Kauffman v. Secretary of the Air Force

• Citation: 415 F.2d 991
• Decision Date: 26 June 1969
• Docket Number: No. 21227.,21227.
• Parties: Joseph P. KAUFFMAN, Appellant, v. SECRETARY OF THE AIR FORCE, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

415 F.2d 991 (1969)

Joseph P. KAUFFMAN, Appellant, v. SECRETARY OF THE AIR FORCE, Appellee.

No. 21227.

United States Court of Appeals District of Columbia Circuit.

Argued February 6, 1968.

Decided June 26, 1969.

Mr. David Rein, Washington, D. C., with whom Mr. Leonard Boudin, Washington, D. C., was on the brief, for appellant.

Mr. Garvin L. Oliver, Atty., Department of Justice, for appellee. Asst. Atty. Gen. J. Walter Yeagley, Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Kevin T. Maroney and Robert L. Keuch, Attys., Department of Justice, were on the brief, for appellee.

Before EDGERTON, Senior Circuit Judge, and TAMM and ROBINSON, Circuit

EDGERTON, Senior Circuit Judge:

Appellant brought suit in the District Court to have his court-martial conviction and sentence declared void on the ground that they rested upon violations of his constitutional rights. He also asked for restoration to active duty with full rank, and the seniority and allowances to which he would have been entitled had he not been discharged, resting his claim on the record made in the court-martial proceeding. The case was decided upon cross-motions for summary judgment and the government's alternative motion to dismiss for want of jurisdiction in the District Court. The District Court held that it had jurisdiction to entertain an action for declaratory relief attacking a court-martial conviction, but granted summary judgment for the government on the ground that the issues raised by appellant were fully and fairly considered in the military proceedings.

Three questions are presented: (1) whether the District Court has jurisdiction to entertain a collateral attack on a military judgment not presented in the form of a petition for writ of habeas corpus; (2) the proper standard for review of military judgments by civilian courts; and (3) the validity of appellant's conviction and sentence. We agree that the District Court had jurisdiction but find that it applied an unduly limited standard for review of alleged constitutional errors. We think the scope of review of military judgments should be the same as that in habeas corpus review of state or federal convictions, and constitutional requirements should be qualified by the special conditions of the military only where these are shown to require a different rule. Imposing this standard of review, we nonetheless agree that appellant's conviction and sentence were valid. Accordingly, we affirm the judgment of the District Court in favor of the government.

I FACTS AND MILITARY PROCEEDINGS

Appellant was charged with violations of the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., growing out of certain contacts between appellant and East German officials. In September 1960, appellant was a captain in the United States Air Force, authorized to travel in Europe for thirty days before reporting to his next duty station at Castle Air Force Base, California. While traveling by train from Hamburg to West Berlin, through East Germany, he was removed from the train, detained, and questioned by East German authorities. He was released to go to West Berlin, "giving his word" that he would return to East Berlin. He returned on October 1, 2, and 3 for social entertainment and further questioning sessions with the East Germans.

Appellant was asked to sign an agreement to provide information to the East German Political Secret Service. He refused. The East Germans wrote the name and address of Klara Weiss, a resident of West Berlin, in his pocket notebook as a cover address for any further communications. He left West Berlin for California on October 4, 1960.

In June of 1961, a defector from East Germany named Gunter Maennel reported to American authorities that he had participated in the interrogation of appellant. An investigation was initiated by the Air Force Office of Special Investigations (OSI), resorting to means which the Court of Military Appeals described as "massive and deliberate violations of appellant's constitutional rights." Appellant was sent to another Air Force Base on temporary duty to enable three OSI agents to break into his off-base residence on four occasions to search the premises. These agents swore that nothing in the way of evidence was found in these four searches. Another OSI agent obtained a warrant for a fifth search of appellant's residence, claiming that the affidavit was based solely upon evidence obtained in Europe. The fifth search was apparently more efficient, for the agent seized the notebook containing Klara Weiss' name and address, located in appellant's top dresser drawer, and photographed other documents establishing his presence in Germany at the time of the alleged interrogations by the East Germans.

