Captain Howard Brett LEVY, for himself and for all others similarly situated, Petitioner, v. Honorable Howard F. CORCORAN, United States District Judge, Respondent.
No. 20972.
United States Court of Appeals District of Columbia Circuit.
Argued May 9, 1967.
Rehearing Denied June 7, 1967.
389 F.2d 929
The ability of a trial judge to evaluate demeanor evidence is a reason, but not the only reason for the rule, and the principle is applicable even though the District Judge rendering judgment did not hear the witnesses.
Appellant seeks to avoid affirmance by noting that the Mock patent, relied on by both the Patent Office and the District Court, was concerned with polyethylene film generally, and did not address itself to the particular problems focused on the application before the court—a suitable polyethylene for adhesion to coated sheet materials. That is not decisive. “It is not invention to perceive that the product which others had discovered had qualities they failed to detect.”3
Appellant protests that the disclosure in the Mock patent was broad enough to cover over 300 compounds, and that testing and effort were required to establish which was responsive to the problem of major concern to appellant. Government counsel argued that the number is smaller than 300—say, 25. The District Court‘s findings do not speak expressly to this point. There is no need to resolve the matter, for even if the larger number be accurate, this does not undercut the determinations of the Patent Office,4 and the District Court.
Affirmed.
Bazelon, Chief Judge, dissented.
Mr. Irwin Goldbloom, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Morton Hollander and Harland F. Leathers, Attys., Dept. of Justice, were on the pleadings, for respondent. Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Gil Zimmerman and Joseph M. Hannon, Asst. U. S. Attys., also entered appearances for respondent.
Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
ORDER
PER CURIAM.
This cause came on for hearing on petitioner‘s petition for writ of mandamus and application for a stay and said petition and application were argued by counsel.
Upon consideration whereof, it is Ordered by the court that petitioner‘s aforesaid petition for writ of mandamus and application for a stay are denied.
BAZELON, Chief Judge, dissents from the foregoing order for the reasons stated in his dissenting opinion filed herewith.
TAMM, Circuit Judge.
I join in denying the application for the stay and the petition for writ of mandamus. I am of the view that this case is not properly before this court at the present time. I am of the opinion that the record discloses that our present petitioner has an adequate remedy at law. It is my view that he cannot at this time show imminent, irreparable injury. In the event of his conviction by a court martial, which at this time is problematical, there is then available to him, through court martial proceedings, review of those proceedings as specifically provided by law, including an ultimate appeal to the United States Court of Military Appeals, which is in itself a court entirely composed of civilians and which court within the last week has ruled that the principles of the Supreme Court‘s holding in the Miranda case are applicable to court martial proceedings. United States v. Tempia, 35 L.W. 2625 (April 25, 1967).
In addition, there is available to this petitioner, in due course and if he is convicted, the right of appeal to the civil courts through habeas corpus or other appropriate proceedings.
Against this background, I feel that at this time this court is without any jurisdiction in this matter.
LEVENTHAL, Circuit Judge:
The refusal of the District Judge to take steps to convene a three-judge court seems to me sound for want of equity jurisdiction to restrain defendants from proceeding with a general court-martial scheduled to commence May 10, 1967.
The lack of equity jurisdiction to issue an injunction seems to me to inhere in the relationship of the civil courts and military tribunals, a relationship which looks to habeas corpus or kindred remedies as the technique by which the civil courts exercise such limited intervention as may be proper in cases taken before military tribunals. There may be want of equity jurisdiction for such reasons of governmental relationships even where there is no truly adequate remedy at law.1 But the conclusion is strengthened by our awareness that petitioner can preserve his constitutional defenses before
These considerations do not wholly answer petitioner‘s contention that the ability of the military to use the broad provisions of articles 133 and 134 of the
The argument is not without logic. Where it breaks down, it seems to me, is where it runs into a judicial tradition which for more than 150 years has resisted all efforts to issue mandates intended to obviate exposure to court-martials or anticipate the results of proceedings before military tribunals.3
It is not necessary to consider now whether this pattern of decisions is absolutely inviolate. It is formidable enough to obviate injunctive relief based on an expansion of the implications of Dombrowski. Nothwithstanding the language of Dombrowski, some individuals and groups will be denied injunctions and relegated to protecting their First Amendment freedoms by way of defense in other proceedings.4 Furthermore, I cannot accept petitioner‘s argument that a court should be as ready to enjoin the proceeding of a military tribunal as a Federal court to enjoin a state court proceeding.
