Motion — Parker v. Levy

SEP 15 197

ri RIOMA-RODAX, JP.

ae IN THE —

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-206

JACOB J. PARKER, as Warden of the United States

Penitentiary, Lewisburg, oe yy and STANLEY

R. RESOR, as Secretary of

Army,

Appellants,

vy. @

HOWARD B. LEVY,

Appellee.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

MOTION TO DISMISS OR AFFIRM

ANTHONY G. AMSTERDAM

School of Law

Stanford University

Palo Alto, California 94305

ALAN H. LEVINE

BurT NEUBORNE

% Fifth Avenue

New York, New York 10010

MELVIN L. WULF

22 East 40th Street

New York, New York 10016

Of Counsel For Appellee

CHARLES MORGAN, JR.

410 First Street, S. E.

Washington, D. C. 20003

NorMAN SIEGEL

84 Fifth Avenue

»New York, New York 10010

LAUGHLIN MCDONALD

660 emia,

OMEN

orb soe

ab was

Sel, ei i ah

CRS os ee FIT EO LI OG RET RE I HN ss

OP aE:

INDEX

’ Page

STATEMENT OF THE CASE... 2

ARGUMENT ....... 02-222 a eT eee 5

I. The Appeal Should Be Dismissed Because the

Government’s Notice Of Appeal Was A

Filed By Or On Behalf Of Cou

Appellants and Failed to Comply With the

Service Rule Of This Court... 5

II. The Decision By the United States Court Of

Appeals for the Third Circuit is So Obviously

Correct as to Warrant No Further Review... 8

A. Articles 133 and 134 Are Unconstitutional

Because They are Void for Vagueness................ 8

B. The “Centuries Old” Argument Is Of No

Value In This First Amendment-Due

Process Prosecution. Retroactivity and

“Profound Disruption” Are Not at Issue

TI assests en seen tots a cepnien ts udicnpnnsiccuntiicniipncentinemewsinninn 15

II]. The Free Speech Charges Violated the First

Amendment... 22 eeepc 18

IV. The Article 90 Charge Should Remain Re-

versed Regardless Of the Disposition Of the

Other Charges... 2... eee eee 19

V.The Judgment Of the Court Of Appeals

‘ Should Be Affirmed Because Of Numerous

Constitutional Errors In the Court-Martial

0 5D oe 0 | 25

CONCLUSION @oo oon 27

APPENDIX

Charge Wy eee la

Additional Charge [oe 2a

Rule 10, Revised Rules of the Supreme Court......... 4a

Rule 33, Revised Rules of the Supreme Court.......... 4a

f

ide dl abies abn tealiedins eT |

sh tdi, jek abt

TABLE OF AUTHORITIES

Cases:

Abrams v.,United States, 250 U.S. 616 (1919)... 19

Avrech v. Secretary of the Navy, 477 F.2d 1237 .

(D.C. Cir. 1973), jurisdictional statement filed

sub nom. Secretary of the Navy y. Avrech, 41

U.S.L.W. 3674 (No. 72-1713, June 18, 1973)........ 15,16

Carmichael y. Allen, 267 F. Supp. 985 (N.D. Ga.

I reaps ce nara teem een icca ns cnin vector eae nsinnentto secant 14

Chapman y. California, 386 U.S. 18 (1967)_..............25

Coates vy. Cincinnati, 402 U.S. 611 (1971)... 12

Cohen v. California, 403 U.S. 15 (1971)... 19

Connally v. General Construction Company, 269

Fah A scents ocinvsctetcnsrtcterie neces 8

Dandridge v. Williams, 397 U.S. 471 (1970)... 25

DeGregory v. New Hampshire, 383 U.S. 825 (1966)......19

Dennis y: United States, 341 U.S. 494 (195]).....00 19

Dombrowski v. Pfister, 380 U.S. 479 (1965)_._............... 8

Dynes v. Hoover, 61 U.S. [20 How.] 65 (1858)... 16

Estes v. State of Texas, 381 U.S. 532 (1965) _........... 24

Fahy v. Connecticut, 375 U.S. 85 (1963) _........-.-------.--.-- 25

‘Garrison v. Louisiana, 379 U.S. 64 (1964)... 1]

Gooding v. Wilson, 405 U.S. 518 (1972)... _ 12

Griswold y. Connecticut, 381 U.S. 479 (1965)... 20

Hooper v. Laird, ....F.2d...., (D.C. Cir. 1973)

(No. 72-1198, decided August 3, 1973)__............... 16,17

Jackman vy. Rosenbaum Co.,.260 U.S. 22 (1922)............16

TABLE OF AUTHORITIES (Continued)

Page

Cases—Continued :

Levy v. Corcoran, 389 F.2d 929: (D.C. Cir. 1967),

stay and cert. denied, 387 U.S. 915, 389 U.S. 960

| ee ne nee 4,17

Levy v. Dillon, 286 F. Supp. 593 (D. Kan. 1968),

aff'd 415 F.2d 1263 (10th Cir. 1969). 4

Levy v. Parker, 396 U.S. 1204, 396 U.S. 804 (1969)....4

Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399

LS | aa ne cn ee 4

Levy v. Resor, Civ. No. 67-422 (D.S.C. July 5,

1967), aff’d per curiam, 384 F.2d 689 (4th Cir.

1967), cert. denied, 389 U.S. 1049 (1968). 4

Mayberry v. Pennsylvania, 400 U.S. 455 (1971)... 19

Morissette v. United States, 342 U.S. 246 (1952).........20

NAACP v. Button, 371 U.S. 415 (1963)... 8,12

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)_...11

O’Callahan v: Parker, 395 U.S. 258 (1968)... 8

Pointer v. United States, 151 U.S. 396 (1894)... 24

Reid v. Covert, 354 U.S. 1 (1957)... 8

(1969) 8

Smith v. Whitney, 116 U.S. 167 (1886) 00 16

Stolte v. Laird, 353 F. Supp. 1392 (D.D.C. 1972)...14,17

Street v. New York, 394 U.S. 576 (1969) 11

Stromberg v. California, 283 U.S. 359 (1931). 12

Swarb v. Lennox, 405 U.S. 191 (1972). 25

ili

“

ae PAIRS EPS Ly EIST RE AREEED SE ES: ATARI

sa,

Hl ~ ey

TABLE OF AUTHORITIES (Continued)

Cases—Continued : Page

: Terminiello v. Chicago, 337 U.S. 1 (1949)... 11,14

Thomas v. Collins, 323 U.S. 516 (1945)... ecco 12

: United States v. Frantz, 2 U.S.C.M.A. 161 (1953)........12

United States v. Gainey, 380 U.S. 63 (1965)... 0

; United States v. Levy, 39 C.M.R. 672 (1968),

: petition for review denied, 18 U.S.C.M.A. 627

Ce: ee 41

é United States v. Reese, 92 U.S. 214 (1876)... 13

i United States v. Romano, 382 U.S. 136 (1965)... 2

Whelchel v. McDonald, 340 U.S. 122 (1950)... 14

Williams v. United States, 168 U.S. 382 (1897) _........... 24

Statutes:

