U.S. v. Howe | Cases | Westlaw

Petitioner was arraigned before a general court-martial convened by the Commanding General, United States Army Air Defense Center at Fort Bliss, Texas. He was charged with using contemptuous words against the President of the United States and conduct unbecoming an officer and a gentleman, in violation of Articles 88 and 133, Uniform Code of Military Justice, 10 USC §§ 888 and 933, respectively. He was also charged, originally, with public use of language disloyal to the United States with design to promote disloyalty and disaffection among the troops and civilian populace, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. As to this last charge, the defense motion to dismiss was sustained by the law officer. He was convicted of the two charges, first above-mentioned, and sentenced to dismissal, total forfeitures, and confinement at hard labor for two years. The convening authority reduced the period of confinement to one year and otherwise approved the sentence.¹ A board of review in the office of the Judge Advocate General of the Army affirmed the findings and sentence.

In due time, petitioner filed with this Court, pursuant to Article 67(b) (3), Uniform Code of Military Justice, 10 USC § 867, a petition for review. Upon consideration of that petition by this Court, the same was denied. Thereupon, petitioner filed with this Court his petition for reconsideration. This Court, by order, directed that the petition for reconsideration be set for oral argument and that briefs be filed by counsel for both parties. Briefs having been filed and oral argument held, we proceed to the disposition of the petition for reconsideration.

The specification under the charge of violation of Article 88, supra, reads as follows:

The specification under the charge of violation of Article 133, supra, reads as follows:

Petitioner presents that the record reveals that a group of professors and students from a state college at El Paso, Texas, intending to “demonstrate against American policy,” requested permission from the City Council of that city to hold a sidewalk demonstration in San Jacinto Plaza, but that the council initially denied permission. Thereafter, “pressure” was brought on the City Council which persuaded its members that there was a constitutional right to demonstrate. The City Attorney then advised the council that under the Constitution no permission was necessary for a group to hold a sidewalk demonstration. Petitioner also points out that one of the professors of the above-mentioned group testified that the major purpose of the demonstration was to publicize “the other position in Vietnam,” but after the City Council denied permission to demonstrate, the rights guaranteed under the First and Fourteenth Amendments became a “second point” of the demonstration.

We note that the record of trial reveals that the proposal to demonstrate had been a source of controversy for two weeks preceding the demonstration held on November 6, 1965. This controversy had, during that period, consumed much space in the local press and in broadcasts on local radio and television stations. At the time and place set for the demonstration, a crowd of some 2,000 persons had assembled and the picket line was met with pro-Vietnam sentiment, including spectators with “Win in Vietnam” stickers pasted on their foreheads, and American Legionnaires, distinctively attired, passing out small United States flags. There was a counter-demonstration, and “cat calls and comments” were aimed at the demonstrators by spectators but otherwise the demonstration was peaceful.

The Assistant Chief of Police of El Paso testified that at the time of the demonstration he was a police captain in charge of the area of demonstration and had a force of thirty-three policemen stationed in the immediate vicinity of the park, with a reserve force one block away to preclude any violence which might occur or could occur. It also appears from the record that military policemen from the Provost Marshal's Office, Fort Bliss, Texas, were at the scene to aid the civilian police concerning any military personnel in uniform that might be involved in the demonstration by returning them to Fort Bliss.

The record further reveals that some twelve demonstrators walked in line about the park carrying signs reading, “let's get our boys out of Viet Nam,” “get out of Viet Nam,” “peace in Viet Nam,” and “would Jesus carry a draft card.” The demonstration was photographed and recorded on *433 **169 film by the El Paso Police Department and these photographs were admitted in evidence and the film projected for the court-martial. The demonstration was recorded on motion picture film by at least two of the local television stations and the same were broadcast by those stations.

The petitioner is a graduate of the University of Colorado where he majored in political science. While a student, he voluntarily participated in the Reserve Officers' Training Corps, and upon graduation he accepted a commission as a second lieutenant in the United States Army Reserve. He was ordered to active duty under that commission and had been on duty approximately twelve months at the time of this occurrence.

