Thomas S. Culver v. Secretary of the Air Force

559 F.2d 622, 182 U.S. App. D.C. 1, 1977 U.S. App. LEXIS 10631

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 10, 1977
• Docket: 75-1468
• Status: Published

Opinions

CHRISTENSEN, Senior District Judge.

The appellant, Thomas S. Culver, a captain in the Judge Advocate General’s Corps of the United States Air Force stationed at the Royal Air Force (RAF) Base in Lakenheath, Suffolk, England, in July, 1971, was tried and convicted by general court-martial on charges of conduct unbecoming an officer and a gentleman, in violation of Article 133 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933 (1970),¹ in that on May 24, 1971, he solicited other military personnel to violate a general Air Force Regulation, AFR 35-15,13e(3)(b)(8),² prohibiting Air Force personnel from participating in demonstrations in foreign countries, and of violating the last cited regulation in contravention of Article 92, UCMJ, 10 U.S.C. § 892 (1970),³ by himself participating in a demonstration in London on May 31, 1971. Appellant was sentenced to a fine of $1000 and reprimand. The court-martial judgment was approved by the Commander of the Third Air Force and by the Judge Advocate General of the Air Force, pursuant to Article 69, UCMJ, and further review was denied. Appellee, the Secretary of the Air Force, is the administrative head possessing authority to void appellant’s court-martial conviction and sentence. Appellant has since received an honorable discharge from the military.

Appellant filed this suit in the district court on June 5, 1973, to attack collaterally his court-martial conviction. Declaratory and injunctive relief and compensation for claimed monetary losses were sought on the contention that the Air Force regulation upon which his conviction was based was unconstitutionally vague and overbroad. The district court, following briefing and argument, and having before it the record of appellant’s court-martial proceedings and its military review, granted appellee’s motion for summary judgment and dismissed the action.⁴ It was the conclusion of the trial court that there had been a demonstration in the foreign country contrary to the regulation in question as to which appellant had both participated and invited participation as charged; that like Captain Levy in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), he had reasonable notice that his conduct was punishable and thus his claim of vagueness was without merit, and that the challenged regulation was not overbroad, either on its face or as applied to the facts of the case.

On this appeal the appellant renews his attack against the regulation for claimed vagueness and overbreadth.⁵ The appellee defends the regulation and its application here asserting that it is supported by legitimate military interests and is constitutional.⁶

It seems neither necessary nor desirable in this case to attempt a comprehensive analysis of the authorities generally treating the questions of overbreadth or vagueness. There could be a temptation in such a crowded legal art to become captives of collateral problems of the past and the apprehensions of the future in diversion from issues presently before us. The timing and circumstances of this case lie somewhere between the travail of Vietnam and prior wars and, hopefully, the more complete release of freedom from the remaining constraints of military necessity abroad, as well as at home. The principles which are immediately controlling here have been so recently expounded in Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), supra (see also Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976) and Committee for G. I. Rights v. Calloway, 171 U.S.App.D.C. 73, 518 F.2d 466 (1975)), as to make our principal task an understanding and statement of the controlling facts in light of them.

On May 24, 1971, Captain Robert L. Cole, a friend and coworker of appellant in the Staff Judge Advocate’s Office of the 48th Combat Support Group, in company with a staff sergeant and the latter’s wife, saw the appellant standing at the side of a heavily traveled road which carried traffic between Lackenheath Village and two RAF bases in England, apparently handing to passing motorists papers from a bunch held over his arm. As Captain Cole’s car slowed down in passing, the appellant leaned forward and gave the captain one of the papers through an open window of the car. Both Captain Cole and the sergeant were in uniform but appellant was then dressed in civilian clothes. Neither appellant nor Cole spoke or showed any sign of recognition. The paper as it was handed to him by appellant and read by Captain Cole that evening was identical to a document identified as Prosecution Exhibit No. 3 at the court-martial.

