James Roy Gosa v. J. A. Mayden, Warden, Federal Correctional Institution, Tallahassee, Florida

years period in is un comes forward after Similarly, his contention allegedly 205(c) performed, give work was persuasive section (G) 404.957(c) in subsection situation^ Regulation 4, while (5) (G) and § Secretary’s Craig furnish cor- records would interplay in here as the same roborating prior quar- evidence statutory the over-all vitiates Admittedly, ter’s work. Security the Social Act. * “* * interpreted that Act should be Affirmed. overriding in purpose a manner such achieved, if the even will be contrary in room for a words used leave Finch,

terpretation.” 2d Haberman Here 418 F.2d

Cir. only of the statute “leave do words construction,” contrary

room for a that is the reasonable construction Roy GOSA, Petitioner-Appellant, James 205(c) (5) (G) apparent. does Section one afford modicum relief MAYDEN, Warden, supported J. A. Federal Correc Pleasant. This conclusion is Institution, Tallahassee, Flor report as to Committee Senate ida, Respondent-Appellee. statutory provision intent of No. 29139. question: correct errors re- “[It exists] [t]o Appeals, United States sulting employer’s reporting from the Fifth Circuit. wages period, for an incorrect Oct. reporting wages from his one indi- vidual under the name and account

number another.”

S.Rep. Cong., No. 81st 2d Sess. Congressional p. U.S.Code Service, employer, this case the who May

came forward of 1968 and stated that Pleasant fact worked for during quarter years him one of the ten

preceding accident, the 1962 had not re- ported employment during either wrong pay period wrong or to the

account. As such there could be no evi-

dence on the Secretary’s face of the

records which would corroborate

contention actually that Pleasant had during quarter

worked question.

The absence support of corroborative Secretary’s points up records one explanation distinction drawn between pursuant corrections made Godbold, Judge, Circuit dissented 205(c) (5) section opposed (G) as opinion-. and filed 205(c) (5) section (H). In the first in- applications may stance reopened; they the latter cannot. In subsection (H) situations, Secretary prior record of claim additional earnings which can be consulted to bol- ster testimony employer of an superior permission officers of his military post in dressed had left the allegedly midnight Gosa mufti. Around Wyoming. Cheyenne, raped in a civilian any type not on

The victim was asserted duty military direct and had no military relationship with the indirect Although ar- Gosa was establishment. by Cheyenne civilian authorities (Court-Ap- rested Perritt, Jr. Franklin H. courts, Gibbs, prosecution he was Conroy for in their Gray, Marks, & pointed), subsequently from deten- their petitioner-appel- released Jacksonville, Fla., for party complaining failed tion when the lant. thereupon appear. immediate- He was to Atty., Stafford, Stewart S.U. William military custody ly was and taken into Atty., Carrouth, Tallahas U. Asst. S. J. charged violation of Article Jr., Hodgson, see, Fla., Major Earl E. Military the Uniform Code C., Washington, Force, D. Clin Air U. S. 920, (U.C.M.J.) 10 U.S.C.A. § Atty., Ashmore, North Asst. U. S. ton subject any person the provides that Fla., Tallahassee, Florida, ern District may rape an act of Code who commits respondent-appellee. punished di- as a court-martial GODBOLD, and SIMPSON Before provisions of sub- Pursuant to the rect. Judges. CLARK, Circuit V, (10 chapters U.C.M.J. U.S. IV and general 816-829), court-martial a C.A. §§ Judge: CLARK, Circuit petitioner duly tried convened which was by sole, presented and, 2, 1966, issue him inexorable on found December predict multiple appeal requires guilty charged. wheth- us All of the as procedures provided Court of the U.C. er review July 11, in O’Calla- its decision States will accorded.1 On M.J. were 258, Parker, Military petitioned han the Court Gosa grant 1683, to com- Appeals Ar- for a of review under 867). parable proceedings (10 courts ticle U.C.M.J. U.S.C.A. § stage complete procedures final- ex- which reached All direct were review ity that the date became June conviction hausted Gosa’s August 16, be- announced. The court when decision was final in law on Military Appeals that O’Callahan should be low reasoned denied application, F. denied retroactive view. Supp. 1186. affirm. We August 21, ap filed his Gosa On Roy corpus plication It in all started for James Gosa of habeas for writ serving

