Talbott v. United States

• Decision Date: 25 March 1954
• Docket Number: No. 11964.,11964.
• Citation: 215 F.2d 22
• Parties: TALBOTT v. UNITED STATES ex rel. TOTH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

215 F.2d 22 (1954)

TALBOTT v. UNITED STATES ex rel. TOTH.

No. 11964.

United States Court of Appeals District of Columbia Circuit.

Argued December 21, 1953.

Decided March 25, 1954.

Certiorari Granted October 14, 1954.

COPYRIGHT MATERIAL OMITTED

Mr. Oliver Gasch, Principal Asst. U. S. Atty., Washington, D. C., with whom Mr. Leo A. Rover, U. S. Atty., Messrs. Edward O. Fennell and Lewis A. Carroll, Asst. U. S. Attys., and Mr. William J. Peck, Asst. U. S. Atty., Washington, D. C., at the time the brief was filed, were on the brief, for appellant. Lt. Col. Chester W. Wilson, Washington, D. C., of the bar of the Supreme Court of Wisconsin, who was allowed to appear pro hac vice, was also on the brief for appellant.

Mr. John J. McGrath, Pittsburgh, Pa., of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of Court, with whom Mr. William A. Kehoe, Jr., Washington, D. C., was on the brief, for appellee.

Before EDGERTON, PRETTYMAN and WASHINGTON, Circuit Judges.

Certiorari Granted October 14, 1954. See 75 S.Ct. 39.

PRETTYMAN, Circuit Judge.

Robert W. Toth¹ was honorably discharged from the United States Air Force on December 8, 1952, after service in Korea. On April 8, 1953, he was formally charged, under the forms and procedure of the Uniform Code of Military Justice,² with a premeditated murder allegedly committed in Korea on or about September 27, 1952, that is, while he was in the service.³ On May 13, 1953, he was apprehended by military personnel at his place of employment in Pittsburgh, Pennsylvania. After various events, including conversations and statements the details of which are in dispute, he was taken by military authorities by plane to Korea, where he was confined pending investigation and trial. Two qualified military counsel were assigned to represent him, and a civilian lawyer from Pittsburgh, retained by his family, flew to Korea with the assistance of the Air Force.

Toth's sister filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. A rule to show cause was issued; after hearing the writ was issued;⁴ Toth was produced in court; a hearing was held, and Toth was ordered released.⁵ The Secretary of the Air Force appealed. The order of release was stayed pending this appeal, and Toth was given liberty under bond.

The problem dissolves into parts. The question in the first part is whether Toth, being a civilian at the time of the filing of charges and at the time of apprehension, is amenable to trial by court-martial for crimes allegedly committed by him while he was in the military service.

Article 3(a) of the Uniform Code of Military Justice provides:

"Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status."

We think it is clear from the quoted language that, so far as the statute is concerned, the answer to the question above posed is affirmative. The legislative history confirms that view.⁶ Indeed, although appellee makes the point, which we shall discuss in a moment, that the Uniform Code itself does not make Toth triable by court-martial, her principal point is that if the statute be construed to make Toth triable it is unconstitutional and therefore invalid.

Appellee says that Toth, being a civilian and not a soldier at the time charges were placed against him and when he was apprehended, was and is entitled to due process of law in the constitutional sense applicable to civilians. This includes the rights to indictment and trial by jury, as guaranteed by the Fifth and Sixth Amendments, and also to preliminary hearing, removal hearing, and all the other provisions of the Federal Rules of Criminal Procedure, 18 U.S.C. Due process of law in military procedure differs, of course, in material respects from due process in the civilian world.⁷

That a man is answerable for a crime as of the time, place and circumstance of its commission, rather than the time, place and circumstance of his apprehension, is a familiar concept of the law. If a person commits a murder in Paris, France, and is apprehended in Chicago, Illinois, he is triable in Paris under French law, not in Chicago under Illinois law. Indeed, so far as this country itself is concerned, the Sixth Amendment guarantees that an accused be tried where the crime is committed, and he is removable to that place for that purpose.