Freedoms of speech and expression stand on the highest constitutional ground. And the fact of war does not obliterate freedom to dissent from the war. It may be assumed at least for discussion that although the balance between freedom and discipline is different for men in the military service than for civilians, at least some part of these freedoms is retained when civilians enter the military service. It may further be assumed that if these freedoms are unlawfully disregarded by military tribunals, there may in due course be recourse to the civil courts. But that does not compel this recourse to be by way of injunctive relief.
Whether the foregoing decision was reserved by Congress for three judges, rather than one, is not an easy question. It suffices to say that when the district judge is presented with a motion that is insubstantial insofar as it requests injunctive relief, the law does not contemplate a three-judge court. The district judge can preclude a three-judge court only when it is clear that injunctive relief is not available. I think this is such a case.
BAZELON, Chief Judge, (dissenting):
Petitioner filed his papers at 5:00 p. m. yesterday evening. The Government filed its response at 11:00 a. m. today, and we heard this case at 11:45 a. m. Consequently, there has not been sufficient time for the consideration which the case deserves. However, as presently advised, I am compelled to dissent from the order issued today.
On September 10, 1965, Captain Howard Brett Levy wrote a letter to Sergeant Geoffrey Hancock, Jr. who was then stationed in Viet Nam. The letter strongly, and perhaps intemperately, criticized the foreign policy of the United States. Between February and December, 1966, Captain Levy made similar criticisms to various military personnel at his hospital base in South Carolina. On the basis of these two incidents, Levy‘s commanding officer charged him with violating Article 133 (“conduct
Levy claims that Articles 133 and 134 are unconstitutionally vague and that Article 90 is unconstitutional as applied to him. On April 17, 1967, he moved in our District Court to have a three-judge District Court convened to decide the question and to issue an injunction against his pending court martial. On May 3, the District Court denied the motion.
Under Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), a three-judge District Court must hear and determine the case when (1) “the constitutional question raised is substantial” and (2) “the complaint at least formally alleges a basis for equitable relief.” 370 U.S. at 715, 82 S.Ct. at 1296.
Recent cases in this Circuit have interpreted the first requirement to mean that the constitutional claim must be “patently frivolous” before one judge can dispose of it. Reed Enterprises v. Corcoran, 122 U.S.App.D.C. 387, 390, 354 F.2d 519, 522 (1965); Hobson v. Hansen, 252 F.Supp. 4, 7 (D.D.C.1966). Levy argues that Articles 133 and 134 are overly broad, and that their breadth impermissibly impinges upon First Amendment freedoms. A simple reading of the Articles shows that they are quite broad. Indeed, the Manual for Courts-Martial interprets Article 134 to include more than fifty different offenses ranging from abusing public animals to wearing an unauthorized insignia.2 Levy argues also that Article 90, though not unconstitutional on its face, is being applied as part of a scheme to punish him for exercising his First Amendment rights in the past and prevent him from exercising them in the future.3 For our present purposes we must take these allegations as true. And if they are true, the constitutionality of Article 90, as applied to Levy, is questionable. Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).
The second requirement for convening a three-judge court is that the complaint allege a basis for equitable relief. Here Levy says that First Amendment rights will be “chilled” if his prosecution proceeds on the basis of two statutes which are unconstitutional on their face and one which is being applied in order to harass people who exercise their First Amendment rights.4 This chilling effect, Levy claims, constitutes irreparable injury under Dombrowski v. Pfister, supra. If Article 90, though constitutional on its face, is being applied to harass Levy, then that part of his case fits within the first ground for the Dombrowski deci-
Of course all of this assumes that Dombrowski would be read to allow interference with military courts. The Dombrowski opinion itself suggests no reason why it should not be read in this way, though there may be other reasons why its scope would be limited. In any event, the applicability of Dombrowski to our case has never been decided and is not a frivolous issue.5
Since neither the constitutional attack on the Articles nor the claim of irreparable injury is frivolous, this case should be heard and determined by a three-judge District Court. I think this much is abundantly clear. If Levy does have a right to have his case heard and determined by a three-judge District Court, then I think it is equally clear that the right must be made meaningful by a short stay of the court martial proceedings. Otherwise, with the beginning of the court martial tomorrow morning, the three-judge District Court would be left with a moot case.