August 13, No 1966. He was then and on the 6th of court below vember, 1969, as Air a member of the United filed with the United Military Appeals Force mo stationed at Air Force Warren States Court Wyoming, night Base and on the his sentence and convic tion vacate question, officially off-duty application mo he was and the tion. Both convening authority (10 864), 1. The referred rec § U.C.M.J. U.S.C.A. (10 Judge pursuant ord to his Advocate for review Staff to Article U.C.M.J. authority required by (10 convening Article U.C.M.J. § U.S.C.A. 861). by sending himself § U.S.C.A. In what Gosa this final action followed opinion acknowledges comprehensive record, review and the entire his action Judge record, Judge Judge Advocate Advocate to the the Staff of his Staff Air submitted the United States his written Advocate General of convening authority, findings Board was reviewed Force where it general pursuant sentence of the were to Article U.C. court-martial of Review Subsequently (10 866). This Board § correct law and fact. M.J. U.S.C.A. finding guilt convening authority approved find affirmed both ings required by Article sentence sentence. try upon assertions a member of the based tion were juris- invalid in Armed Forces under the otherwise confinement was Gosa’s congressional light diction of that court of the decision general tried of Article mandate U.C.M.J. court-martial 802).3 jurisdiction. ap Both C.A. Each of these factors him lacked § case; unquestionably present plication and the mo relief Gosa’s habeas vacate, only distinction, Mili of indeed the locale—the tion to which the Court tary Territory petition re Appeals vis-a-vis treated as a Hawaii the State Wyoming all, consideration, effective at makes were denied.2 —if stronger. Indubitably, Gosa’s case had prior O’Callahan been rendered to these AND O’CALLAHAN—COMPARISON case, in events Gosa’s that decision would ANALYSIS general deprived have court-martial granted petition Court jurisdictional which tried au- Gosa a Tenth Circuit for certiorari review of thority to hear or determine that cause.4 styled U. S. case Relford v. Commandant deciding scope We cannot avoid Leavenworth, Disciplinary Barracks, Ft. applicability precedent. its there- We purpose of limited for the F.2d analyze fore must it. deciding scope retroactivity and Relford, capsuled the Court its 934, 90 O’Callahan. See 397 U.S. S.Ct. holding prior in O’Callahan thus: However, (1970). vote, [B]y a on be heard on five-to-three when came Relford try be- determined that held that a court-martial merits the Court charged per- cause Relford’s offense member our armed forces petrated geographical attempted rape civilian, bound- with of a within housebreaking, ary military post, it had a service and with assault with rape, alleged O’Callahan lacked. intent connection which when the of- Thus, retroactivity off-post was fenses a decision on were committed territory inappropriate. deemed American when the soldier leave, charges Rel- was on when the prosecuted which, if could enumerated 12 have been in factors a civilian ford present, deprive military court-martial court. F.Supp. (N.D.Fla.1969) ; any 2. 305 10. Tlie absence of threat to a military (March post. U.S.C.M.A. 41 C.M.R. 327 20, 1970). any 11. The absence of violation of military property. proper 3. 1. The serviceman’s absence might One add still another factor from the base. implicit in the others : away The crime’s 2. commission from being among 12. The offense’s those the base. traditionally prosecuted in civilian place Its commission at a not un- courts. military der control. (10 See also Articles 17 U.C.M. J. & Its commission our territo- within 818). §§ U.S.C.A. 817 & occupied rial limits and not zone foreign country. alleged of a 4. Not did Gosa’s crime occur peacetime O’Callahan, Its commission in and its his conviction and being authority stemming unrelated to sentence became final to the date of that power. decision; thus, from the war there is no occasion for any position 6. The absence of be- connection us to take on the issue of military partial tween the defendant’s duties accorded to the de- and the crime. cision the United States Mili- Court of being engaged tary Appeals has, 7. The victim’s not since the date of performance any duty relating decision, applied O’Callahan to void military. every affecting court-martial action a serv- presence availability similarly 8. The of a iceman situated whose conviction civilian court which the case can bo still on direct review on June prosecuted. Dillon, 1969. Mercer v. 19 U.S.C.M.A. any flouting (March 9. The 6, 1970). absence of 41 C.M.R. 264 military authority. the constitu- greater Looking Those civil detail to the litigation. present stakes in itself, that certiorari first note (Final 262, 89 question: to the limited O’Callahan was supplied.) emphasis sentence court-martial, held under Does post- Then, pre- War, after a discussion Tit. U.S.C. § Articles of history, military try a mem- seq., Constitution et put decision was Armed conclusion Forces ber of language: charged of a crime commission cognizable court and hav- in a civilian to be that the crime concluded We have alleged military significance, ing no jurisdiction must be under off-post committed have been arising connected, lest ‘cases service leave, depriving him thus while on forces, in the naval in the land or rights to indictment his constitutional militia, service in when in actual time grand by petit by jury trial a a and public danger,’ of as used war or jury in a civilian court? expanded Amendment, to the be Fifth every deprive the armed member of of an indict- services of the benefits reciting grant the unlimited of After by grand jury by trial ment a and a congressional authority Rules “To make jury peers. of his a Regulation of and for the Government 1690). 89 S.Ct. at in Ar- land and naval Forces” contained I, 14 of the ticle Section Clause Con- Clearly then, grand jury petit and Rights language stitution, the Bill of and sought to tections were the core arising excepted only cases also vouchsafed. be Since forces, excepted or land naval spoke procedural aspects of other only Fifth Amend- those cases from the military system compared some grand jury pre- requirement ment’s processes, can- we these civilian indictment, sentment Mr. that not state with absolute assurance Douglas, majority, speaking will later hold that these pointed Congress developed Rights out that protections in- two Bill of were However, uncertainty system military justice a volved. is not with funda- our conclusion. critical mental differences from civilian courts.

He stated the issue in words: these analysis also of O’Callahan must Our determining upon center whether If the ‘in land case does not arise that tribunals Court decided gets forces,’ or naval then the accused adjudicatory power over service- lacked by first, an indictment benefit of not “service- men’s offenses which were by grand jury second, opinion hold connected”. Did the guar- jury before a civilian court power sub- courts-martial lacked over the by anteed Amendment Sixth ject person matter and of such soldier Ill, Art. of the Constitution § Congress because had no constitutional part: provides, authority it, or did O’Callahan vest grand petit decide that the lack of Crimes, except ‘The Trial of all (and jury procedures perhaps other Impeachment, Cases of shall be protections) civilian court resulted in Jury; and such Trial shall be held loss of within otherwise the State where the said Crimes shall congressional grant? control committed; but when Flemings ex rel. any State, committed the Trial within Chafee, F.Supp. (E.D.N.Y. shall be at such Place or Places thorough 1971), a most and scholar- Congress may by Judge di- ly judicial Law have determination, Wein- guard- comes to the somewhat stein

