 10 U.S.C. 934 ooo ee

GP Betas WTI sinateteithocsaselsscdsiasissdinebicacarceeccc.c 3

Miscellaneous:

Henderson, Courts- Martial and the Constitution:

the Original Understanding, 71 Harv. L. Rev.

PEE satiate te oes kb A 7

Manual for Courts- Martial (1969 ed.) ........ 4,7. 8,9

Mover. Justice and the Military (1972 ed.) ............ 6

Schiesser, Trial by Peers: Enlisted Members on

Courts- Martial, 15 Catholic U. L. Rev. 171

PO sisvmtstinncsbuavnetkaeminteicalbiae alesis 7

iil

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1043

Luis A. LEBRON, JR.. PETITIONER

v.

UNITED STATES SECRETARY OF THE AIR FORCE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

CNITED STATES COURT OF A PPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The memorandum opinion of the court of appeals (Pet.

App. B) is unreported. The opinion of the district court

(Pet. App. C) is reported at 392 F. Supp. 219. The opinion

of the Court of Military Review is reported at 46 C.M.R.

1062.

JURISDICTION

The judgment of the court of appeals (Pet. App. A) was

entered on November 25, 1975. The petition for a writ

of certiorari was filed on January 23, 1976. The jJuris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether Article 134 of the Uniform Code of Mili-

tary Justice prohibits the possession and use of heroin on

a military base.

(1)

2

2. Whether the search of petitioner's person and prem-

ises Violated the Fourth Amendment to the Constitution.

3. Whether Article 52(a)(2) of the Uniform Code of

Military Justice, which permits conviction by two-thirds

vote of a court-martial, violates the Sixth Amendment to

the Constitution.

4. Whether petitioner was denied due process of law

when his motion for a new trial was considered by the

convening authority and the Court of Military Review,

rather than by the court-martial.

STATEMENT

1. In January 1971, petitioner, an airman in the United

States Air Force, was convicted by a general court-martial

of use and possession of heroin at Keesler Air Force Base,

in violation of Article 134 of the Uniform Code of Mili-

tary Justice (10 U.S.C. 934), on the basis of evidence

seized from his person and premises by military police

acting pursuant to a search warrant. He was sentenced to

six months’ imprisonment, forfeiture of pay. and reduction

in rank. The conviction was affirmed by the convening

authority and by the Judge Advocate General (C.A. App.

37a-38a).' Petitioner completed service of his sentence on

June 17, 1971.

“CA. App.” refers to the appendix in the court of appeals. a copy

of which ts being lodged with the Clerk of this Court. Articles 66(b)

and 69 of the U.C.M.J. (10 U.S.C. 866(b) and X69) provide that

court-martial convictions in which the sentence imposed does not

include confinement for more than one year or a bad conduct dis-

charge are not reviewed by the Court of Military Review unless.

after examining the record, the Judge Advocate General so directs

or finds the conviction or sentence unsupported in law. Here. the

Judge Advocate General found the conviction supported in law and

did not direct review by the Court of Military Review (CA. App.

38a). Petitioner did not request further review by the Judge Advocate

General on the basis of the errors alleged in the petition, as he could

have done under Article 69.

REI EIT, ELOISE AL ALO I EY ITI IORI AN A RO.

> BLEED THROUGH

3

2. In December 1971. in an unrelated proceeding,

petitioner was convicted by a general court-martial of

aggravated assault upon a fellow airman at Keesler Air

Force Base. in violation of Article 128 of the U.C.M.J.

(10 U.S.C. 928). He was sentenced to three years’ imprison-

ment. forfeiture of pay, and a bad conduct discharge.

The conviction was affirmed by the convening authority

and by the Court of Military Review. Petitioner’s appli-

cation for review was denied, without opinion, by the

United States Court of Military Appeals (46 C.M.R.

1323). Petitioner served 15 months in prison and was dis-

charged trom parole on February 5, 1974.

3. In December 1973, petitioner sought habeas corpus

reliet from his convictions in the United States District

Court for the District of Columbia. Because petitioner

was on parole at that time in the Southern District of

New York, the complaints were transferred pursuant to

28 U.S.C. 1404(a) to the district court in that district.

which granted the government’s motion for judgment on

the pleadings and dismissed the complaints (Pet. App.

C). The court of appeals affirmed in a memorandum

opinion (Pet. App. B).