Appellant’s brief, rather blandly describes this paper and rests much of his argument upon such a characterization.⁷

Appellant’s description does not indicate fully the nature of the document or its purposes. In various kinds of type and arrangements which lent emphasis in some instances and deemphasis in others, the following are some additional comments that appeared:

People Emerging Against Corrupt Establishments . . . okay — you’re opposed to the war. What are you doing about it? . The Third Airforce G.I.’s are uniting to express our disapproval of the war in Vietnam. Antiwar petitions are circulating. Sign one now! But don’t stop there. Come with us when we exercise our constitutional rights and present the petitions to the U.S. Ambassadors at the U.S. Embassy who must send them to Washington.

The presentation. Some people have asked me if the presentation on the 31st will be legal. The answer is that it will be. It is clear that under AFR 35-15 it is an offense to attend a demonstration in a country other than the U.S. But this will not be a demonstration. . The recent amendment of AFM 35-10 makes it clear that it would be an offense to wear a uniform to even this type of gathering. So no uniforms.. Also it is very possible that the fuzz will be around and perhaps even two of the coaches with their doggies, so it is imperative that everyone is clean — that doesn’t mean take a bath, it means no dope. So as long as we are clean and don’t make any trouble there is nothing wrong with coming to the presentation. If somebody tells you otherwise, as some are doing, it is just . . [B.S.] With the kind of entertainment we are going to have there will be hundreds coming, so they won’t even be able to hassle most of us. But that isn’t the important point. It is legal. All we are doing is exercising a right that we have as Americans, to present our petition to the government and to have a party. So make sure that you get your bus tickets so you can come along. .

The Petition. . . . The plain fact is that there is nothing wrong with circulating the petition unless you can call doing so a demonstration. That requires a stretch of the verbiage that even a court-martial would find difficult to make. Even if that stretch is made you run smack into the First Amendment to the Constitution which guarantees the right of the people to petition the government and that if followed by AFR 35-15 as quoted on the petition’s form. Don’t you think they would love to charge those guys who have been arrested. The reason they haven’t is that they can’t, it is just no offense. So get out there and get some more signatures so we can give the Ambassador a bundle on the 31st. .

So we can keep the group together, buses will leave the front gates of the bases at the following times. Only when a large number of G.I.’s turn out can we have an effect.

On the same day, May 24, special agent James A. Allen of the Office of Special Investigation received information that appellant was distributing leaflets on Lord’s Walk. Driving past the appellant at a low rate of speed Agent Allen extended his arm through the open window and received a leaflet from appellant which was identical to the prosecution exhibit referred to above.

On May 25, 1971, the Staff Judge Advocate of the 48th Combat Support Group, appellant’s immediate superior, prepared and presented to the base Commander a statement interpreting the Air Force regulation in question for circulation to the command. A copy of this document was presented to the appellant who acknowledged the receipt of a copy. This document read as follows:

Unofficial publications have recently offered opinions as to the legality of certain protests and dissent activities. Those opinions are incorrect. If accepted and acted upon they subject participants to severe punitive action. All personnel are advised that paragraph 3E3 of AFR 35-15, dissent and protest activities, specifically prohibits participation by military personnel in any demonstration in a foreign country. The prohibition applies whether the serviceman or servicewoman is on or off base, in or out of uniform, on or off duty. It also applies in full force irrespective of which term or name is given to the demonstration. Violation of the regulation carries a maximum punishment of a dishonorable discharge, total forfeitures, reduction to airmen basic, and confinement at hard labor for two years. Personnel considering participation in such activities should be aware of the true consequences, and not be misled by misinformation from whatever source. I have read and understood the above.

It seems a fair inference in view of the context of papers appellant had been circulating almost immediately theretofore and the reference in the interpretive statement to the differentiation between “presentation” and “demonstration” attempted by the sponsors, that the interpretive statement prior to the events hereafter recounted was known by appellant to refer to the specific occasion in which he must have been planning to participate.

