returned a finding of guilty of a lesser included offense in Additional Charges II and III by substituting in the specifications to both charges "culpable negligence" for "intent to impair and interfere with the performance of duty of a member of the military forces of the United States."
Prior to the imposition of sentence on Charges I and II and Additional Charge I, Additional Charges II and III were dismissed on motion of the Government because the findings were tantamount to findings of not guilty on those charges. On June 3, 1967, petitioner was sentenced, to be dismissed from the service, to forfeit all pay and allowances and to be confined at hard labor for three years. Petitioner exhausted military appellate review procedures, but the conviction and sentence were approved. Petitioner was confined to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, and in February 1969, was transferred to the United States Penitentiary, Lewisburg, Pennsylvania. The petition for habeas corpus was filed on April 19, 1969. Petitioner is currently free on bail.
At the hearing on the motions, Government counsel represented that the Government did not have or obtain information by eavesdropping. Petitioner accepted this representation as given in good faith, but apparently had some reservations due to the large number of people connected with the case and the possibility that eavesdropping information might not have come to the attention of the Government counsel. The motion for disclosure of information obtained by eavesdropping will be denied without prejudice to renewal if and when it appears that the Government obtained information through eavesdropping
The motion for production of documents relates to a G-2 dossier
compiled on petitioner by United States Army Counterintelligence personnel, and approximately 450 questionnaires mailed by the Government to military and nonmilitary patients of petitioner. It should be noted at the outset that petitioner did not request specific documents, but rather has demanded the entire dossier and all the questionnaires.
In Harris v. Nelson, 1969, 394 U.S. 286, 89 S. Ct. 1082, 22 L. Ed. 2d 281, the Supreme Court held that while the discovery provisions of the Federal Rules of Civil Procedure do not apply to habeas corpus proceedings, a "district court may, in an appropriate case, arrange for procedures which will allow development, for purposes of the hearing, of the facts relevant to disposition of a habeas corpus petition." The Court indicated that the nature and extent of permissible discovery is committed to the discretion of the district court, and furnished a general guideline for the courts to follow:
"* * * [In] exercising this power, the court may utilize familiar procedures, as appropriate, whether these are found in the civil or criminal rules or elswhere in the 'usages and principles of law.'" (Footnote omitted.)
Turning first to the questionnaires, it appears that only 13 of the 450 persons contacted were called as witnesses at the court-martial proceedings. The questionnaires of these 13 witnesses were turned over to the chief defense counsel.
The Army refused to disclose the contents of the remaining questionnaires on the basis that they were protected from disclosure by 18 U.S.C.A. § 3500, commonly known as the Jencks Act. Petitioner does not dispute that the Jencks Act principles may be applied in court-martial proceedings. United States v. Augenblick, 1969, 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537. He states, however, that Augenblick recognized that "It may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial * * *" of a constitutional right. Petitioner contends that the denial of access to the questionnaires deprives him of constitutional rights. He states "the defense sought these documents in order to demonstrate Dr. Levy's innocence of the four pure speech charges which were based upon his having made statements 'publicly' to 'divers' persons." It is apparently petitioner's contention that if the other 437 questionnaires did not show information which would support the charges, this would tend to refute the charges of "public" utterance to "divers" persons.
Petitioner has not specified the constitutional issue which he asserts is involved. At the argument, counsel argued only that aside from any question involving the Jencks Act, he was entitled to know what the Army's case was based on. Even under the rules applicable to ordinary criminal actions, a defendant is not entitled to inspection of the reports and statements of possible Government witnesses, except in accordance with the Jencks Act. Rule 16, Fed. R. Crim. P.; Peek v. United States, 9 Cir. 1963, 321 F.2d 934; Corbett v. Patterson, D. Colo. 1967, 272 F. Supp. 602. Petitioner has not alleged an infraction of the Jencks Act. Here, as in Augenblick, supra, there is no indication that the questionnaires contained evidence favorable to the defendant.
