Graham v. United States

136 Ct. Cl. 324 | Ct. Cl. | 1956

Lead Opinion

Madden, Judge,

delivered the opinion of the court:

The plaintiff was a warrant officer in the United States Marine Corps. On J anuary 10,1948, he was brought to trial in China before a general court-martial on six charges, which are quoted in full in our findings of fact. The charges related to fiscal transactions, (1) the receiving of falsely marked freight, (2) the issuance and use of a false bill of lading, (3) making a false request for the shipment of goods, (4) presenting a false request for counselor invoices for the shipment of goods, (5) requesting his organization to ship goods as his personal effects which were not his personal effects, (6) importing two automobiles into China in violation of regulations.

The court-martial found the plaintiff guilty of all the charges and sentenced him to be dismissed from the Marine Corps and from the United States Naval service. The proceedings, findings and sentence were approved by the convening authority and by the Acting Secretary of the Navy on September 23, 1948, except that the Acting Secretary set aside the findings on the first charge. On October 5,1948, the plaintiff was dismissed from the service, in accordance with the sentence,,of the court-martial, by order of the Secretary of the Navy.

The plaintiff sues for his salary from October 6, 1948, up to the present time because, he says, the sentence of the court-martial was void for lack of jurisdiction, and hence his discharge pursuant to the sentence was ineffective and he is, de jure, still in the service.

The plaintiff does not raise any question as to the original jurisdiction of the court-martial to try him. His contention is that, although properly constituted, the court-martial lost jurisdiction by (1) denying him due process of law in the course of the trial and (2) imposing a sentence in excess of its powers.

The plaintiff points to Article 60 of the Articles for the Government of the Navy, 34 U. S. C. (1946 Ed.), sec. 1200, which reads as follows:

Article 60. Proceedings; authentication; use in evidence.

The proceedings of courts of inquiry shall be authenticated by the signature of the president of the court and of the judge advocate, and shall, in all eases not capital, nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court-martial, provided oral testimony cannot be obtained. (Italics added.)

See 50 U. S. C. (1952 Ed.), sec. 625, for tbe present version of this Article. The Navy Department’s administrative regulations, some of which are in the nature of instructions to its officers, caution courts-martial not to violate Article 60. See sections 220 and 454 of Naval Courts and Boards, 1937 Edition.

Before the plaintiff’s trial by the court-martial, a court of inquiry had been convened by the Commanding General, Fleet Marine Force, Western Pacific. After the proceedings of the court of inquiry had begun, the plaintiff was made a party to those proceedings. In the court of inquiry proceedings, one Boellhoff had given testimony unfavorable to the plaintiff. At the plaintiff’s court-martial trial, Boellhoff refused to take an oath or to testify. Thereupon the judge advocate of the court-martial, as the legal custodian of the record of the court of inquiry, offered in evidence that portion of the Boellhoff testimony which had been given after the plaintiff had been made a party to the court of inquiry proceedings. The plaintiff objected to the offer of only a portion of the court of inquiry evidence, and moved that the entire record of the court of inquiry proceedings be admitted. The court-martial admitted all of the Boellhoff testimony, but not the rest of the court of inquiry record. There was a similar incident with regard to the testimony of one Krinkevitch, who had been a witness before the court of inquiry, but who refused to testify before the court-martial.

At the court-martial trial the judge advocate offered in evidence an incriminating statement that the plaintiff allegedly had prepared and signed prior to the trial. The plaintiff objected to its admission, and, at his own request, took the witness stand for the limited purpose of testifying as to matters bearing on the admissibility of the statement. In cross-examining him, the judge advocate asked him if the statement was true. He objected to the question on the ground that the statement had not been made under oath. His objection was overruled and the plaintiff answered that he believed that the statement was a true statement. It was thereupon admitted in evidence.

The plaintiff says that the admission in evidence by the court-martial of the testimony of Boellhoff and Krinkevitch before the court of inquiry was not only a violation of Article 60, which it undoubtedly was, but was a violation of the Sixth Amendment to the Constitution, because it denied him the right to be confronted by the witnesses against him.

