Petition for a Writ of Certiorari — Schlesinger v. Councilman

Iu the Supreme Court of the United States

Ocroper Term, 1973

No.

JAMES R. SCHLESSINGER, ET AL., PETITION ERS

u.

Bruce R. CouncinMaAn

\ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the Secretary

of Defense, ef al., petitions for a writ of certiorari

to review the judgment ef the Enited States Court

of Appeals for the Tenth Cireuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra, pp. 9-13) is reported at 481 F. 2d 613. The initial

opinion of the district court (App. C, cafra, pp. 15-18)

and its opinion on rehearing (App. D, difra, pp. 19-22)

are not reported.

JURISDICTION

The judgment of the court of appeals (App. -B.

mifra, y. 14) was entered July 19, 1973. The juris-

(t)*

‘ 9 ,

diction of this Court is invoked under 28° U.S.C.

1254(1).

QUESTION PRESENTED

Whether sale and transfer of marijuana by an

Army officer to an Army enlisted man off post and

possession of marijuana by the officer off post are

*service-connected’’ offenses under O'Callahan v.

Parker, 395 U.S. 258, so as to be within the military

court-martial jurisdiction.

STATEMENT

The relevant facts have been stipulated (App. E,

infra, pp. 23-25), and are set forth in the opinion of the

court of appeals (App. A, pp. 9-11). Captain Couneil-

man is an Army officer serving on active duty at Fort

Sill, Oklahoma (App. FE, p. 23). After receiving

information from a confidential informant that Coun-

cilman was using marijuana at his off-post apartment

in Lawton, Oklahoma, the Army's Criminal Investi-

gation Detachment investigated by introducing Coun-

cilman to an enlisted undercover agent at an off-post:

party (App. A, p. 10). The agent, who had partici-

pated in numerous other investigations, represented

himself to be an enlisted Army clerk at Fort Sill

(App. A, pp. 10-11). Thereafter, it is alleged that

Councilman transfetred marijuana to the undercover

avent on two occasions on March 15, 1972, in Lawton,

Oklahoma, once by gift and once by sale (App. E

p. 23). At the time of the alleged offenses, Councilman

was off post, off duty, and not in umiform (App. EB,

p. 24). He was then apprehended by civilian authori-

ties, A search of Tis apartment on March 18, 1972.

3

revealed additional marijuana (App. ‘A. p. Th). Coun-

aalman owas taken inte civilian custody and later

remanded to the military authorities. He was charged

with wron ful sale, transfer, and possession of mari-

Juana dn violation of Article 134 of the Eniform: Code

of Military Justice, 10 U.S.C. 954 CApp. ee pp. 253-24).

At a hearing preceding court-martial, Councilman

argued that the military authorities lacked jurisdiction

because his offenses were not service-connected, but the

presiding mihtary judge rejected this argument (App.

Ky p. 24).

Councilman then brought this action against the

Secretary of Defense, the Secretary of the Army, and

the Commanding General and Staff Judge Advocate

of Fort Sill, seeking to enjoin his impending court-

martial. The district court held the three alleged

offenses were not service-connected and permanently

enjoined further court-martial proceedings against

Councilman on the three charges (App. C. pp. 15-18).

The court of appeals affirmed. :

REASONS FOR GRANTING THE WRIT

1. There is a conthet between the civilian courts of

appeals and the Court of Military Appeals on the.

issue whether drug and marijuana offenses by service-

men are service-connected under O'Callahan v. Parker,

399 US. 258, and Pelford vo Commandant, 401 U.S.

399, when the ‘offenses occur outside the boundaries of

aomulitary post.

