531 F.2d 482 | Ct. Cl. | 1976
delivered the opinion of the court:
In 1960 plaintiff, a Ship’s Serviceman Second Class in the United States Navy, served as storekeeper of the Special Order Store (i.e. shop for the purchase of foreign goods)
After the completion of an investigation, plaintiff was tried by general court-martial on the alternative charges of larceny of $1288.60 in violation of Article 121 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921, and delinquency in the performance of his duties, in negligently failing to account for $1288.60, in violation of Article 92 of the UCMJ, 10 U.S.C. § 892. The court-martial found him guilty of the former and not guilty of the latter and sentenced him to a bad conduct discharge, reduction to the grade of ship’s serviceman seaman recruit, a fine of $1288.60, confinement at hard labor for twelve months, and additional confinement for up to twelve months until the fine was paid. Pursuant to his authority under Article 64 of the UCMJ, 10 U.S.C. § 864, the convening authority reduced the fine to $500 and the maximum period of further confinement in the event of nonpayment of the fine to six •months. A Navy Board of Review affirmed the findings and sentence as modified; the Court of Military Appeals denied a petition for grant of review; the Board for Correction of
In a suit brought under 28 U.S.C. §§ 1491 and 1495 and now before us on a stipulation of facts,
1. The Government asserts that the plaintiff waived collateral review when he failed to raise his constitutional claims in the military proceedings. As a general rule, a plaintiff must exhaust military remedies before he can obtain collateral review in tMs or any civilian court. See Noyd v. Bond, 395 U.S. 683, 693-94 (1969); Gusik v. Schilder, 340 U.S. 128, 131-32 (1950); Angle v. Laird, 429 F. 2d 892, 894 (10th Cir. 1970), cert. denied, 401 U.S. 918 (1971); Artis v.
2. In alleging that he is entitled to back pay because his conviction resulted from the application of an unconstitutional presumption of embezzlement based on custody of and inability to account for funds, plaintiff relies heavily on our decision in Shaw v. United States, 174 Ct. Cl. 899, 357 F. 2d 949 (1966), confirmed sub nom. after remand, Gearinger v. United States, 188 Ct. Cl. 512, 516-17, 412 F. 2d 862, 864-65 (1969), in which we granted back pay to a serviceman whose court-martial conviction was premised solely on a presumption of embezzlement where the prosecution proved only a shortage in the funds for which the accused was responsible. Plaintiff’s invocation of Shaw is misplaced. There the prosecution proved only a shortage in Shaw’s funds; the burden then shifted to Shaw, not only to disprove his own fault and negligence, but also to prove affirmatively theft by another or loss through other circumstances beyond his control (e.g. fire). As the Government acknowledged, there was no evidence to support a finding of negligence or of conversion by Shaw, and there was a great deal of evidence of Shaw’s due care. Shaw clearly was convicted of embezzlement solely on the basis of the shortage in his funds combined with the presumption placing on him the burden to prove the actual cause of the shortage. Shaw v. United States, supra at 908-09, 915-16, 357 F. 2d at 955-56, 960; see O'Malley v. United States, 378 F. 2d 401, 403 (1st Cir.), cert. denied, 389 U.S. 1008 (1967).
Gross’s case stands on very different footing. No burden, other than that which naturally arises from an accumulation of evidence against an accused, was placed on Gross, and the prosecution presented a great deal of circumstantial evidence probative of his guilt. Gross’s acquittal on the negligence charge does not equate with the affirmative finding that Shaw was not negligent; Gross’s court-martial had been instructed
The existence of the intent to steal ordinarily cannot be proved by direct evidence unless, for example, the accused has been overheard to express that intent; but you are advised that intent may be proved by facts and circumstances from which, alone or in connection with other facts, you may, after applying your common sense and your general knowledge of human nature and the ordinary affairs of life, reasonably infer the existence of such an intent. Thus, it may be justifiably inferred that one who has assumed the custody of the property of another has stolen such property if he does not or cannot account for or deliver it at the time an accounting or delivery is required. However, the inference which may be drawn from a custodian’s failure to account for or deliver entrusted property at the time an accounting or delivery is required is not mandatory, and it can Tee rejected or accepted as you see fit.
Transcript of Court-Martial at 113, Defendant’s Exhibit 4 at 346 (emphasis added).
This instruction, similar to ones we noted with approval in Shaw (174 Ct. Cl. at 918-19, 357 F. 2d at 962), states a permissive inference the constitutionality of which must be tested under standards delineated by the Supreme Court. Under the most stringent formulation of the test, an inference satisfies due process if it satisfies the reasonable-doubt standard — that is, if “the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt.” Barnes v. United States, 412 U.S. 837, 843 (1973). See generally id. at 841-47 and cases cited. Following the example of the Supreme Court in Barnes (cf. id. at 845-46), we have reviewed the evidence against Gross. The prosecution proved, inter alia, that Gross had signed all the unrecorded forms, that at least one unrecorded order had been placed late in the evening just before the store closed and just before Gross was to record the day’s trans
3. The second challenge, directed against the admission into evidence of certain incriminatory statements, must also fail. In contending that the circumstances under which he made the statements negatived his free will, plaintiff in effect acknowledges that their admission violated his constitutional rights only if the statements were involuntary.