rected.’ BE adjudicatory IT RETROACTIVITY —NEED lack ed conclusion TESTED of the decision. power rationale jurists have notes that He also problem face The threshold opposite See conclusion. reached the completely appeal presents a instant Mayden, appeal, Gosa here decision issue, not over- did novel Mer- (N.D.Fla.1969); F.Supp. 1186 prior precedent It turn a Court. 264, 41 Dillon, 19 U.S.C.M.A. cer v. part Con- invalidated a law made Mose- (1970); Schlomon C.M.R. 264 gress. must determine whether We L-1003, May ley (1971) [Civ.No. retroac- Court’s doctrines Board opinion of the 1971]; tivity applicable to a decision which in United U.C.M.J.] [Art. of Review congressional action in a context undoes (July King, ACM States v. has a half-cen- where the Act involved U.S.C.M.A., 40 1969), denied review background judicial tury tacit of at least ).5 ( C.M.R. 327 approval. illogical assign authority shad- weight Of course Despite the degrees nullity reasoning ings acts contrary, Flem- we find the But, equal classed ings as void. persuasive issue. Read on this foundation, logic certitude, if a assert mind, open O’Callahan’s leg- reversing judicial deny court decision to the and structure framework ju- error of fundamental constitutional the breath breathed islation which Sgt. impact, must be tested for its retroactive that tried life into the forum dicial O’Callahan, reversing long a necessary a estab- con- court decision basis in recognized legislative lished, judicially type of power to reach his stitutional ought test- to be entitled to the same of the rule ing. that because declares case. It I, Rights, For how could one assert can- Section Bill Article 8 Congress proceeding is which is invalid because it to au- not read enable be right try less military in excess constitutional is courts to thorize the nullity military from who, vacuous because its results peacetime soldier freed of judicial legislative ac- temporarily, error rather than is responsibility, albeit cognizable obviously, Equally (a) it more charged tion? is no awith crime illogical having (b) mili- the rules for determin- court and no civilian ing retroactivity liberty significance. to losses tary placed It resulting property discharged from serv- unconstitutional in iceman,6 as a the same status judicial precedent employed than unconstitu- a civilian legislative overseas,7 action. Forces a civilian Armed military accompanying the service over- mind, these look With axioms language Although seas.8 opinion judicial to see how the de- doctrine words, many say not does it in so retroactivity termination of into came it that a of the Armed holds member County, Shelby existence. Norton v. off-duty life an area of Forces Tennessee, 425, 1121, 118 6 U.S. S.Ct. general status his serviceman wherein (1886), 30 L.Ed. 178 that an declared bring ac- nexus to his insufficient unconstitutional enactment no conferred range right, imposed duty, tions under constitutional afforded no legal was, contemplation, Regulation”. tection “Government McElroy Guag- 7. v. United ex States rel. In must be considered what dicta since liardo, 281, 305, 4 U.S. 80 S.Ct. come serviceman did not within (1960) ; Hagan, ambit, L.Ed.2d 282 Grisham v. O’Callahan’s another district court 310, 278, against retroactivity 361 U.S. 80 S.Ct. L.Ed.2d 279 without also reasons (1960). point. reaching Thompson Parker, this v. F.Supp. (M.D.Penn.1970). 1222, Covert, Reid 354 U.S. 77 S.Ct. ; (1957) Quarles, 1 L.Ed.2d 1148 Kinsella v. Unit- United ex rel. Toth Singleton, ex ed States rel. 361 U.S. 350 U.S. 76 S.Ct. L.Ed. 8 (1960). (1955). though inoperative it had never the relative of the constitutional value guarantee involved, County impelled to passed.9 Chicot Drain- we are In been Bank, age than half- the conclusion that this more Baxter State Dist. v. precedent 84 L.Ed. 329 decade selective retro- activity ignored. light may be statements retracted broad reasoning, of this no decision can arbi- those state- of Norton and declared assigned qualifica- trarily full taken with be sole- ments had to be ly operates ju- on that the actual exist- the basis that It tions. reasoned proscribing risdictional rather than to the determination ence of a law unconstitutionality operative denial of a fundamental constitutional right is an consequences that relates to another area of fact and ignored. processes justly criminal law. Linkletter cannot Walker, be 1731, 14 Finally, one distinction remains to progenitor (1965), the L.Ed.2d 601 made. at The case bar is not like Unit field, precedents in im- the ported Court’s ed States v. States Coin Cur & the rationale of Chicot into rency, 1041, 28 controlling criminal law. Linkletter is precedent There the Court for the assertion that here prohibited property forfeiture for distinction there is no between basis had its basis in the refusal of a citizen legislation judge-made rea- course, himself, is, incriminate soning retroactivity vel non. a form of conduct that could not have constitutionally punished above, Under our set out view O’Calla- time from and after the date the Bill significant presents han another first Rights right adopted. re Such adjudication field of retroactive fuse to incriminate oneself was not first because it involved determination that confected in decisions which declared support the Constitution a law would registration gambling forms judicial system which invested a constitute self-incrimination and could person subject over required. not be Since there was always matter of the action tried. It right gambler to arrest the proceedings refused been the law that of a court „ forms, rig! to file such there at jurisdiction was no which is without of the sub- gambling all to seize equipment his at ject void, matter are but does this in- illegal the time opin of his evitably arrest. The necessity lead full for cogent ion closes on this retrospective note: application of the de- cision which first discovers and an- us, In the however, case before even jurisdictional nounces the deficit? We impeccable factfinding pro use of hold it does not. legitimate cedures could a verdict decreeing forfeiture, for we held have Indeed, jurisdiction question lies being penalized that the conduct is analysis at the second level in the of the constitutionally punish immune from problem though at hand. For O’Calla- ment. at S.Ct. jurisdiction, han determines lack of the determination is the result of a new adjudication right. of constitutional Be- begs question It to assert that be- ing taught show, as we will later cause the in pure issue O’Callahan is reject we can inconsequential as Currency that Coin is & specific provision of on analogous. the Constitution rightfully No citizen can be jailed precedent rests, exercising which a religious new as aswell his free- earlier, though non-judicial, prec against equity There is an act natural is void.” Westbrook, edent. In even before we See had our also Nelson n. infra present Constitution, the Colonial orator patriot, Otis, Argument in James his Against Assistance, Harrington States, the Writs stated: See also v. United void; against “An (5th 1971). act the Constitution is 444 F.2d 1190 Cir. whether, proceedings. government but duct the Not petitioning his or doms though grievances, even where. a redress litigation could con- situation some new sum, hold that there is no arbi- deprivations ceivably in arise which such deciding trary simplistic or basis for liberty expressly voided. be retroactivity.11 heart of the doctrine The right is free of such restraints His be application is a consti- reasoned of new clearly it- in the Constitution established precedent. tutional must follow We precedent. self and not decisional in the case course those decisions dictate just the same as not at all This is at bar. Congress right new view of the Sgt. regulate military jurisdiction over RETROACTIVITY —GENERAL PRIN- announced which the Court CIPLES is 1969. This latter decision June background against category State in the same Bloom historical as Illinois, Supreme which the Court of the United explicated other States first a set of rules 20 L.Ed.2d 522 govern changes adjudication whether new altered new court-enunciated principles those accused of constitutional criminal fundamental prospective, were to crime. One of the be invested with O’Callahcm-Relford criteria, supra, fully application is that limited or see note 3 retroactive cognizable opinion must detailed in Mr. crime involved Justice Clark’s rape, supra. Walker, for Linkletter civilian court. The crime The inter- O’Callahan, vening Relford Gosa were decisions which touched on this prosecuted, contrary principle, equally well as the comments of legal jurisdictions explored in- laws of civilian who have scholars subject matter, just volved and the The issue for U.C.M.J. been collated those is not cases Gosa’s well Mr. White’s Williams States, all, v. United whether the accused could be tried (1971).12 need right We forum had to con- emma, Baylor opinions L.Rev. make the 11. We note tlmt of commen ipse jurisdictional dixit assertion tators which have come to attention opinion obviously requires tenor of the retroactivity. Flemings court and to ours are disagreement point. on this Nelson Westbrook, Court-Martial Jurisdiction 12. The Offenses”, eases Over Servicemen for “Civilian Analysis which our dealt research discloses have Parker, an of O’Callalmn v. 54 issue, tangentially, with the even are Ful 1, 45; Minn.L.Rev. Note: Court-Martial Alaska, 80, 61, ler v. 393 89 U.S. Jurisdiction Limited to “Service-Connect (1968), 21 L.Ed.2d 212 which refused 417; ed” Cases. 44 Tulane L.Rev. Florida, application retroactive to Lee v. Retroactivity :Note Constitutional Law — 378, 2096, 392 U.S. 20 L.Ed. 1166 88 S.Ct. Applied —Should O’Callahan be Retro (1968), forbidding actively?, 106; State use of evidence 2 Tex.Tech.L.Rev. all obtained violation of the Federal Com three opinion reason the structure the Act; jurisdictional munications North v. Carolina in terms of deficit Pearce, 711, 2072, preclude testing appli 395 89 S.Ct. 23 does not the rule’s (1969), gave ap retro cation standards application Maryland, plied applications active to Benton v. to other new of consti 784, 2056, 395 U.S. 89 S.Ct. 23 L.Ed.2d tutional and that fundamentals state (1969), declaring Fifth Amend 707 ments critical of the fairness of jeopardy appli justice protections persuasive ment’s double do not overcome procedures. cable to State criminal [See ness of the reliance and effect criteria of Swenson, 436, retroactivity rulings Ashe v. 397 U.S. 90 S.Ct. Court’s 1189, (1970)3; Whereas, 25 L.Ed.2d 469 DeBacker discussed Note: Denial infra. Military Brainard, 28, 163, 396 U.S. 90 S.Ct. Jurisdiction over Servicemen’s Having Military (1969), applied Significance Crimes L.Ed.2d No Cognizable holding Courts, non-retroactive of DeStefano v. Civilian Woods to minor who been denied and Note: Nw.U.L.Rev. Parker, Military right by jury; A Jurisdictional Dil duplicate attempt this effort. 14 L.Ed.2d de- However, problem in this case is already nied to the states that did not discovering determining precedent proscribe it, right comment applied.13 it therefore testify how should be We the failure of the defendant to necessary proceeding. deem more than bare citations in a criminal Tehan differ- develop rationalization of our dis- entiated protec- the self-incrimination legally complex position (i) of the vital and tions of the Fifth Amendment from presented. counsel, issue the denial of the assistance of (ii) burdening opportunity of the ap- Linlcletter denied full retroactive gents appeal indi and (iii) the use of Ohio, plication Mapp to the rule confessions, coerced all of which had been 1684, L.Ed.2d 367 U.S. 81 S.Ct. given fully application, retroactive (1961). Mapp changed prior de- pointing proc- out that these latter three by holding Four- cisional law proceeding esses infected a criminal require operated teenth Amendment danger convicting “the clear the in- from State courts to exclude evidence By contrast, priv- nocent.” it classed the criminal trials when it had been ob- ilege against self-incrimination not as tained in searches and seizures which adjunct to the ascertainment of truth violated the Fourth Amendment. The protection right but as a of the of an holding majority epitomized By applica- individual to be let alone. thus: tripartite tion of the test of Linlcletter believe that the Constitution [W]e —purpose, reliance and effect—the prohibits requires neither nor retro- prospective appli- reasoned that a * * * spective effect. cation of rule best served the Griffin’s ‘disparaging’ Rather than justice. interests of Amendment we but [Fourth] majority opinion by In a Chief Justice wisdom Justice Holmes that Warren, Jersey, Johnson v. State of New life law has not been ‘[t]he 384 U.S. logic: experience.’ (1966) refused retroactive effect Holmes, (Howe The Common Law ed. Illinois, Escobedo v. State of * * * (1964) 12 L.Ed.2d 977 short, In we must look to the Arizona, Miranda v. State of rule; Mapp placed the reliance doctrine; on the Wolf and the effect (1966), which had defined and delineated justice on the retrospective administration of of those accused of crime dur- application Mapp. ing investigatory period arrest and * * * and had rendered inadmissible state- today though All that we decide is that ments and confessions received when complained might the error fun- such accused were without counsel and damental it is not of the nature had not been warned and advised their quiring us to overturn all final con- rights. refining the course of upon (Emphasis victions based it. applying Linlcletter, Johnson14 stated: supplied) We here stress that the choice between Shott, Tehan v. United ex rel. retroactivity nonretroaetivity 406, 459, 382 U.S. 86 S.Ct. way turns on the value of the con- (1966), retroactivity 453 refused to Grif- * * guarantee stitutional involved. California, fin 609, v. 380 U.S. 85 S.Ct. retroactivity We also stress that day cases decided the same Williams was Linkletter became almost as difficult to prey handed down which are discussed follow as tlio tracks of a beast of infra. search of his intended victim.” dissenting opin 13. See Mr. Justice Harlan’s Williams, supra, 676, ion in U.S. at Which viewed 401 Escobedo and Miranda as 1172, containing 91 at 28 L.Ed.2d at 411 S.Ct. Fifth rather than Sixth “ * * * (1971), rights. in which he observed : Amendment