It hardly needs repetition that neither this court nor any other civil court is a court of appeal from the decisions of courts-martial. Burns v. Wilson, 346 U. S. 137; Hiatt v. Brown, 339 U. S. 103; Lucas v. United States, 121 C. Cls. 819; Fly v. United States, 120 C. Cls. 482. Decisions of courts-martial are reviewed in the military hierarchy, first by the convening authority, and then by the Secretary of the Department, with the help of his legal staff. Insofar as the admission of the evidence constituted merely an error of law, we have no jurisdiction to review it. Even in professional courts, which are not required to combine judging with soldiering, errors of law are not infrequent. If a hierarchy of appeal has been set up, the error may be corrected. But the idea that a court loses jurisdiction by committing an error of law in the admission of evidence or otherwise is much too alarming to be considered.

We pass then to the question of whether the court-martial denied the plaintiff a constitutional right. We refer to Article 60, which we have quoted above. It is a positive statement by Congress that the court of inquiry evidence shall be evidence before a court-martial, provided oral testimony can not be obtained. This provision has been in the statutes since 1862. It has, no doubt, been made use of in innumerable instances, in cases not capital nor extending to dismissal. If the admission of such evidence is not a violation of the constitutional requirement of confrontation in cases in which the sentence may be a prison term, usually at hard labor, it can not be a violation in the plaintiff’s case where the sentence was dismissal from the service without other penalty. What the plaintiff urges, then, in effect is that we hold this 92-year-old Act of Congress unconstitutional, and stand ready to entertain suits by those who, in the recent past and in the future have been convicted and dismissed from the service in a court-martial trial in which the mandate of Congress has been followed and such evidence has been admitted.

The confrontation provision of the Sixth Amendment is not a prohibition of all hearsay evidence. It is probable that many a person has been capitally or otherwise punished since the adoption of the Sixth Amendment after a trial in which important evidence against him was the dying declaration of the victim of his alleged homicide. The justification for the admission of such hearsay is, of course, the justification for all real or supposed exceptions to the hearsay rule, i. <?., that the evidence is inherently trustworthy, and that direct testimony is not available. Society has had to choose between leaving itself unprotected because it was not possible to obtain the best possible evidence, and acting upon the evidence which it could get, if that evidence was worthy of belief and was believed. The Sixth Amendment has not forbidden the making of this choice. Congress, by the enactment of Article 60, expressed its positive conclusion that court of inquiry evidence is inherently trustworthy, and, if oral testimony is not available, should be admitted in most court-martial trials. It was not unconstitutional for it to so conclude.

Since we are not willing to hold, by inescapable inference, that Article 60 is an unconstitutional enactment, we cannot hold that the admission by the court-martial of the evidence hei’e in question was a violation of a constitutional right of the plaintiff. He has, then, nothing to complain of in this regard except a violation of Article 60. If we were sitting as a court of appeal from the court-martial, it would probably be our duty to correct the error. As we have said, we are not so sitting.

We have referred above to the incident in which the plaintiff took the witness stand for the limited purpose of testifying as to the admissibility of his prior written and allegedly incriminating statement. On cross-examination he was asked whether the statement was a true statement. Pie did not object to the question on the ground that he had not taken the stand to testify as to the merits of the charges. He objected on the ground that the statement had not been made under oath. It would be too much to expect of soldier judges that they would disregard the unmeritorious objection which he interposed, and direct him not to answer the question for another reason which he had not suggested. His objection was overruled and he answered that the statement was a true statement. We do not see in this single incident any compulsion upon the plaintiff to be a witness against himself. If he had not been asked the question, and had not taken the stand to deny the truth of his incriminating statement, the court-martial would have, of course, assumed that it was true. His frank answer could hardly have had any effect upon the court’s decision different from the effect his silence would have had.