Petitioner was not a member of the group of professors and students which arranged for, and organized, the demonstration in San Jacinto Plaza. It appears as if he was not known to the members of that group. Prior to their assembly, he was observed at the site of the demonstration holding in his hand a rolled piece of cardboard. As the group began to march in its picket line, he joined the same at the rear thereof, unrolled the cardboard which he carried and held it before him as he walked, reversing the same from time to time so that each side was visible to the assembled crowd. On one side the placard contained the lettering: “LET'S HAVE MORE THAN A ‘CHOICE’ BETWEEN PETTY, IGNORANT, FACISTS in 1968”; and on the other side the lettering: “END JOHNSON'S FACIST AGRESSION IN VIETNAM.”

One of the military policemen present testified he recognized three or four other servicemen at the scene. There is no means of knowing the number of other servicemen who may have been present, not in uniform, and not identified by the witness; nor the number of servicemen who may have seen the petitioner marching, on the films broadcast by the television stations.

In his initial petition for review, petitioner assigned the following as errors:

Article 88, Uniform Code of Military Justice, 10 USC § 888, reads as follows:

The petitioner contends that this Article and the charge laid under it violate the Bill of Rights and the First Amendment thereof.

We note that this provision was not new to military law when it was adopted as a part of the Uniform Code of Military Justice. Actually, this provision, and its precursors, are older than the Bill of Rights, older than the Constitution, and older than the Republic itself.

The British Articles of War of 1765, in force at the beginning of our Revolutionary War, provided for the court-martial of any officer or soldier who presumed to use traitorous or disrespectful words against “the Sacred Person of his Majesty, or any of the Royal Family”; and of any officer or soldier who should “behave himself with Contempt or Disrespect towards the General, or other Commander in Chief of Our Forces, or shall speak Words tending to his Hurt or Dishonour.”²

The Articles of War adopted by the Continental Congress on June 30, 1775, revised the British language to adjust the same to the new concept of “Continental Forces” and made punishable by court-martial the act of any officer or soldier who behaved himself with “contempt or disrespect toward the general or generals, or commanders in chief of the continental forces, or shall speak false words, tending to his or their hurt or dishonor.”³

The Declaration of Independence, having been signed, the Articles of Confederation and Perpetual Union, having been reported to the Continental Congress,⁴ and the confederacy known as “The United States of America,” having begun to emerge with the major authority residing in the “United States of America, in Congress assembled,” the Continental Congress, on September 20, 1776, adopted new Articles of War making punishable by court-martial the conduct of any officer or soldier who “presume to use traiterous or disrespectful words against the authority of the United States in Congress assembled, or the legislature of any of the United States in which he may be quartered”; and of any officer or soldier, “who shall behave himself with contempt or disrespect towards the general, or other commander-in-chief of the forces of *435 **171 the United States, or shall speak words tending to his hurt or dishonor.”⁵

The first session of the First Congress adopted a temporary provision, to remain in effect until the end of the next session of Congress, expressly extending the rules and Articles of War which had been enacted by the United States in Congress assembled. The second session of the First Congress adopted permanent legislation expressly extending those rules and Articles of War.⁶

On December 15, 1791, the President advised the Congress that the required three-fourths of the States had ratified the amendments constituting the Bill of Rights. Thereafter, and on April 10, 1806, the Congress enacted new Articles of War and included therein the following provision:

With some change in language, the last quoted article of the Articles of War of 1806 was reenacted in the Articles of War adopted by the Congress on June 22, 1874.⁷ On August 29, 1916,⁸ and again in 1920,⁹ substantially the same provision was reenacted *436 **172 by the Congress. It was not changed in 1948 by the Elston Act, which revised the Articles of War after the termination of World War II.¹⁰ And, finally, it was reenacted as Article 88 of the Uniform Code of Military Justice, supra. Act of May 5, 1950, 64 Stat 107, 135; Act of August 10, 1956, 70A Stat 36, 67. Now, however, it applies to officers only; that portion of previous Articles relating to “other persons subject to military law” having been deleted.

