Gallagher v. United States

• Decision Date: 17 April 1970
• Docket Number: No. 386-67.,386-67.
• Citation: 423 F.2d 1371
• Parties: Robert G. GALLAGHER v. The UNITED STATES.
• Court: U.S. Claims Court

423 F.2d 1371 (1970)

Robert G. GALLAGHER v. The UNITED STATES.

No. 386-67.

United States Court of Claims.

April 17, 1970.

Richard A. Baenen, Washington, D. C., attorney of record for plaintiff. Wilkinson, Cragun & Barker, Washington, D. C., of counsel.

Bruno A. Ristau, Washington, D. C., with whom was Asst. Atty. Gen., William D. Ruckelshaus, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

This action is before us on cross motions for summary judgment, with extensive documentation. It is a soldier's suit for back pay lost by reason of a court-martial conviction. He urges that the court-martial lacked jurisdiction and that it denied him his constitutional right to representation by counsel.

The plaintiff, a Private First Class in an armored division was stationed in Germany. German police arrested him and another soldier, one Hughes, on suspicion of having assaulted and robbed a German civilian, while they were in Bad Nauheim, on leave and wearing civilian clothes. According to established procedure in such cases, the police turned the suspects over to Army agents, and the court-martial followed. After considering the record and the briefs and oral arguments of counsel, we hold that the court-martial had jurisdiction and that it did not deny plaintiff representation by counsel, but that the skill of such counsel and the correctness of all his measures are not issues that are properly before us under the finality language of the Uniform Code of Military Justice, 10 U.S.C. § 876 (1964), which reads as follows:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74), and the authority of the President.

We wish to express appreciation for the diligence of counsel in putting before us material which aids us greatly in reaching an informed and understanding decision in this important case.

I.

The issue of the court-martial's jurisdiction becomes important in view of a recent Supreme Court decision, O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), holding that the military court system lacked jurisdiction to try a soldier for a sex crime against a civilian committed, while the soldier was off duty and out of uniform, in Hawaii, then a United States Territory, now one of the 50 states. A military trial, the Court held, would violate the soldier's constitutional right to a jury trial. Plaintiff naturally points out that he, too, was off duty and out of uniform, and he, too, was accused of attacking a civilian. Defendant says that the alleged crime here was committed in Germany, a foreign sovereign country, a distinction so significant that O'Callahan loses all authority. We agree.

The Court of Military Appeals has held in a group of recent cases that the jurisdiction of courts-martial over offenses by United States military personnel committed in foreign countries remains after O'Callahan as it was. United States v. Higgenbotham, 19 U.S.C.M.A. 73, 41 C.M.R. 73; United States v. Keaton, 19 U.S.C.M.A. 64, 41 C.M.R. 64; United States v. Stevenson, 19 U.S.C.M.A. 69, 41 C.M.R. 69; United States v. Easter, 19 U.S.C.M.A. 68, 41 C.M.R. 68 (all decided November 14, 1969). Of these cases, the Keaton opinion sets forth the views of the court more fully, and may be regarded as speaking on all four cases. Easter and Higgenbotham, however, are closest to Gallagher's case on the facts. Easter was charged with attempted housebreaking in a civilian community in Germany. Higgenbotham was charged with unpremeditated murder of a German national in a civilian establishment. The court in both cases states that authority to try the accused was granted under Article VII of the NATO Status of Forces Agreement and Article XIX of the Supplementary Agreement, and that in view of the occurrence of the offenses in the civilian community, waivers of jurisdiction by the German authorities were obtained. Counsel herein state that a standing waiver was in effect at the time of Gallagher's arrest. In the "lead" Keaton case the victim was another United States serviceman, which might have been seized upon as "service connection," but the court, as we read it, considers that inquiry into "service connection" is irrelevant in case of a violent crime in a friendly foreign country with which we have a Status of Forces Agreement. Whether this is so or not it would seem that "service connection" would always be present in such a case. One of our armed forces which disinterested itself in the commission of crimes of violence against local civilians by our servicemen in friendly foreign countries would surely soon find its ability to perform its mission gravely impaired. For that reason, there is no logical distinction on the ground of "service connection" between an attack on a local civilian and one on a fellow soldier. In O'Callahan a total lack of "service connection" was assumed as true in the order granting certiorari.

Defendant has aided us with an extended and enlightening exposition of the complex of treaties that establish the jurisdiction to try our soldiers, sailors and airmen for offenses they may be charged with committing while stationed in friendly foreign territory. Chief Justice Marshall laid down the applicable ground rules of international law many years ago in The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812). If a foreign military contingent enters a friendly host country, presumptively the sending country retains jurisdiction over the contingent and the host country acquires none. But the contingent can be there at all only with the host's consent and the host which could exclude entirely can condition admission or retention with whatever stipulations it pleases as to jurisdiction, and can change these, of course, at will on proper notice. The treaties involved, therefore, seek to provide arrangements covering jurisdiction which will be mutually fair and just and enjoy some stability during the life of the cold-war situation that, of course, occasions our forces being abroad at all.

As to Germany, defendant says the basic agreement is the NATO Status of Forces Agreement of June 19, 1951, TIAS 2846, 4 U.S.T. 1792, to which the Federal Republic of Germany acceded by TIAS 5351, 14 U.S.T. 531. The Agreements divide offenses by soldiers into three general categories. Those punishable only by the law of the sending state are dealt with by that state. Those punishable only by the law of the receiving state are dealt with by the receiving state. Those punishable by the laws of both states are deemed concurrent, and with excepions not here pertinent, the receiving state has "primary" jurisdiction in such cases, which it may waive if requested, as it did here.

That the United States can constitutionally waive jurisdiction over its servicemen in foreign countries under such agreements is settled in Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957). That the offense, robbery, of which Gallagher was accused, is of the concurrent class, we may assume. If the court-martial were held not to have jurisdiction, and no other American tribunal having it should appear, the result we presume could be expected to be either that Germany would no longer waive, or else she might claim the offense was no longer in the concurrent class. In either event the result would be the same: future Gallaghers would be tried in the local German courts under the provisions of German criminal law.

Thus it appears that plaintiff is asking us to exhibit our zeal for the Bill of Rights by holding that the protection of our Bill of Rights must be utterly withdrawn from servicemen stationed in foreign countries, whenever they are charged with offenses in the concurrent class. We say this, of course, not meaning to raise any hobgoblins about Germany, which has a highly developed system of jurisprudence, with its own system of safeguarding the accused. But we may notice judicially that our servicemen are stationed also in other countries, some of which have a reputation for harsh laws and savagely operated penal institutions. We are supposed to do this to defend the jury system, but counsel are unable to advise that jury trials are accorded to persons tried even under Germany's enlightened criminal statutes.

It may be suggested that the Congress could legislate for domestic jury trials in Article III courts, for servicemen accused of crimes of violence against civilians in friendly foreign countries. We note that the Court of Military Appeals challenges this supposition and raises a doubt whether it is true in its Keaton opinion.

On the hypothesis that the "service connection" of the offense had been rejected, it would appear that a statutory attempt to confer on Article III Federal courts, (or state courts), jurisdiction over the trial of crimes of violence committed against foreign nationals on the streets of foreign cities would encounter very serious problems of constitutional law and international law. Cf. International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (dec...