These questions, whether the statutes are unconstitutional, whether there is irreparable injury, whether Dombrowski applies to military courts, are not easy, and they are not made any easier by the extreme time-pressure which confronts us. Moreover, they are not questions for us. They are for a three-judge District Court. I do not intimate any view on the merits. I would grant a short stay simply to preserve the jurisdiction of the three-judge District Court. Once that court is convened it can decide whether to issue a temporary restraining order or a temporary injunction while it considers the merits. Our responsibility is simply to preserve jurisdiction for the court Congress intended to hear this case.
ARTICLE 134
Abusing public animal 118. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully (kick a public horse in the belly) (_____).
Adultery 119. In that _____ (, a married man,) did, (at) (on board) _____, on or about _____ 19__, wrongfully have sexual intercourse with _____, (a married woman) (a woman) not his wife.
Assault: —Indecent 120. In that _____ did, (at) (on board) _____, on or about _____ 19__, commit an indecent assault upon _____ by _____, with intent to gratify his (lust) (sexual desires).
—Upon a commissioned officer 121. In that _____ did, (at) (on board) _____, on or about _____ 19__, assault _____, a commissioned officer of [the Army of the United States] [_____, a friendly foreign power] [the United States (Navy) (Marine Corps) (Air Force) (Coast Guard)], by _____.
NOTE.—That the accused did not know the commissioned officer to be such is a defense to this kind of assault—but not to an included assault in which the official position of the victim is immaterial.
—Upon a warrant, noncommissioned, or petty officer 122. In that _____ did, (at) (on board) _____, on or about _____ 19__, assault _____, a (warrant) (noncommissioned) (petty) officer of [the Army of the United States] [the United States (Navy) (Marine Corps) (Air Force) (Coast Guard)], by _____.
NOTE.—That the accused did not know the warrant, etc., officer to be such is a defense to this kind of assault—but not to an included assault in which the official position of the victim is immaterial.
—Upon a person in the execution of police duties 123. In that _____ did, (at) (on board) _____, on or about _____ 19__, assault _____, a person then having and in the execution of (air police) (military police) (shore patrol) (civil law enforcement) duties, by _____.
With intent to commit certain offenses 124. In that _____ did, (at) (on board) _____, on or about _____ 19__, with intent to commit (murder) (voluntary manslaughter) (rape) (robbery) (sodomy) (arson) (burglary) (housebreaking), commit an assault upon _____ by _____.
Assault (consummated by a battery) upon a child under the age of 16 125. In that _____ did, (at) (on board) _____, on or about _____ 19__, unlawfully (strike) (_____) _____, a child under the age of sixteen years, (in) (on) the _____ with _____.
Bigamy 126. In that _____ did, at _____, on or about _____ 19__, wrongfully and bigamously marry _____, having at the time of his said marriage to _____ a lawful wife then living, to wit: _____.
Bribery and graft: —Asking, etc. 127. In that _____, being at the time (a contracting officer for _____) (the personnel officer of _____) (_____), did, (at) (on board) _____, on or about _____ 19__, wrongfully and unlawfully (ask) (accept) (receive) from _____, (a contracting company engaged in _____) (_____), (the sum of $_____) (_____, of a value of about $_____) (_____), [with intent to have his (decision) (action) influenced with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by him the said _____ in relation to] an official matter in which the United States was and is interested, to wit: (the purchasing of military supplies from _____) (the transfer of _____ to duty with _____) (_____).
—Promising, etc. 128. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and unlawfully (promise) (offer) (give) to _____, (his commanding officer) (the claims officer of _____) (_____), (the sum of $_____) (_____, of a value of about $_____) (_____), [with intent to influence the (decision) (action) of the said _____ with respect to] [(as compensation for) (in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by the said _____ in relation to] an official matter in which the United States was and is interested, to wit: (the granting of leave to _____) (the processing of a claim against the United States in favor of _____) (_____).
Check, worthless, making and uttering 129. In that _____ did, (at) (on board) _____, on or about _____ 19__, [with intent to deceive, wrongfully and unlawfully] make and utter to _____ a certain check, in words and figures as follows, to wit: _____, (in payment of a debt in the amount of $_____) (for _____) [, he, the said _____, then not intending to have sufficient funds in the _____ bank available to meet payment of said check upon its presentment for payment in due course], and did thereafter wrongfully and dishonorably fail to (place) (maintain) sufficient funds in (the) (said) bank for payment of such check upon its presentment for payment.