761 justice on the administration nonretroaetivity effect rule is not of a application by of the new of a retroactive automatically determined (388 standards. U.S. at 87 S.Ct. which on the Constitution visions 1970) at Each constitu- is dictate based. procedure criminal rule of declaring a con- most other cases Since functions, its own distinct its own right to counsel have been stitutional granted background own precedent, and its effect and since full retroactive jus- impact on the administration speaks and Gilbert Stovall of the Wade these fac- tice, way in which dangers prevent as ones which vary inevitably must fact-determining tors combine and unfairness * * * dictate involved. with the integrity process and enhance trials, reliability ques- it is of considerable Finally, emphasize that of moment to the ease at bar Stovall rule whether a constitutional tion gave expressly and effect the reliance procedure or does not does criminal overriding significance reliability in re- fact- of the factors enhance the finding process necessarily stricting to the effect of the decisions is at trial * * * degree. alone. and Gilbert a matter of Wade question concerned We are thus though per curiam it is a short Even account, probabilities and take of among must concurring justices on different two factors, extent dissenting, grounds and two DeStefano safeguards are available which other Woods, 2093, 20 U.S. S.Ct. integrity protect truth- perhaps (1968) most L.Ed.2d 1308 determining process at trial. significant precedent to the case at bar. 728-729, at 1778- S.Ct. ap- There, the Court refused retroactive plication to Duncan v. Louisiana, State injus- Assuming past were L.Ed.2d there by (1968), can- tices which could having been averted which held that States time, present deny request jury at the Mr. in seri- counsel not for trial Brennan, speaking cases, for the Court Bloom ous criminal and to v. State Denno, Illinois, supra, Stovall held that 388 U.S. of right (1967), jury 18 L.Ed.2d 1199 trial extends to trials application up- contempts. fused retroactive Based serious criminal Wade, (a) (b) (c) States v. 1926, 388 U.S. that had been on the test Stovall, (1967) prior and Gilbert decisions in distilled from California, State of the Court reasoned Duncan should retroactively applied be because: which had inadmissible in rendered State institutions the context [I]n prosecutions pretrial and Federal identi- by adopt practices which we procedures fication handled in the ab- laws, right jury criminal our opinion sence of counsel. It is prevent generally tends to arbi- frequently quoted announced most repression. trariness and As we stat- epitome determina- assert, Duncan, ed ‘We would tions : however, every trial —or criminal (a) by particular to be served trial —held before standards, (b) judge the extent of the is unfair that a defend-