Trial for an offense is under the law applicable at the time of the offense, unless some other specific arrangement is dictated by the legislature. Under general principles of law a subsequent change of circumstances surrounding the accused, or in the condition in which he may find himself, does not affect his liability for an offense, unless the contrary is indicated by legislation. We see no constitutional infirmity in amenability to trial at the place of the offense and under the law applicable to the offense at the time of its commission.

The Constitution⁸ gave Congress power "To make Rules for the Government and Regulation of the land and naval Forces". Congress has made such rules, and among them is the one before us. In effect this section of the Uniform Code is no more than a provision by Congress that an honorable discharge from military service shall not be an absolution for crimes theretofore committed. In substance and effect it is a general condition attached by Congress to discharges from the service. We perceive no constitutional invalidity in such a provision.

Both parties seek aid from the Fifth Amendment, which excepts from the requirement of indictment or presentment "cases arising in the land or naval forces". Appellee says a case arises when a charge is made; hence the case against Toth did not arise until April 8, 1953, the date the charges were filed, which was after his discharge; hence the case did not arise in the land or naval forces; hence he cannot be held to answer unless upon indictment. She relies upon the decisions which define a "case" for the "Cases" and "Controversies" clauses of Article III of the Constitution. The Government says a case arises when the crime is committed; hence the Constitution itself excepts the present case from requirement for indictment. It seems to us that, although a crime does not become a case, i. e., a legal proceeding, until a charge is made, a case arises when the crime is committed; just as a man is born on the day of his birth, although he is not a man until many years thereafter. We think the case against Toth arose in the military forces. This view is in accord with the views expressed in In re Bogart⁹ and Kronberg v. Hale.¹⁰

From 1863¹¹ until the enactment of the Uniform Code of Military Justice in 1950, there was in force a statute, in several successive forms,¹² which provided that a person accused of committing fraud against the Government while in military service was amenable to trial by court-martial after his discharge from the service. The validity of those enactments has been before the federal courts several times ¹³ and has repeatedly been upheld. The full discussion in the opinion in the earliest of these cases, In re Bogart, supra, is both pertinent and interesting. In the latest case cited to us, Kronberg v. Hale, supra, the court remarked: "Certainly, or so it seems to us, it is now too late for any federal court short of the Supreme Court to do other than accept the provision as valid." The Supreme Court denied certiorari.¹⁴

In United States ex rel. Hirshberg v. Cooke¹⁵ the Supreme Court discussed the 1863 statute and its successors. The question was whether a man in the Navy could be tried by court-martial for a maltreatment of prisoners allegedly committed by him during a prior enlistment at the end of which he had been discharged. The applicable statute was one of the Articles for the Government of the Navy,¹⁶ the language of which was not specific on the point. The Court based its decision upon its interpretation of that statute. In doing so it stressed the difference between the ambiguous language before it and the clear provisions of the 1863 and similar acts. The Court did not discuss or pass upon the constitutionality of those statutes. The significant thing to us in our present problem is that it did not mention the subject. It pointed to the 1863 statute et alia as containing clear provisions that an ex-service man remained amenable to trial by court-martial for certain offenses committed while in the service, but it did not so much as intimate that such a provision might be unconstitutional. It seems certain that, if the Court had had doubts of the constitutional validity of the 1863 act and its successors at the time it was discussing those statutes in the manner it did in the Hirshberg case, it would have indicated those doubts. After all, the invalidity of statutes in force for some eighty-five years and repeatedly upheld by federal courts would be noteworthy in any discussion of the subject. To be sure, such a negative feature of an opinion is not binding authority, but it is certainly a feature of the state of the law upon the topic. We note the fact.

If the statute of 1863 and its successors were valid constitutionally, Article 3(a) of the Uniform Code of Military Justice is valid. The fact that the old statute was applicable to only one crime, while the new one is applicable generally, makes no difference upon the constitutional question.

Appellee contends that Article 3 (a) of the Uniform Code does not apply to Toth, because, she says, he can be tried in a court of the United States for the offenses with...