NOTE.—Both allegations inclosed in brackets should be used in a case in which the accused had given the check in purported payment of a
Debt, failing to pay 130. In that _____, being indebted to _____ in the sum of $_____ for _____, which amount became due and payable (on) (about) (on or about) _____, did, (at) (on board) _____, from _____ 19__ to _____ 19__, wrongfully and dishonorably fail to pay said debt.
Disloyal statements 131. In that _____ did, (at) (on board) _____, on or about _____ 19__, with design to [promote (disloyalty) (disaffection) (disloyalty and disaffection) among (the troops) (the civilian populace) (the troops and the civilian populace)] [_____], publicly utter the following statement, to wit: “_____“, or words to that effect, which statement was disloyal to the United States.
Disorderly, drunkenness, etc.: —In command, quarters, etc., or under service discrediting circumstances 132. In that _____ was, (at) (on board) _____, on or about _____ 19__, (drunk) (disorderly) (drunk and disorderly) [in (command) (quarters) (station) (camp) (_____)] [on board ship] [in uniform in a public place, to wit: _____] [_____].
—Drinking liquor with prisoner 133. In that _____, a (sentinel) (_____) in charge of prisoners, did, (at) (on board) _____, on or about _____ 19__, unlawfully drink intoxicating liquor with _____, a prisoner under his charge.
—Drunk, prisoner found 134. In that _____, a prisoner, was, (at) (on board) _____, on or about _____ 19__, found drunk.
—Incapacitating oneself for performance of duties through prior indulgence in intoxicating liquors 135. In that _____ was, (at) (on board) _____, on or about _____ 19__, as a result of previous indulgence in intoxicating liquor, incapacitated for the proper performance of his duties.
Drugs, habit forming, or marihuana: —Wrongful possession 136. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully have in his possession _____ ounces, more or less, of (a habit forming narcotic drug, to wit: _____) (marihuana).
—Wrongful use 137. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully use (a habit forming narcotic drug, to wit: _____) (marihuana).
False or unauthorized pass, making, etc. 138. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully [and falsely (make) (forge) (alter by _____) (counterfeit) (tamper with by _____)] [sell to _____] [give to _____] [(use) (have in his possession) with intent to (defraud) (deceive)] (a certain instrument purporting to be) (a) (an) (another‘s) (naval) (military) (official) (pass) (permit) (discharge certificate) (_____) in words and figures as
False swearing 139. In that _____ did, (at) (on board) _____, on or about _____ 19__, (in an affidavit) (in his testimony before a _____ court-martial at the trial of _____) (in _____) wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a statement in substance as follows: _____, which statement he did not then believe to be true.
Firearm, discharging: —Through carelessness 140. In that _____ did, (at) (on board) _____, on or about _____ 19__, through carelessness, discharge a (service rifle) (_____) in the (squadroom) (tent) (barracks) (_____ compartment) (_____) of _____.
—Willfully, under such circumstances as to endanger life 141. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and willfully discharge a firearm, to wit: _____, (in the mess hall of _____) (_____), under circumstances such as to endanger human life.
Fleeing scene of accident 142. In that _____, being (the driver of) (a passenger in) (the senior officer in) a vehicle at the time of (an accident) (a collision), did, at _____, on or about _____ 19__, wrongfully and unlawfully leave the scene of the (accident) (collision) without [rendering assistance to _____ who had been struck (and injured) by the said vehicle] [making his identity known].
Gambling with subordinate 143. In that (Sergeant) (_____) _____ (, boatswain‘s mate, first class, U. S. Navy,) (_____, _____) did, (at) (on board) _____, on or about _____ 19__, gamble with (Private) (_____) _____, (, seaman apprentice, U. S. Navy) (_____, _____) .
Homicide, negligent 144. In that _____ did, (at) (on board) _____, on or about _____ 19__, unlawfully kill _____, [by negligently _____ the said _____ (in) (on) the _____ with a _____] [by driving a (motor vehicle) (_____) against the said _____ in a negligent manner] [_____]..
Impersonating an officer, etc. 145. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and unlawfully impersonate an [ (officer) (warrant officer) (noncommissioned officer) (petty officer) (agent or superior authority) of the (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] [an official of the Government of _____] by [publicly wearing the uniform and insignia of rank of a (lieutenant of the _____) (_____) ] [showing the credentials of _____] [_____] (with intent to defraud _____ by _____).