new alone fairly reliance treated law enforcement authori- ant never be as standards, jury.’ judge (c) ties the old he years de- Three later Mr. the date that Justice Warren been secured also delivered the of the Court cisión was announced retrials Delaware, U.S, 213, subsequent in Jenkins v. 395 the date occurred (1909), opinion places strong em- S.Ct. Miranda.. This criterion, application phasis which denied the on the reliance of Miranda exclusion standards to evidence that had requiring in rule 633-634, flexible constitutional 88 S.Ct. (392 U.S. retro- either absolute all circumstances activity supplied.) (Emphasis for complete prospectivity ease was greater for Gosa’s moment Of construing lan- broad decisions guage the retrospectivity stand- application of Rights. Bill of of the Bloom: ards to major purpose con- of new Where more somewhat considerations is to overcome stitutional doctrine regard rule evenly with balanced aspect trial which of the criminal Illinois. in Bloomv. State announced truth-finding substantially impairs its result was Bloom ground One ques- raises serious function and so contempt trials, which the belief accuracy guilty ver- tions about very judge who occur before often trials, past the new rule dicts allegedly con- object was given complete effect. retroactive behavior, be more temptuous good-faith state or Neither reliance guilt. jury determined fairly tried aif federal constitu- authorities jurymen will judge, the Unlike accepted practice, nor law or alleged or suffered witnessed have impact on the severe administration suggested prosecution contempt, nor justice prospec- require has sufficed to non- However, tradition for it. application in these tive circumstances. contempts more jury trials quite It is different where firmly the view than established jury of the constitutional dispense new standard could scribing the of certain evidence or prosecutions, use in normal criminal particular not to mode of trial overturned the cases reliance on arbitrary minimize or unre- or avoid there- of Illinois was Bloom v. State liable results to serve other ends. Also, justified. adverse fore more (401 651-653, jus- at at U.S. on the administration effects 1151-1153.) invalidating con- all serious tice of likely tempt be sub- convictions would opinions, the same Two other rendered Thus, regard stantial. Elkanich, day dealt with as Williams decision, feel that retro- Bloom we also application of Marchetti v. United application active is not warranted. 697, 19 States, L.Ed. 88 S.Ct. U.S. 2096.) U.S. at 88 S.Ct. (1968), 2d 889 and Grosso v. United (Emphasis supplied.) States, 709, 19 L. April 5, 1971, in the combined On (1968), prohibited Ed.2d 906 eases of Williams v. United States gamblers prosecution who failed States, supra, Elkanich United register imposed by pay fed a tax application to Court refused retroactive grounds registra eral on the that the California, Chimel v. The State requirement tion Fifth Amend violated L.Ed.2d 685 against privileges ment self-incrimina (1969), right which denied to states the Mackey States, tion. to admit certain incident evidence seized four-judge majority to an arrest. In a justices four concluded that Mar announced Mr. Justice applied chetti and Grosso should not be White,16 gave the Court this most us retroactively since there was no threat to assay (a) applied current how reliability fact-finding process part test of Stovall: Mackey’s income tax involved in trial for * ** evidentiary [Linkletter], use evasion because of the Since proscribed in- wa the Marchetti-Grosso held the course that there is lengthy Brennan filed Justices and Marshall con- Mr. Harlan thought-provoking . in Williams curred in dissent the denial of separate opinions. a doubtful concurrence Mr. Elkanich and Justice Black result, Mackey, ground concurred in the but on the infra. wrongly that Chimel had been decided. gering forms.17 United States tax Under the affirmative statement of the Currency, supra, test, DeStefano, supra, United Coin & particularly since property applies forfeiture of because it involved Bloom prospectively, predicts self-incriminating file a refusal to Court will hold O’Calla- above.18 han form. has been discussed It should applied retroactively. be In the Court, words of purposes fulsome, full, hopefully not but This of that require decision jury were development form of the elements which (a) trials in serious criminal cases be- today’s for control doctrine jury cause such generally trials tend “to precedential of new reach of effect prevent repression” arbitrariness and rights in nouncements of constitutional impartial judges even might ex- stage law, criminal sets the field of hibit, (b) and in serious con- criminal testing The O’Callahan this case. for tempt juries cases because could “more (c) (a) (b) applied be in the tests will fairly” try alleged could eontemnors than with due formula format of Stovall judge object who had been the gard explanations emphasis and for the contemptuous purposes The act. same by subsequent supplied each criterion O’Callahan, given underlie even stern decisions. view of the military faults of courts which we detail below. — APPLICATION RETROACTIVITY Obviously negative statement OF THE TESTS gives a much sweep broader to O’Calla- (A) Purpose Standard. requires New han independent analysis and an purpose light in the of the Court’s stat- O’Callahan inquiries reliability into the ways. Affirmaitvely, se- ed in two guilt determination —the fairness of right grand cured constitutional very integrity trial —the of the fact- petit jury presentment indictment or finding process. duty jury servicemen on active trial to having Candor, no accused of crimes were rather than even a hint dis- Negatively phrased, respect, compels service connection.19 the observation here that military jurisdiction particular denied testing facet of retro- possible power activity entirely subjec- least which exceeded the deals almost reposed judge-conceived in Con- which the Constitution tive part notions in no based gress tangible in- did numerous developed so avoid evidence military justice adversary process otherwise, cidents and functions of rath- satisfactory upon feelings concepts deter- er less to the considered guilt procedures product jurist’s avail- mination of than of each individual ex- occupy periences readings. Thus, able courts that would in civilian deepseated jurisdictional question vacuum. assurance that badly split Again merely Williams, in its was reasoned but relied on reasoning. Considering supra. day also, that matters That the Court handed procedure White, in rather than were substance down United States v. volved, (1971), Mr. Justice Harlan concurred. adhering nonretroactivity concluded Justices Brennan Marshall to its decision of States, Amendment did the bar Fifth announced Desist not extend to the enforcement of income applicable those the busi tax laws This case likewise did con- accepting wagers, explication principles. and that Mar ness of tain an distinguished. chetti Grosso could be 19. The record before us does not disclose Douglas Black and dissented. Justices and no claim is advanced that Gosa’s Scaglione, 446 See also United States v. away trial was held from 182, 5th Cir. F.2d vicinage of the crime that he was day, California, impeded way securing Hill On the same other constitu- protections. We, L.Ed.2d therefore, do not involving these reach issues which were discussed expressly Ghimel, Flemings, supra. decided. It was not ought High by be certified to the not tected tenure and undiminishable following Court,20 by salary judicial to the con- reason we and nurtured tradition, military clusions. but is a of- Substantially ficer. different rules of analysis of of No wider procedure in mili- evidence tary did not O’Callahan would correct that Apart trials. from those differ- weigh ingredient of reliabil- the critical suggestion ences, possibility of fact-finding ity processes of which of on actions influence of the court- Likewise, no it test of this fac- altered. by it, martial officer who convenes objective tor which overlooked would be selects its members and the counsel on critical, deprecatory, terms indeed sides, usually both and who has direct majority opinion applied which authority command over its is members general military system justice. of pervasive despite military law, a one Quoting ex rel. from United States strenuous efforts to eliminate the dan- Quarles, 22-23, Toth v. at ger. (395 263-264, at at it at states: 1686) dangers military lurking in There are Military Appeals of While sought avoided which were to be trials cognizance takes of some constitutional by Rights III Bill and Article accused who court- of the are our Constitution. Free countries martialed, insti- courts-martial as an mili- world tried restrict have the tary dealing singularly inept tution are juris- to the narrowest tribunals the nice constitution- subleties absolutely essential to diction deemed (395 al at at law. discipline maintaining among troops in 1687) active service. * * * A is in an civilian trial held protection Douglas’ Then own words Mr. atmosphere to the conducive proclaim: military rights, individual while yet A court-martial is not an inde- age-old mani is marked pendent justice instrument of but destiny justice.7 fest of retributive significant degree spe- mains ato recently “None trav- As stated: part cialized of the overall mechanism perpetrated justice under esties the military pre- discipline is which * * * really very surprising, for is UCMJ expansion military served. discipline always military con- been and law has beyond proper its domain liberty. primarily an instrument tinues to be it carries with a threat Glasser, justice.” discipline, Jus- not (395 1686) U.S. at 89 S.Ct. at Levy, Captain 12 Columbia tice and tried, by jury A court-martial is (395 (1969). at Forum peers must the defendant’s 1687) S.Ct. at unanimously, by panel of decide empowered officers a two- act commentators both sides While presiding at thirds have vote. The officer issue judge statements,22 a court-martial is not a whose been these critical of objectivity independence fa- stated more have authorities procedure many problem involving complex vari- A available under 28 F.S.C.A. 1254(3) requiring the balanc- § delicate ables and interests, ing competing the Court quote Footnote refers to the dogmatic responds about assertions system military entire justice”. ns one of “so-called military justice. Minn.L.Rev. g., supra, Westbrook, e. See Nelson L.Rev., Baylor while the comment prospectivity, n. in favor of retroactivity, opts supra, n. states: observes: majority whole, Considered as a persuasive only Through is those a theme of already persuaded. freedom for were with a bandits Faced historical