Article 6 (c) UCMSJ, 10 U.S.C. §806 (6) ..o---oee-coeeeeceoneee 26

: Article 15 UCMJ, 10 U.S.C. §815 eee eee ee nd

Article 32 UCMJ, 10 U.S.C. §832. 00. eeeoceeeeceeeene 26

Article 36 UCMIJ, 10 U.S.C. §836.. 0 --ee-ceecceeeeescseneee 25

: Article 59 (a) UCMJ, 10 U.S.C. 859 (a) ooo econo 24

Article 90 UCMJ, 10 U.S.C. §890... passim

Article 133 UCMJ, 10 U.S.C. §933 2022... passim

Article 134 UCMJ, 10 U.S.C. §934.00 00. passim

2B U.S.C. $0252. ecccccceccsseeeeeeeeseeceeesesevneseeeeececeeceeeeee 7

Rules:

Rule 10.2, Revised Rules of the Supreme Court of

the United States... occ 6

Rule 16, Revised Rules of the Supreme Court of

the United States

TABLE OF AUTHORITIES (Continued)

Page

Rules—Continued :

Rule 16.1 (a), Revised Rules of the Supreme Court

of the United States. eal ae alg ge eee 5

Rule 18.1, Revised Rules of the Supreme Court of

the United States. 7

Rule 33, Revised Rules of the Supreme Court of

the United States. 6,7

Rule 8, Federal Rules of Appellate Procedure... 7

Rule 41 (b), Federal Rules of Appellate Procedure ___ 7

Rule 62, Federal Rules of Civil Procedure. so

Rule 8, Federal Rules of Criminal Procedure. 25

Other Authorities:

Army Regulation, A.R. 40-554, para.5.. 20

Amy Regulation, A.R. 600-20, para.42.. 16

Manual for Courts-Martial United States 1969

(Revised Edition) 0 passim

G. Myrdal, AN AMERICAN DILEMMA: THE

NEGRO PROBLEM AND. MODERN DE-

MOCRACY, 103 (1944). 21

Oath of Hippocrates. 20

Stern & Gressman, SUPREME COURT PRAC-

— TICE (4th Ed.) §2.5.000 7

Technical Bulletin, T.B. Med. 230, Treatment and

Management of Venereal Disease, 7 July 1965,

$53. (2) cc ccccccceeececeee cette 20

Warren, The Bill of Rights and the Military, 37

N.Y. U.L. Rev. 181 (1962). 19

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-206

JACOB !J.‘PARKER, as Warden of the United States

Penitentiary, Lewisburg, Pennsylvania, and STANLEY

R. ;RESOR, as Secretary of the Army,

Appellants,

v.

HOWARD B. LEVY,

Appellee.

&

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

MOTION TO DISMISS OR AFFIRM

Appellee, pursuant to Rule 16 of the Revised Rules of

the Supreme Court of the United States, moves that the

opinion and order of the court of appeals be affirmed or

the appeal be dismissed on the grounds that appellants

did not properly effect an appeal in compliance with the

rules of this Court, that the questions presented warrant

no further argument, and that other grounds raised by

appellee below but not relied upon by the court of —

appeals justify the decision below.

1

FLD REEF LL OR, LE DLE, POLE LENT IE IEEE OSA ELI:

Sc De Dat AN is cai EO Blea Ok AI Lh AO da Od

2

STATEMENT

Appellee, Dr. Howard B. Levy, formerly a Captain in

the United States Army, entered active duty on July 9,

1965. He was assigned to the United States Army Hospi-

tal, Fort Jackson, South Carolina, as Chief of Dermato-

logy.

On September 10, 1965, appellee wrote an eight-page

letter expressing his views on American foreign and

domestic policy to a sergeant then stationed in South

Viet Nam.!

During the year 1966, Dr. Levy engaged in private

and informal conversation with army personnel, en-

listed men and officers, expressing disagreement with

American foreign policy in general and Vietnamese

policy in particular. He critically discussed what he

believed to be national policy regarding the rights of

black citizens. Dr. Levy was accused in Additional

Charge I of stating to Special Forces personnel, other

personnel under his supervision, and patients, that he

considered Special Forces personnel “‘liars and thieves,”

“killers of peasants,” and “murderers of women and

children.”” He was also accused of stating that “the

1 The two charges relating to the letter were reduced to lesser in-

cluded offenses by the court-martial and, following their reduction,

were dismissed on June 3, 1967. These specifications, Additional

Charges II and III, are found at Jurisdictional Statement Appendix,

p. 4a, n. 1.

The five charges were as follows:

Charge I— Article 90 (disobedience of order)

Charge II— Article 134 (General Article)

Additional Charge I—Article 133 (conduct unbecoming an

officer and a gentleman)

Additional Charge Il—Article 133 (conduct unbecoming an

officer and a gentleman—dismissed at conclusion of court-

martial)

Additional Charge III— Article 134 (General Article — dismissed

at conclusion of court-martial).

3

United States is wrong in being involved in the Viet:

Nam War,” that he would not serve in the war if

ordered, and that “colored soldiers” were discriminated

against and should not serve in the war. His words

were described in Additional Charge I as being “‘n-

temperate,” “defamatory,” “provoking,” “disloyal,”

“contemptuous” and “disrespectful.” In Charge II it

was charged that he did, “with design to promote dis-

loyalty and disaffection amofig the troops, publicly

utter . . . statements to divers enlisted personnel at

_ divers times” “which statements were disloyal to the

United States, and prejudicial to good order and

discipline in the armed forces.”

On October 11, 1966 — following visits from a special

counter-intelligence*agent to his commanding officer —

Dr. Levy was ordered to train Special Forces Aidmen

in dermatology, his medical specialty. Although he had

trained all other military medical and para-medical

personnel in dermatology, he declined on ethical

grounds to provide Special Forces personnel the ten

hours training sought. He contended these men were

combat soldiers rather than Geneva Convention-pro-

tected and Army-defined medical personnel and that they

were using medicine in Viet Nam for political and mili-

tary rather than medical purposes.

Dr. Levy’s commanding officer initiated Article 3,

10 U.S.C. §815, non-judicial punishment proceedings

against him. He upgraded those charges to general

court-martial level after reading and re-reading a G-2

dossier compiled on Dr. Levy and called to his attention

by James B. West, Special Agent of the Counter Intelli-

gence Corps, who resided in nearby Prosperity, South

Carolina, where Dr. Levy had in his off-duty, out-of-

PORES SE a Wee oe re ne ROE WO ee etre PEST IOC LETS

-

4

uniform hours engaged in a Negro voter registration

drive.

Dr. Levy was tried for “conduct unbecoming an

officer” and for violating the “General Article”,

Articles 133 and 134 Uniform Code of Military Justice,

hereinafter UCMJ, 10 U.S.C. §933, 934, as well as for

disobeying an order, Article 90, UCMJ, 10 U.S.C.

§890.? Four of the five charges against Dr. Levy were

based on pure speech, no conduct being alleged or

proved. The fifth was based on his failure to obey the

order to train Special Forces personnel.