On Memorial Day, May 31, 1971, Staff Sergeant Joseph E. Wilson took a chartered bus, along with about 30 other military personnel, to Speaker’s Corner at Hyde Park, London, the site of one phase of the “presentation” described in the leaflet which appellant had distributed a week earlier. They were all dressed in civilian clothes. The group arrived at about 11:15 a. m. and found about 150 other military and civilian personnel already assembled. The group increased to about 200 by noon. As the group formed, the military members were handed white arm bands depicting a helmet and an upraised, clenched fist, and told to wear them. Lt. Col. Bernard H. Fowl, a director of security police at Third Air Force Headquarters who had come to London to observe the expected demonstration, saw a total of five buses come to Speaker’s Corner that morning and deposit their passengers. After the last bus arrived more arm bands were passed out to the crowd. Then following a short conference with several police officers the organizers moved the group to a particular section of the corner to which the police pointed. Lt. Col. Fowl recalled that in addition to the corner group there were a great number of onlookers. Shortly thereafter the group sat down on the pavement. Then, according to Staff Sergeant Wilson, a group of six young men read a statement “to the press, news media, television cameras, concerning this presentation that [they] were to make.” Lt. Col. Fowl described the scene in his testimony:

After they moved the majority of the male members of this group, and I’d say somewhere between 50 and 75 of them, sat in a sort of a pie-shaped arrangement, semi-circular, with their backs to me. Then, in this group, six stood towards the front of this amphitheatre arrangement of people and more or less in the center of them with their backs to me. At about that time what appeared to be newspaper people with cameras and tape recorder, microphones, gathered around these six young men, or in front of them, and the six young men had, each one of them, had a piece of paper in his hand, and it appeared as though one after the other was reading from the paper. This was being recorded, I think, by at least two people with tape recorders, and there were several cameramen there taking pictures. At the conclusion of the last man reading what he had to read, the crowds more or less in unison broke out in applause with such comments as “right on” being said. Each of these speakers raised his arm above his head when that occurred, some with the clenched fist and some with the V-signal, or whatever it’s called.

Thereupon, as Sergeant Wilson testified, “The G.I.’s formed into groups according to their own base, to be handed the petitions that we were taking to the Ambassador. Mr. Parker suggested that we should form up by our own particular groups, the Heyford Group in one area, say the Alconbury Group in another, Lakenheath Group in another ... we formed a very rough and spread out [queue] and walked generally over to the U.S. Embassy. . . . Well it started off as a line, but as we got out of Hyde Park it no longer was a line. There were several small groups of approximately a half a dozen people walking along together. . We followed the underground way under the road to the street across from Hyde Park; now, we have to make a right turn and follow that down about two or three blocks, make a left turn, walk down about three more blocks and we were beside the embassy then. . . The small groups were anywhere between 10 yards and 25 yards apart, and they were not even at one time a solid group.”

As the members of each sub-group reached the Embassy, they entered to present their petition to an Embassy representative, then left the Embassy and returned to Hyde Park, boarded their buses, and were taken to Victoria Park for entertainment and a rock concert. During the assembly at Hyde Park and the proceedings at the Embassy, the appellant who wore a white arm band was identified and photographed.

Following the presentation of the prosecution’s case in chief before the court-martial, two members of the Air Force who had actually witnessed the event of May 31 were called, whose testimony was largely confirmatory of what already had been presented. Commander Harold Hodgson of New Scotland Yard who was responsible for safeguarding the Hyde Park and the United States Embassy areas testified that on May 21 two organizers of the Hyde Park presentation informed him of their plans for May 31. They were told that the original plan was not acceptable because it entailed a large assembly at the Embassy. He suggested, however, that the group assemble in Speaker’s Corner and move to the Embassy in small groups from there. Commander Hodgson then arranged for extra police to be on duty at the two sites involved and for 20 constables to be hidden a short distance away from the immediate area. The proceedings were orderly. The defense also called Valentine Gatress, a Cambridge Professor, to explain the history of Speaker’s Corner in this role in neutralizing protest. Lord Soper of Kingsway, a member of the House of Lords, also testified for appellant, discussing the activity at Speaker’s Corner from a viewpoint of the British attitude toward the presentation of petitions.