ARGUMENT

|. Petitioner contends (Pet. 9-10) that Article 134

of the Uniform Code of Military Justice, the so-called

“general article.” does not apply to narcotics offenses

committed on a military base. Article 134 prohibits,

inter alia, “all disorders and neglects to the prejudice

of good order and discipline in the armed forces * * *

and crimes and offense not capital.” not specifically

proscribed by any other article. Since possession and use

of heroin are “crimes and offenses” that are not expressly

prohibited by another article, they fall within Article

134. Cf. Grafton v. United States, 206 U.S. 333, 348.

4

This conclusion is supported by the Manual for Courts-

Martial, 1969 (Rev. ed.), which states in two separate pro-

visions (para. 213(b); App. 6c-22) that the possession

or use of “habit-forming narcotic drugs” is punishable

under Article 134.

Moreover, the Court of Military Appeals has held

that the use and possession of narcotics “by military

persons is a matter of immediate and direct concern

to the military as an act intimately concerned with prej-

udice to good order and discipline * * * of the armed

forces.” United States v. Beeker, 18 U.S.C.M.A. 563.

565. Such offenses have special military significance

because of the “disastrous effects” of narcotics “on

the health, morale and fitness for duty of persons in

the armed forces.” /d. at 565. See also Schlesinger v.

Councilman, 420 U.S. 738, 760-761, n. 34. Consequently,

civilian courts have upheld convictions for narcotics

offenses under Article 134. See. e.g., Peterson v. Good-

win, 512 F.2d 479, 480 (C.A. 5), certiorari denied, 423

U.S. 931: Diorio v. McBride, 431 F.2d 730 (C.A. 5).

Finally, there is no support for petitioner’s claim that

Parker v. Levy, 417 U.S. 733. which upheld the consti-

tutionality of Article 134 on its face and as applied

to “aspects of the conduct of members of the military

which in the civilian sphere are left unregulated” (417

U.S. at 749), intended to limit the scope of the Article to

conduct that was “peculiarly military.” Not only did the

Court note in Parker that portions of the Manual for Courts-

Martial “describe more than sixty illustrative offenses”

under Article 134 (417 U.S. at 753)—including, as noted

above, narcotics offenses—but also Mr. Justice Blackmun,

in a concurring opinion, expressly mentioned the use of

narcotic drugs as being within the scope of the Article.

417 U.S. at 763. See also Relford v. United States

Disciplinary Commandant, 401 U.S. 355, 362-369.

, BLEED THROUGH

5

2. Petitioner contends (Pet. I1) that the search of his

person and premises, which produced evidence of the

narcotics offense, violated the Fourth Amendment. be-

cause, although the warrant authorizing the search was

issued by the Vice Commander upon probable cause, it

was supported by unsworn statements of an Air Force

special agent. This Court, however, “has adhered uni-

formly to ‘the general rule that the acts of a court martial.

within the scope of its jurisdiction and duty, cannot be

controlled or reviewed in the civil courts * * * 2”

Schlesinger vy. Councilman, supra, 420 U.S. at 746.

Since the error alleged by petitioner would not render

his conviction void “because of lack of jurisdiction or

some other equally fundamental defect.” id. at 747. the

claim is not cognizable on collateral attack. Moreover.

petitioner’s claim was given full consideration by the

military courts (see Pet. App. 7a). See Burns v. Wilson.

345 U.S. 137, 144.

In any event, petitioner’s contention is insubstantial.

Although a person does not surrender his constitutional

rights when he enters the military, “the different char-

acter of the military and of the military mission requires

a different application of those protections. The fundamen-

tal necessity for obedience, and the consequent necessity

for imposition of discipline, may render permissible within

the military that which would be constitutionally imper-

missible outside of it.” Parker v. Levy, supra, 417 U.S.

at 758. See also Greer v. Spock, No. 74-848. decided

March 24, 1976; Middendorf v. Henry, No. 74-175,

decided March 24, 1976: Committee for G1 Rights

Vv. Callaway, 518 F.2d 466, 474-477 (C.A. D.C.). In view

of the substantially lesser expectation of privacy in the

armed forces and the compelling necessity for base

commanders to be able to authorize inspections of persons

and places under their control, there is no requirement

a

6

that search warrants be supported by affidavits. See

Wallis \. O'Kier, 491 F. 2d 1323 (C.A. 10). certiorari

denied. 419 U.S. 901: United States \. Rogers, 388

F. Supp. 298, 304 (E.D. Va.). The standard of rea-

sonableness certainly is satisfied if. as here. the search

Warrant Is issued upon probable cause. it specifically

describes the objects to be seized. and it is approved

by an officer who “stands in the same relation VIS-a-VIS

the investigating officer and an accused as the Federal

magistrate.” United States v. Hartsook, 15 U.S.C.M.A.