The plaintiff urges that the court-martial’s severe sentence of dismissal was a sentence “in gross” based upon its conviction of him upon all six of the charges; that since all of the charges except the sixth one were tainted by the inadmissible court of inquiry testimony, and so severe a sentence would not have been imposed on the sixth charge alone, the sentence was void and should be disregarded. We have explained above that we have not been entrusted with the power to determine, with any legal effect, that the evidence upon which the plaintiff was convicted upon all of the charges was inadmissible. The convictions upon all the charges but one were sustained by the appellate hierarchy to which the plaintiff subjected himself when he joined the Marines.

The plaintiff’s petition will be dismissed.

It is so ordered.

LaRAmoee, Judge; LittletON, Judge; and JoNes, Chief Judge, concur.

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Dissenting Opinion

Whitaker, Judge,

dissenting:

We are not called upon in this case to declare unconstitutional an Act of Congress. Article 60 of the articles for the government of the Navy (34 U. S. C., sec. 1200; 1946 Ed.) has no application to the facts of this case. It applies only to cases “not capital, nor extending to the dismissal of a commissioned or warrant officer.” In the instant case plaintiff, a warrant officer, was dismissed from the service; hence, the statute has no application.

The question is whether an accused has the constitutional right in courts-martial to be confronted by the witnesses against him. That he has admits of no doubt, unless it be true that a citizen forfeits his rights of citizenship when he enters the service of his country in the naval or military forces. The Bill of Rights, in the Sixth Amendment to the Constitution, says, “In all criminal prosecutions, the accused shall enjoy the light * * * to be confronted with the witnesses against him. * * *”

It would hardly seem necessary to cite authority for the statement that an accused is entitled to this fundamental right as much in a court-martial proceeding as in the civil courts. But if authority is wanted, it is to be found in Burns v. Wilson, 346 U. S. 137; Schita v. King, 133 F. 2d 283; United States ex rel. Innes v. Hiatt, et al., 141 F. 2d 664; Shapiro v. United States, 107 C. Cls. 650; 69 F. Supp. 205.

When the accused was put to trial he was not confronted with the witnesses against him. Two of the witnesses, whose testimony before the Court of Inquiry was used against the accused, refused to testify in the court-martial proceedings. The findings show that at some stage of the proceedings before the Court of Inquiry the accused was made a party thereto, whatever that may signify; but they also show that some of the questions propounded to the witnesses whose testimony was read in the subsequent proceedings were propounded before plaintiff was made a party and some after. Whether plaintiff was given the right of cross-examination does not appear.

But, be that as it may, the Constitutional provision giving the accused the right to be confronted with the witnesses against him refers to the trial when Ms right to life and liberty is put in jeopardy; when, as the result of the trial, he might be sentenced to death or imprisonment. This could not be done by the Court of Inquiry. Its function was merely to inquire if the accused should be put to trial. It had no right to punish. Only the court-martial had this right. It was at the court-martial trial that the accused had the right to be confronted with the witnesses against him. This right was denied him.

Tbe rights guaranteed by the Bill of Bights were considered by our forefathers as a blood-bought heritage, to be handed down to their children, and to their children’s children. They refused to leave to chance that it would be respected by the law-makers and the courts. They wrote it in the Bill of Bights as the price of their adoption of the Constitution. To them and to me these rights are more precious than the conviction of an accused, however guilty I may think him to be.

I respectfully dissent.

FINDINGS OF FACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Commissioner Mastín G. White, makes the following findings of fact:

1. This is a suit for the collection of pay and allowances allegedly due the plaintiff as a warrant officer in the United States Marine Corps for the period subsequent to his dismissal from the service in accordance with a sentence imposed upon the plaintiff by a general court-martial. The plaintiff contends that his dismissal was illegal.

2. The plaintiff enlisted in the United States Marine Corps on March 9, 1933, and served as an enlisted man until his appointment as a warrant officer. Plaintiff was appointed a warrant officer (QM), United States Marine Corps, on September 20,1946, to rank from September 30,1946. This appointment was accepted by the plaintiff on November 12, 1946.