Indecent acts with a child 146. In that _____ did, (at) (on board) _____, on or about _____ 19__, [take (immoral) (improper) (indecent) liberties with] [commit a (lewd) (lascivious) act (upon) (with) the body of] a (female) (male) under sixteen years of age, by [fondling (her) (him) and placing his hands upon (her) (his) leg and private parts] [_____], with intent to (arouse) (appeal to) (gratify) the (lust) (passions) (sexual desires) of the said _____ (and _____).
Indecent exposure 147. In that _____ did, (at) (on board) _____, on or about _____ 19__, while (at a barracks window) (_____) willfully and wrongfully expose in an indecent manner to public-view his _____.
Indecent, lewd acts with another 149. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully commit an indecent, lewd, and lascivious act with _____ by _____.
Loaning money at usurious rate 150. In that _____ (, for and in behalf of one _____,) did, (at) (on board) _____, on or about _____ 19__, loan to _____ $_____, under an agreement whereby he, the said _____, was to receive for the use of said money for _____ (months) (days) [interest at the rate of _____ per cent per (annum) (month)] [the sum of $_____], thereby (demanding) (receiving) (demanding and receiving) an usurious and unconscionable rate of interest for said loan.
Mail, taking, opening, etc. 151. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and unlawfully take (a) certain [letter(s)] [postal card(s)] [package(s)], addressed to _____, [out of the (_____ Post Office _____) (orderly room of _____) (unit mail box of _____) (_____)] [from _____] before (it) (they) (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) directed, with design to [obstruct the correspondence] [pry into the (business) (secrets)] of _____.
152. In that _____ did, (at) (on board) _____, on or about _____ 19__, [wrongfully and unlawfully (open) (secrete) (destroy)] [steal] (a) certain [letter(s)] [postal card(s)] [package(s)], addressed to _____, which said [letter(s)] [_____] [(was) (were) then [in the (_____ Post Office _____) (orderly room of _____) (unit mail box of _____) (custody of _____) (_____)] [on the (bunk of _____) (_____)]] [had previously been committed to _____, (a representative of _____,) an official agency for the transmission of communications,] before said [letter(s)] [_____] (was) (were) (delivered) (actually received) (to) (by) the person(s) to whom (it) (they) (was) (were) directed.
Mails, depositing, etc., obscene matter in 153. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and knowingly (deposit) (cause to be deposited) in the (United States) (_____) mails, for mailing and delivery to _____, a (letter) (picture) (_____) (containing) (portraying) (suggesting) (_____) certain obscene, lewd, and lascivious matter, to wit: _____.
Misprision of felony 154. In that _____, having knowledge that _____ had actually committed a felony (at) (on board) _____, on or about _____ 19__, to wit: (the murder of _____) (_____), did, from about _____ 19__ to about _____ 19__, wrongfully and unlawfully conceal such felony and fail to make the same known to the civil or military authorities.
Nuisance, committing 155. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully (urinate) (defecate) (_____) [on the
Pandering 156. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and unlawfully [(compel) (induce) (entice) (procure)] [attempt to (compel) (induce) (entice) (procure)] _____ to engage in (acts of prostitution) (sexual intercourse for hire and reward) with persons to be directed to (him) (her) by the said _____.
157. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and unlawfully [receive valuable consideration, to wit: _____, on account of arranging for] [arrange for] (_____) (unnamed persons) to engage in (sexual intercourse) (sodomy) with _____, (a prostitute) (_____).
Parole, violation of 158. In that _____, a prisoner on parole, did, (at) (on board) _____, on or about _____ 19__, violate the conditions of his parole by _____.
Perjury, statutory 159. In that _____, having taken a lawful oath [in a proceeding before (a board of officers) (a court of inquiry) concerning _____] [upon the making of an affidavit as to _____] [_____], a case in which a law of the United States authorized an oath to be administered, that [he, the said _____, would (testify) (declare) (depose) (certify) truly] [a written (declaration) (deposition) (certificate) subscribed by him was true], did, (at) (on board) _____, on or about _____ 19__, willfully and contrary to such oath (state) (subscribe) a material matter, to wit: _____, which matter he did not then believe to be true.
NOTE.—If the matter falsely stated or subscribed under lawful oath is not material, the offense should be charged as false swearing.