291. United States v. McFarland. 19 U.S.C.M.A. 356:

United States v. King, 36 C.M.R. 929. 934). petition

lor review denied. 35 C.M.R. 541. See Moyer, Justice

and the Military, Section 2-113 (1972 ed.).

3. Petitioner contends (Pet. 10-11) that his assault

conviction violated the Sixth Amendment because Article

52(a)(2) of the U.C.M_J. (10 U.S.C. 852(a)(2)) provides

that in all miluary trials. with the exception of those in

Which the death penalty is mandatory, conviction may be

rendered with the concurrence of two-thirds of the mem-

bers of the court-martial. Article 52 a)(2), however. is a

proper exercise of the power of Congress “to make

Rules for the Government and Regulation of the land

and naval Forces” (Constitution. Art. I, $8. cl. 14)

and is fully consistent with numerous decisions of this

Court that servicemen are excluded from the constitutional

right to trial by jury. See, e.g., O'Callahan v. Parker,

395 U.S. 258. 263: Whelchel v. McDonald, 340 U.S.

122, 126-127: Ex parte Quirin, 317 U.S. 1, 40-41:

Kahn vy. Anderson, 255 U.S. |. 8: see also Schilder

Vv. Gustk, 195 F.2d 657 (C.A. 6). certiorari denied, 344

U.S. 844; United States v. Greene. 20 U.S.C.M.A. 232.

Indeed. even in civilian courts unanimous jury verdicts

are not a requirement of due process. Johnson y.

|

:

:

Louisiana, 406 U.S. 356; Apodaca vy. Oregon, 406 U.S.

404.°

4. Petitioner contends (Pet. 8-9) that he was denied

due process of law on his assault conviction because

the Uniform Code of Military Justice does not provide

for consideration of a new trial motion by the court-

martial. But there is no constitutional requirement that

such motions be heard by the trial court. and Congress

has enacted alternative procedures for the military,

in full accord with due process. by which such motions may

be heard by neutral authorities empowered to grant

relief. Under Article 73 of the U.C.M.J. (10 U.S.C. 873),

new trial motions may be made within two years after

approval of the conviction by the convening authority.

If the case is pending before either the Court of Military

Review or the Court of Military Appeals, the motion is

heard by the appropriate court; otherwise. it is acted

upon by the Judge Advocate General. Manual for Courts-

Martial, para. 109. Although there is no formal procedure

for making such motions before affirmance by the con-

vening authority, as a practical matter the convening

authority may consider such new evidence as a defendant

may call to its attention. Moreover. as the procedures

set forth below demonstrate, the convening authority

“Although Mr. Justice Powell, concurring in Apodaca. stated

that jury “unanimity is one of the indispensible features of

federal jury trial.” he was obviously referring to civilian jury

trials, Which are governed by the Sixth Amendment. History clearly

indicates that military courts. established under Article | rather

than Article HI of the Constitution, are not within the jury-trial

provisions of that} Amendment. See Schiesser. Trial by Peers:

Enlisted Members on Courts-Martial, 18 Catholic UL. Rev. 171

(1966). Henderson, Courts-Martial and the Constitution: — the

Original Understanding, 71 Harv. 1. Rev. 293 (1957).

acts as a neutral reviewing officer and not as “a charging

party.”

Following a military conviction, the trial record is

forwarded to the convening authority for review. Before

acting on the record, the convening authority is required

to refer it to the staff judge advocate (who must be

an attorney who has not previously participated in the case)

for review and advice. /d. at para. 85a. Although the con-

vening authority normally follows the recommendation

of the staff judge advocate (and must set forth any reasons

for departing from the action recommended. id. at para.

8Sc). it cannot merely rely upon that recommendation.