The main burden of applying the “Service-connee-

tion” test has been borne by the Court of Military

Appeals, “the court to which Congress has confided

a

& vat

primary responsibility for the sifpervision ef military

justice in this country and: abroad.” Noyd V. Bond,

395 U.S. 683, 695. Soon after O'C 'allahan was. dec ‘ided,

the Court of Military Appeals stated that ‘‘use of

marijuana and narcoties by military persons on or off

a military base has special military significance in

light of the “ ‘disastrous effects’ ” of these substances

~*on the health, morale and fitness for duty of persons

in the armed. forces.” ? United States v. Becker, 18

US.CM.A. 563, 565, 40 C.M.LR. 275, 277. There, use

-of marijuana either on or off post and possession of

marijuana on post were held service- -connected. In

later cases, the highest military court held that off-

post possession of marijuana or illegal narcotics was

also service-connected. United States v. Castro, 18

U.S.C.M.A. 598, 40 C.M.R. 310; United States v.

Adams, 19 U.S.C.M.A. 75, 41 C.MLR. 75. Finally, in

United States v. Rose, 19 U.S.C.MLA. 3, 41 C.M.LR. 3,

unlawful sale of barbiturates off post by one service-

man to another was held service-connected.’

In contrast to these decisions, a number of civilian

courts have held that various off-post drug offenses

'On the other hand, in United States v. Morley, 20 U.S.C.M.A.

179, 43 CLMLR. 19. sales of marijuans and LSD alf post fo a

virilian were held not service-connected. Also. wrongful posses-

sion of narcotics paraphernalia (a hypodermic syringe) off post

was held not service-connected by the Court of Military Appeals

hecause possession of narcotics instruments does not have “the

sume kind of direct and immediate effect upon the health,

morale, and good order and Ried bee “as genie of drugs.

Tnsted Ntates Vv. Teasley, 2 22 UIS.CLMEA. 131, 152, 46 CMLR.

131.

5

are not service-connected. In addition to the Tenth

Circuit’s decision.in the present case, the Fifth Circuit

has held that use of marijuana by a serviceman off

post and off duty is not service-connected. Cole vy.

Laird, 468 F. 2d 829 (CLA. 5).2 Other decisions by

district courts have also Weld that the military lacks

jurisdiction over off-post drug offenses. M.g., Moylan

vy. Laird, 305 F. Supp. 551 (D. RD); Lyle ve. Kincaid,

344 F.Supp. 223 (M.D. Fla.) ; Schroth vy. Warner, 393

F. Sapp. 1032 (D. Hawaii): Redmond v. Wariner, 395

F. Supp. 812 (D. Hawaii). Contra, Scott v. Schlesinger,

No, CLA. 4-2371 (N.D. Tex., Oct. 1, 1973) Cotf-post sales

of marijuana and LSD to servicemen held service-con-

nected). The conflict between these decisions and the de-

cisions of the Court of Military Appeals is continuing

and creates much divisive litigation. It can only be re-

solved by this Court.

2. The issue presented is important, and, im our

view, was wrongly decided below. Off-post narcotics

and marijuana offenses constitute one of the largest

‘ategories of off-post offenses by servicemen over

which the military has exercised jurisdiction. In 1967,

the Army assumed jurisdiction over 106 such offenses.

Relford v.. Commandant, 401 U.S. 355, 370 ne 14.

Because of the large number of these cases, the issue

regarding the constitutional limitations upon the mili-

* Compare, Diorio v. McBride, 431 F.2d 730) (CLA. 5) (on-

post use and possession of marijuana held service-connected ).

6

tary’s jurisdiction te try such offenses sheuld be

promptly and authoritatively resolved:

In holding that the off-post possession, transfer and

sale of marijuana by an officer to an enlisted man is

het service-conmected, the court below improperly ap-

pled the criteria set forth in Relford v. Commandant,

401 ULS. 355, 307-369. The nine factors which this

Court stressed in determining serviee-connection rec-

ognize the military’s interest in maintaining order and

discipline (see factors (b) and (¢)). [egal trafticking

in prohibited drugs by servicemen constitutes a seri-

ous threat to military order and. dise:pline, as the

Court of Military Appeals has held.

