Opposition Brief — Graf v. United States

No. 92-1102

In the Supreme Court of the Guited States

1, 1992

OQCTOBER TERM

RONALD D. GRAF. PETITIONER

UNITED STATES OF AMERICA

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WRIT OF CRERTIOK

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Mii.ti cilia

ON PETITION FOR

LO THE UNITED STATES COURT O}

BRIEF FOR THE UNEPED STATES

IN OPPOSTTION

THEODORE G. Hes

C‘olone /. USMC

LAWRENCE W. MUSCHAMP

! eulenanl Commande e JAGC, l SA

Appe Hate Government Counsel

Appellate Government Divi

NAMARA

Washington, D.C. 20275-1111

‘4

QUESTION PRESENTED

Whether due process requires that military judges

have a fixed term of office.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 8138 (1986) ........ )

Chandler v. Florida, 449 U.S. 560 (1981) ...................... 9

Chisom v. Roemer, 111 S. Ct. 2354 (1991) ..................... 7

Connally v. Georgia, 429 U.S. 245 (1977) «0.0... eee 9

Dennis v. United States, 339 U.S. 162 (1950) ................ &

Dowling v. United States, 493 U.S. 342 (1990) .............. 7

Frazier v. United States, 335 U.S. 497 (1948) ............. 9

Gibson v. Berryhill, 411 U.S. 564 (1978) .........0. ee. )

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) ................. 7

Herrera v. Collins, 113 S. Ct. 853 (1993) ....................... 6-7

Mathews v. Eldridge, 424 U.S. 319 (1976) .................... 6-7

Medina v. California, 112 S. Ct. 2572 (1992) ................. 7

Palmore v. United States, 411 U.S. 389 (1973) ............. 7

Parzer v. Levy, 417 US. Ta3 (1974) ..................0.....00008 7

Patterson. v. New York, 482 U.S. 197 (1977) ................. 7

Smith v. Phillips, 455 U.S. 209 (1982) ..................c.eeeee. 8

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............... 7

Toth v. Quarles, 350 U.S. 11 (1955) .............eeeeeeeeeeees beaces 7

Puemen ¥. Cte, BIS U.S. SEO CIBER) ..........0...00:s00rscecenees. 5.9

United States v. Lovasco, 431 U.S. 783 (1977) .............. 7

United States v. Wood, 299 U.S. 128 (1936) ................. 8)

Ward v. Village of Monroeville, 499 U.S. 57 (1972) ..... 5,9

(III)

IV

Constitution, statutes, and rules: Page

U.S. Const. :

Art. I:

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Uniform Code of Military Justice, 10 U.S.C. 801 et seq. :

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Art. 67, 10 U.S.C. 867 (1988 & Supp. III 1991) ........... 3

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Art. 142, 10 U.S.C. 942 (1988 & Supp. III 1991) ......... 3

Pe ee Se eee ee 7

Rule for Courts-Martial 503(b), Manual for Courts-

Martial, United States—1984 ..............cccccceecceeccceecceeees 10

Miscellaneous:

W. Winthrop, Military Law and Precedents (2d ed.

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In the Supreme Court of the Anited States

OCTOBER TERM, 1992

No. 92-1102

LONALD D. GRAF, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals, Pet. App.

la-42a, is reported at 35 M.J. 450. The decision of the

Navy-Marine Corps Court of Military. Review on the is-

sue raised in the petition, presented to that Court in the

form of a motion to disqualify, Pet. App. 44a-52a, is re-

ported at 32 M.J. 809. The subsequent opinion of that

court on the merits of petitioner’s assignment of errors,

Pet. App. 55a-62a, is unreported.

JURISDICTION

The judgment of the Court of Military Appeals was en-

tered on September 30, 1992. The petition for a writ of

certiorari was filed on December 29, 1992. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1259(3).

(1)

2

STATEMENT

Pursuant to a plea agreement, petitioner pleaded

guilty to 13 offenses under the Uniform Code ef Military

Justice (UCMJ), Articles 80, 81, 92, 107, 112a, 121, 130,

and 134, 10 U.S.C. 880, 881, 892, 907, 912a, 921, 930, and

934. Petitioner’s pleas encompassed two counts of con-

spiracy, one to commit espionage and one to commit

larceny; the violation of a general regulation governing

the safeguarding of classified materials; a false official

statement; two counts of attempted sale of aircraft parts;

three counts of larceny of a total of $151,350 worth of

aircraft parts, technical manuals and circuit boards;

housebreaking; and the willful destruction of a public

document.' Petitioner was sentenced to five years’

confinement, a dishonorable discharge, total forfeitures

of pay and allowances, a $100 fine, and a reduction to pay

grade E-1. In accordance with the pretrial agreement

the convening authority reduced the discharge to a bad-

conduct discharge, suspended forfeitures in excess of

$450 per month for three years, mitigated the fine to

equivalent forfeiture, and approved the remainder of

petitioner’s sentence as adjudged. On appeal, the Navy-

Marine Corps Court of Military Review affirmed the

findings and sentence as approved by the convening

authority. The Court of Military Appeals granted

review on two issues raised by petitioner and affirmed.