The actual circumstances, as shown by convincing evidence before the court-martial, obviate the necessity of theoretical characterizations or any nice balancing of authorities. They rather clearly establish that both as planned and as executed the occasion involved not a mere presentation but a demonstration pure and simple. And this is so, in the sense that the latter term would be applied by ordinary persons as well as understood in military context by most officers — particularly those having the appellant’s exposure to the planning, purposes and effect of such an occasion so transparently transcending any mere presentation of a petition for consideration of public officials to whom or through whom it was addressed.

I agree generally with the observations and conclusions of Judge Pratt when he granted the government’s motion for summary judgment, Culver v. Secretary of the Air Force, 389 F.Supp. 331 (D.D.C.1975), supra, especially as his general comments are pointed up by the subsequent decisions of the Supreme Court in Greer and Middendorf, supra.

The appellant reads altogether too narrowly the interest of the military in complying with the treaty obligation of the United States to avoid intervention in political affairs through its military forces.⁸ It would be unseemly and possibly disruptive — or at least the military had the right to consider it so — for members of the military to engage in demonstrations in the host country no matter what political interest was being pressed. The treaty and the interest of the military in operating in a foreign country are not to be stated in terms of partisan political activity, but political activity in general, i. e., “of or pertaining to policy, or politics, or the conduct of government ... or of, or pertaining to, the exercise of the functions, vested in those charged with the conduct of government.⁹

The Vietnam question, especially with respect to participation in the war, was highly political, no matter where discussed, and even the emotional impact of that political question as it involved the United States was not any the less political because it was dealt with and exploited in a friendly foreign country. The demonstrations involving it were of a kind within the military’s province to avoid under the treaty as possibly embarrassing to the host country if political demonstrations on any subject or any place could be considered so to be. The military had wide latitude in defining and implementing the military interest and necessity in these respects.

The argument that the restriction if given literal application would preclude church gatherings, environmental celebrations, band concerts and such things seems specious. There is a kind of gloss to the term “demonstration” as used in the regulation from the context of “protest and dissent” in which it appears, by the treaty obligation, the duties of visiting military personnel and their organizations which are quite separate from such political activity, and by the very meaning with which the word has come to be used. In the latter connection there seems no valid comparison between the word “demonstration” and other words which as appellant points out have been held to involve, in various contexts, impermissible vagueness, including “gang”.¹⁰ The following comment from Greer v. Spock, supra, at n. 10, has at least tangential bearing:

. The decision’of the military authorities that a civilian lecture on drug abuse, a religious service by a visiting preacher at the base chapel, or a rock musical concert would be supportive of the military mission of Fort Dix surely did not leave the authorities powerless thereafter to prevent any civilian from entering Fort Dix to speak on any subject whatever.

The appellant argues that the military judge’s definition of “demonstration” as used in his instructions to the jury was too broad even though the word had acquired some gloss in the status-of-forces— protest and dissent — military interest sense in which arguably it could have been used. The instruction in question was as follows:

From Final Instructions

Before you may find the accused guilty of either or both of these specifications, you must be satisfied beyond a reasonable doubt that the activity organized by the organization known as “Peace” for the 31st of May 1971, in London, England, was in fact a demonstration as this word is used in Air Force Regulation 35-15. In making this determination, you must give no consideration whatsoever to any publication or communication, either official or unofficial, that you might have seen or heard prior to this trial. For the purposes of this trial, you will accept and apply the following definition:

“A demonstration is a public showing or display by a large group of assembled persons of feelings, such as sympathy or antagonism, especially toward a person, a cause or action of public interest. It is a demonstration for a large crowd to intentionally assemble to protest against or indicate favor for some official action or attitude. It can also be defined as a public exhibition of welcome, approval or condemnation; a public manifestation of feeling.”