The threat to military discipline and authority ts es-

pecially acute where, as here, an officer is invelyed in

iNegal drug transactions with an enlisted man, Relford

also acknowledged that the military’s power to try and

push offenses extends “beyond the purely military

offense,” particularly inareas where civilian courts may

“have less than complete interest, concer, and capacity

for all the @ases that vindicate the military's diserpli-

nary authority within its own community.” 401 CLS. at

367-308 (factors (d) and (e)). Here, both partici-

pants in the alleged offense were nulitary personnel

and the offense had little divect impact upon the civil-

ian community. Thus, local civilian authorities may

net fully vindicate the military's special interests in

deterring drug abuse. The court below has theréfore

nusappled the standards set forth in Relford in con-

cluding that CouneiIman’s alleged offenses are not

service-connected. -

7

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorarl should be eranted,.

Respectfully submitted. :

Robert H. Bork.

Solicitor General.

[nving J ArFE, .

Acting Assistant Attorney General.

Morton THotaxper,

ANTHONY J. STEINMEYER,

. Attorneys.

OcroBer 1973.

APPENDIX A

United States Court of Appeals, Tenth Circuit

€

No. 72-1812

(Filed July 19, 1973)

Bruck R. CouNcILMAN, APPELLEE

v.

Meivin R. Lairp, SeEcRETARY OF DEFENSE, ET AL.,

APPELLANTS

Avpeal from the United States District Court for the

Western District of Oklahoma (1).C. No. 72-462)

Anthony J. Steinmeyer, Attorney, Department of

Jastice (Harlingtoy Wood, Jr., Assistant Attorney

General, William R. Burkett, Cuited States Attorney,

Walter H. Fleischer and Michael H. Stein, Attorneys,

Department of Justice, with him on the Brief) for

appellants.

Nicholas D. Garrett and Orin Christopher Meyers

Lawton, Oklahoma, for appellee.

,

Before SetH, Hottoway, and McWiiiams, Circuit

Judges

SETH, Circuit Judge.

Appellants, defendants below, appeal f1o% an order

of the United States District Court for the Western

District of Oklahoma, permanently enjoining the de-

(9)

WT be

GA.

He was also

y

10

fendants from eontinuing with court-martial proceed-

ings against appellee.

As a basis of its order, the trial court found that

the offenses with which appellee was charged by the

military were not “service connected” within. the

meaning of that term as developed in the decisions

of the Supreme Court of the United States in O’Cal-

lahan v. Parker, 395 U.S. 258, and Relford vy. Com-

mandant, 401 U.S. 355.

Appellee Councilman, a Captain in the United States

Army stationed at Fort Sill, Oklahoma, was charged

under the Uniform Code of Military Justice with the

wrongful sale and transfer of marijuana. to an en-

listed man, veg Specialist Four Glenn TD. Skaggs.

irged with the wrongful possession of

marijuana which took place on another oceasion, Al-

though Captain Couneilman was charged under

Article 134, the general article, the constitutionality

of which has been questioned, see Avrech v. Secretary

of the Navy, 41 U.S.L.W. 2497 (D.C. Cir. March 20,

1973): Levy vo Parker, 41 U.S.L.W. 2597 (8d Cir.

April 18, 1973): that issue is not presented to us, and

it is unnecessary to decide it in the context of this

ease,

Councilman soneht to have the court-martial. pro-

eeedings dismissed for lack of jurisdietion, but his

motion was denied by the presiding jndge of the

court-martial. This suit was then commenced.

The facets, which are not in dispute, are as follows:

The Army authorities were advised bv a confidential

informant that Couneillman wes using marijuana in

his off-post apartment. Thereafter, at a party to which

he was invited for that purpose, Captain Councilman

was introduced to an undercover agent of the Army’s

Crinuinal Tnvestigation Division, Specialist Four

Clenn D. Skages, Skages was using the name Danny

- ma 11

Drees, and was introduced to Councilman as an Army

clerk-typist, also stationed at Fort Sill. Thereafter it

is alleged that Councilman on one oecasion transferred,

and on another sold, small amounts of marijuana to

Skages, alias Drees.

Based on Skaggs’ investigation, Councilman was ap-

prehended by civilian authorities, and a search of his

apartment turned up a small quantity of marijuana.