1. Military trial and appellate judges are part of a

comprehensive system of criminal justice established by

the Uniform Code of Military Justice. The Court of Mil-

itary Appeals sits atop the military justice system. That

| The pretrial agreement allowed petitioner to plead not guilty

to certain charges and in some instances to plead by exceptions and

substitutions to lesser included offenses. The agreement obligated

the government to dismiss the remaining charges with prejudice at

sentencing. Tr. 101.

3

court is composed of civilian judges appointed by the

President, with the advice and consent of the Senate.

The judges of that court hold office for a fixed term of

years and can be removed only on specified grounds.

Arts. 67 and 142, UCMJ, 10 U.S.C. 867 and 942 (1988 &

Supp. III 1991). Below that court are the courts of mili-

tary review and the trial judges. The Judge Advocates

General of the armed services’ are responsible for de-

tailing judges to sit at those levels of the military justice

system, in accordance with regulations adopted by the

Secretary concerned. Arts. 6(a), 26(a) and (c), and 66(a),

UCMJ, 10 U.S.C. 806(a), 826(a) and (c), and 866(a).*

Military trial judges and judges on the courts of military

review do not hold office for any fixed term. See

generally Pet. App. 14a-26a.

2. The offenses of which petitioner stands convicted

arose out of a casual conversation at a New Year’s party

between petitioner and two other men, Airman Appren-

tice Donald King and John LeBlanc. During the conver-

sation, petitioner and King claimed to be in a position to

steal aircraft parts from their duty station, the Naval

Air Station in New Orleans, Louisiana, because they

were employed in the supply section there. Unbeknownst

to petitioner and King, LeBlane was an undercover in-

formant working for the Naval Investigative Service

(NIS). The NIS decided to conduct a “sting” operation to

explore the significance of those remarks.

One month later, LeBlanc contacted petitioner to as-

certain whether petitioner “could still get parts off the

2 The Judge Advocates General are defined as “the Judge Ad-

voeates General of the Army, Navy, and Air Force and, except

when the Coast Guard is operating as a service in the Navy, the

General Counsel of the Department of Transportation.” Art. 1(1),

UCMJ, 10 U.S.C. 80101).

’ The above-cited provisions of the UCMJ are reprinted in the

addendum to the petition.

4

base.” Tr. 208. Assured that he could, LeBlanc gave pe-

titioner a list of stock part numbers corresponding to

classified circuit boards and other supply items. Peti-

tioner and King discovered that two of the listed parts

were available on the base. They obtained the parts by

creating a false requisition order. On February 27, 1989,

petitioner delivered the requested circuit boards to

LeBlanc and received $100. Before the circuit boards

were delivered, petitioner stole and delivered to LeBlanc,

apparently unsolicited, other aircraft parts.

In his subsequent confession to the NIS, petitioner

stated that he believed LeBlanc’s representations that

LeBlane was operating as a purchasing agent for “an

arms broker and that the parts he stole were going to

Iran.” Tr. 209. Other parts were solicited by LeBlanc

and procured by petitioner and King. Petitioner and

King expected to receive $8,000 for the delivered parts

and expected to negotiate a price for other stolen materi-

als at a planned March 3, 1989, rendezvous with the

fictional broker. At that meeting petitioner and King

were arrested. Petitioner confessed readily and claimed

that he had acted in order to extricate himself from a

$1,000 personal debt. /bid.

3. Because petitioner pleaded guilty, the trial judge’s

role was limited to inquiring into the providence of the

pleas and presiding over the voir dire of the court-

martial panel members, who determined the sentence.

Nonetheless, petitioner challenged the judge for cause,

claiming that due process was violated because the judge

lacked a fixed term of office. Pet. App. 5a-10a. The trial

judge denied petitioner’s challenge. /d. at 10a.

4. On appeal before the Navy-Marine Corps Court of

Military Review, petitioner moved to disqualify the

judges hearing his case on the ground that their lack of a

specific term of office deprived them of institutional in-

dependence. The court denied his motion. Pet. App. 48a-

5

52a. The court held that since the absence of tenure

cannot be equated with personal receipt of a direct finan-

cial benefit, the provisions in the UCMJ allowing mili-

tary trial and appellate judges to be reassigned on the

order of a superior officer are not unconstitutional under

Tumey v. Ohio, 273 U.S. 510 (1927), and Ward v. Village

of Monroeville, 409 U.S. 57 (1972). Pet. App. 47a-49a.

