Begalke v. United States

• Decision Date: 20 January 1960
• Docket Number: No. 159-55.,159-55.
• Citation: 286 F.2d 606
• Parties: Robert Herbert BEGALKE v. UNITED STATES.
• Court: U.S. Claims Court

286 F.2d 606 (1960)

Robert Herbert BEGALKE v. UNITED STATES.

No. 159-55.

United States Court of Claims.

January 20, 1960.

Robert H. Reiter, Washington, D. C., for plaintiff. Spaulding, Reiter & Rose, Washington, D. C., were on the briefs.

Francis X. Daly, Washington, D. C., with whom was Asst. Atty. Gen., George Cochran Doub, for defendant.

REED, Justice (Retired), sitting by designation.

Plaintiff, a citizen, seeks to recover in this court pay and allowances claimed to be owing to him as an enlisted man in the United States Navy. During his enlistment he was convicted by a General Court-Martial on various charges, confined and dishonorably discharged October 15, 1952. He alleges exhaustion by him of all administrative remedies to reverse his discharge through the United States Court of Military Appeals in accordance with the Uniform Code of Military Justice.¹

His cause of action is based on an alleged denial by the military of his right to effective counsel during his arrest, trial and appeal; that documents admitted as evidence at his trial were seized through an illegal search of his private dwelling, which actions constituted a denial of procedural due process within the language of the Fifth Amendment. As a remedy plaintiff seeks recovery of the pay and allowances he would have received from the Government had he not been discharged. They were estimated at $25,000, subject to computation by the General Accounting Office.

The Government's answer admitted the plaintiff's allegation of discharge by court-martial procedure, but denied plaintiff was deprived of counsel or suffered illegal seizure of the incriminating papers or a denial of due process during his court-martial proceedings.

At the trial proceedings before this Court's Commissioner, plaintiff filed the volumes of proceedings of the General Court Martial of plaintiff, including proceedings in the Court of Military Appeals and decision of the United States Court of Appeals for the District of Columbia.² By stipulation of the parties various exhibits were filed before the Commissioner by the Government, including a copy of the decision of the Board of Review of October 24, 1951, and the order of the United States Court of Military Appeals of July 10, 1953, denying plaintiff's petition for modification. Thereafter, first defendant and then plaintiff filed motions for summary judgment on the record as thus made. It is these motions that are now before this court.

The Government broadly asserts that this court does not have jurisdiction to adjudicate a controversy that is based upon a collateral attack against a court-martial proceeding. This position is based upon Article 76 of the Uniform Code of Military Justice.³ The Government recognizes that in courts with jurisdiction over habeas corpus that method of examination is available for a collateral attack on the conviction by a court-martial on the issue of its jurisdiction to try the accused.⁴ We do not find it necessary in this case, however, to pass upon the full sweep of the Government's argument. This court has gone no further than to hold that, where a court-martial with jurisdiction denied defendant's rights under the Fifth and Sixth Amendments, its judgment of dismissal was not a bar to a suit for recovery of pay from the date of dismissal.⁵

The Shapiro case was not a case of habeas corpus, but rested on the court-martial's loss, through a violation of defendant's constitutional rights, of its jurisdiction originally properly claimed. It was an application of the theory of loss of jurisdiction during trial by denial of defendant's constitutional rights.⁶

It will be sufficient for our decision in this case to determine whether there has been such a denial to plaintiff of such rights. If the courts-martial have given fair consideration to petitioner's constitutional rights, it is unnecessary for this court to consider again whether or not the final judgment of the court-martial might be collaterally attacked by plaintiff in this court for loss of jurisdiction due to violation of defendant's constitutional rights. This we think is the rule laid down in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508.⁷ While the prevailing view commanded only four votes, the more traditional concurrence of Mr. Justice Minton was in accord with restrictions on the civil court's re-examination into courts-martial judgments.⁸