Skages from time to time also acted on behalf of

the civilian authorities, Councilman was subsequently

turned over to military authorities, and the court-

martial proceedings here in issne were commenced.

During all times relevant to the issues in this case,

it is stipulated that Councilman was off-post, off-duty,

and out of uniform, and that Skages was off-post and

out of uniform, and although ostensibly off-duty. was

in fact on duty in his capacity as an undercover

agent.

In Relford Vv. Commandant, 401 US. 355, referred

to by the trial court, the Supreme Court set forth

twelve tests which it considered to he implicit from

the holding in O'Callahan ve Parker, 395 U.S. 258.

These standards are to be used in determining if

offenses are service connected.” A review of the facts

in the present case in the light of Relford reveals that

only one of the standards or factors need be here

considered. This one concerns whether the ‘vietim™

is engaged in a duty relating to the military. As to

this clement, we do not consider that Skages, alias

“vietim’ in the ordinary sense. Also if

the time of the offense is considered, Skages was not

then engaged outwardly in the performance of any

duty relating to the military. The opinion in Relford

does not indicate that the Supreme: Court had in mind

this type of situation when it referred te a person

performing military duties or toe a ‘victim.’ The

Drees, was a

q

12

Relford Court also“ added nine other factors that

should be taken into consideration in arriving at a

determination of whether a crime is sufficiently “‘serv-

ice eonnected’’ so as to confer jurisdiction on a

page eourt. These factors are enumerated at 401

U.S. 367, 369. As to these factors, the Government

argues aa beeause the alleged sale and transfer of

marijuana was between two servicemen, and par-

ticularly here between an officer and an enlisted man,

they have shown sufficient ‘‘service connection’ to

enable the military courts to assume jurisdiction over

appellee. Of the nine factors, only one might be present

here. This factor relates to the rank of the persons

involved in the incident or the fact that both were

servicemen.

Tt has been held that the off-base possession of

marijuana by a serviceman is not “service connected.”

Moylan v. Laird, 305 F. Supp. 551 (D.R.T.). Neither

is off-base use of marijuana. Cole v. Laird, 468 F. 2d

829 (Sth Cir). Nor is the off-hase sale by a service-

man to a civilian. United States. v. ‘Morley, 20

USCMA 179. It has also been held that there is no

“service connection” when a serviceman commits an

off-duty, off-base, out of uniform offense against the

dependents of another serviceman, United States v.

Henderson, 18 USCMA 601, although the Court of

Military Appeals has held that any offense by one

serviceman against another, even if eemmitted off-

base, off-duty, and while the offender is in civilian

13

attire and unaware that his victim is the person or prop-

erty of another serviceman, is sufficiently “ser vice con-

nected” to confer court-martial jurisdiction. United

States v. Camacho, 19 USCMA 11.

We cannot agree that this sale or transfer of mari-

juana, as we previously said, involved any ‘vic tim,”

and it appears that “service connection” based on this

theory is so remote as to be not at all within the mean-

ing of that term as used by the Supreme Court in

O'Callahan and Relford. See United States v. Cook,

19 USCMA 13; Silvero v. Chief of Naval Air Desc

Training, 428 F. 2d 1009 (5th Cir.).

The requirement of indictment by a grand jury and

the right to a jury trial are not forfeited hy a person

simply because he chooses, or is mn some cases re-

quired, to serve his country as a member of the

Armed Forces. These rights should be preserved to

a serviceman insofar as possible without interfering

with military discipline. In the instant case, there is

no military connection with the crime other than the.

fact that Councilman and Skaggs were members of

the Armed Forces. The commission of the erimes that

appellee stands accused of affects military discipline

no more than commission of any crime by any service-

man. .

The trial court was correct in its determination

that the military was without jurisdiction to proceed

with the court-martial of Captain Councilman and in

issuing the injunction.

Affirmed,

yo so {fieerres

ce

APPENDIX B

Jury TermM—Juny 19, 1973

No. 72-1812

Bruce R. CouncthMAN, PLAINTIFF-APPELLEE

uv.