7(55 Appeals, judges vorable fundamen- conclusions about fifteen-year whose system,23 salary tal fairness of we hasten to equal tenure own, to our that, tribunal, assert an inferior both direct25 power.26 and habeas review Also, prerogative have no our long the federal courts have purpose dispute any to available O’Callahan’s for a upon collateral attack language degree. slightest in the Our proceedings court-martial secure to basic solely quotations guarantees direct here are full, constitutional and fair demonstrating that, hearing allegations demean- on all raised.27 ing justice military as remarks these We conclude that ultimate- O’Callahan may be, formulate does not ly subject decides more on this than its gressional new constitutional restriction con- pre- that there ais belief that a civilian court power purpose of for the grand petit jury protec- and venting undoing of in- or the conviction tions prevent would tend to arbitrariness nocent There no determination men. was repression and and be This be- fairer. danger of that the carried a UCMJ clear lief is insufficient under DeStefano convicting innocent, it ad- nor was standards to warrant if Congress judicated that had ordained a other point strongly prospec- criteria to truth-determining process lacked which application. tive Indeed, military if the integrity was infected with which system court procedural- as whole were substantially impaired cedures which ly deficient, holding the attack and the truth-finding function. certainly O’Callahan would have con- procedural demned such lack of and sub- might Civilian tend which bias process equally juris- stantive due protect proper and their local citizens Otherwise, diction. decision itself ty troops put into from the was equal protec- would stand aas denial of comparison, scales the worth nor was tion to those it left included O’Calla- gen system military at the tested and, importantly, han more in Relford. eral level court-martial where Gosa according case, The latter note 14 receives tried. There the serviceman many (91 658), jurisdic- extended the procedural even military tional reach of courts to about accuracy more to fact than conducive might servicemen oth- those 80% erwise The Court most civilian forums accord.24 if a narrower been excluded oth has told the extent which us that definition of service connec- safeguards per er also a are available is adopted. tion had been history of tinent As the consideration. (B) Stand- Reliance on the Old demonstrates, gen amply Gosa’s case Justified ard. eral direct courts-martial receive several and The civilian of fact law. reviews au unable find We have been Military States staffed United thority indicating O’Cal comment members, significant tone for anthology the Court sets the Ervin’s Senator its construction. accorded courts-martial instances (22 Baylor L.Bov. at procedural protections before civilian (June 7174, Cong.Rec. courts, S 7145 115 supra; Dillon, 23. See Mercer v. Chief Jus 25, 1969). (then Judge) Burger dissenting in tice Guagliardo ex rel. & Mc Quinn, See 15 U.C.L.A.L.Rev. Elroy, U.S.App.D.C. F.2d 259 Baylor Comment, supra, n. 927, 940, having referred to the USMJ supra, L.Rev. n. recognition “afford received universal S67). § 25. Art. U.S.C.A. 67 U.C.M.J. ing ; the basic elements of fairness” Chief Warren, Bights The Bill Resor, Levy 26. See v. U.S.C.M.A. Military, 37 N.Y.U.L.Rev. 188- (1967). 37 C.M.R. 399 189; Comparisons Quinn, Some Between Wilson, 137, 73 S.Ct. 27. Burns 346 U.S. v. Practice, Courts-Martial Civilian (1953). also See L.Ed. 1508 1240; Everett, U.C.L.A.L.Rev. O’Calla Noyd Bond, Parker, lian Milestone or Millstone Military 853; Justice, see Duke also L.J. opini pointed year lahan was foreshadowed also out contrary, general 74,000 ons28 To Unit special Kinsella there were Singleton, swpra Army, ed States ex gave n. Navy rel. courts-martial in the interpretation power history, 55-year Force. Air With Congress years under the Constitution to con which includes several in which system justice stitute the Armed Forces were swollen manpower