3. On January 10,1948, while the plaintiff was serving as a warrant officer in the United States Marine Corps, he was brought to trial at Tsingtao, China, before a general court-martial convened by order of the Commanding General, Fleet Marine Force, Western Pacific, on the following charges and specifications:

CHARGEi

RECEIVING ARTICLES FOR FREIGHT AND TRAFFIC

SPECIFICATION

In that Burton Edward Graham, 031226, warrant officer, U. S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, during the period from July 15, 1947, to July 80, 1947, exact dates to the relator unknown, wilfully, knowingly, and without authority from the President of the United States or Secretary of the Navy, receive and cause to be received on board the duty station to which he was then and there attached, eight cases of merchandise for freight and traffic, well knowing the said merchandise did not consist of gold, silver or jewels for freight or safekeeping, and further well knowing that the said merchandise did consist of furs, to wit, approximately ten thousand laska skins, approximately one thousand five hundred black kidskins, and approximately one thousand kolinsky skins.

CHARGE H

SCANDALOUS CONDUCT TENDING TO THE DESTRUCTION OP GOOD MORALS

SPECIFICATION

In that Burton Edward Graham, 031226, warrant officer, U. S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, on or about July 18,1947, at the aforesaid regiment, unlawfully and wrongfully conspire and cause a false and fraudulent United States government bill of lading to be -prepared and used by the aforesaid regiment, whereby a civilian, to wit, a Mr. Carlo Mina, could ship automobiles at government expense, well knowing that said shipment of civilian property at government expense was unauthorized, illegal, and not in the public interest.

charge in

FALSEHOOD

SPECIFICATION

In that Burton Edward Graham, 031226, warrant officer, U. S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, during the period from July 1,1947, to July 30, 1947, exact date to the relator unknown, cause to be delivered to the Shipping and Receiving Section, Seventh Service Regiment, Service Command, Fleet

Marine Force, Pacific, Tientsin, China, a written request for shipment of personal effects, in part, as follows:

“From: wo. burtaN [sic] e. graham (031226) tjsmo BE — 534244

To: The Shipping and Receiving Section, Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific.

Subject: Shipment of Personal effects, request for. Reference: la) Letter of instruction 1313 dtd 13Jul 46.

(b) ALNAV 423

1. As authorized in reference (a), it is requested that shipment of my personal effects to be made to the f ollow-ing adress [sic] :

WO. BURTAN [sic] E. GRAHAM (031226) USMC

2787 CALIFORNIA STREET,

SAN ERANCISCO, CALIFORNIA.

2. This Shipment marked in compliance with reference (b), strapped with metal strap on each face of the box consist of,

us00 108 one box 1 8.5 254 total cube. 69.0

109 one box 3#2 8.5 254 total weight. 2,042

110 one box #3 8.5 247

111 one box #4 8.5 248

112 one box #5 8.5 254

113 one box #6 8.5 247

114 one box #7 9.0 270

115 one box #8 9.0 268

3. In compliance with reference (a), I hereby certify that the effects covered by this request for shipment contains no live ammunition, hand grenades, explosives of any kind or other articles dangerous to life.

(SIGNED) BURTON E. GRAHAM.

BURTAN [sic] E. GRAHAM

WO. (031226) USMC”

he, the said Graham, well knowing that the aforesaid request contained a false representation, namely the representation : “my personal effects”, whereas in truth and in fact, he, the said Graham, well knew that the said effects were furs, said furs not being the personal property of the said Graham, and in which he, the said Graham, had no legal nor equitable interest, which said representation was knowingly false and intended to deceive, as he, the said Graham, well knew.

CHARGE IV

conduct UNBECOMING AN OFFICER AND A GENTLEMAN

SPECIFICATION

In that Burton Edward Graham, 031226, warrant officer, U. S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, on or about September 2,1947, cause to be presented to the Consulate of the United States of America, Peiping, China, a written request for consular invoice covering the shipment of certain cases of furs, in part, as follows :

* * * Burton E. Graham of Peiping, (China) * * *

STATEMENT OF PURCHASE

Black Kidskin plates and Raw Laska & Kolinsky skins

Bate of purchase: May24,1947

Dealers name: KwangHwa Shih YehShangHong

dealers ADDRESS: 4, Dairen Road, 10th Ward, Tientsin 47, Tung Tanzse Hutung, Peiping

