Romero v. Squier, 10242.

• Decision Date: 12 April 1943
• Docket Number: No. 10242.,10242.
• Citation: 133 F.2d 528
• Parties: ROMERO v. SQUIER.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F.2d 528 (1943)

ROMERO v. SQUIER.

No. 10242.

Circuit Court of Appeals, Ninth Circuit.

January 29, 1943.

Writ of Certiorari Denied April 12, 1943.

Pedro P. Semsen, of Washington, D. C., for appellant.

J. Charles Dennis, U. S. Atty., of Seattle, Wash., Harry Sager, of Sumner, Wash., and G. D. Hile, Asst. U. S. Attys., of Seattle, Wash., for appellee.

Before GARRECHT, DENMAN and STEPHENS, Circuit Judges.

Writ of Certiorari Denied April 12, 1943. See ___ U.S. ___, 63 S.Ct. 982, 87 L.Ed. ___.

DENMAN, Circuit Judge.

This is an appeal from the judgment of the District Court for the Western District of Washington dismissing a petition for a writ of habeas corpus, in which appellant was the petitioner, and the appellee was the respondent. In the district court appellant contended that he was unlawfully imprisoned in the custody of the Warden, McNeil Island, Washington, under an order of commitment by a general court-martial at Fort William McKinley, Philippine Islands, on November 25, 1940, ordering that appellant be imprisoned for a period of 15 years. Appellant contends the conviction is in violation of Article IV and Article VI of the Amendments to the Constitution of the United States and of the Act of June 4, 1920, c. 227, subchap. II, Articles 17, 35, 70, 41 Stat. 790, 794, 802, 10 U.S.C.A. §§ 1488, 1506, 1542.

The charge before the court-martial was violation of the 96th Article of War, 10 U.S.C.A. § 1568, which provides, "§ 1568. General article (article 96). Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guilty, shall be taken cognizance of by a general or special or summary court-martial, according to the nature and degree of the offense, and punished at the discretion of such court."

Appellant, a West Point graduate and a Captain in the United States Army, was at all times a Topographical and Intelligence Officer, having access to secret army maps showing the defenses of Bataan and other military installations in the Philippines. On the merits there is abundant evidence to support the findings of guilty on each of the following specifications of the charge:

"Sp. 1: Communicating secret maps pertaining to national defense to persons not entitled to receive such information.

"Sp. 2: Reproducing uncensored `Secret' maps of military installations without authority.

"Sp. 3: Conspiring to communicate secret maps pertaining to national defense.

"Sp. 4: Conspiring to reproduce uncensored `Secret' maps of military installations without authority."

The sentence was for 15 years imprisonment for the conviction on the four charges as a unit, there being no segregation of the number of years' sentence for each specification on which appellant was found guilty. The sentence was approved by the Commanding General of the Philippine Division; the record — not containing the maps — forwarded for the action of the President; examined by the Board of Review of the Judge Advocate General's Office in Washington, D. C.; the Board's opinion, with recommendations of the Judge Advocate General, and the record were given the President, who confirmed the sentence and ordered it carried into execution.

The final decision after trial by court-martial, like that of any civil court, is subject to inquiry in a habeas corpus proceeding concerning the jurisdiction of the court-martial to render the judgment. United States v. John Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636, 637.

Concerning the appellant's claims of violation of the Fourth and Sixth Amendments, the Government makes no contention that these Amendments confer no rights on an accused in a court-martial proceeding. Since we hold that the evidence does not show either absence of counsel or an unreasonable search and seizure, it is unnecessary to give consideration to this question of jurisdiction, otherwise necessarily required.

A. Appellant contends that certain secret maps of the United States Army containing information concerning the fortifications of Bataan and other places in the Philippine Islands were procured by one Major Evans, Chief of Intelligence, Philippine Department of the United States Army, by an unlawful search and seizure in violation of the provision of the Fourth Amendment, as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The maps were introduced into evidence without objection by appellant, but, when the facts regarding the search for them and their seizure were later proved, their rejection as evidence was sought. It was not granted.

Appellant does not contend that the maps were his property, but claims a right to their possession for the purpose of studying the defense of the Islands, a military function, for which he should be prepared. However, it is unnecessary to consider whether the words "their papers" in the Constitution included papers to which the possessor had not legal title, but has the right to possession, or whether the appellant had any right to possess them, because, in our opinion, there was no illegal search for and seizure of the maps.

It was stipulated that a search warrant addressed to "Any Officer of the Law," commanding a search "for the following property: `Stolen Maps Belonging to United States Army' and, if you find the same or any part thereof, to bring it forthwith before me in the Justice of the Peace Court of Pasay, Rizal," was issued and executed by competent authority under the laws of the Philippine Commonwealth. Appellee does not contend that Major Evans was one of the Philippine officers of the law to whom the warrant was addressed.

It appears that Major Evans, in the performance of his duty with reference to the return of the maps to the United States Army, to which they belonged, gave the information which led to the issuance of the search warrant so stipulated to have been "issued and executed by competent authority." The search was made by a Captain of the Philippine Police of Constabulary and was accompanied by other police officers and by Major Evans, who could identify the maps belonging to the United States. It is entirely proper for the police, duly authorized to make a search, to take along persons for the identification of the property for which the warrant is issued. For instance, the owner of a watch advises the authorities that it has been stolen from him by John Brown and that the watch is in Brown's house, whereupon the authorities issue a search warrant and the complaining owner accompanies the search to pick his watch out from another or others in John Brown's room. The Supreme Court has held that the searching authorities properly may procure such aid. Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 71 L.Ed. 520.

The Police Captain testified that he was accompanied by Major Evans when they discovered the maps in a trunk in the automobile of the accused, located in the basement of the accused's home. Major Evans identified them as secret maps belonging to the United States Army, and it is not questioned that they belonged to anyone else other than the United States Army. The Police Captain, instead of returning the maps to the Justice of the Peace Court — where they would have been delivered to their owner, the United States Army, — permitted Major Evans, the agent of the Army to procure their recovery, to take possession of them while in the appellant's house.

Appellant contends that this taking of possession of the maps by Major Evans while in appellant's home constitutes an illegal search and seizure, and relies on the decision of the Supreme Court in Byars v. United States, supra. We do not agree. In that case a federal agent accompanied state officers whose warrant was to search for and seize intoxicating liquors possessed in violation of the state law. The federal officer searched for and seized certain Internal Revenue stamps claimed to be counterfeit. Because the warrant did not authorize the search for or the seizure of the stamps, and because they were usable only for the purpose of a federal prosecution for counterfeiting, the Supreme Court held that the acts of the federal officer were solely his and solely for the purpose of obtaining evidence for such a prosecution. The situation is entirely different from one where the agent of the owner of property alleged to be stolen, accompanies officers duly authorized to seek its recovery and, when it is recovered, takes possession of the property on behalf of its owner....