Meruvin R. Larrp, Secrerary oF DEFENSE: RoBert F.

FROFHLKE, SECRETARY OF THE ARMY: Masor GEN-

FERAL R. WETHERILL, COMMANDING GENERAL OF Fr.

Sinn, OKLAHOMA: AND Magsgorn ARCHIBALD M. S.

McCoii, Starr Jtupae Apvocate: oF ET, SttL, OKLA-

HOMA, DEFENDANTS-APPELLANTS

3efore Honorable OLIVER SETH, Honorable WILLIAM?

J. Hottoway, Jr. and Honorable Roperr H. Me-

Wittrams, Cireuit Judges

This cause came on to be heard on the record on

appeal from the United States District Court for the

Western District of Oklahoma, and was argued by

eounsel,

On consideration whereof, it is ordered that the

judement of said court is affirmed.

Howarp K, Pirierips,

Clerk.

By

(S) Lavon M. Tsiperk,

| Deputy Clerk.

(14)

APPENDIX C

In the United States District Court for the Western

District of Oklahoma

Civil No. 72-462

(Filed July 7, 1972)

Bruce R. CouNcILMAN, PLAINTIFF

t.

Mervvin R. Larrp, SECRETARY OF DEFENSE; Ropert F.

FROEHLKE, SECRETARY OF THE ARMY; Magor GEN-

ERAL R. WETHERILL, COMMANDING GENERAL OF Fr.

Sint, OKLAHOMA; AND Magor ARCHIBALD M. S.

McCoi, Starr Jupce Apvocate or Fr. Sti, OKLA-

HOMA, DEFENDANTS

FINDINGS OF Fact, CONCLUSIONS OF

Law AND JUDGMENT

The above-entitled case came on regularly for hear-

ing before the Honorable Stephen S. Chandler, United

States District Judge, the plaintiff, Bruee R. Couneil-

man, appearing in person and by Nicholas D. Garrett

and W. W. Godlove, and the defendants appearing by

O. B. Johnston TIT, Assistant United States Attorney

for the Western District of Oklahoma, Captain

Charles W. Turnbaugh and Captain Perry M. Ray-

mond, both of the Judge Advocate General Corps;

and the parties having stipulated as to certain facts

hereinafter enumerated, and each having submitted

briefs, announced ready for the hearing, and the

Court, being fully advised in the premises, finds:

(15)

i

4

“e tt EIR

Pay peta)

Hi CAVE

ae

ie

16

STIPULATION OF FACTS

Tt was stipulated that Bruce R. Councilman, plain-

tiff in said cause, is a Captain on active duty in the

United States Army and stationed at Ft. Sill, Okla-

homa; that plaintiff is presently charged before an

Army court-martial with three offenses under the

Uniform Cede of Military Justice, said offenses

being:

1. Wrongful sale of marijuana to Specialist-t,

Glenn D. Skages in Lawton, Oklahoma, on March 15,

1972, at 10:30 p.m.

2. Transfer of marijuana to Specialist-4, Glenn

DD Skage: in Lawton, Oklahoma, on Mareh 15, 1972,

at 1:15 a.m.

3. Wrongful possession of € avijuana at his apart-

ment in Lawton, Oklahoma, on Mareh 18, 1972.

It was further stipulated that the alleged offenses

occurred in the civilian community of Lawton, Okla-

homa, while plaintiff was off duty and out of uniform.

Iminediately following the search of his apartment in

Lawton, Oklahoma, plaintiff was taken by the civilian

and military authorities to the Lawton Police Depart-

ment, where he was booked and later removed to Ft.

Sill, Oklahoma.

That at all times the ¢ivihan courts were open for

any one or more of the above charges to be filed.

The Court, for the purpose of this hearing, accepted

as true the stipulation that Investigator Skages and

Investigator Nelson, a CID agent. would testify that

Skaggs was introduced to plaintiff, Brnee R. Council-

man, in the apartment of Irvestigator Nelson, who

had invited Bruce R. Counei!man to attend, and at

that time, according to the offered testimony of the

defendants, Investigator Nelson introduced Investiga-

tor Skaggs as being a man by the name of Danny

\

Drees, a Specialist-4 Clerk in the Army training cen-

ter at Ft. Sill, Oklahoma.