Moreover, the court held that military law has long

deemed command influence impermissible, but has also

required some showing of prejudice, not merely specula-

tion, to support a claim of bias. /d. at 49a-50a. Finally,

the court noted that tenure could not eliminate all risk of

command influence, because military judges would still

receive periodic fitness reports, which theoretically

could affect their military careers to a greater degree

than reassignment to other military duties. The court

therefore concluded that the absence of tenure is simply

a factor for the courts to consider in determining

whether command influence has prejudiced a defendant

in court-martial proceedings. /d. at 50a-52a.

The court of military review thereafter rejected peti-

tioner’s challenges to his convictions and upheld his

sentence. Pet. App. 55a-62a.

5. The Court of Military Appeals affirmed. Pet. App.

la-42a. The Court observed that, before 1968, the histor-

ical practice not only excluded any form of judicial

tenure for the presiding officer of a court-martial, but

dispensed with the judge as well, relying instead on

courts-martia] consisting of officers who were “advised

by civilian or military lawyers but not controlled by

them.” /d. at 38a. The court concluded that the lack of a

fixed term did not impair the ability of military judges to

carry out their duties impartially in light of other

guarantees of independence found in the Uniform Code of

Military Justice. /d. at 34a-39a.

6

ARGUMENT

Petitioner maintains that his court-martial and appeal

to the court of military review were fundamentally un-

fair, because the judges of those courts do not enjoy a

fixed term of office and can be reassigned to other mili-

tary duties by the Judge Advocate General based on his

evaluation of their performance as judges. The courts

below correctly rejected that claim, and their decisions

do not warrant review by this Court.

Nothing in the text of the Constitution supports

petitioner’s claim. Although the Constitution estab-

lishes terms of office for certain Officers of the United

States,’ it specifies no term for others, including officers

of the armed forces.

History likewise does not support petitioner’s argu-

ment. For more than 300 years, neither English nor

American military judges have enjoyed tenure in that of-

fice. W. Winthrop, Military Law and Precedents 179-

204 (2d ed. 1920); Pet. App. 33a-34a. The method of

assigning military judges permitted by the UCMJ there-

fore does not offend “some principle of justice so rooted

in the traditions and conscience of our people as to be

ranked as fundamental.” Medina v. California, 112 S.

Ct. 2572, 2577 (1992) (quoting Patterson v. New York, 432

U.S. 197, 202 (1977), and Snyder v. Massachusetts, 291

U.S. 97, 105 (1934)); Herrera v. Collins, 113 S. Ct. 8538,

864 (1993). This Court’s cases are consistent with that

* See U.S. Const. Art. I, § 2, Cl. 1 (Representatives hold office

for two years); Art. I, § 3, Cl. 1 (Senators hold office for six years);

Art. II, § 1, Cl. 1 (President and Vice-President hold office for the

same four-year term); Art. III, § 1 (“Judges” of the “supreme and

inferior Courts” hold office “during good Behaviour”).

5 Petitioner maintains that the test articulated in Medina should

not be applied in cases involving the federal government, because

federalism concerns are not applicable in that setting. He argues

that the three-part test used in Mathews v. Eldridge, 424 U.S. 319

7

conclusion. As this Court explained in Toth v. Quarles,

350 U.S. 11, 17 (1955): “[T]he Constitution does not pro-

vide life tenure for those performing judicial functions in

military trials. They are appointed by military comman-

ders and may be removed at will.” See also Palmore v.

United States, 411 U.S. 389, 410 (1973) (due process does

not require life tenure for judges).

Petitioner relies heavily on the fact that state court

judges generally hold a fixed term of office. Pet. 13-16.

But that does not help petitioner’s argument. Whether

elected or appointed, state judges are part of the State’s

political process. Cf. Gregory v. Ashcroft, 111 S. Ct. 2395

(1991); Chisom v. Roemer, 111 S. Ct. 2354 (1991). States

are free to select terms of office for persons who hold any

such position. The military, by contrast, is “a special-

ized society separate from civilian society.” Parker v.

Levy, 417 U.S. 733, 743 (1974). While military judges per-

form the same judicial responsibilities as their civilian

counterparts, they nevertheless are members of the

armed forces. Officers serving as military judges may be

reassigned in the same manner as other officers, as long

the procedure for making those transfers does not

violate servicemembers’ right to a fair trial.

(1976), should be used instead. Pet. 11-12. That claim is meritless.

The text of the Due Process Clause is the same in both the Fifth

and Fourteenth Amendments, so it would be anomalous to use a

different standard for each one. Moreover, in rejecting the

Mathews v. Eldridge test, the Court in Medina relied on Dowling

v. United States, 498 U.S. 342, 352 (1990), and United States v.

Lovasco, 431 U.S. 783, 790 (1977), both of which articulated a simi-

lar standard under the Fifth Amendment. 112 S. Ct. at 2576-2577.