Perjury, subornation of 160. In that _____ did, (at) (on board) _____, on or about _____ 19__, procure _____ to commit perjury by inducing him, the said _____, to take a lawful (oath) (affirmation) in a (trial by _____ court-martial of _____) (trial by a court of competent jurisdiction, to wit: _____, of _____) (deposition for use in a trial by _____ of _____) (_____) that he, the said _____, would (testify) (depose) (_____) truly, and to (testify) (depose) (_____) willfully, corruptly, and contrary to such (oath) (affirmation) in substance that _____, which (testimony) (deposition) (_____) was upon a material matter and which the said _____ and the said _____ did not then believe to be true.
Prisoner, allowing to do unauthorized act 161. In that _____, (a sentinel) (overseer) (_____) in charge of prisoners, did, (at) (on board) _____, on or about _____ 19__, wrongfully allow _____, a prisoner under his charge, to [(go to) (enter) (go to and enter) an unauthorized place, to wit: _____] [(hold unauthorized conversation with _____) (loiter) (neglect his task by _____) (obtain intoxicating liquor) (_____)] .
Public record, concealing, mutilating, etc. 162. In that _____ did, (at) (on board) _____, on or about _____ 19__, willfully and unlawfully [(conceal) (remove) (mutilate) (obliterate) (destroy)] [appropriate with intent to (conceal) (remove) (mutilate) (obliterate) (destroy)] a public record, to wit: [the (descriptive list) (rough deck log) (quartermaster‘s note book) of _____] [_____].
Refusing, wrongfully, to testify 164. In that _____, being in the presence of a [(general) (special) court-martial] [duly appointed board of officers] [_____] of the United States, of which _____ was (law officer) (president) (_____), (and having been directed by the said _____ to qualify as a witness) (and having qualified as a witness and having been directed by the said _____ to answer the following questions put to him as a witness, “_____“), did, (at) (on board) _____, on or about _____ 19__, wrongfully refuse (to qualify as a witness) (to answer said questions).
Restriction, breaking 165. In that _____, having been duly restricted to the limits of _____, did, (at) (on board) _____, on or about _____ 19__, break said restriction.
Sentinel, lookout, offenses against and by 166. In that _____ did, (at) (on board) _____, on or about _____ 19__, [(attempt) (threaten) to] (unlawfully strike) (assault) _____, a (sentinel) (lookout) in the execution of his duty, [(in) (on) the _____] with (a) (his) _____.
167. In that _____, (a prisoner), did, (at) (on board) _____, on or about _____ 19__, wrongfully [use the following (threatening) (insulting) (threatening and insulting) language] [behave in an (insubordinate) (disrespectful) (insubordinate and disrespectful) manner] toward _____, a (sentinel) (lookout) in the execution of his duty, [“_____,” or words to that effect] [by _____].
168. In that _____, while posted as a (sentinel) (lookout), did, (at) (on board) _____, on or about _____ 19__, (loiter) (wrongfully sit down) on his post.
Stolen property, knowingly receiving 169. In that _____ did, (at) (on board) _____, on or about _____ 19__, unlawfully (receive) (buy) (conceal) _____, of a value of about $_____, the property of _____, which property, as he, the said _____, then well knew, had been stolen.
Straggling 170. In that _____ did, at _____, on or about _____ 19__, while accompanying his organization on (a practice march) (maneuvers) (_____), without just cause, straggle.
Threat, communicating 171. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully communicate to _____ a threat to (injure _____) by _____ (accuse _____ of having committed the offense of _____) (_____).
Unclean accouterment, arms, etc. 172. In that _____ was, (at) (on board) _____, on or about _____ 19__, found with an unclean (rifle) (uniform) (_____), he being at fault in failing to maintain such property in a clean condition.
Uniform, unclean, improper, appearing in 173. In that _____ did, on or about _____ 19__, wrongfully appear (at) (on board) _____ (without his _____) (in an unclean _____) (with an unclean _____) (_____).
Unlawful entry 174. In that _____ did, (at) (on board) _____, on or about _____ 19__, unlawfully enter the (dwelling house) (garage) (warehouse) (tent) (vegetable garden) (orchard) (stateroom) (_____) of _____.
Wearing unauthorized insignia, etc. 176. In that _____ did, (at) (on board) _____, on or about _____ 19__, wrongfully and without authority wear upon his (uniform) (civilian clothing) [the insignia of grade of a (master sergeant of _____) (chief gunner‘s mate of _____)] [the Combat Infantryman Badge] [the Distinguished Service Cross] [the ribbon representing the Silver Star] [the lapel button representing the Legion of Merit] [_____].