That Investigator Skaggs carried on his investiga-

tion of Bruce R. Councilman between the dates of

March 10 and March 18, 1972. That at all times in his

dealings with plaintiff herein, he was in. civilian

clothes, used the alias of Danny Drees, held himself

out as a user of and dealer in marijuana.

That at all times subsequent thereto, Skaggs was

used as an undercover agent in which numerous cases

were filed by virtue of his activities involving both

civilian and military personnel and that many of the

military offenders apprehended for drug sales and

transfers to Skaggs which occurred in the civilian

community have been tried by civilian authorities, but

that some have been tried by the military authorities.

That Motions were filed and presented to the presid-

ing military judge of the court-martial] proceedings to

dismiss the charges against plaintiff because of the

lack of jurisdiction of the military to try him in a

court-martial proceeding, briefs were filed, evidence

heard, and the Motion denied, and that the Court-

martial proceeding was set for trial to hegin at 9:00

a.m. on July 11, 1972.

17

CONCLUSIONS OF LAW

The Court, after having examined the Stipulation

of Facts, together with oral stipulations above-referred

to and having heard arguments of counsel, is of the

opinion that the defendants, and each of them, lack

jurisdiction to try the plaintiff for the above offenses.

James F. O’Callahan vy. J. J. Parker, 395 U.S. 258,

23 L.Ed. 291, 89 S. Ct. 1683 (1969) ; Isiah Relford v.

Commandant, U.S. Disciplinary Barracks, 401 U.S.

523-971—73——_3

18

355, 28 L.Ed. 2nd 102, 91 S. Ct. 649 (1971); Moylan v.

Laird, 305 F. Supp. 551 (1969).

JUDGMENT

IT IS THEREFORE ORDERED AND DE-

CREED that the defendants, and each of them, be and

they are hereby permanently enjoined from proceeding

further with the court-martial proceedings against

plaintiff on the three above-named charges and speci-

fications.

(S) Stephen S. Chandler,

STEPHEN S. CHANDLER,

United States District Judge.

Approved:

(S) Nicholas D. Garrett

NicHouas TD. Garret,

(S) W. W. Godlove

W. W. Gop.ove,

Attorneys for Plaintiff,

(S) O. B. Johnston IIT

O. B. Jounstron ITT,

Assistant U.S. Attorney,

(S) Charles W. Turnbaugh

Carr. Cuartes W. Turnpaucu, JAGC

APPENDIX D

In the United States District Court for the Western

District of Oklahoma

No. Civ-72-462

(Filed August 7, 1972)

Bruce R. CouNcILMAN, PLAINTIFF

Vv.

Metvin R. Larrp, SECRETARY OF DEFENSE; Ropert F.

FROEHLKE, SECRETARY OF THE ARMY; Magor GEN-

PRAL R. WETHERILL, COMMANDING GENERAL OF Fort

Sinn, OKLAHOMA; AND Mason Arcuipatp M. S.

McCot., Starr JupGe Apvocatet or Fort SILL,

OKLAHOMA, DEFENDANTS

MEMORANDUM OPINION AND ORDER OVERRULING

PETITION FOR RECONSIDERATION

On this 3rd day of August, 1972, upon consideration

of Petition for Reeonsideration with brief attached,

the Court finds that on July 5, 1972, the plaintiff filed

in this Court (1) Motion for Temporary Restraining

Order praying for a temporary restraining order

restraining defendants from subjecting the plaintiff to

court-martial proceedings scheduled for July 11, 1972,

upon the ground that immediate and irreparable

injurv, loss and damage would result: (2) Motion

for Preliminary Injunction; (3) Affidavit in Support

of Motion for Temporary Restraining Order; and (4)

Briefs in support of the foregoing motions.

