# Petition for a Writ of Certiorari — Schlesinger v. Councilman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 738

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0395%3A01. Public record. Not legal advice.