On June 3, 1967, Dr. Levy was convicted by court-

martial, sentenced to dismissal from the service, forfei-

ture of all pay and allowances and three years imprison-

ment at hard labor.? |

He exhausted his military review procedures* and then

filed in the federal district court a petition for a writ of

habeas corpus. It was denied on June 30, 1971.5

’ The Article 90 Charge, Charge I, is found at Jurisdictional State-

ment Appendix, p. 2a. Charge II and Additional Charge I are set

out in the appendix to this motion, p. la. infra.

3 On August 2, 1969, Mr. Justice Douglas ordered appellee released

on bail pending habeas corpus. Levy v. Parker, 396 U.S. 1204

3 (1969). On October 13, 1969, this Court unanimously agreed. Levy

; _. v. Parker, 396 U.S. 804 (1969).

4 United States v. Levy, C.M. 416, 463, 39 C.M.R. 672 (1968),

petition for review denied, No. 21, 641, 18 U.S.C.M.A. 627 (1969).

Other proceedings are reported as follows: Levy v. Corcoran, 389

F.2d 929 (D.C. Cir. 1967), stay and cert. denied, 387 U.S. 915, 389

U.S. 960 (1967) (sought to enjoin conduct of court-martial) ; Levy v.

Resor, 17 U.S.C.M.A. 135, 37 C.M.R.. 399 (1967); Levy v. Resor,

Civ. No. 67-442 (D.S.C. July 5, 1967), aff'd per curiam, 384 F.2d

689 (4th Cir. 1967), cert. denied, 389 U.S. 1049 (1968) (sought bail

pending intra-military appellate review); Levy v. Dillon, 286 F.

Supp. 593 (D. Kan. 1968), aff’d., 415 F.2d 1263 (10th Cir. 1969)

(regarding post-trial relief while incarcerated at United States

Disciplinary Barracks pending intra-military appellate review).

5 See Jurisdictional Statement Appendix pp. 98a-103a.

ite Reade Wo SE NOT eet Ser ee. ee ee WS eRe nara ote Twa De Wet iris rcr gt. Tomas end

a ee er

A

5

An appeal of the denial of the habeas corpus was filed

in the United States Court of Appeals for the Third

Circuit. On April 18, 1973, the court of appeals reversed

the district court holding Articles 133 and 134 uncon-

- stitutional and reversing the Article 90 charge for pre-

judicial joinder. It ordered

the cause [is] remanded for the purpose of issuing

the writ of habeas corpus unless within ninety days

of the date hereof the appropriate military auth-

orities shall grant to Howard B. Levy a new trial on

the Article 90 charge, in accordance with the

opinion of this Court...

Jurisdictional Statement Appendix, pp. 96a.*

I

THE APPEAL SHOULD BE DISMISSED BECAUSE

THE GOVERNMENT’S NOTICE OF APPEAL WAS

NOT FILED BY OR ON BEHALF OF COUNSEL

FOR APPELLANTS AND FAILED TO COMPLY

WITH THE SERVICE RULE OF THIS COURT.

Rule 16.1(a), Revised Rules of the Supreme Court of

the United States provides:

The court will receive a motion to dismiss any

appeal on the ground that the appeal is not within

the jurisdiction of this court, because not taken in

conformity to statute or to these rules.

*‘ The mandate of the court was duly entered on May 10, 1973. On

July 13, 1973, the Government moved in the court of appeals to

stay that portion of the court’s mandate which required that -

| Dr. Levy be granted a new trial within 90 days or the writ issue

until such time as this Court could act on the appeal. Over objec-

| tion of appellee, the court below ordered its mandate recalled

(since the mandate had already issued) and stayed as requested

) provided the Government’s appeal be docketed by July 30, 1973.

* Order of July 26, 1973.

FEES ER ot GO Ie ee

OE SPL ET LIE LOY A ODES LLL OEE TER

6

The Government’s notice of appeal is found at

Jurisdictional Statement Appendix, pp. 105a, 106a.:As it

recites, service was accomplished by mailing copies of

the notice to counsel for appellee by first class mail. It

was certified by Carmen C. Nasuti, Assistant United

States Attorney at Philadelphia, Pennsylvania. The only

counsel names appearing on the notice and certificate

of service are those of Nasuti and Robert E. J. Curran,

United States Attorney.

The notice of appeal, filed with the clerk of the United

States Court of Appeals for the Third Circuit was re-

quired to be served by Rule 10.2, Revised Rules of the

Supreme Court of the United’ States, and to be served

in the manner prescribed by Rule 33, Revised Rules of

the Supreme Court of the United States.” The notice and

service are deficient in two respects.

1h iin i ls aitallinbie

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(a) The notice was filed by and/or on behalf of Curran

and Nasuti. Since neither at the time of filing was

counsel of record, and since the record reveals no

entry of appearance by/said attorneys, Rule 33.4 renders

the filing ineffective to give appellee notice that any

appeal has been filed. The filing by legal strangers to

this litigation was insufficient. ad

7 Relevant parts of Rules 10 and 33, Revised Rules of the Supreme

Court of the United States, are set out in the appendix to this

motion, p. 4a, infra.

8 Any doubt that the entry of appearance is required, even though

the required notice is filed with the clerk of the court of appeals, is

removed by the second sentence of Rule 33.3(b): “If counsel [a

member of the bar of the Supreme Court of the United States}

certifying to such service has not up to that time entered his appear-

ance in this court in respect to the cause in which such service is

made, his appearance shall accompany the certificate of service if

the same is to be filed in this court.”’ (Emphasis added.) Rule 33.4

thus applies to counsel who files or has filed on his behalf a docu-

ment in any court required to be filed by Supreme Court rules.

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(b) The person effecting service, Nasuti, was not at

the time of filing a member of the bar of this Court.®

Since Rule 33.3(b) allows only a member of the bar of

this Court to certify service, whereas others must file an

affidavit of service, Rule 33.3(c), Nasuti was required

to file the latter. This was not done.” The requirement

of Rule 33 of proof of service was not met.

Because of appellants’ failure to file an effective notice

of appeal, this Court lacks jurisdiction and the case

should therefore be dismissed."

* Counsel for appellee have been so informed by the Clerk’s office of

this Court.

® The record will reflect that there was no effort to complete proof

of service by acknowledgment of service pursuant to Rule 33.3(a).

" Were it not for the lack of jurisdiction outlined above, there

would be substantial question as to whether a valid appeal could be

taken from the court of appeals under 28 U.S.C. §1252. Although

the statutory language, “‘any court of the United States,” is broad,

the statute was intended to provide quick review from district

court decisions. Stern & Gressman, SUPREME COURT PRAC-

TICE (4th Ed.) §2.5, p. 31. No alternative quick review other than

petition for certiorari is necessary from court of appeals judgments.

An indication that Congress did not intend §1252 to be used as the

Government here attempts is that there is no procedure for grant-

ing stays of judgment by inferior courts pending appeal from courts

of appeals. A district court has power to stay judgments pending

appeal. E.g., Rule 62, Federal Rules of Civil Procedure, and a

court of appeals may grant stays pending appeals to it. F.g., Rule 8,

Federal Rules of Appellate Procedure. But the appellate courts may

stay only their own mandates pending petitions for certiorari, Rule

41(b), Federal Rules of Appellate Procedure, not appeals. Thus,

despite the court below granting a stay citing Rule 18.1 of this

Court, which means only that this Court will honor lower court

Stays but grants no power to grant such stays, Congress has

provided no method for stays pending appeals from courts of

appeals by said courts. This vacuum could not have been intended.