(19)

PEPIN ICs

RE CT gee

20

Upon presentation of said papers to the under-

signed Judge of said Court, an er paxte temporary

restraining order was denied and the defendants were

notified by telephone and agreed to be present the

following day at 10:00 o’clock a.m. for a hearing of

the Motion for Preliminary Injunction, at which time

the parties appeared and the attorneys for the defend-

ants filed Brief in Opposition to the granting of the

relief prayed for by the plaintiff.

The Court, having considered the Agreed Statement

of Facts, arguments and admissions of counsel, enteréd

findings of fact, conclusions of law and Judgment

enjoining the defendants from proceeding further

with the court-martial proceedings against plaintiff

on the charges and specifieations described in the find-

ings of fact. The matter is now before the Court on

the defendants’ Petition for Reconsideration.

The Court is of the opinion that the four instru-

ments denominated Motion for Temporary Restrain-

ing Order, Motion for Preliminary Injunction, Affi-

davit in Support of Motion for Temporary Restrain-

ing Order and Brief filed in support thereof, which

were simultaneously filed by the plaintiff on the oth

day of July, 1972, in view of Rule 8(e), meet the re-

quirements of a Complaint as contemplated by Rule

3, FRCP. As authorized by Rule 8(f) in order to do

substantial justice, said instruments were considered |

by the Court as fully complying with Rule 3(a),

FRCP. Had objection been raised by defendants at

the hearing, said pleadings would have been con-

formed to the Rules and such an order is hereby en-

tered Nunc Pro Tune as authorized by Rule 15(b)

FRCP. |

The pleadings filed by the plaintiff fully apprised

the'defendants of the nature of the relief sought, were

served on the defendants’ counsel on the date filed, a

21

day prior to the hearing. The record shows that. the

defondants were quite familiar with the facts involved

regarding which there was no controversy and that

defendants were represented by Captain Charles W.

Turnbaugh and Captain Perry M. Raymond of the

Judge Advocite General Corps, and O, B. Johnston

IIT, Assistant United States Attorney for the West-

ern District of Oklahoma, who announced ready for

the hearing, filed written brief and Incidly and skill-

fully presented the factual and legal prepositions in-

volved.

While the Comt did not at the time specifically re-

form the pleadings by changing the titles thereof,

they were considered by the Court and counsel for the

parties as adequate although net denominated *Com-

plaint™. The facts involved and the relief sought were

just as clear from the four-corners of the four instru-

ments filed by the plaintiff as if they had been denom-

inated “Complaint”, and just as clearly invoked the

jurisdiction of the Court and the Court coming to the

conclusion that under the law it was necessary for

him to enter an injunction against the defendants to

prevent irreparable damage to the plaintiff, entered

and filed forthwith an Order enjoining the defendants

from proceeding further with the conrt-martial

proceedings. |

As to the contention of the defendants that plain-

tiff did not request a permanent injunction and that

the Court granted a permanent injunction saa sponte,

the Court is of the opinion that while the word “per-

manent” may be superfluous, as a matter of law it

simply means that the injunction is permanent until

set aside by an appellate court, and signifies that there

would be no purpose in entering a Temporary Order

since all of the facts involved were before the Court

pp

and it would be useless to grant a Temporary Injune-

tion and set the matter for further hearing on whether

evo not oa Permanent Injunction should be entered,

since ho good purpose could be served thereby.

The Court sought to effect a just and speedy deter-

mination of the action which resulted in a simple,

short and inexpensive record for appeal if the defend-

ants Wish to apply to an appellate court for relief

from the entry of the extraordinary writ of prohibi-

tion, all in accordance with the mandate of Rule 1,

REP.

The Petition for Reconsideration is therefore over-

ruled.

(S) SrerHen S. CHANDLER,

United States District Judge.

APPENDIX E

In the United States District Court for the Western

District of Oklahoma

No. Civ-72-462

(Filed July 6, 1972)

Brece Re Couxciuaaax. PLAIN TIER

v.

Menvixn R. Lairp, Secrerary or DEFENSE: Robert F.