The First Amendment to the Constitution of the United States provides:

Of it, the Supreme Court has said:

The following is from the text in “Constitution of the United States of America,” Revised and Annotated, 1963:¹¹

In Schenck and Frohwerk, both supra, and also in Debs v United States, 249 US 211, 63 L ed 566, 39 S Ct 252 (1919), the defendants were charged with conspiracy to violate the Espionage Act of June 15, 1917, by causing and attempting to cause insubordination in the military forces and to obstruct the recruiting and enlistment service when the United States was at war with the German Empire. The proof consisted of making speeches, printing and circulating bulletins, and the printing of a newspaper. The Supreme Court, although announcing the “clear and present danger” doctrine (Schenck), affirmed those convictions. The proof in Schenck v United States, supra, in which the doctrine was announced and the conviction sustained, was of such a nature as to cause Chief Justice Vinson to observe in Dennis v United States, supra:

The evil which Article 88 of the Uniform Code, supra, seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward the Chief of State and the Commander-in-Chief of the Land and Naval Forces of the United States. Under the British Articles of War of 1765, the precursor to Article 88, Uniform Code of Military Justice, supra, was included with the offense of sedition under Section II thereof, entitled, “Mutiny.” It is similarly separated in the American Articles of War 1776, being grouped with the offenses of sedition and mutiny. Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, at pages 932 and 961. We need not determine whether a state of war presently exists. We do judicially know that hundreds of thousands of members of our military forces are committed to combat in Vietnam, casualties among our forces are heavy, and thousands are being recruited, or drafted, into our armed *438 **174 forces. That in the present times and circumstances such conduct by an officer constitutes a clear and present danger to discipline within our armed services, under the precedents established by the Supreme Court, seems to require no argument.

The offense denounced by Article 88, supra, was an offense in the British forces at the beginning of our Revolutionary War and was readopted by the Continental Congress. It is significant that it was reenacted by the First Congress of which fifteen of the thirty-nine signers of the Constitution were members, including James Madison, the author of the Bill of Rights. United States v Culp, 14 USCMA 199, 211, 14 CMR 411. It is of even more significance that this provision was readopted by the Ninth Congress in 1806, after the Bill of Rights had been adopted and became a part of the Constitution. This action of Congress constituted a contemporary construction of the Constitution and is entitled to the greatest respect. United States v Culp, supra.

Speaking of a provision of this identical statute of 1806, the Supreme Court said in Ex parte Quirin, 317 US 1, 41, 87 L ed 3, 20, 63 S Ct 2 (1942):

Since our decision in United States v Culp, supra, the Supreme Court has had occasion to again consider the question of contemporary construction of the Constitution. Growing out of the dispute occasioned by the order for the integration of the University of Mississippi, Governor Ross R. Barnett was cited for contempt and demanded trial by jury. In holding that he was not entitled to trial by jury, the Supreme Court said, in United States v Barnett, 376 US 681, 693, 12 L ed 2d 23, 32, 84 S Ct 984 (1964):

In his lecture on “The Bill of Rights and the Military,” given as the third James Madison Lecture at the New York University Law Center on February 1, 1962 (37 New York University Law Review 181, 183), Chief Justice Warren stated the historical fact:

The Chief Justice could have added that our neighbor, Canada, and the United States are the two great English-speaking countries of the Western Hemisphere. Both nations have a long tradition based upon Anglo-Saxon jurisprudence which has consistently subordinated the military to the civilian in Government. We would surely be ill-advised to make an exception for the civilian soldier which would inevitably inure to the advantage of the recalcitrant professional military man by providing an entering wedge for incipient mutiny and sedition.

True, petitioner is a reserve officer, rather than a professional officer, but during the time he serves on active duty he is, and must be, controlled by the provisions of military law. In this instance, military restrictions fall upon a reluctant “summer soldier”; but at another time, and differing circumstances, the ancient and wise provisions insuring civilian control of the military will restrict the “man on a white horse.”

What has been written historically of Article 88 of the Code, supra, applies with equal force to Article 133 of the Uniform Code. This codal provision reads:

Regardless, it is now argued that the charge founded upon this Article violates the First Amendment to the Constitution, fails to state an offense, and is so vague and uncertain that the due process clause of the Fifth Amendment is abridged.