to clearly it major infuse with which was of two demands “world” enough encompass wars, wide O’Cal the total number of cases involved may reasonably lahan. expected The announcement there was: to number in these the hundreds of possibilities, Out of thousands. jurisdiction, follows, test for the numbers could namely, status, one of whether ac- present subject issues still can review proceeding cused in the court-martial only rankly conjectured the be because of person regarded is a who can be variety of that could be raised. issues falling the within term ‘land and naval Again alluding language of Mercer to the Forces’. U.S. at v. Dillon: range extensive, The of relief could be No more said need be that demonstrate involving such determina- actions as clearly prospectiv- this criterion favors by military departments the of tions ity. discharges the whether character of changed, must of be consideration (C) the Administration Effect of pay, retired retroactive entitlement to Application. Retroactive of pay, pensions, compensation, and other point Here is from another that is free Among the diffi- veterans’ benefits. If doubt. held to en O’Callahan is be necessity recon- the of culties would be structing retroactivity, impact titled to full the grade pay the a member upon military upon justice, fed the have at- of the armed forces would system too, veritably eral court staggering. will be except of tained for the sentence response request In to the court-martial, com- a task invalidated Court, Department of this of person- plicated of a the existence Air Force has advised that its court-mar only involving system nel selection systems processed 475,349 tial cases have eligibles qualified provid- the best although since 1949 and bulk sheer ing after elimination of others for the analysis prevented of amination, ex a case case years specified of service.30 two-year sampling indicated to the Solicitor General of Indeed, it seems to Court that this rea resolving States that constitute major justification ac- 5% working hypothesis of num sonable knowledged as to the correctness doubts raise retroac ber of cases that could in favor this the decision in case This calculates O’Callahan issue. tive prospectivity is tremendous effect 23,767 be this branch of trials holding could which a Military As Circuit, alone.29 the Court solely service produce this within Dillon, Appeals has observed in Mercer v. between interim within brief jurisdic supra, peacetime court-martial was announced the time decision our O’Callaharirtype has been tion cases over final- could Supreme Court time the the ly since 1916. That An existence case. merits determine Russell, predict Roberts v. need for Cf. reason to been voiding practical doing effect The so. grant will often be earlier convictions 29. Doubtless this has been somewhat immunity prosecution result from stricted Relford. having Imitations statutes of State 30. That same court also observed: scattered, having been witnesses many run> courts-martial earlier beyond per. having years, jurisdictional been taxed memories facts have could developed on the record if there limits. missible retrospectiv- appellate intermediate determination erroneous court. We already overload- ity as it inundate comes could to us. system forums and the ed agree I majority with the interpreta- ultimately to be have that would claims tion of O’Callahan. Once it is con- the other On or dismissed. reversed cluded upon decision rested lack holding coin, if we err side of by the court martial ac- application, we prospective while the sense of lack of adjudicatory power, surely added knowledge then the action of other courts martial wrongly imprisoned or to those burdens which in like purported circumstances rights, dimensions deprived of their adjudicatory exercise power that we infinitely The less. the error would Congress now know could not constitu- consequences to administra- relative tionally give them cannot be validated clearly that we justice indicate tion of by applying which, standards in other pursue cautious course.31 the more should contexts, applied have been selectively CONCLUSION depart from the normal and traditional some will detail set down We have retroactivity.1 rule of unnecessary processes deem doubtless “purpose-reliance-effect” test of decision. our reasoned we have Denno, Stovall v. 293, 388 U.S. 87 S.Ct. issue so have done because the We 1967, 18 L.Ed.2d (1967) 1199 is not a great- one of the dealt is we have substantive end in itself but a tool of only involving moment, not as it does est trying sorts for way to find a across potentially free- the freedom Gosa’s yet areas not well Judge charted. Clark many property dom and spelled has out some of the effects of ret- faulty, it reasoning is If our citizens. application roactive They of O’Callahan. plain. Us- will be is laid bare —its error sweeping so easily all that too given, lights we be- ing arewe best jumps giving recognition the mind to that determine We it to be lieve correct. by feeding them handy them into a stand- that Court District the decision ard under strong which “effect” ais if to ha- Roy not entitled was Gosa James compelling not factor. But the retro- that de- corpus is correct relief beas activity eases since Linkletter1A have is cision viewed prospectivity versus Affirmed. in the considering context of the effect newly of a (dissent- Judge articulated rule of constitu- GODBOLD, Circuit upon past actions taken ing). general jurisdiction courts which had of present state I believe adjudicatory power. context, up- In that O’Cal- to hold that requires us authorities on application of rule, the new one 258, 89 S.Ct. Parker, U.S. 395 v. lahan by hindsight learned that such courts (1969) retro- is 1683, 291 L.Ed.2d 23 erroneously. acted Woods, DeStefano v. Predicting how the active. 631, 392 2093, 88 decide U.S. S.Ct. 20 L.Ed.2d final arbiter Court as an us luxury gave 1308 available prospec- is issue suggests Judge Ferguson, mid- Judge dissenting dissent Godbold’s Mercer v. opt Dillon, for ground 264, 271, wliicli would 19 tactic U.S.C.M.A. dle 41 pend- holding stay retroactivity, 264, (19 ) our then C.M.R. : 271 — jurisdiction High course ing lacking, review. Such “Where is there ameliorating any question effect prospective if can be no have little would impact retrospective anticipated application, upon of such for when a courts, proceeds ruling jurisdic district on the court-martial without circuit anyway tion, dur- brunt its action is bear the entire null void. Mc period relatively Claughry our ing Deming, between 49, brief v. 186 U.S. 46 Supremo 1049, (1902). ultimate Court’s L.Ed. 22 and the S.Ct. 786 See decision parte Siebold, 371, Ex also determination. (1880).” 25 L.Ed. 717 argument been made has retrospective Walker, prospective 1 A. 618, question Linkletter v. 381 U.S. properly 1731, See application reached. is Louisiana, convened the court violated statute Duncan tive effect to act, composing that court. It one is appointing (1968) jury (right in all the members of and con- trial serious vening court, cases) performing Illi- and in and Bloom state criminal nois, plainly L.Ed.2d that act the officer violated 391 U.S. jury (right Is such a court a valid court and (1968) law. prosecutions the members thus detailed de of- crimi- serious all state facto Clearly valid court? contempts), ficers of such is a of that nal case nature. post cases has not. -Linkletter None of the question context of in the considered upon past courts impact actions taken By violation of the law consti- [in body jurisdiction, such special limited tuting membership] its lack- martial, effect of a courts where statutory authority ed for its ex- prospectivity determine will choice of lacked, istence, therefore, and it all adjudicatory very ex- power, in fact the over the defendant or istence, that has earlier charges against subject-matter of the acted. him. organized under A court-martial * * -x- -is- is a court of of the United States laws special legal- particular court was not [T]his jurisdiction. It and limited ly perform constituted to the function pur- special for a called into existence which alone convened. It was duty. particular pose perform law no court. therefore object its creation When * * accomplished it is dissolved. McClaughry Deming, 64- give must sentences it To effect 46 L.Ed. affirmatively unequivocal- appear (1902). legally ly constitut- that the court was power Linkletter(cid:127) went ed; jurisdiction; that all that it had Supreme rulings Court itself to make regulations governing statutory purely prospective effect, power with, complied proceedings had been clearly recognized though theretofore not sentence was conformable and that its Mishkin, from time to time adverted to. to law. High Court, The Great Court and States,