It seems likely that the precise wording of the instruction could have made no practical or reviewable difference in the validity of the conviction; the dictionary definition itself, although its disconnected language might be extended to meetings of a different nature, still must have taken on the gloss of common knowledge and modern usage in the mind of the ordinary person. By the same token the definition itself could mark a sufficiently certain line between demonstrations properly prohibited by the regulation and presentations or meetings to which it legitimately could not apply. Indeed, it is not unreasonable to suppose that the undisputed facts so clearly reveal a “demonstration” in any proper sense as to render any imperfection in definition non-prejudicial, assuming that we were in a position to review the sufficiency of instructions in view of the constitutional implications. But see Secretary of Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 and its sequel Avrech v. Secretary of Navy, 171 U.S.App.D.C. 368, 520 F.2d 100 (1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2165, 48 L.Ed.2d 793 (1976). See also Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975).

Be this as it may, it can be firmly concluded that the definition, no matter what our views might be of its technical sufficiency, did not have any determinative bearing upon the appellant’s conviction and certainly would not itself justify our invalidation of the result of the court-martial. An examination of the full instructions reveals that following the definition in question the jury was told in effect that it could not convict the defendant if it found that the accused thought it was not a “demonstration”, as that term was used in the Air Force regulations, or if they had a reasonable doubt as to whether he thought so or not.¹¹ In this sense the accused had the very best of any possible definition — his own.

It is not meant to suggest that the military judge’s instruction would have saved appellant’s conviction if AFR 35-15 had been unconstitutionally vague or over-broad. It was not. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), does not suggest that any constitutional problem was renewed or created by the instruction. There the validity of the statute in question was upheld as constitutional. The point of the reversal was that the jury should have been instructed that for a finding of “wilfulness” as contemplated by the statute more than a generally had purpose was required. If the trial court in Screws in effect had left the interpretation of the term to whatever the defendant had thought it meant, it seems unlikely that the Supreme Court would have reversed on the ground that the instruction was prejudicially erroneous. There are several reasons why we should not attempt to do so in this case — the absence of any possible prejudice, the constitutionality of the regulation itself, and at the very least the clouding of our authority to do so by the collateral nature of the present attack upon a court-martial proceeding governed distinctively by military law.

The judgment of the district court is affirmed.

1 . “Any commissioned officer . who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.”

2 . “Members of the Air Force are prohibited from participating in demonstrations when:

(a) on duty.

(b) In a foreign country.

(c) In uniform in violation of AFM 35-10.

(d) Their activities constitute a breach of law and order.

(e) Violence is likely to result.”

3 . “Any person subject to this chapter who—

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.”

4 . Culver v. Secretary of the Air Force, 389 F.Supp. 331 (D.D.C.1975).

5 . Appellant argues, among other things, that the operative word, “demonstration”, is so vague as not to give members of the Air Force adequate notice of what is prohibited since the term is nowhere defined in the regulation and no gloss is provided by military administrative materials or cases to aid in its definition; that the term is so broad as to include many assemblages in which American servicemen participated in England without any attempt at prosecution; that any justification for the regulation was to preserve harmony with host nations by avoiding demonstrative participation in local political issues as distinguished from those controversial only in the United States; that while there could be “a legitimate military interest in forbidding off-post activities which, having taken the form of a demonstration, constitute a serious interference in the host nation’s politics or detract from harmonious relations with the host nation . . the military judge and the lower court [should] have limited the scope of the word ‘demonstration’ by requiring a determination that the interest in harmonious relations [had to be] adversely affected”; that the fact that the word is generally known and in common usage does not make it acceptable, without sufficient limitation; that the word is as vulnerable to the charge of vagueness as such words as “contemptuously” held vulnerable in Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), “gang” dealt with in Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), or “annoying” considered in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). It is particularly argued that “since the servicemen’s right to engage in a presentation of petitions addressed to the President and Congress is firmly established by statute, regulations and the Constitution”, the appellant and those similarly situated had the right to publicly “present” petitions to the American Ambassador in London for transmittal to the President and the Congress.