In addition, while appellant was in custody and confined to the base hospital, OSI agents monitored his hospital room and eavesdropped on his conversations, including those with his attorney. This interference with his right to counsel was condemned in a resolution adopted by the Board of Governors of the State Bar of California.

Appellant was then transferred, over his objection, to Weisbaden Air Base, Germany, for pre-trial investigation and trial. He claimed that this transfer was prejudicial because of tension in the area due to the erection of the Berlin Wall, and because counsel of his choice was unable to leave his practice for the period required for the proceedings in Germany. He was, however, represented by distinguished counsel who had served as a judge on the Court of Military Appeals and as a member of the Supreme Court of Utah.

Four charges were lodged against appellant alleging violation of various articles of the Uniform Code of Military Justice. These charges were:

Charge I: Violation of Article 81, 10 U.S.C. § 881; conspiracy. Specification: Conspiracy with persons known to be members of the East German Secret Service to communicate information relating to the national defense of the United States.

Charge II: Violation of Article 92, 10 U.S.C. § 892; failure to obey order or regulation. Specification 1: Travel through East Germany without proper orders. (Attachment 5, Air Force Manual 35-22.) Specification 2: Failure to report attempts by persons known to be representatives of the Soviet Union and East Germany to secure information contrary to the security and best interests of the United States and to cultivate him socially. (Paragraph 1, Air Force Regulation 205-57, dated 2 July 1959.)

Charge III: Violation of Article 133, 10 U.S.C. § 933; conduct unbecoming an officer. Specification: Agreement to return to East Germany in 1963 for training by the Secret Service and to obtain and communicate certain information.

Charge IV: Violation of Article 134, 10 U.S.C. § 934; conduct tending to discredit the armed forces. Specification: Communication to Gunter Maennel of information relating to the defense of the United States.

The court martial took place on April 10-18, 1962. Appellant was convicted as charged, except for Specification 1 of Charge II regarding travel orders, which was dismissed before trial. He was sentenced to dismissal from the Service,¹ forfeiture of all pay and allowances and confinement at hard labor for 20 years.

The record was reviewed and approved by the convening authority and forwarded to the Judge Advocate General of the Air Force for review by a Board of Review. The Board set aside the finding of guilt as to Charge IV, communication of information to Maennel, as based on hearsay, and reduced appellant's term of confinement to a maximum of 10 years.

On appeal the Court of Military Appeals reversed the convictions on the remaining substantive espionage Charges I and III on the ground that the charges were founded on hearsay² and that no overt act of conspiracy had been shown. United States v. Kauffman, 14 U.S.C.M. A. 283, 34 C.M.R. 63 (1963). Conviction on Charge II, failure to report contacts with agents of unfriendly powers, was affirmed upon a finding that it was not affected by the constitutional and non-constitutional errors alleged. The case was referred back to the Judge Advocate General with instructions that a rehearing on sentence could be ordered before the original Board of Review or another Board of Review could be convened to reassess the sentence.

The original Board held a hearing on the matter of resentencing, and reduced the term of confinement at hard labor to two years. Appellant's petition for review of this action was denied by the Court of Military Appeals. On June 28, 1964, the reassessed sentence was approved by the Secretary of the Air Force, except that an administrative discharge under other than honorable conditions was substituted for the dismissal from service. By that time, appellant had served his two years of confinement. Total forfeiture of pay and allowances remained in effect.

II JURISDICTION

Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, provides that military review of court-martial convictions shall be "final and conclusive" and "binding upon all * * * courts * * * of the United States." The legislative history of the finality clause demonstrates that Congress intended to preserve the collateral remedy of habeas corpus in civilian courts, S. Rep.No. 486, 81st Cong., 1st Sess. 32 (1949); H.Rep.No. 491, 81st Cong., 1st Sess. 35 (1949); and the Supreme Court has held that review by this route in civilian courts remains available. Gusik v. Schilder, 340 U.S. 128, 132-133, 71 S. Ct. 149, 95 L.Ed. 146 (1950); Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). The question presented in this case is whether habeas corpus to secure release from confinement is the exclusive collateral remedy, so that any jurisdictional attack on a court-martial judgment in civilian courts is barred if the plaintiff is no longer in custody.

We think that confinement is not a jurisdictional requirement for...