As long ago as 1886, the Supreme Court, in Smith v Whitney, 116 US 167, 186, 29 L ed 601, 607, 6 S Ct 570, recognized the worth of such a statutory limitation by refusing to order a writ of prohibition to issue when to do so “would be to declare that an officer of the Navy, who, while serving by appointment of the President as Chief of a Bureau in the Navy Department, makes contracts or payments, in violation of law, in disregard of the interests of the Government, and to promote the interests of contractors, cannot lawfully be tried by a court-martial composed of naval officers, and by them convicted of scandalous conduct, tending to the destruction of good morals and to the dishonor of the naval service.” In arriving at this determination, that court first observed:

Similarly, this Court wrote with regard to Article 133 of the Uniform Code, supra:

In short, we, too, find Article 133 of the Uniform Code, supra, a constitutionally permissible exercise of statutory restraint.

This conclusion is buttressed by still another portion of Smith v Whitney, supra, where, at page 606, the Supreme Court observed:

Be that as it may, the Supreme Court has recently written:

Whatever the test, Article 88 meets the constitutional norm as to certainty. We need not dwell on its susceptibility of improper application for that possibility has had previous assessment. In the matter of “fair notice,” we emphasize that Article 88 is designed to cover the use of “contemptuous” words toward holders of certain offices named therein. “Contemptuous” is used in the ordinary sense as is evidenced by the Manual for Courts-Martial, United States, 1951, paragraph 167. See Webster's Third New International Dictionary. The proscribed conduct having been made certain and the warnings sufficient, it follows that the language of the Article satisfies the test of definiteness, just as does Article 133, hereinbefore discussed. See United States v Fletcher, Smith v Whitney, and United States v Giordano, all supra. In sum, we answer issues 1, 2, and 3 adversely to the petitioner.

Counsel for the appellant also contend that the law officer erred to the prejudice of Lieutenant Howe in failing to instruct, sua sponte, that if the court-martial found the alleged contemptuous words to have been uttered in the course of a political discussion, it thereupon had to find he intended these words to be personally disrespectful.

It is argued that this record shows accused participating in a political discussion, and that, under the circumstances, personal contempt for the President was absent—this latter aspect being an ingredient of the offense.

Neither the legislative history of the Uniform Code nor interpretation of comparable Articles of War lend themselves to any different interpretation. See United States v Poli, CM 235607, 22 BR 151, 161 (1943). Accordingly, the law officer did not err in failing to give a sua sponte instruction concerning intent.

The next issue to be considered is whether appellant was substantially prejudiced by the law officer's ruling that the maximum sentence for the charged offenses included confinement at hard labor for three years. The Table of Maximum Punishments, Manual for Courts-Martial, United States, 1951, paragraph 127c, does not provide a stated punishment for either of the offenses here charged. It should be noted that for punishment purposes they were treated as multiplicious. In those instances where punishment is not stated, if the offense is included within an offense listed in the Table of Maximum Punishments or is closely related to some other listed offense, “the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment.” Paragraph 127c, supra. Since neither of the offenses here involved is included within other offenses, it is the contention of the appellate defense counsel that they are most closely akin to the offenses under Article 89 of the Uniform Code, 10 USC § 889, for it makes punishable disrespect toward a superior officer. Six months is the maximum authorized confinement for conviction under this Article. Such was not the view taken by the law officer for he had instructed the court on a three-year maximum for confinement, treating these offenses as being similar to an Article 134 offense of uttering disloyal statements. To this, defense replies that even if the Article 134 offense is possibly related, where an offense not listed in the Table of Maximum Punishments is similar to listed offenses, a preference for the lesser of the two is manifest under paragraph 120c, Manual for Courts-Martial, United States, 1951, and by our holding in United States v Beach, 2 USCMA 172, 7 CMR 48.

Accordingly, as to the instant charges and specifications, we find that the law officer gave the court-martial the correct maximum punishment imposable.

Yet another issue is that the law officer erred to the substantial prejudice of the appellant by instructing the court, in spite of the defense objection, that in determining whether the words used by Lieutenant Howe were contemptuous, the court-martial “should apply the test of how the words were understood and what they were taken to mean by the persons who saw them.”