6 . The appellee contends that the word “demonstration” when examined in context is sufficiently explicit to have put appellant on notice as to the nature of the activity proscribed; that his actual notice of the exact nature of the prohibited conduct deprives him of standing to assert that the language is vague on its face; that the military judge appropriately defined the term; that the determination of the court-martial as to the fact that the involved conduct constituted a demonstration is binding; that as to claimed overbreadth, appellant similarly had no standing since his conduct was clearly within the legitimate constraints of the regulation; and that when viewed in context, the entire prohibition against participation in demonstrations in foreign countries is supported by legitimate military interests and does not impermissibly extend to constitutionally protected activities.

7 . The leaflet . . . stated that the Third Air Force servicemen from six English installations would present petitions to the President and Congress expressing opposition to the Vietnam war at the American Embassy in London on May 31, 1971. The leaflet called for joining “in presenting your opinion to the President and Congress”, stating “Come with us when we exercise our constitutional rights and present petitions to the U.S. Ambassador at the U.S. Embassy who must send them to Washington.” It stated that this would not be a demonstration as “there will be no placards, no buttons, no marching or assaults, just a group of G.I.’s presenting a petition to the local representative of our Commander in Chief and our Congressional representatives.” It also indicated that there would be a peace concert by certain named celebrities and musicians after the presentation and provided the names and addresses of airmen who could be contacted for information concerning the petitions and tickets for buses into London.

8 . The Status-of-Forces Treaty, [1951] 4 U.S.T. 1792, T.I.A.S. No. 2486, art. II, in pertinent part provides: “It is the duty of a force and its civilian component and the members thereof as well as their dependents to respect the law of the receiving States and to abstain from any activities inconsistent with the spirit of the present Agreement, and, in particular, from any political activity in the receiving state. It is also the duty of the sending state to take necessary measures to that end. [1951] 4 U.S.T. at 1796.”

9 . Webster’s New International Dictionary, 2d ed. (1956).

10 . Common usage of such a term in the context of crime has far from crystallized in the sense that “demonstration” in political context has. E. g., Gang of funmakers; gang of delinquents; that old gang of mine; the gang’s all here; railroad gang; come on gang let’s be good scouts and whitewash the widow’s fence; gang activity; political gang.

11 . “Evidence has been introduced tending to show that, both on the 24th and the 31st of May 1971, Captain Culver was under the belief that the activities planned by the Peace organization for London on 31 May 1971, was not a demonstration, as that term is used in Air Force Regulation 35-15. With respect to this evidence, you are advised that even if the court concludes beyond a reasonable doubt that this “presentation” was in fact a demonstration, if the accused was laboring under such a mistake and if his mistake was honest and reasonable, he cannot be found guilty of either offense. In determining the issue of honesty and reasonableness of the accused’s alleged mistake, you should weigh and consider the inherent probability or improbability of the evidence relating thereto. In this regard, you may consider the accused’s age, education, experience and background, together with all of the other relevant circumstances.

“The burden is upon the prosecution to establish the accused’s guilt by legal and competent evidence beyond a reasonable doubt. Consequently, unless you are satisfied beyond a reasonable doubt that the accused was not honestly and reasonably under the mistaken belief on 24 May 1971, that the aforesaid London incident was not a demonstration, you must acquit him of Charge I and its Specification. Unless you are satisfied beyond a reasonable doubt that the accused was not honestly and reasonably under the mistaken belief on 31 May 1971, that the aforesaid London incident was not a demonstration, you must acquit him of Charge II and its Specification.”