The only rational conclusion is that there can be no such appeals.

Review can be adequately had by petition for certiorari.

—

8

II.

t DECISION BY THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT IS so

OBVIOUSLY CORRECT AS TO WARRANT NO

FURTHER REVIEW.

A. Articles 133 and 134 Are Unconstitutional Be-

cause They are Void for Vagueness.'?

The court of appeals viewed the due process question

; with an eye to O’Callahan vy. Parker, 395 U.S. 258,

265-66 (1968), and concluded that this Court “has in-

vited the federal courts to reexamine this due process

’ question in the context of current constitutional teach-

ings.” Jurisdictional Statement Appendix, p. 3la. The

3

court of appeals compared the ever-growing number of

offenses cognizable under Article 134 with the basic

concept of Connally v. General Construction Company,

: 269 U.S. 385, 391 (1926), that:

; a statute which either forbids or requires the doing

F of an act in terms so vague that men of common

: intelligence must necessarily guess at its meaning

‘ and differ as to its application violates the first

essential of due process of law. . . .8

: And, statutes must:

: employ words or phrases having a technical or

other special meaning, well enough known to

enable those within their reach to correctly apply

them, .. ."

This Court has characterized Article 134 as an ex-

ample of “‘. . . harsh law which is frequently cast in very

sweeping and vague terms.” Reid v. Covert, 354 US. 1,

2 The court of appeals spoke of vagueness The rationale of the

opinion clearly eficompassed overbreadth as well and will be

treated as such.

13 Jurisdictional Statement Appendix, pp. 31a, 32a.

4 ITd., p. 32a.

9

38 (1957). In a long series of cases this Court has recog-

nized the primacy of the first amendment and has

resisted incursions of vague and overly broad statutes

upon the area it protects. E.g., NAACP y. Button, 371

U.S. 415 (1963); Dombrowski v. Pfister, 380 U.S. 479

(1965); Shuttlesworth v. City of Birmingham, 394 US.

147 (1969).

The court of appeals said:

The most recent articulation of the vagueness

doctrine, representing a synthesis of past teachings,

is found in Grayned v. City of Rockford, 408 US. 104,

108-09 (1972):

It is a basic principle of due process that an

enactment is void for vagueness if its prohibitions

are not clearly defined. Vague laws offend several

important values. First, because we assume that

man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of

ordinary intelligence a reasonable Opportunity to

know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary

and discriminatory enforcement is to be pre-

vented, laws must provide explicit standards for

those who apply them. A vague law impermissibly

delegates basic policy matters to policemen, judges,

and juries for resolution on an ad hoc and sub-

jective basis, with the attendant dangers of arbitrary

and discriminatory application. Third, but related,

where a vague statute “abut[s] upon sensitive

areas of basic First Amendment freedoms,” it

“operates to inhibit the exercise of [those] free-

doms.” Uncertain meanings inevitably lead citizens

to “ ‘steer far wider of the unlawful zone’. . . than

if the boundaries of the forbidden areas were

clearly marked.” (Citations omitted.)

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10

Failing to pass constitutional muster have been

statutes penalizing “‘misconduct,” Giaccio v. Penn-

sylvania, 382 U.S. 399 (1966); conduct that was

“annoying,” Coates v. City of Cincinnati, 402 US.

611 (1971); “reprehensible,” Giaccio v. Pennsyl-

vania, supra; and “‘prejudicial to the best interest” of

a city, Gelling v. Texas, 343 U.S. 960 (1952). Other

federal courts have voided prohibitions of conduct

that “reflects discredit,” Flynn v. Giarrusso, 321 F.

Supp. 1295 (E.D. La. 1971); or is “offensive,”

Oestreich v. Hale, 321 F. Supp. 445 (E.D. Wis. 1970).

(Footnote omitted.)

Jurisdictional Statement Appendix, pp. 32a, 33a.

The court of appeals framed the issues thusly:

Do Articles 133 and 134 give to a commissioned

officer of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute?

Do these articles encourage erratic arrests and

convictions?

Jurisdictional Statement Appendix, p. 34a.

The answer to these questions required reversal.

The Government erroneously contends that the

court of appeals “conceded . . . the conduct engaged

in by Captain Levy fell unequivocally within the scope

of certain specific examples set forth in the [UCM]]

Manuals description of conduct proscribed by Article

134 (App. A, infra, pp. 46a, 73a).” Jurisdictional

Statement, p. 12. What the court of appeals actually

said was:

Neither are we unmindful that the Manual for

Courts-Martial offers as an example of an offense

under Article 134, “praising the enemy, attacking

the war aims of the United States, or denouncing

our form of government.” With the possible excep-

tion of the statement that “Special Forces are liars

11

and thieves and killers of peasants and murderers of

women and children,” it would appear that each

statement for which appellant was court-martialed

could fall within the example given in the Manual.

Jurisdictional Statement Appendix, pp. 45a, 46a."

The “possible exception” statement, of course, ac-

companied by those contained in the dismissed letter

charges, was the key inflammatory statement, most

likely to instill prejudicial reaction and affect the verdict.

The Government’s glossing over the lower court’s re-

fusal to hold that all the statements were within the ex-

ample sidesteps the clear pronunciations of this Court

that when a conviction is obtained under a general sta

ute prohibiting several matters, one of which is constitu-

tionally permissible, the conviction cannot stand. Street

v. New York, 394 U.S. 576, 588 (1969); Terminiello v.

's At the court-martial, Dr. Levy sought to prove truth as a defense

to this pure speech charge. The law officer ruled truth was not a

defense.

LAW OFFICER: The accused’s statements as alleged, again,

are basically expressions of opinion whose truth or falsity is

hardly relevant. The inquiry in this case is and must be not

their truth or falsity, but were these statements uttered with a

design to promote disloyalty, and did they have a reasonable

and natural tendency to do so.

R. Vol. 5, p. 876 (Emphasis added.) [“R” cites are to the

military record introduced as exhibits below.]

INDIVIDUAL COUNSEL [Mr. Morgan]: Now, but I’m

trying to ascertain—really to just get down to an instance, a

position here, and that is that the question of objective truth

doesn’t matter, and consequently if objective truth were spoken

and totally disrupted the Armed Forces, but what was said was

true, a person would not be entitled to make those statements.

LAW OFFICER: Not as long as that Army won, I suppose.

R. Vol. 5, p. 884. (Emphasis added.)

The refusal to allow the defense mandated by New York Times Co.

v. Sullivan, 376 U.S. 254 (1964), and Garrison v. Louisiana, 379

US. 64 (1964), clearly warrants reversal. See, Whelchel v.

McDonald, 340 U.S. 122 (1950).

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.