We are of the opinion that the record shows no such denial. As to the alleged illegal search, seizure and use at the trial of certain documents of plaintiff, the record shows that the General Court Martial fully considered this charge by defendant. Plaintiff was arrested by the civilian police as a deserter. His conviction was for lesser offenses. He had been declared a deserter due to a manifest intention to desert shown by previous unauthorized changes in his orders and other forgeries of Navy orders. Such arrest was in accord with Art. 8, U.C.M.J., 10 U.S.C. § 808. At the time of arrest he occupied a single room at a private house in Philadelphia and was apprehended there. The papers covered by his objection to their admission on the ground of unlawful search and seizure were found in that room in his brief case. They were allegedly forged naval transfer papers and allegedly false claims for defendant. The papers were admitted through the overruling of defendant's motion to suppress after argument, an order which followed the teaching of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.⁹

Plaintiff's contention that the jurisdiction of the court-martial was lost through the deprivation of the constitutional right to effective counsel before, during and after the court-martial proceedings appears to us to be without foundation in the record.

Plaintiff objects to questioning by the police before turning him over to the Naval authorities when he was without counsel. The record has evidence in several places that before he made any incriminating statements, plaintiff was advised that any statements could be used against him. No counsel was requested and none offered. The warnings by the police appear to satisfy Art. 31(b), U.C.M.J., 10 U.S.C. § 831 (b),¹⁰ and substantially protected defendant's rights against self-incrimination. There is no absolute right to be represented by counsel during police interrogation, particularly where no request for counsel is made.¹¹

Petitioner was represented by retained civilian counsel and a senior naval officer at the trial. Late in the tenth day of the eleven-day trial the court criticized the navy counsel for his insistent reiteration of the same arguments after his objections had been overruled by the court. The criticism was not intemperate nor unjustified, and there is no indication that counsel withdraw from participation in the case. In any event, competent civilian counsel made the closing arguments.

Plaintiff's appeal was submitted to the Board of Review without briefs or argument by his counsel. An appeal to the Court of Military Appeals was dismissed for failure to prosecute. Plaintiff was convicted on February 28, 1951. The case was submitted to the Board of Review when counsel failed to file briefs by October 8, 1951. The plaintiff rejected an offer of the Navy to provide him with other counsel when his review by the Court of Military Appeals was delayed by lack of action on the part of his counsel. In all, there is no indication in the record that plaintiff was deprived of his rights to counsel by the Navy. Any possible inadequacies, such as his counsel's failure to prosecute appeals, were due not to deprivation of counsel, but to plaintiff's own selection of counsel. We do not think it could be said this deprived the court-martial of jurisdiction.

Plaintiff also contends that his right to appeal to the Court of Military Appeals was interfered with by a Navy legal officer. This contention was before the Court of Military Appeals and rejected on the basis of substantial contrary evidence on the question. This evidence appears in an affidavit by the Legal Officer filed with the Government's rebuttal brief in the Court of Military Appeals.¹²

We find no basis in the record that plaintiff was not accorded a full and fair hearing by the court-martial on his objections now presented here. In such a situation we do not reexamine the conclusions of the court-martial. The Government's motion for summary judgment is granted, while plaintiff's similar motion is denied. Plaintiff's petition will be dismissed.

It is so ordered.

JONES, Chief Judge, LITTLETON, Judge (Retired), and LARAMORE and MADDEN, Judges, concur.

WHITAKER, Judge, took no part in the consideration and decision of this case.

1 10 U.S.C. § 801 et seq. See also Shaw v. United States, 93 U.S.App.D.C. 300, 209 F.2d 811, where an effort was made by Begalke in reliance on Rule 38 of the General Rules of that Court of Appeals, relating to review of administrative determinations, to have the Court of Appeals of the District of Columbia review the determination of the United States Court of Military Appeals. That court denied jurisdiction and Mr. Justice Jackson, as appears on the motion papers, refused to extend the time to seek review to the Supreme Court on the ground that the Court of Appeals was without jurisdiction to review by appeal the action of the Court of Military Appeals.

2 See note 1, supra.

3 10 U.S.C. § 876:

"The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or...