FROEHLKE, SECRETARY OF THE ARMY: Magor Grex-

ERAL Re. Weruerin.n, ComMaxpixg GENERAL OF

Fort Sin, OKLAHOMA: AND Mason ARCHIBALD M. S.

McCout, Stare Jtper Apvocare or Forr Sit,

OKLAHOMA, DEFENDANTS

STIPULATION OF Face

It is hereby stipulated by and between the plaintiff

and the defendents that the following are true:

Bruce R. Councilman, plaintiff, is a captain on

active duty in the US Army and stationed at Fort

Sill, Oklahoma. The plaintiff is charged before an

Army court-martial with three offenses under the

Uniform Code of Military Justice:

(1) Wrongful sale of marihuana to Specialist

Four Glenn D. Skages in Lawton, Oklahoma, at 10:3

p-m., 15 March 1972;

(2) Wrongful transfer of marihuana to Specialist

Four Glenn D. Skages at 1:15 am., 15 March 1972,

in Lawton, Oklahoma; and,

od Ata

> A

24

(3) Wroneful possession of marihuana at his apart-

ment in Lawton, Oklahoma, on 18 Mareh 1972.

The alleged offenses occurred in the Civilian c¢om-

munity of Lawton, Oklahoma, while the plaintiff was

off duty and out of uniform.

From 10 Mareh until 18 Mareh 1972, Tnvestigator .

Skages was acting as an undercover agent investigat-

ing the plaintiff and others and used the alias of

Danny Drees. Skages has acted as an undercover

agent In numerous cases involving both civilians and

military personnel. Many of the nuilitary offenders

apprehended for drug sales and transfers to Skaves

in the civilian community have been tried by the civil-

lan authorities but some have been tried by the mili-

tary authorities.

A motion was made to the presiding military judge

to dismiss the charges awainst the plaintiff because of

lack of jurisdiction. Briefs were accepted, evidence

heard and the motion was denied. Trial on the merits

is scheduled for 9:00 aam.. 11 July 1972,

Respectfully submitted.

(S) Nicholas D. Garrett

NicHoLas D. Garner,

Attorney for Plaintiff,

(S) Bruee R. Councilman.

(S) O. B. Johnston

O. B. Jounxsron,

Assistant US. Attorney for United States.

(S) Charles W. Turmbaugh

CHhaRLES W, TURNBAUGH, Cpr., JAGG,

Aflorney for United States, Defendant.

25

In the United States District Court for the Western

District of Oklahoma

No. Civ-72-462 b

(Filed July 6, 1972)

Brece R. CouxcinmMayx, PLatx rire

*

ME.vin R. Lairp, Secretary -or DEFENSE; Ropert FE.

FROEHLKE, SECRETARY OF THE ARMY; Mion CGiEN- a

bRAL OR. Werneritn, CommManxpixe Gr NEKAL OF =

Fort Sitt, Ox. AHOMA: AND Mason ArcHIBALD M.S

McCou,, Starr Jupce Apvocare OF Fort SIL,

OKLAHOMA, DEFENDANTS

STIPULATION OF Exrectrep TESTI MONY

If US Army Criminal Iny estigator James Nelson and

US Army Military Police Inv estigator Glenn D, Skages

were present in court and sworn as w ithessex they

would testify substantially as follows \

- On 10 Mareh 1972, Investigator Nelson, as part of

& criminal investigation, held a party in’ Lawton,

Oklahoma at which Iny estigator Skages and the plain-

tiff were present. Investigator Skaggs was introduced

to the plaintiff by Nelson as D; anny Drees, a Special-

ist Four elerk in the Army Training Center at Fort

Sill, Oklahoma.

(S) Charles W. Turnbaugh

CHARLES W.'TURNBAUGH,

Captain, JAGC,

Trial Counsel.

(SS) Bruce R. Councilman

Brvee R. Couxcinmay,

Accused,

(S) Nicholas D. Garrett

NICHOLAS D. GArrErT,

Aftarney for Plaintiff.

U.S. GOVERNMENT PR! NTING OFFICE 1973