Chicago, 337 U.S. 1, 6 (1949); Stromberg v. California,

283 U.S. 359, 369-70 (1931); Thomas v. Collins, 323

U.S. 516, 529 (1945). Since all of Levy’s statements

clearly do not fit within the Manuals example the

Government misstates an argument which is in any

event irrelevant since when first amendment defense of

overbreadth is raised, the fact that the charged speech

falls within the statutory prohibition does not prevent»

the accused from raising the defense. E.g., NAACP y, -

Button, 371 U.S. 415 (1963).*

The ever growing number of offenses cognizable

under Article 134 and the history of prosecutions led

the court of appeals to term it “an unwritten criminal

code, a catchall receptacle.” Jurisdictional Statement

Appendix, p. 36a. Disputing the rationale of United

States v. Frantz, 2 U.S.C.M.A. 161 (1953), the court

of appeals pointed out that the listed specifications fail

to outline “with exactitude and limitation that conduct

proscribed by Article 134.” Id., p. 37a. “‘. . . Article 134

is open ended.” Jd. That court of appeals pointed out

that there is no unifying theme to the specifications,

they comingle civilian offenses against persons, morals,

and property with military offenses against, e.g., the

wearing of improper uniforms or firearms and military

16 The Government insists that the court of appeals “brushed

aside” the issue of Levy’s standing to assert vagueness. Of course

the court below merely relied on Coates v. Cincinnati, 402 US. 611,

616 (1971); Gooding v. Wilson, 405 U.S. 518, 520 (1972); NAACP

v. Button, 371 U.S. 415, 433 (1963). Jurisdictional Statement

Appendix, pp. 45a-47a. The Government’s difficulty is that it seeks

to apply conduct statutes to pure speech, and cannot refrain from

terming Dr. Levy’s speech “conduct.” See Jurisdictional State-

ment, p. 13. But speech remains speech, and protected by the first

amendment.

13

relationships. It quoted United States v. Reese, 92 US.

214, 221 (1876):

It would certainly be dangerous if the legislature

could set a net large enough to catch all possible

offenders, and leave it to the courts to step inside

and say who could be rightfully detained, and who

should be at large.

Id., p. 39a.

The vice of the General Article’s invitation to assert

criminal liability virtually without limitation is com-

pounded by Executive rather than legislative drafting

of the Manual and military adjudication of the charges

brought under it.

Additionally, the court of appeals found it was unable

to ascertain any Article 133 (“conduct unbecoming an

officer and a gentleman”) standard by which an officer

could measure his conduct. The Manual’s discussion of

proscribed conduct, Jurisdictional Statement Appendix,

pp. 34a, 35a, n. 24, has remained unchanged since 1886.

Id." The court felt “far from satisfied” that the charge

“replete with its capacity for subjective interpretation”’

satisfied due process standards. Jurisdictional Statement,

p. 35a.

™ The law officer’s instructions to the court substantially followed

the Manual, para. 212; the key words being:

action or behavior in an official capacity which, in dishonoring

or disgracing the individual as an officer, seriously compromises

his character as a gentleman... . [T]he act . . . must have a

double significance and effect . . ., it must offend so seriously

against justice, law, morality or decorum as to expose to dis-

grace, socially, or as a man, the actor. Additionally, the act

must . . . bring dishonor or disrepute upon the military pro-

fession which he represents. Further, unbecoming . . . mean{s]

not merely inappropriate or unsuitable, as being opposed to

good taste or propriety, or not consonant with usage, but

morally unbefitting and unworthy. (Emphasis added.)

R. Vol. 9, p. 2597.

[footnote continued on next page]

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14

Regardless of whether Articles 133 and 134 are

constitutionally infirm, Levy’s conviction would still be

invalid because of the specifications on “disloyalty” and

_ “disaffection.” Despite the Government’s contention

that-the disloyalty specification solves the due process

problem —

Had Captain Levy desired to evaluate the lawful-

ness of his course of conduct, a short glance at the

Manual would have resolved any doubts he might

have entertained from a reading of the statutory

provisions he attacks.

Jurisdictional Statement, p. 12.

— it fails to cite the Court to Stolte v. Laird, 353 F. Supp.

1392 (D.D.C. 1972), which held disloyalty specifications

facially unconstitutional. The Government did not

appeal. After repeated requests from defense counsel,

the law officer held an out of court hearing in which he

defined both “disloyalty” and “disaffection” using such

words as “unfaithful,”’ ““disgust,”’ or “discontent,”’ and

[footnote continued from preceding page]

Dr. Levy, in his official capacity, must have so “dishonored” or

“disgraced” himself that his own character was seriously compro-

mised. But the witnesses had praise for his character. E.g., R. Vol.

7, 2342-51. The record is barren of evidence to the contrary.

Also, he must so seriously have offended “‘decorum” as to disgrace

himself as a man. Here again, there is no proof. No offense against

“law,” “justice” or “morality” is alleged or raised by the proof. In-

decorum cannot be constitutionally prohibited. See e.g., Terminiello

v. Chicago, 337 U.S. 1 (1949); Carmichael v. Allen, 267 F. Supp.

985 (N.D. Ga. 1966) (three-judge court), but it is the only one of

the four words that the specification under this charge could

conceivably refer to.

Additionally, he must have brought “‘dishonor or disrepute upon

the military profession which he represents.’’ The prosecution

offered no evidence that the Army had suffered any loss of public

esteem because of Dr. Levy’s statements.

Further, he must have offended not merely “‘good taste or pro-

priety,” but must have been “morally unbefitting and unworthy.”

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15

“ill will” (and with respect to “disaffection,” the word

“disloyalty”’)." It is submitted that no one—not even

the law officer and the lawyers, let alone Dr. Levy and

the men who judged him—understood the charges.

B. The “Centuries Old” Argument Is Of No Value

In This First Amendment-Due Process Prosecution.

Retroactivity And “Profound Disruption” Are Not At

Issue Here.

The Government’s “centuries old” statute argument

is misleading, since, as Mr. Justice Clark said, “[NJot

until 1951 did the disloyalty charge . . . become a badge

of infamy within reach of the Manual.” Avrech y.

Secretary of the Navy, 477 F.2d 1237, 1241 (D.C. Cir.

1973) jurisdictional statement filed sub nom. Secretary

of the Navy v. Avrech, 41 U.S.L.W. 3674 (No. 72-1713,

June 18, 1973).

8 The law officer continued:

Now here again, that is just a broad general statement, and I may

not define those terms for the court in those terms because I am

not satisfied with them myself. R. Vol. 7, p. 2191.

And when the court was charged, the law officer told the members

that “disloyalty”

imports not being true to or being unfaithful to an authority to

whom respect, obedience or allegiance is due and tending toward

insubordination, refusal of orders, or mutiny. The term “dis-

affection” imports disgust and discontentment, ill will, dis-

loyalty and hostility, toward an authority to whom respect,

obedience, and allegiance is due.” R. Vol. 9, p. 2596.

* An additional ground for affirmance was the “‘public utterance”

part of the crime. Although the Jurisdictional Statement, p. 7,

attempts to paint a picture of Dr. Levy talking to everyone in his

“crowded and busy clinic”, the Government after submitting 450

questionnaires to the clinic’s 17,500 patients could find only 13

witnesses who heard anything relevent. Although charged with

“public utterance”, the charge did not require this to find guilt.