Moreover, the names of the persons to whom the questionnaires were sent were taken from the patient book at the Dermatology Clinic. There is no suggestion that petitioner did not have access to this book to make his own investigation. If petitioner did not make certain statements to others than the 13 witnesses produced at the court-martial, this certainly would not negate the fact that he made the statements to the 13 witnesses, or that the utterances were "public" and made to "divers" persons. It is not "evidence favorable to defendant." In short, the procedure followed at the court-martial with respect to these questionnaires did not violate a constitutional mandate, or elevate the matter to a constitutional level, nor was there anything constitutionally unfair "where the barriers and safeguards are so relaxed or forgotten * * * that the proceeding is a mere spectacle * * * or trial by ordeal * * * than a disciplined contest." United States v. Augenblick, supra. It follows that since the questionnaires were properly denied the petitioner at the court-martial, provisions of Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act should also control this attempt at discovery in this habeas corpus proceeding. Harris v. Nelson, supra; cf. United States v. White, 4 Cir. 1965, 342 F.2d 379; United States v. Kelly, 10 Cir. 1959, 269 F.2d 448. Accordingly, respondent need not produce the questionnaires until such time as an evidentiary hearing is held and he produces a witness whose questionnaire would qualify for production under the Jencks Act.
Petitioner argues that the dossier contained information that petitioner, in his pre-service days, attended meetings of alleged subversive or communist groups, and that while in service petitioner engaged in off-duty, off-base political and civil rights activities consisting of Negro voter-registration drives in a South Carolina town; that the Army counterintelligence agent, allegedly himself a racist, who played a role in the compilation of the dossier, lived in that town; that Colonel Fancy, petitioner's commanding officer, intended to prefer charges against petitioner under Article 15 of the Uniform Code of Military Justice,
Commanding Officers Non-Judicial Punishment, for disobeying an order to train special forces troops in determatology, the punishment for which is minor; that the agent showed Colonel Fancy the complete dossier which included petitioner's political and civil rights views and activities; that as a result of the information in the dossier, Colonel Fancy raised the charges to general court-martial status, the punishment for which is severe; and that the court-martial proceedings were, therefore, a plot by the agent, Colonel Fancy and others to punish petitioner not for disobedience of the order, but for his political and racial views.
At the court-martial, petitioner was given 80 pages of the 180-page dossier, but the remainder was held not to be Jencks Act material. Also some of the pages contained classified security information. Subsequently, the law officer
stated that information in the remaining 100 pages was irrelevant but permitted military defense counsel, assistant counsel in the proceeding, to review the dossier to determine the relevancy of the remaining pages. Military defense counsel advised the chief civilian defense counsel
that the remainder of the dossier was irrelevant, but he was not permitted to inform chief civilian counsel of the contents. The entire file was also reviewed by the law officer, in camera, and he determined that nothing in the withheld material was relevant to the proceedings. Petitioner states he demanded and now demands the entire dossier on the constitutional grounds that the dossier was used to prefer charges to punish him for his political beliefs contrary to the freedom of speech provisions of the first amendment; that the prohibition of military defense counsel from revealing the contents of the dossier to chief defense counsel results in a lack of due process of law under the fifth amendment; and that denial of access to the dossier to chief defense counsel deprived petitioner of effective assistance of counsel contrary to the sixth amendment.
We are only concerned with the application of the Jencks Act to a quasi-criminal proceeding, unless the Constitution requires production of materials which are outside the scope of the Act. United States v. Augenblick, supra, citing the concurring opinion of Mr. Justice Brennan in Palermo v. United States, 1959, 360 U.S. 343, 79 S. Ct. 1217, 3 L. Ed. 2d 1287. With respect to the first amendment claim, petitioner states:
"The G-2 Dossier's production could have resulted in voiding petitioner's conviction on at least any of the following grounds:
1. If it disclosed that the escalation of the charges to general court-martial status was based upon Dr. Levy's political views; or,