Bell v. Clark, 14421.
Decision Date | 05 February 1971 |
Docket Number | No. 14421.,14421. |
Citation | 437 F.2d 200 |
Parties | Ralph L. BELL, Appellant, v. John J. CLARK, Warden, Federal Reformatory, Petersburg, Virginia, Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
George E. Allen, Richmond, Va. (Allen, Allen, Allen & Allen, Richmond, Va., on the brief), for appellant.
Roger T. Williams, Asst. U. S. Atty., and Captain John T. Lenga, Dept. of the Army (Brian P. Gettings, U. S. Atty., and David G. Lowe, Asst. U. S. Atty., and Lt. Col. Arnold I. Melnick, Dept. of the Army, on the brief) for appellee.
Before BRYAN and WINTER, Circuit Judges, and MARTIN, Chief District Judge.
This habeas corpus cause is pressed by Ralph L. Bell under the circumstances described by the District Court as follows:
Bell contends that the military court was without jurisdiction in that the crime was not service-connected. For this, he relies upon O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), in which this argument was sustained in regard to such a crime committed in the then United States Territory of Hawaii where civil courts were open for his trial. That was the key to O'Callahan. "The offenses were committed within our territorial limits, not in the occupied zone of a foreign country". Id., at 273, 89 S.Ct., at 1691. In these circumstances, the Court declared that the accused was entitled to the rights conferred by Article III, and the Fifth and Sixth Amendments, including trial by jury, "presentment or indictment of a Grand Jury" and "a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed". Since instantly the crime was not perpetrated in such a venue, O'Callahan does not exclude court-martial. United States v. Keaton, 19 USCMA 64, 41 CMR 64 (Court of Military Appeals 1969).
Appellant's crime, as noted, was a violation of the Uniform Code of Military Justice, 10 U.S.C. §§ 801, et seq., 920. That statute defines the persons subject to the code in these terms:
This section is complemented by Article 17 stating that: "Each armed force has court-martial jurisdiction over all persons subject to this chapter". 10 U.S.C. § 817(a). As regards court-martial jurisdiction in a foreign country, these two provisions are reinforced by the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 4 UST 1792. Gallagher v. United States, 423 F.2d 1371, 191 Ct.Cl. 546 (1970), cert. denied 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86 (1970). These enactments and this area of the Agreement are permitted by Article I, § 8, Clause 14 of the Constitution empowering Congress "To make Rules for the Government and Regulation of the land and naval Forces".
Executed by the parties to the North Atlantic Treaty, including the Federal Republic of Germany, on June 19, 1951, 63 Stat., pt. 2, p. 2241, it was ratified by the United States Senate on July 15, 1953, signed by the President on July 24, 1953, and became effective August 23, 1953.
The Preface of the Agreement outlines its aims and purposes:
Undoubtedly Bell could have been prosecuted by the German civil authorities, for his acts were also punishable by German law. The Agreement in Article VII, sec. 3(b) provides:
"(b) In the case of any * * * concurrent...
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