1500 Black Kidskin plates cnc 110, 000.— cnc 165,000,000.—

10000 Raw Laska skins cnc 14, 000.— cnc 140, 000,000.—

1250 Raw Kolinski skins cnc 49,000.— cnc 61,250,000.—

cnc 366,250, 000.—

August 16th, 1947

* * * Purchaser-consignee Burton E. Graham. San Francisco, Cal. USA * * * Seller-consignor Burton E. Graham, Peiping (China)

(signed) Burton E. Graham”

he, the said Graham, well knowing that the aforesaid request contained false representations, namely the representations: “Burton E. Graham of Peiping, China’’, “Purchaser-consignee Burton E. Graham”, “date of purchase: May 24th, 1947”, and “cnc$366,250,000.00” whereas in truth and in fact, he, the said Graham, well knew that his residence was Tientsin, China, that he, the said Graham, was not the purchaser-consignee, and that no consideration had been paid by him, the said Graham, or on his behalf in any lawful currency or other medium of exchange to cover the selling or cost price of the subject furs; which said representations were knowingly false and intended to deceive, as he, the said Graham, well knew, and he, the said Graham, did therein and thereby exhibit a disregard of his obligations as an officer and a gentleman.

CHARGE v

VIOLATION OE A LAWFUL REGULATION ISSUED BY THE SECRETARY OP THE NAVY

SPECIFICATION

In that Burton Edward Graham, 031226, warrant officer, IJ. S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment,. Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, during the period from July 15, 1947, to September 30, 1947, exact date to the relator unknown, wrongfully and unlawfully request and direct the Shipping and Receiving Section of the said Seventh Service Regiment, to ship to the United States of America, as his personal effects, eight cases containing furs, said furs being dutiable under the customs regulations of the said United States of America, as he, the said Graham, well knew, and the said shipping and receiving section, did, pursuant to and in accordance with said request and direction take charge of and ship to the said United States of America said eight cases containing furs as aforesaid and he, the said Graham, did by means of said wrongful and unlawful request and direction, therein and thereby, knowingly, wilfully and without proper authority cause to be imported in a public vessel articles which are liable to the payment of duty.

CHARGE VI

CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE

SPECIFICATION

In that Burton Edward Graham, 031226, warrant officer, U. S. Marine Corps, while so serving with the First Marine Division (Reinforced), Fleet Marine Force, Tientsin, China, until June 18, 1947, and further while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, from June 18,1947, to September 30, 1947, did, during the period from April 1, 1947, to September 1,1947, exact date to tbe relator unknown, unlawfully and wrongfully import and cause to be imported eertain automobiles, to wit, one 1946 Buick sedan and one 1947 Studebaker sedan, in violation of the regulations of the Board for the Temporary Regulation of Imports of the Republic of China, providing in part, in tenor, as follows:

“Schedule xv. articles the import op which is prohibited * * * Tariff No 256b (part) Automobiles with 7 passenger capacity or less whose net f. o. b. factory cost to dealers exceeds u. s. $1,200 or equivalent, and chassis thereof.”

he, the said Graham, well knowing that the net freight on board factory cost to dealers of the said cars was in excess of twelve hundred dollars United States currency, and that the passenger capacity of said cars was less than seven passengers.

4. During the trial of the plaintiff by general court-martial, Hugo Boellhoff, who had been called to testify as a witness for the prosecution, refused to take an oath or to testify. Thereafter, the judge advocate of the court-martial produced the record of the proceedings previously had before a court of inquiry convened by the Commanding General, Fleet Marine Force, Western Pacific, at Tsingtao, China. The plaintiff had been made a party to the court of inquiry proceedings after such proceedings had begun. The judge advocate of the court-martial offered in evidence before the court-martial a portion of the court of inquiry record containing testimony which Hugo Boellhoff had given in the court of inquiry proceedings, the offer being restricted to the testimony which Boellhoff had given after the plaintiff was made a party to the court of inquiry proceedings. The plaintiff objected to the proposed restriction; and he moved that the entire record of the proceedings of the court of inquiry be admitted in evidence before the court-martial. The court-martial sustained the plaintiff’s contention that the admission of Boellhoff’s recorded testimony should not be restricted to the testimony that Boellhoff had given in the court of inquiry proceedings after the plaintiff was made a party to those proceedings; but the court-martial did not sustain the plaintiff’s motion that the entire court of inquiry record be admitted in evidence. Thereupon, the judge advocate, as the legal custodian of the court of inquiry record, took the stand as a witness for the prosecution and read from such record questions propounded to, and answers given by, Hugo Boell-hoff in the court of inquiry proceedings to prove the offenses alleged in charges I, III, IV, and V of the court-martial case. Some of the recorded questions and answers had been asked and given before, and some after, the plaintiff was made a party to the court of inquiry proceedings.