The Court’s subsequent decision in Herrera is also inconsistent

with petitioner's claim. The Court relied heavily on the history of

Rule 33, Fed. R. Crim. P., in resolving the due process question at

issue in that case. 113 S. Ct. at 864-865.

8

According to petitioner, due process requires that

military judges at the trial and appellate levels have a

fixed term of office in order to ensure their independence

from their superiors and from the government in

general. Otherwise, he claims, there is a risk that

military judges will skew their decisions in the

government’s favor (or at least allow themselves to be

influenced by that concern) in order to avoid being

transferred from duty in the military justice system to

other military duties, with a resulting injury to their

professional careers.

Petitioner’s claim is, in effect, a claim of implied bias.

This Court, however, has consistently refused to adopt a

rule of implied bias in other, related contexts. For ex-

ample, Dennis v. United States, 339 U.S. 162 (1950),

involved a contempt conviction for failure to appear

before the House Un-American Activities Committee.

The Court rejected the argument that the jury,

composed primarily of employees of the United States,

was inherently biased. Dennis argued that the em-

ployees, who were subject to an executive order

providing for their discharge upon reasonable grounds to

believe that they were disloyal to the government, would

not risk being dismissed by voting for acquittal. The

Court rejected that claim of implied bias, noting that the

“way is open in every case to raise a contention of bias”

and that Dennis had failed to show actual bias on the part

of the jurors in his case. /d. at 168. More recently, in

Smith v. Phillips, 455 U.S. 209 (1982), this Court

rejected the contention that bias should be imputed to a

juror who had an application for employment pending

with the prosecuting attorney’s office at the time of the

trial. The Court stated that the “safeguards of juror im-

partiality, such as voir dire and protective instructions

from the trial judge,” while not infallible, adequately

protect the right to an impartial jury. /d. at 217. See

——————L——<

9

also Chandler v. Florida, 449 U.S. 560 (1981) (the jurors

in a televised trial are not inherently biased toward

conviction); Frazier v. United States, 335 U.S. 497 (1948)

(a jury composed entirely of government employees,

including one juror and the wife of another person who

were employed by the department responsible for en-

forcing the Act in question, is not inherently biased);

United States v. Wood, 299 U.S. 123 (1936) (government

employees are not inherently biased).

Cases in which the Court has found implied bias

involve situations in which the-decisionmaker stood per-

sonally to profit from a decision in the government’s

favor. For example, Tumey v. Ohio, 273 U.S. 510 (1927),

involved the legality of a procedure by which the mayor’s

compensation depended on the amount of the fines he

collected as a judge. See also Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 822-824 (1986) (judge had a “very

similar” lawsuit pending against a party to the case at

the time of his decision); Connally v. Georgia, 429 U.S.

245 (1977) Gudge’s salary depended in part on the number

of search warrants issued); Gibson v. Berryhill, 411 U.S.

564 (1973) (state administrative board consisted of op-

tometrists in private practice who heard charges filed

against licensed optometrists who were competitiors of

the board members); Ward v. Village of Monroeville, 409

U.S. 57 (1972) (procedure similar to the one in Tumey).

The procedure at issue in this case—the lack of a fixed

term of office—is not remotely similar to the procedures

challenged in those cases.

In addition, the military justice system employs

safeguards designed to prevent the type of improper

influence that petitioner fears. Military judges are

subordinates of and specially chosen by the Judge

ee

10

Advocate General, not by a convening authority,® on the

basis of their experience and expertise in military

criminal law. Art. 26(b), UCMJ, 10 U.S.C. 826(b); Rule

for Courts-Martial 503(b), Manual for Courts-Martial,

United States—1984. The convening authority and his

staff cannot prepare or review any report about a judge’s

fitness in the performance of his judicial duties. Art.

26\c), UCMJ, 10 U.S.C. 826(c). Article 98, UCMJ, 10

U.S.C. 898, makes it a crime to violate the provisions of

the UCMJ regulating court-martial proceedings. And

the Court of Military Appeals has proved its willingness

to consider a defendant’s claim of command influence.

See Pet. App. 34a-35a. In light of these protections, Con-

gress’s decision not to grant tenure to military judges

does not give rise to an intolerable systemic danger that

trials and appeals will be unfair. Petitioner’s claim to

the contrary does not warrant further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor Genera!

THEODORE G. HESS

Colonel, USMC

LAWRENCE W. MUSCHAMP

Lieutenant Commander, JAGC, USN

Appellate Government Counsel

Appellate Government Division,

NAMARA

APRIL 1993

6 The “convening authority” is the commander who convenes

the court-martial. The convening authority selects the court-

martial members (who are analogous to jurors), directs that the ac-

cused be tried for the charged offenses, and conducts a post-trial

review of the proceedings.