Runkle v. United 122 U.S. Law, the Due Process of Time and 555-556, 1141, 1146, L.Ed. (1965). 56-59 I Harv.L.Rev. do doubt that this court too now has the wholly A court-martial power. unlike same But the issue for in this us by permanent case of a court created push case is whether we will outward by presided constitution or statute and newly ju- limits this articulated by over one who some color of au- power dicial into an area in which not although thority not in truth an offi- Supreme recog- has the Court not jure, judge cer de whose acts as a applicability nized its but also in which may of such court be valid concepts, where the quences considerations and conse- public is court exists upon judicial concerned. The ap- institutions of judge though disquali- even power very plication all dif- lawfully appointed fied or not or elect- If Linkletter is ferent. ed, to be so extend- very power ed. But in this case the consequences with such massive appointed the members of and by Supreme it should be itself Court Consequences are massive agree whether will effect what nil leave will bo prospectiv- decision is for many with all thousands convictions they ity, and do not become consequences. more or loss their attendant And so in either direction spectivity mere characteriza- will becloud established rules Sly point tion. judgments brothers to the adminis- effect of of courts judicial problems special jurisdiction trative and which retro- acting limited and out- activity prospectivity would powers. create. But their side promulgated by under standards it.3 think, is, conclusion I buttressed This

the considerations set out concurring Mackey

Harlan States, United (1971) L.Ed.2d and Elkanich States, 646, 675, 91

v. United (1971) dissenting in Williams United States, IcL. my brethren, I

Like am unsure of what decide, and I Court would attempted whisper avoid even But

of what I think result should be. my I firm Court am view at Appeals this level are not free in selectively reject case time

retroactivity. Therefore, I

verse. CORPORATION,

CATAPHOTE Plaintiff-Appellee, INC., COATINGS,

DeSOTO CHEMICAL Defendant-Appellant.

No. 25118. Appeals,

Ninth Circuit.

Nov.

Rehearing Denied Jan. theory practical “The mixture of If our conclusion were of retro- favor activity determining stay pending the extent we could our considerations decision applied Supreme review, retro- will be Court which new rules would avoid' to actively, particularly purely problems. time of this interim In personnel event, problems changing arising and views interim between predic- Court, Supreme make reasonable the time of a decision court impossible. Supremo cir- such a decision almost Court on the tions cumstances, bearing merits, hardly proper in mind that foundation particular one still rule is and standard merits traditional decision this court. particu- this is My position larly analogous to, in the sense true where is but some power subject Judge matter over what more firm lack than that of AA'ein prius involved, person Flemings nisi stein in is United States ex rel. Chafee, unless F.Supp. 193, (E.D. the traditional rule should perfectly N.Y.1971) clear : will not do so.”

Case Details

Case Name: James Roy Gosa v. J. A. Mayden, Warden, Federal Correctional Institution, Tallahassee, Florida

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 12, 1971

Citation: 450 F.2d 753

Docket Number: 29139

Court Abbreviation: 5th Cir.