R. Vol. 9, p. 2594. Dr. Levy mounted no soap box, but the law

officer’s definition of “public”, R. Vol. 9, p. 2596, would render

[footnote continued on next page]

OR RE = Lats

16

The Government’s reliance on Smith v. Whitney, 116

‘U.S. 167 (1886), and Dynes v. Hoover, 61 U.S. [20 How.|

65. (1858), is of little value. The court of appeals noted

that this Court’s interpretation of the due process of

law has been radically altered since the nineteenth

* century. See, Jurisdictional Statement Appendix, pp.

30a, 44a-47a. And as Mr. Justice Clark said in Avrech y.

Secretary of the Navy, supra, 477 F.2d at 1242,

the old authorities cited bear little weight. Not only

has the General Article been expanded beyond

recognition, but the greater percentage of our

armed forces are today non-career personnel. They

are draftees or enlisted personnel with little mili-

tary experience. Even the “old soldiers” them-

selves say that the language in Article 134, judged

by the void-for-vagueness cases is ‘unduly indefi-

nite.’ (Citations omitted.)

The court of appeals began its examination of the

articles ‘“‘mindful of Justice Holmes’ sage admonition

[Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922)],

‘{i]f a thing has been practiced for two hundred years by

common consent, it will need a strong case of the

Fourteenth Amendment to affect it.” Jurisdictional

Statement Appendix, p. 22a.” In addition to the case

sub judice, the only other cases to address the issues,

Avrech y. Secretary of the Navy, supra (Article 134),

and Hooper y. Laird, ................ F.2d_........... (D.C. Cir.

[footnote continued from preceding page]

meaningless the right of a military officer to run for public office as

guaranteed by A.R. 600-20; para. 42. He can only do so “privately

and secretly.” Id.

2” Mr. Justice Holmes spoke of putting walls between two plots of

land. We deal here with criminal statutes, and the “common

consent” of the accused or even his possible knowledge of the

proscribed speech is beyond ken.

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17

1973) (No. 72-1198, decided August 3, 1973) (Articles

133 and 134), have found that the due process of law

overrides historical reticence.*!

The Government’s second substantiality argument is

that the decision below “would create a profound dis-

ruption of the orderly administration of justice within

the military.” Jurisdictional Statement, p. 10. But,

despite the Government’s effort to draw the issue of

retroactive application into this case, retroactivity is not

an issue here. It seems to argue that despite the un-

constitutionality of the statutes, the military must be

permitted to enforce them since, if they are unconstitu-

tional, this Court might apply such a holding retro-

actively and that would cause profound disruption.

Further the argument that “there are substantial areas

of misconduct”, id., that the military must control but

that are not specifically covered by the UCMJ because

they were considered covered by Articles 133 and 134

fails to state a substantial argument. It is not for this

Court to weigh against the Constitution the military’s

alleged problem with ‘“‘a substantial and serious gap in

" The three courts of appeals panels which have held Articles 133

and 134 unconstitutional (all three panels considered and struck

down Article 134, two of the three considered and struck down

Article 133) have done so unanimously. Circuit Judge Seitz joined

in the court below’s disposition of Articles 133 and 134. Jurisdic-

tional Statement Appendix, p. 84a. The Hooper decision was a per

curiam opinion joined in by Circuit Judge Tamm. Judge Tamm had

originally joined in a two member majority which denied Dr.Levy

an injunction to prevent his trial by court-martial. Levy v.

» 389 F.2d 929 (D.C. Cir. 1967), Stay and cert. denied,

387 U.S. 915, 389 U.S. 960 (1967).

® As _— Robinson noted in Stolte v. Laird, 353 F. Supp. 1392,

1399, n. 26 (D.D.C. 1972), “. . . the military is well known for its

ty to promulgate detailed regulations on many subjects much

less important than the First Amendment.”

ay

18

the military justice system.” /d. It is fully within the ca-

pability of the legislative branch to fill any gaps in the

military justice system.

The court of appeals clearly was correct in conclud-

ing that the vague articles denied Dr. Levy the due

process of law.

Il.

THE FREE SPEECH CHARGES VIOLATED THE

FIRST AMENDMENT

This appeal should be affirmed because Articles 133

and 134, even if constitutional, were unconstitutionally

applied to speech.

The district court found that “the record supports a

finding of a clear and present danger of creating the

harmful results, with the requisite intent, as charged...”

Jurisdictional Statement Appendix, p. 100a. The court

of appeals never reached the issue. But, the law officer’s

charge to the court-martial set forth a clear and reason-

able tendency test rather than a clear and present danger

test. The law officer’s charge was that the words should

be judged by their “clear and reasonable tendency to

promote disloyalty and disaffection.” R. Vol. 9,

p. 2594.2

The Government made no attempt to demonstrate »

military necessity or a rational or a compelling reason

for the speech prosecution of Dr. Levy. First amend-

ment incursions require a showing of an “. . . over-

% There was no test at all for Additional Charge I, the Article 133

charge on which conviction was had. On the Article 134 charge, the

law officer did use the phrase “‘clear and present danger” in charg-

ing a “‘/esser included offense.” R. Vol. 9, p. 2595.

19

riding and compelling state interest,” DeGregory vy.

New Hampshire, 383 U.S. 825 (1966), a military neces-

sity which must be “striking,” Warren, The Bill of

Rights and the Military, 37 N.Y.U.L. Rev. 181 (1962),

for the amendment “. . . exacts obedience even

during periods of war.” Dennis v. United States, 341

U.S. 494, 520 (1951) (concurring opinion). There was no

finding that at the Fort Jackson, South Carolina, Der-

matology Clinic “. . . an immediate check is required to

save the country.” Abrams vy. United States, 250 U:S.

616, 630 (1919) (Holmes, J., dissenting); Mayberry v.

Pennsylvania, 400 U.S. 455 (1971); Cohen v. California,

403 U.S. 15 (1971).

Despite the district court’s summary conclusion, there

was no finding at the court-martial of a “clear and

present danger” of anything, nor were any “harmful

effects” shown to have occurred or existed, let alone to

have been a crime. To sustain such convictions would go

far beyond what was permitted in Dennis, and such

efforts have been consistently rejected by this Court.

IV.

THE ARTICLE 90 CHARGE SHOULD REMAIN

REVERSED REGARDLESS OF THE DISPOSITION

OF THE OTHER CHARGES

The court of appeals noted that the inflammatory

evidence most calculated to disturb the court-martial

* If this Court does note probable jurisdiction, Dr. Levy is pre-

pared to argue that the order required him to violate first amend-

ment protected medical ethics. Dr. Levy was convicted for failing

to teach his art to combat troops (Special Forces Aidmen) who,

unlike medical corpsmen, are not covered by the Geneva Conven-

tion and who would have no medical supervision in Viet Nam.

[footnote continued on next page]

20

[footnote continued from preceding page]

R. Vol. 19, p. 51; R. Vol. 5, pp. 941-44, 963-69. This directly con-

flicted with the Oath of Hippocrates. R. Vol. 6, p. 2083. That oath

also required Dr. Levy to keep the confidences of his patients. Dr.

Levy proved that patients (including military dependents) brought

to his clinic were exposed to combat troop-Aidmen without their

consent when he was not there to prevent it. R. Vol. 6, p. 1098.