The appellant takes the position that the test applicable in this case is the same as that used in criminal prosecutions for obscenity. Related to the case at bar, the proper measurement, counsel contend, should have been “whether to the average person, applying contemporary community standards, on a national basis, the uttered words taken as a whole are contemptuous of the specified public official.”

In the last error assigned, it is asserted the appellant was prejudiced at the board of review level when Lieutenant Colonel Hagopian refused to disqualify himself from participating as a board of review member in review of the case. This assignment is founded on an affidavit made by military appellate defense counsel. In this document, it is asserted that Lieutenant Colonel Hagopian was at one time a member of the Defense Appellate Division and before it was known that he was going to be appointed to membership on a board of review, appellate defense counsel discussed with the colonel several cases assigned to counsel. Seeking his advice, as an experienced and senior member of the Division, appellate defense counsel had occasion to discuss with the colonel the facts and circumstances surrounding the purported offenses committed by Lieutenant Howe.

During these consultations, the colonel was shown photographs of Howe carrying a placard. His counsel gave the opinion Lieutenant Howe's conduct was not punishable under the Uniform Code of Military *446 **182 Justice. The colonel opined to the contrary, believing such conduct constituted an Article 133 offense. In fact, he could not think of conduct more unbecoming an officer and a gentleman under present-day circumstances.

Appellate defense counsel believe that the colonel ventured his point of view without personal animosity, doing so only in reply to counsel's inquiry as to his opinion on the merits of the case.

Since Lieutenant Colonel Hagopian “did not express a personal prejudice against the appellant, possess a substantial interest in the case, and has not been of counsel or connected with any party or his attorney,” the request for disqualification is not considered by defense as an “affidavit of bias or prejudice.” Rather, appellant claims the colonel should have stepped aside because there “is an appearance of predisposition for one litigant over the other.”

There being no controlling provision in the Uniform Code of Military Justice or in the Manual for Courts-Martial, we have, in prior instances where such allegations are made, turned to civil statutes for guidelines, particularly 28 USC §§ 47, 144, and 455. United States v Hurt, 9 USCMA 735, 27 CMR 3. Section 144, supra, is pertinent for it provides for disqualification because of “personal bias or prejudice.”

Construing section 144, it has been held that if the affidavit complies with the statutory standards, “the judge has no alternative but to recuse himself, no matter how defamatory the charges may be and even if they are known to the Court to be false.” Conversely, “if the statutory requirements are not satisfied, it is the duty of the judge to refuse to disqualify himself. . . . Thus, the mere filing of an affidavit of prejudice does not automatically disqualify a judge, . . . but the judge must pass upon the legal sufficiency of the facts well-pleaded.” United States v Hanrahan, 248 F Supp 471, 475 (DC DC) (1965).

Thereafter, the test to be applied, accepting the affidavit at face value, is “whether these facts would fairly convince a sane and reasonable mind that the judge does, in fact, harbor the personal bias or prejudice contemplated by the statute.” Id., at page 475. In Hanrahan, that court defined prejudice with these words:

In the case of Eisler v United States, 170 F2d 273 (CA DC Cir) (1948), certiorari granted, 335 US 857, 93 L ed 404, 69 S Ct 130, removed from the Supreme Court docket, 338 US 189, 93 L ed 1897, 69 S Ct 1453, it was contended that bias and prejudice were shown for this purported Communist defendant because of the judge's background as a special assistant to the Attorney General of the United States who, in his former capacity, assisted Federal Bureau of Investigation inquiries into the activities of aliens and Communists, including the appellant. In spite of this past employment and even though the judge had friends “‘violently anti-Communist,”’ and though he had, in connection with his previous duties, sponsored deportation of alien Communists, the ruling of the court below was upheld regarding the pertinent affidavit in that it did not establish bias and prejudice “in the personal sense contemplated by the statute.” Id., at page 278. It was then written:

These are the considerations which prompted denial of the accused's petition in the first instance, and require us to deny the petition for reconsideration.