Boeckenhaupt v. U.S., 75-1638

• Citation: 537 F.2d 1182
• Decision Date: 19 April 1976
• Docket Number: No. 75-1638,75-1638
• Parties: Herbert W. BOECKENHAUPT, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1182

537 F.2d 1182

Herbert W. BOECKENHAUPT, Appellant, v. UNITED STATES of America, Appellee.

No. 75-1638.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 26, 1976.

Decided April 19, 1976.

Herbert W. Boeckenhaupt, pro se.

James R. Hubbard, Asst. U. S. Atty., Alexandria, Va., for appellee.

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, Circuit Judge.

PER CURIAM:

Herbert W. Boeckenhaupt, a former sergeant in the Air Force, was convicted in 1967 for violation of the federal espionage statutes. ¹ Count one of the indictment had charged him with conspiracy to deliver and transmit to a foreign government (the Soviet Union) information relating to the national defense of the United States and count two had alleged that he participated in a conspiracy to obtain national defense information. Boeckenhaupt was given consecutive twenty and ten year sentences under counts one and two, respectively. His conviction was affirmed by this court on March 1, 1968. Boeckenhaupt v. United States, 4th Cir., 392 F.2d 24, cert. denied, 393 U.S. 896, 89 S.Ct. 162, 21 L.Ed.2d 177.

In the present action, under 28 U.S.C. § 2255, Boeckenhaupt alleges numerous errors of constitutional magnitude which he contends warrant a reversal of his conviction. He first contends (1) he was arrested without probable cause, (2) officials of the Office of Special Investigation (an Air Force investigative unit) had no jurisdiction to detain him once they had transported him off of the military reservation in the company of agents of the F.B.I., and (3) the imposition of consecutive sentences was unlawful under the "same evidence" rule. The district court determined that each of these issues had previously been decided by this court in Boeckenhaupt's direct appeal. Boeckenhaupt earnestly argues that these issues raised in the present appeal are different in substance from the allegations which he unsuccessfully presented upon direct appeal. We agree with the district court that the three issues stated above have been previously decided by this court, and therefore Boeckenhaupt will not be allowed to recast, under the guise of collateral attack, questions fully considered by this court in 1968. Herman v. United States, 4th Cir., 227 F.2d 332.

We now treat several issues raised by Boeckenhaupt for the first time in his petition. Boeckenhaupt contends that all evidence obtained as a result of his initial arrest should have been suppressed because Air Force Regulation 205-57 (under which he was originally arrested and charged) is unconstitutional. Regulation 205-57 simply requires that military personnel who have had a contact with an agent of a foreign government disclose this fact to their superiors. Boeckenhaupt argues that the regulation requires that an individual incriminate himself and is therefore unconstitutional. The very same attack on the constitutional validity of Regulation 205-57 was rejected in Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991, cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505. Moreover, regardless of the outcome of a direct challenge to the constitutionality of the regulation, where an arrest is based on good faith enforcement of a previously valid regulation, that arrest is not invalid when the regulation is later declared unconstitutional. See, e. g. United States v. Dameron, 5th Cir.,460 F.2d 294. Since in the case at bar there has been no allegation of bad faith on...