Culver v. Secretary of Air Force

• Decision Date: 10 January 1977
• Docket Number: No. 75-1468,75-1468
• Citation: 559 F.2d 622,182 U.S.App.D.C. 1
• Parties: Thomas S. CULVER, Appellant, v. SECRETARY OF the AIR FORCE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 622

559 F.2d 622

182 U.S.App.D.C. 1

Thomas S. CULVER, Appellant, v. SECRETARY OF the AIR FORCE.

No. 75-1468.

United States Court of Appeals District of Columbia Circuit.

Argued March 31, 1976.

Decided Jan. 10, 1977.

Edward F. Sherman, Bloomington, Ind., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court, with whom David F. Addlestone, Washington, D. C., and Melvin Wulf, New York City, were on the brief for appellant.

Richard A. Graham, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and CHRISTENSEN, ^* United States Senior District Judge for the District of Utah.

Opinion for the Court filed by Senior District Judge CHRISTENSEN (joined by Circuit Judge LEVENTHAL).

Concurring opinion filed by Circuit Judge LEVENTHAL.

Dissenting opinion filed by Chief Judge BAZELON.

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, P 3e(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....