641 F.2d 1376 (9th Cir. 1981), 80-4013, Hatheway v. Secretary of Army

Docket Nº:80-4013.
Citation:641 F.2d 1376
Party Name:Joseph G. HATHEWAY, Jr., Plaintiff-Appellant, v. SECRETARY OF the ARMY, Defendant-Appellee.
Case Date:April 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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641 F.2d 1376 (9th Cir. 1981)

Joseph G. HATHEWAY, Jr., Plaintiff-Appellant,


SECRETARY OF the ARMY, Defendant-Appellee.

No. 80-4013.

United States Court of Appeals, Ninth Circuit

April 20, 1981

Argued and Submitted Dec. 8, 1980.

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Christopher Coates, Atlanta, Ga., argued for plaintiff-appellant.

Calvin M. Lederer, Capt., JAGC, Dept. of the Army, Washington, D. C., argued, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WRIGHT, CHOY, and ANDERSON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:


Lieutenant Hatheway was convicted of sodomy by a general court-martial. Article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (1976) makes it a crime for a serviceperson to engage "in unnatural carnal copulation with another person of the same or opposite sex."

Prior to trial, Hatheway offered to prove that the convening authority prosecuted only cases involving homosexual sodomy, and would prosecute none involving heterosexual sodomy, even though he was aware of such cases. The Military Judge ruled that, even if Hatheway could establish those facts, his prosecution would be permissible. 1

At trial, the evidence indicated Hatheway spent several hours drinking with Private Lynde, an enlisted man in his unit. They were in Lynde's room, and Lynde's roommates came and went during that time. Hatheway and Lynde then engaged in several acts of sodomy. Lynde's roommate entered the room and found them undressed.

Lynde testified under a grant of immunity from sodomy or perjury prosecution. His testimony conflicted with sworn statements he had made at a preliminary investigation. He had stated that Hatheway engaged in sodomitic acts, but that he did not. His roommate also testified.

Hatheway challenged Article 125 on various constitutional grounds as it applies to homosexual and heterosexual sodomy. He offered to prove it has a chilling effect on intraspousal, heterosexual sodomy, and introduced affidavits to the effect that sodomy prohibitions have religious origins and that homosexual acts, standing alone, are not harmful.

He also raised a defense of unconsciousness. One psychiatrist testified Hatheway suffered from "pathological intoxication" and stated his opinion that Hatheway was not conscious of the sodomitic acts. Another psychiatrist testified this was a real possibility. Hatheway objected to the use of a reasonable doubt instruction found in the Department of the Army's Military Judges Guide. 2

Finally, Hatheway made several claims of electronic and non-electronic surveillance.

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The Military Judge, pursuant to 18 U.S.C. § 3504, required the Army to affirm or deny the allegations of electronic surveillance. After three hearings, he concluded the Army's denial was adequate.

Hatheway was convicted and sentenced to dismissal from the service. He filed extensive assignments of errors with the Army Court of Military Review which affirmed without articulating its analysis of the issues raised here.

The United States Court of Military Appeals granted Hatheway's petition for review. It, too, affirmed without articulating its analysis of the issues, except to cite United States v. Scoby, 5 M.J. 160 (C.M.A.1978) (upholding Article 125 as applied to acts committed in a public place).

After Hatheway's dismissal from the service, he filed an action in district court alleging jurisdiction under 28 U.S.C. §§ 1331, 1361 and 2201. He sought a declaration that his conviction was invalid, and an order that he be given an honorable discharge and all pay and benefits denied because of his conviction.

The district court granted the Secretary's motion for summary judgment.


The district court had equitable jurisdiction under 28 U.S.C. § 1331 and mandamus jurisdiction under § 1361. 3 See Kauffman v. Secretary of the Air Force, 415 F.2d 991, 994-96 (D.C. Cir.), cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970); Baker v. Schlesinger, 523 F.2d 1031, 1034-35 (6th Cir. 1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1473, 47 L.Ed.2d 741 (1976) (mandamus); 1 Moore's Federal Practice P 0.5(4.-2) at 173-74 (2d ed. 1980). See also Schlesinger v. Councilman, 420 U.S. 738, 745, 95 S.Ct. 1300, 1306, 43 L.Ed.2d 591 (1975) (Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, which makes court-martial judgments binding on civilian courts, does not deprive federal courts of jurisdiction over challenges to court-martial proceedings).