And even though Army Regulation 40-554, par. 5, and Technical

Bulletin T.B.Med. 230, Treatment and Management of Venereal

Disease, 7 July, 1965, §53d(2) prohibits the disclosure of confiden-

tial information to non-medical or health agencies, the law officer

refused to instruct the court that if it found that Special Forces was

not a medical or health agency and the combat troop-Aidmen

would have learned the identity of venereal disase contacts then the

order was unlawful. R. Vol. 18, App. Exh. 24. Dr. Levy’s ethical

practice was protected by the first, third, fourth, fifth, and ninth

7 amendments. Griswold v. Connecticut, 381 U.S. 479 (1965);

especially may he so defend his action, since the proof showed

4 eight or ten combat troop-Aidmen entered an examination room

; without the consent and over the objections of a disrobed female

§ patient. R. Vol. 6, p. 1098.

Pe aL eT ee ee ee

The Presumption that the order was lawful, embodied in the Manual

’ for Courts-Martial, para. 169b, p. 321, is a shift of the burden of

proof to the accused by the Executive. This Court has not hesitated

to strike down such presumptions made by Congress where they

violated the Constitution. Morissette v. United States, 342 U.S. 246,

275 (1952). Compare, United States v. Romano, 382 U'S. 1%

(1965) ; United States v. Gainey, 380 U.S. 63 (1965).

Additionally, the court of appeals decided only that it would not

disturb the court’s finding that the order was not intended solely

to punish. Of course, that was the only defense cognizable under the

Manual, par. 169b, p. 321. But Dr. Levy’s defense was not limited to

the fact that the order was issued at a time when it was known that

he would not obey it. R. Vol. 2, pp. 1, 2; R. Vol. 12, App. Exh. 2,

p. 10; R. Vol. 13, pp. 540-566; R. Vol. 3, pp. 219-89.

The prosecution of Dr. Levy was selective enforcement, initiated

because a Jewish doctor from Brooklyn chose to join a voter

registration drive in a small South Carolina county rather than the

officers’ club. Within two days of his initial off-post off-duty out-of-

uniform civil rights activity, someone entered in his G-2 dossier:

“Determine whatver [sic] loyalty investigation should be made 19

July 1965.” R. Vol. 15, p. 315. A retired special agent of a counter-

intelligence corps who lived in that county pushed the investigation,

and was extremely interested in Dr. Levy’s alleged interest in dating

[footnote continued on next page]

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21

members was introduced under the Articles 133 and 134

charges, and most of this “‘would have been inadmiss-

ible under the Article 90 charge. .. .” Jurisdictional

Statement Appendix, p.5 4a. It said, ‘““We find, with some

facility, that Levy was prejudiced by the admission of

evidence on the Articles 133 and 134 charges; in any

event, there undoubtedly existed a reasonable possi-

bility that he was prejudiced.” Jd., p. 56a.

The court of appeals said it was left to speculate as to

what course the trial might have followed if Dr. Levy

had been charged only under Article 90.

[footnote continued from preceding page]

Negroes. R. Vol. 12, pp.'40-41, R. Vol. 14, p. 635. Agent West’s

reports showed he was far more interested in Dr. Levy’s dating

habits than in Dr. Levy’s statements about voting, the first amend-

ment, or the Constitution. R. Vol. 14, p. 705. The charges were

preferred by an officer who feared a “communist” or “pinko” had

been let loose in his command. The claim that Dr. Levy spoke “to

colored soldiers who were young and immature,” (from the Staff

Judge Advocate’s review) R. Vol. 19/p. 134, “many of whom

emotionally and educationally weré susceptible to being influ-

enced,” (from the Board of Review opinion) United States v. Levy,

39 C.M.R. 672 (1968), embodies the/assumption that Negro males

are childlike. See, G. Myrdal;AN AMERICAN DILEMMA:

THE NEGRO PROBLEM AND MODERN DEMOCRACY,

103 (1944).

Agent West’s ideas still cling, for the Government still argues,

albeit inaccurately, that the statements were made “to enlisted

personnel, most of them black... .” Jurisdictional Statement, p. 6.

The specialist assigned to Dr. Levy’s clinic, a prime prosecution

witness, could recall only that Dr. Levy talked to about two Negro

patients on one occasion only, out of 17,500 patients. R. Vol. 14,

p. 732. And from 450 questionaires the Government sent to Dr.

Levy’s patients, only 13 were called as witnesses.

The prosecution was upgraded after the officer who preferred

charges was visited by Agent West and provided a G-2 dossier,

Portions of which have been denied to Dr. Levy and his civilian

counsel, but which were provided his military counsel under a

mandate of secrecy.

FER EET

—-

22

Under such circumstances, we cannot reach

the legal conclusion that Captain Levy was not

prejudiced by having the court told explicitly that

he had called Special Forces personnel “killers

of peasants,” and “murderers of women and

children,” had told enlisted men “they should

refuse to go to Viet Nam,” and had written,

“Is Communism worse than a USS. oriented

government? . . . I doubt it.”” We are unable to

reconstruct by hindsight on the basis of reasonable

predictability of human behavior, a jurispru-

dential setting in which a fact-finding panel of

military officers could have been immunized, in

theory or in fact, from the inflammatory effect of

such statements derogating the very military ap-

paratus which the fact-finders were sworn to

defend and protect. /d., pp. 57a, 58a.

Indeed to assume that the ten career officers who were

Levy’s court-martial* could have been so immunized

would run contrary to all we know of human nature.

The court continued:

This being so, we turn to the teachings of Kotteakos

[v. United States, 328 U.S. 750 (1946)]: “But if one

cannot say, with fair assurance, after pondering all

that happened without stripping the erroneous

action from the whole, that the judgment was not

25 All members of the court were career infantry officers ranging in

rank from major to colonel; eight were caucasian; eight were

Southerners; four had served in Viet Nam, one losing an eye there.

% The court of appeals noted that the military court followed the

law officer’s instructions. Jurisdictional Statement Appendix, p. 57a.

The dissent argued that this was reason for affirming the Article 9

charge. /d., p. 92a. But one reason this Court reversed in Kotteakos

v. United States, 328 U.S. 750, 767 (1946) was that the trial court

itself was confused. If there is any doubt that the law officer was

confused as to what the offenses and their elements were one need

only read his charge to the court, R. Vol. 9, pp. 2589-2608.

pa

substantially swayed by the error, it is impossible

to conclude that substantial rights were not affected.

The inquiry cannot be merely whether there was

enough to support the result, apart from the phase

affected by the error. It is rather, even so, whether

the error itself had substantial influence. If sO, Or

if one is left in grave doubt, the conviction cannot

stand.” 328 U.S. at 765. We are left in grave doubt.

Id. p. 58a.

The prejudice to Levy was not limited to the placing

of his political opinions before the court. The motion

for severance was based on the existence of a direct

variance in the charges. For example, regarding Charge I,

the Article 90 charge, the law officer said at the trial:

LAW OFFICER: If I follow you correctly, the

evidence presented on the disobedience of the order

in Charge I had nothing to do with the—neces-

sarily, with the other specifications and charges

although I think there was—in fact, as I recall the

prosecution’s testimony on that, the evidence

tending to show the disobedience of the order was

that Levy said I’m not going to train you and the

person went on his way. In other words, it was very

short. There was no additional presentation to that

individual of the statements concerning our in-

volvement in Viet Nam as I understand it. R. Vol.