The convening authority must undertake an independent

review of the record, which may include weighing evidence.

judging credibility of witnesses. and determining contro-

verted questions of fact: the conviction cannot be affirmed

except upon a determination that the finding of guilt

Was established beyond a reasonable doubt by competent

evidence of record. /d. at para. 87a(3).

If the convening authority determines that an error

Was committed by the court-martial. the conviction may

not be approved unless it concludes that a court of

reasonable and conscientious persons would have reached

the same result in the absence of the error: the

conviction also may not be affirmed if the error was

so flagrant a violation of fundamental rights as to

deprive the defendant of a fair trial. /d. at para. &7c.

Finally. while there is no formal procedure for pre-

senting a motion for a new trial on the basis of newly

discovered evidence to the convening authority, it may

\ commanding officer who iy an “accuser.” as defined in

Article 19) of the LLC MU (10 USC. 80109), may not convene

a court-martial. Article 2266). UCM. (10 U S.C. 822 (b)): Manual

for Courts- Martial. para. a3) and (4).

EG SL A ORT i a et ee eee

, BLEED THROUGH

9

disapprove a conviction on the basis of matters outside

the record. although it may not consider such matters

in approving the conviction. /d. at paras. 85b. 87a(3).

If the conviction is disapproved, the convening authority

may order a new trial or dismiss the charges. Article

63(a), U-C.M.J. (10 U.S.C. 863(a)).

In accordance with these procedures, petitioner received

full and fair consideration of the matters raised in

his motion for a new trial by both the convening authority

and the Court of Military Review. The careful review

of petitioner's motion by the convening authority is set

forth in the opinion of the Court of Military Review

(46 C.M.R. at 1065):

Following trial, but before action on the record

was taken, an attorney retained by the accused's

family submitted to the convening authority an

affidavit by a former airman named Gill. In the

affidavit, Gill admitted to doing certain acts which

would, if true, make him guilty of the crime charged

against the accused and completely exonerate the

accused. The attorney referred the convening author-

ity to paragraph 85b of the Manual for Courts-

Martial. 1969 (Revised edition), which deals with the

staff judge advocate’s evaluation of the findings in

his review, and “to the spirit of Article 73, UCMJ”.

which deals with petitions for new trial. In addition.

he asked that the accused not be reassigned “until

this matter has been thoroughly explored and a

decision made.”

Although the staff judge advocate proceeded to

prepare a review, the convening authority deferred

taking action on the record. and caused the Office

of Special Investigations to investigate the matters

presented him by the accused's counsel. Upon comple-

tion of the investigation, the staff judge advocate

10

in a supplemental review. carefully examined the

results of the investigation, and analyzed the

affidavit, together with certain verbal statements

made by Gill to the investigators. Also considered

in the evaluation of Gill’s affidavit and oral state-

ments, were laboratory tests conducted in the course

of the post-trial investigation. As a result. the staff

judge advocate concluded the discrepancies in Gill's

statements, when compared with laboratory tests, and

the evidence presented at trial, justified the conclusion

that Gill was not confessing to the crime of which

the accused had been convicted, and recommended to

the convening authority that he act on the record.

Though not spelled out, it is obvious that he urged

approval of the findings and sentence, as he had

done at the time of the original review. This was done.

The Court of Military Review itself also fully con-

sidered Gill's alleged confession and concluded that the

petition for a new trial should be denied. 46 C.M.R.

at 1067-1068.4

In sum, the procedures provided for new trial motions

after court-martial convictions are fair and reasonable.

There is no support for the proposition that such motions

must be considered by the trial court, nor would such

a rule be feasible in the military, since “{a] court martial

has neither continuity nor situs and often sits to hear

only a single case.” Jackson v. Taylor, 353 U.S. 569,

579. The courts below therefore correctly concluded that

petitioner was not deprived of due process of law.

*Review by the Court of Military Review also is plenary and is

not limited to questions of law. Article 66, U.C.M_J. (10 U.S.C. 866).

That court also may order an investigation if appropriate. Manual

for Courts- Martial. para. 109.

ee Be SECT YET ENR PS NE ie RNS ret RAT:

» RI crn THR COWIGCWN

CONCLUSION

It is respectfully submitted that the petition for a

writ of certiorari should be denied.

Ropert H. Bork.

Solicitor General.

RICHARD L. THornpurGH.

Assistant Attorney General.

Jerome M. Fert.

Marc Puitie RicumMan.

Attorneys.

May 1976.

DOJ-1976-05

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