The district court could not, however, directly review the determination of the military courts. "The valid, final judgments of military courts, like those of any court of competent jurisdiction not subject to direct review for errors of fact or law, have res judicata effect and preclude further litigation of the merits." Schlesinger v. Councilman, 420 U.S. at 746, 95 S.Ct. at 1307.

The district court's authority to order the Army to upgrade Hatheway's discharge could be exercised only upon a determination that the court-martial judgment was void, i. e., "because of lack of jurisdiction or some other equally fundamental defect, the judgment neither justifie(d) nor bar(red) relief from its consequences." Id. at 747, 95 S.Ct. at 1307.

The threshold question, then, is whether Hatheway has alleged a defect

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which would justify holding his court-martial conviction void. We hold that in alleging that Article 125 is unconstitutional and that the court-martial proceedings violated his rights to due process and equal protection, he has alleged such fundamental defects.

The Secretary argues that the primary question is whether Hatheway's constitutional arguments were given "full and fair consideration" by the military courts. The Army's position is that if such consideration was given, there is no basis for invalidating the court-martial judgment. 4

In Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953), a plurality opinion stated:

In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings of the fair determinations of the military tribunals after all military remedies have been exhausted .... (W) hen a military decision has dealt fully and fairly with an allegation raised in (an) application (for a writ of habeas corpus), it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.

The Burns plurality does not preclude civil court consideration of the constitutional defects alleged here. See Kauffman v. Secretary of the Air Force, 415 F.2d at 996-97. See also United States v. Augenblick, 393 U.S. 348, 351, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969) (suggesting proper scope of review is an open question).

In habeas corpus proceedings, a court-martial conviction may be deemed void because of constitutional defects. In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Court considered First Amendment arguments in an appeal from a habeas proceeding without any discussion of whether there had been "full and fair consideration" of the issues by the military courts.

We recognize, as the Supreme Court noted in Councilman, that

the grounds upon which military judgments may be impeached collaterally are not necessarily invariable. For example, grounds of impeachment cognizable in habeas proceedings may not be sufficient to warrant other forms of collateral relief. Lacking a clear statement of congressional intent one way or the other, the question whether a court-martial judgment properly may be deemed void i. e., without res judicata effect for purposes of the matter at hand may turn on the nature of the alleged defect, and the gravity of the harm from which relief is sought.

420 U.S. at 753, 95 S.Ct. at 1310.

Hatheway is a convicted felon. Although he has not been imprisoned, his conviction resulted in a dishonorable discharge that can cause "lasting, serious harm in civilian life." Id. at 752, 95 S.Ct. at 1310. Given the seriousness of the harm, we think constitutional defects such as he has alleged would justify holding the conviction void.

His allegations that the Army did not comply with 18 U.S.C. § 3504(a)(1) (1976) are not sufficient, however, to merit collateral review. They were given full and fair consideration by the Military Judge.

Section 3504(a)(1) provides:

In any trial ... upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.

Hatheway's argument is that the Army's response to his claims of surveillance was inadequate under this statute. Although

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the statute promotes constitutional values, see Alderman v. United States, 394 U.S. 165, 180-85, 89 S.Ct. 961, 970-71, 22 L.Ed.2d 176 (1969) (illegal surveillance must be disclosed to permit adversary hearing on question of "taint"), it is analogous to a rule of discovery. Compliance is not a constitutional question, an erroneous determination of which would permit voiding the judgment of the military court.

Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (Fourth Amendment violations not cognizable in federal habeas corpus proceeding if a full and fair hearing was provided in state courts).


The Military Judge preserved Hatheway's selective prosecution claim for appellate review by ruling that, even if the convening authority prosecuted cases involving homosexual sodomy, but refused to prosecute cases involving heterosexual sodomy, Hatheway's prosecution would not be unconstitutional.

In order to prevail, Hatheway must establish...

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