5, 891.

But in the pure speech charges, the Government

sought to prove that Dr. Levy’s statements — allegedly

made with a design to promote “disloyalty” and

“disaffection” — were made to “divers personnel” which

included Special Forces personnel and “everybody to

whom the statements were made.” Id. Allowing the

Government to attempt to prove two conflicting fact

situations,” each used to establish a separate crime, was

ee

” This fact, of course, underscores the contrariness of the whole

(footnote continued on next page]

a

24

error in light of the motion to sever. Williams v. United.

States, 168 U.S. 382 (1897); Pointer v. United States,

151 U.S. 396, 403 (1894).

In his dissent Circuit Judge Seitz resurrected a lower

standard, requiring proof that the joinder “substanti-

ally prejudiced Captain Levy’s constitutional right to a

fair trial on the Article 90 charge.” Jurisdictional State-

ment Appendix, p. 85a. However, the correct test is

that of Kotteakos employed by the majority.* This Court

no longer searches the record for actual prejudice.

Rather, it looks first to see if the practice complained of

is inherently prejudicial, and if so, the inquiry goes no

further. In Estes v. State of Texas, 381 U.S. 532, 543

(1965), Mr. Justice Clark expressly said that the Court

had rejected the actual prejudice test.

In [Rideau v. State of Louisiana, 373 US. 723

(1963) and Turner v. Louisiana, 379 U.S. 466

(1965)] the Court departed from the approach it

charted in Stroble v. State of California, 343 US.

181 (1952), and in Irvin v. Dowd, 366 US. 717

(1961), where we made a careful examination of

the facts in order to determine whether prejudice

resulted. In Rideau and Turner the Court did not

stop to consider the actual effect of the practice but

struck down the conviction on the ground that

prejudice was inherent in it.

The unjustified joinder of unrelated basically dup-

[footnote continued from preceding page]

prosecution. Accused of trying to create “disloyalty” and “dis-

affection,” the Government proved that Dr. Levy—rather than

trying to talk to the Aidmen—refused to have anything to do with

them.

*% Even the UCMJ requires only that the “error materially pre-

judices the substantial rights of the accused” to reverse an error of

law. Article 59(a) UCMJ, 10 U.S.C. §859(a).

a _ ;

25

licitous charges* justifies the reversal for prejudice.

See e.g., Fahy v. Connecticut, 375 U.S. 85 (1963);

Chapman v. California, 386 U.S. 18 (1967).

¥

THE JUDGMENT OF THE COURT OF APPEALS

SHOULD BE AFFIRMED BECAUSE OF NUMER-

OUS CONSTITUTIONAL ERRORS IN THE

COURT-MARTIAL OF DR. LEVY

Regardless of the correctness of the foregoing argu-

ments, the judgment of the court of appeals should be

affirmed because of other constitutional errors. Swarb

v. Lennox, 405 U.S. 191 (1972); Dandridge v. Williams,

397 U.S. 471 (1970). These include (a) the failure to

disclose to Dr. Levy’s civilian and chief counsel the

entire G-2 dossier and to permit full cross-examination

of the special agent; (b) the failure to disclose to the

defense the responses to the 450 questionnaires sent to

Dr. Levy’s patients; (c) the failure to disclose and to

make an adequate check for information obtained by

electronic eavesdropping. Additionally, the law officer

* The Government argues, as if an unconstitutional conviction can

somehow be cured by military practice, that reversal of the Article

90 charge would “be to require separate trials on charges that do

not arise from the same transaction. That is not the procedure

enacted by Congress. . . .” Jurisdictional Statement, p. 16. Of

course, as the dissent noted, Rule 8 of the Federal Rules of Crimi-

nal Procedure demands severance of non-connected offenses.

Jurisdictional Statement Appendix, p. 86a. And the President is to

prescribe “[t]he procedure, including modes of proof .. . which

so far as he considers practicable, apply the principles of law

and the rules of evidence generally recognized in the trial of crimi-

nal cases in the United States district courts but which may not be

contrary to or inconsistent with this chapter.” 10 U.S.C. §836.

Despite the Government’s argument, Congress has not provided

for such joinder. :

a er ee

Sa a dl a a nal

—

26

erred (a) in refusing to apply the “some evidence” test

to permit the war crimes defense to go to the court;

(b) in refusing to allow truth as a defense to the pure

speech charges. Furthermore, the order itself was vague;

the specifications were impermissibly vague and over-

broad; the Army provided Dr. Levy none of the train-

ing it regularly provides other drafted doctors. There

were numerous other errors and prejudices to Dr. Levy

which arose from trial in the military forum which were

raised at trial and thereafter. Included in these are due

process and equal protection, right of compulsory

process, and effective assistance of counsel questions

arising from the following: (1) the career officer “‘venire”

was selected by the general who ordered the court-

martial and excluded non-career personnel, enlisted

personnel, officers of the rank of captain and below,

medical personnel and women and was subject to

command influence; (2) the two-thirds verdict and the

vote by the court on challenges for cause militate

against the exercise of even the peremptory challenge

allowed; (3) the same general appointed the investigat-

ing officer under Article 32 UCMJ, 10 U.S.C. §832, and

the press was excluded from the hearing thereafter held;

(4) the failure to grant a change of venue despite the

atmosphere at Fort Jackson and the threat to a court

member and others; (5) the inside position of the

prosecutor (he administers oaths, accommodates the

court, qualifies even the defense witnesses, issues even

the defense subpoenas, etc.) which creates a “favored”

role with the court; (6) the ubiquitous role of the staff

judge advocate whose influence pervades the prosecu-

tion, and who in this case illegally served as an investi-

gator. Article 6(c), UCMJ, 10 U.S.C. §806(c).

27

CONCLUSION

For the foregoing reasons, appellee respectfully sub-

mits that this Court should dismiss this appeal, or, in

the alternative, affirm the judgment entered in this

cause by the United States Court of Appeals for the

Third Circuit.

Respectfully submitted,

CHARLES MorGAN, JR.

410 First Street, S. E.

Washington, D. C. 20003

NORMAN SIEGEL

84 Fifth Avenue

New York, New York 10010

ANTHONY G. AMSTERDAM LAUGHLIN MCDONALD

School of Law Morris BROWN

Stanford University EmILy Carssow

Palo Alto, California 94305 NEIL BRADLEY

52 Fairlie Street, N. W.

ALAN H. LEVINE Atlanta, Georgia 30303

BuRT NEUBORNE

84 Fifth Avenue REBER F. BOULT, Jr.

New York, New York 10010 88 Walton Street, N. W.

Atlanta, Georgia 30303

MELVIN L. WULF

22 East 40th Street GEORGE W. DEAN, Jr.

New York, New York 10016 P. O. Box 248

Destin, Florida 32541

Of Counsel For Appellee

AMBROSE CAMPANA

36 West Willow Street

Williamsport, Pennsylvania 17701

Counsel For Appellee

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