A Relying on O'Callahan v. Parker, 395 U.S. 258, 272, 274 (1969), plaintiff disputes the jurisdiction of the court-martial on the ground that the offense of which he was convicted was not service-connected. We can bypass the question
5. The last issue, an allegation that the review and approval of the conviction and sentence by the staff legal officer who initially recommended court-martial for larceny violated due process, is similar to the question in McDonald & Sanders v. United States, ante at 62, decided today. Gross does not contend that this staff legal officer was actually biased but instead simply urges us to declare the conviction void because he might conceivably have been biased. In McDonald & Sanders, supra, and in Jones v. United States, 205 Ct. Cl. 270, 499 F. 2d 631 (1974), we held that we would not assume unfairness or prejudice to a court-martial defendant from the mere existence of a legislative system giving the convening authority multiple roles, including roles as referrer of charges, selector of the trial and defense counsel and of the court-martial members, and reviewer of conviction and sentence. The reasons for our refusal to assume prejudicial effect are stronger in this case, where plaintiff has challenged not the convening authority’s position but that of the staff legal officer who merely advised the convening authority on the law at two important stages of the court-martial proceedings. Congress, which at least twice has given serious consideration to complaints about command influence and the convening authority’s roles but has not noted any complaints about the staff legal officer’s or judge advocate’s functions, has incorporated into the UCMJ safeguards designed to protect the rights of suspects and accuseds, especially from the prejudicial exercises of command influence by the convening officer. See, e.g., 10 U.S.C. §§ 806(b), (c) (convening authorities shall communicate with staff judge advocate or legal officer on matters relating
We cannot say, in the absence of proof particular to this case or some general demonstration of the injurious impact of the provisions, that these safeguards are inadequate to protect against any improper action by the staff legal officer, who merely advises on the law and can himself exert no command influence on the court-martial. We therefore have no justification in this case for invalidating a conviction where the staff legal officer acted well within the bounds of the system containing these safeguards; without far greater proof than plaintiff has proffered, we cannot invalidate a conviction where all requirements of a statutory system carefully devised by Congress and approved generally by the Supreme Court were met. McDonald & Sanders v. United States, supra; see Schlesinger v. Councilman, 420 U.S. 738, 757-58 (1975) ; Burns v. Wilson, 346 U.S. 137, 140-41 (1953); S. Rep. No. 486, supra. See also United States v. Augenblick, 393 U.S. 348, 356 (1969), which indicates that we must be certain that an infirmity rises to the level of a constitutional violation before we consider voiding a court-martial conviction. A plaintiff in this court must make some showing, not merely an allegation, that the staff legal officer’s fulfillment of his advisory functions led to unfairness or that the system is inherently unfair. McDonald & Sanders v. United States, supra; cf. Gallagher v. United States, 191 Ct. Cl. 546, 556-58, 423 F. 2d 1371, 1377-78, cert. denied, 400 U.S. 849 (1970) (mere assertion of conflict of interest is insufficient) ; Flackman v. Hunter, 75 F. Supp. 871, 877-78 (D. Kan. 1948), appeal dismissed, 173 F. 2d 899 (10th Cir. 1949) (summary rejection of contention that dual role of staff judge advocate under Articles of War violated due process).
In accordance with our conclusion that none of the issues raised by plaintiff infringes a constitutional right, we hold
CONCLUSION OK LAW
For these reasons, it is held that the plaintiff is not entitled to recover and his petition is dismissed.
The pertinent facts are sufficiently stated in this opinion.
Plaintiff’s appellate counsel first requested an enlargement of time in which to file pleadings, on the ground that his heavy caseload would prevent him from properly representing plaintiff if he had to file pleadings within the prescribed 11 days. Thereafter, the appellate counsel filed only a cursory “Petition for Remission of Punitive Discharge.” Gross’s petition for review by the Court of Military Appeals was simply a form, the blanks of which were filled in by Gross, unaccompanied by any specifications of errors or other material indicating review of the record and advice by counsel. See Defendant’s Exhibit á at 19, 16-17, 5.
Although plaintiff’s formulation of the question is confusing, we do not read his argument as a contention that the admission of the statements violated either Article 31 of the UCMJ (10 U.S.C. § 831) or Miranda v. Arizona, 384 U.S. 436, 444-45, 478-79 (1966). We could not review a challenge based on Article 31 alone because such a challenge would address a mere error of law. Narum v. United States, 151 Ct. Cl. 312, 315, 287 F. 2d 897, 898-99 (1960), cert. denied, 368 U.S. 848 (1961). Plaintiff could not found a challenge on Miranda because Miranda is not retroactive (Johnson v. New Jersey, 384 U.S. 719, 721, 732 (1966)) and therefore does not apply to a court-martial that took place in 1961.
In Ms carefully probed testimony accepted by the law officer, Scarselletta emphatically stated that he did not suspect Gross when he called Gross In for questioning. Scarselletta had a high regard for Gross and had recommended Gross for the storekeeper’s job. Court-Martial Appellate Exhibit 1 at 4-16, Defendant’s Exhibit 4 at SS3-95; Transcript of Court-Martial at 26-28, Defendant’s Exhibit 4 at 258-261.
Likewise relevant is Withrow v. Larkin, 421 U.S. 35, 46—47, 54-55, 58 (1975), refusing to hold that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication (the agency involved was a state examining board for physicians).