5. During the trial of the plaintiff by general court-martial, I. Krinkevitch, who had been called to testify as a witness for the prosecution, refused to take an oath or to testify. The judge advocate of the court-martial subsequently offered in evidence the portion of the court of inquiry record referred to in finding 4 above that contained the testimony given by I. Krinkevitch in the court of inquiry proceedings. The plaintiff objected on the ground that such recorded testimony would be inconsistent with the unsworn statement that I. Krinkevitch had made before the court-martial in refusing to testify at the court-martial trial. The court-martial did not sustain the plaintiff’s objection. Thereupon, the judge advocate, as the legal custodian of the court of inquiry record, took the stand as a witness for the prosecution and read from such record questions propounded to, and answers given by, I. Krinkevitch in the court of inquiry proceedings to prove the offenses alleged in charges I, III, IV, and V of the court-martial case.

6. Some of the exhibits that had been introduced in evidence before the court of inquiry referred to in findings 4 and 5 above were also introduced in evidence by the prosecution at the court-martial trial of the plaintiff to prove the offenses alleged in charges II, III, IV, and V. The plaintiff objected to the admission of such evidence without also admitting the entire record of the proceedings of the court of inquiry in evidence before the court-martial, but his objections were not sustained by the court-martial.

7. During the plaintiff’s trial by general court-martial, the judge advocate of the court-martial offered in evidence an incriminating written statement that the plaintiff allegedly had prepared and signed prior to the trial. The plaintiff objected, and, at Ms own request, be took the witness stand for the limited purpose of testifying with respect to matters bearing on the admissibility of the written statement. While being cross-examined, the plaintiff was asked by the judge advocate whether the written statement was a true statement. The question was objected to by the plaintiff on the ground that the statement had not been made under oath. The court-martial did not sustain the objection; and, the question being repeated, the plaintiff replied that he believed that the statement was a true statement. The written statement was admitted in evidence over the plaintiff’s objection.

8. On February 28, 1948, after the general court-martial trying the plaintiff had held sessions at Peiping and Tientsin as well as at Tsingtao, the court-martial found that the specifications of all the charges had been proved, with certain exceptions and substitutions that were made by the court-martial in the specifications of charges V and VI; and the court-martial found that the plaintiff was guilty of all the charges.

9. Pursuant to its findings of guilty, the general court-martial on February 28, 1948, sentenced the plaintiff to be dismissed from the United States Marine Corps and from the United States naval service.

10. The proceedings, findings, and sentence of the genera] court-martial in the plaintiff’s case were approved by the convening authority on March 25,1948.

11. The proceedings, findings, and sentence of the general court-martial in the plaintiff’s case, and the action of the convening authority thereon, were approved by the Acting Secretary of the Navy on September 23,1948, except that the findings on charge I and on the specification thereunder, and the action of the convening authority thereon, were set aside.

12. In accordance with the sentence of the general court-martial, as approved by the convening authority and by the Acting Secretary of the Navy, the plaintiff was dismissed from the United States Marine Corps and from the United States naval service on October 5,1948, by order of the Acting Secretary of the Navy.

13. The plaintiff has exhausted all his administrative remedies, and has been denied relief by the Board for the Correction of Naval Records and by the Judge Advocate General of the Navy.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and his petition is therefore dismissed.