United States v. Priest

21 C.M.A. 64, 21 USCMA 64, 44 C.M.R. 118, 1971 CMA LEXIS 576, 1971 WL 12463

• Court: United States Court of Military Appeals
• Decided: August 27, 1971
• Docket: No. 23,937
• Status: Published

Opinions

Opinion of the Court

Quinn, Judge:

Considering one of eight errors assigned, the United States Navy Court of Military Review reversed the accused’s conviction of two specifications alleging the making of statements disloyal to the United States. It held that certain instructions by the trial judge were contrary to the decision of this Court in United States v Harvey, 19 USCMA 539, 42 CMR 141 (1970). As authorized by Article 67 (b) (2), Uniform Code of Military Justice, 10 USC § 867, the Judge Advocate General of the United States Navy forwarded the case to this Court to review the correctness of that determination.

The trial judge instructed the court members as to the essential elements of the offense. Apparently, in accordance with guidelines in the Military Judge’s Guide, Department of the Army Pamphlet 27-9, May 1969, change 1, chapter 4, page 4-161, he also elaborated upon the meaning of disloyal. He described the word “disloyalty” as importing “not being true to or not being faithful to an authority to whom respect, obedience, or allegiance is due.” Individual defense counsel requested further elaboration to make clear that the findings of disloyalty must be to the United States, not “to any other person or institution such as the Secretary of Defense or the United States Navy.”¹ The request was denied.

In Harvey, at page 544, we held that the instruction was overly broad, and in the circumstances of the case, presented a fair risk of prejudice to the accused in that, in light of the instructions, the court members could have “concluded that the evidence of prospective disobedience to orders demonstrated unfaithfulness to the obligation of obedience to orders of the Marine Corps, as the representative of the United States” and that unfaithfulness to this authority constituted disloyalty to the United States. A similar situation was before us in United States v Gray, 20 USCMA 63, 68, 42 CMR 255 (1970). There, the statements attributed to the accused could reasonably be construed as expressing disloyalty to the Marine Corps and its practices. Speaking of the difference between disloyalty to one of the instrumentalities of government and disloyalty to the United States as a sovereign entity, we said: “Defiance of, or disloyalty to, the Marine Corps is not tantamount to disloyalty to the United States as a political entity.” Thus, Harvey and Gray require consideration of whether the statements made by the accused can reasonably be regarded as disloyal to “the military,” as distinguished from the United States; if they have that quality, the judge’s expansive definition of “disloyalty” could have led the court members to conclude that a finding of nonalle-giance to the military would satisfy the requirement that they find that the statements were disloyal to the United States.

Appellate Government counsel contend that the record in this case, contrary to that in both Harvey -and Gray, demonstrates -the absence of any fair risk't'hat the court members were misled by the scope of the definition of disloyalty. They acknowledge that the two publications in issue, the May and June 1969 editions of “OM,” described as “The Servicemen’s Newsletter” and “The Liberation Newsletter,” contain references to the armed forces and individual Government officials, but they contend that, in substance and context, the references so clearly represent merely a “manifestation of the general character of the United States” that no “confusion” could have arisen in the court members’ minds “between disloyalty to the United States and disloyalty to a branch of the armed forces” or to a particular official of the Government.

The length of the Newsletters makes it inappropriate to set them out in this opinion. There are indeed references of a disparaging nature to the military and public officials, but the trial judge instructed the court members they must find that each publication “taken in its entirety” was disloyal to the United States. The instruction required the court members to consider the tenor of the whole of the publication, not its separate parts. The importance of the instruction is apparent in the verdict.

Three issues of the Newsletter were before the court members. Besides the May and June issues, which constitute the subject matter of specifications 5 and 6 respectively, there was the April issue which was the subject of specification 4. The April Newsletter dealt almost entirely with statements against the military; these statements were significantly similar to those about the military in the May and June issues. The court members acquitted the accused of specification 4. While it is true that acquittal of one charge may have little relevance to the findings of guilty relating to another charge, even one of the same kind, the difference in the action taken by the court members here is indicative of their understanding of their obligation to find that the “entirety”'of each publication was disloyal to the United States, not merely disloyal to one of its departments or officials. Considering the totality of the instructions, we are satisfied they avoid the ambiguity of those in Harvey and Gray and present no reasonable risk that the court members predicated their finding that each Newsletter “in its entirety” was disloyal to the United States upon a finding that parts of the publication were disloyal to the military or a public official. We conclude, therefore, that the Court of Military Review erred in its determination that the accused was prejudiced by the instructions.

The certified question is answered in the negative. The record of trial is returned to the Judge Advocate General for submission to the Court of Military Review for consideration of the other assignments of error, which include whether the evidence is sufficient to sustain the charges of which the accused was convicted, and such other issues as may be properly presented to the court.

Chief Judge Darden concurs.

1 We state the request in this form because it was apparently so construed by the Court of Military Review. The Government disputes this construction. It maintains that defense counsel’s requested instruction meant to convey the idea that disloyalty to a particular official of the United States “cannot be . . . considered evidence of disloyalty to the United States” (emphasis supplied); and it argues that evidence of disloyalty to a public official or a Government Department can properly be considered evidence of disloyalty to the United States. For the purpose of this review, we assume the correctness of the Court of Military Review’s construction.