Gosa v. Mayden, 29139.

Decision Date12 October 1971
Docket NumberNo. 29139.,29139.
Citation450 F.2d 753
PartiesJames Roy GOSA, Petitioner-Appellant, v. J. A. MAYDEN, Warden, Federal Correctional Institution, Tallahassee, Florida, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

H. Franklin Perritt, Jr. (Court-Appointed), Marks, Gray, Conroy & Gibbs, Jacksonville, Fla., for petitioner-appellant.

William Stafford, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Major Earl E. Hodgson, Jr., U. S. Air Force, Washington, D. C., Clinton Ashmore, Asst. U. S. Atty., Northern District of Florida, Tallahassee, Fla., for respondent-appellee.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The sole, inexorable issue presented by this appeal requires us to predict whether the Supreme Court of the United States will apply its decision in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), to comparable proceedings of military courts which reached a stage of complete finality prior to June 2, 1969, the date that decision was announced. The court below reasoned that O'Callahan should be denied retroactive application, 305 F. Supp. 1186. We affirm.

It all started for James Roy Gosa on August 13, 1966. He was then serving as a member of the United States Air Force stationed at Warren Air Force Base in Wyoming, and on the night in question, he was officially off-duty and with permission of his superior officers had left the military post dressed in mufti. Around midnight Gosa allegedly raped a civilian in Cheyenne, Wyoming. The asserted victim was not on any type of military duty and had no direct or indirect relationship with the military establishment. Although Gosa was arrested by Cheyenne civilian authorities for prosecution in their courts, he was subsequently released from their detention when the complaining party failed to appear. He thereupon was immediately taken into military custody and was charged with violation of Article 120 of the Uniform Code of Military Justice (U.C.M.J.) 10 U.S.C.A. § 920, which provides that any person subject to the Code who commits an act of rape may be punished as a court-martial may direct. Pursuant to the provisions of sub-chapters IV and V, U.C.M.J. (10 U.S.C.A. §§ 816-829), a general court-martial was duly convened which tried petitioner and, on December 2, 1966, found him guilty as charged. All of the multiple review procedures provided by the U.C.M.J. were accorded.1 On July 11, 1967 Gosa petitioned the Court of Military Appeals for a grant of review under Article 67, U.C.M.J. (10 U.S.C.A. § 867). All direct review procedures were exhausted and Gosa's conviction became final in law on August 16, 1967 when the Court of Military Appeals denied review.

On August 21, 1969, Gosa filed his application for a writ of habeas corpus in the court below and on the 6th of November, 1969, filed with the United States Court of Military Appeals a motion to vacate his sentence and conviction. Both the application and the motion were based upon assertions that Gosa's confinement was invalid in the light of the decision in O'Callahan that the general court-martial which tried him lacked jurisdiction. Both the application for habeas relief and the motion to vacate, which the Court of Military Appeals treated as a petition for reconsideration, were denied.2


The Supreme Court granted a petition for certiorari review of a Tenth Circuit case styled Relford v. Commandant U. S. Disciplinary Barracks, Ft. Leavenworth, 409 F.2d 824, for the limited purpose of deciding the retroactivity and scope of O'Callahan. See 397 U.S. 934, 90 S.Ct. 958, 25 L.Ed.2d 114 (1970). However, when Relford came on to be heard on its merits the Court determined that because Relford's offense had been perpetrated within the geographical boundary of a military post, it had a service connection which O'Callahan lacked. Thus, a decision on retroactivity was deemed inappropriate. 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). Relford enumerated 12 factors which, if present, deprive a military court-martial of jurisdiction to try a member of the Armed Forces otherwise under the jurisdiction of that court by the congressional mandate of Article 2, U.C.M.J. (10 U.S.C.A. § 802).3 Each of these factors is unquestionably present in Gosa's case ; indeed the only distinction, locale—the Territory of Hawaii vis-a-vis the State of Wyoming—if effective at all, makes Gosa's case stronger. Indubitably, had O'Callahan been rendered prior to these events in Gosa's case, that decision would have deprived the general court-martial which tried Gosa of jurisdictional authority to hear or determine that cause.4 We cannot avoid deciding the scope of its applicability as precedent. We therefore must analyze it.

In Relford, the Court capsuled its prior holding in O'Callahan thus:

By a five-to-three vote, the Court held that a court-martial may not try a member of our armed forces charged with attempted rape of a civilian, with housebreaking, and with assault with intent to rape, when the alleged offenses were committed off-post on American territory when the soldier was on leave, and when the charges could have been prosecuted in a civilian court.

Looking in greater detail to the opinion itself, we first note that certiorari in O'Callahan was limited to the question:

Does a court-martial, held under the Articles of War, Tit. 10, U.S.C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court? 393 U.S. 822, 89 S.Ct. 177, 21 L.Ed.2d 93.

After reciting the unlimited grant of congressional authority "To make Rules for the Government and Regulation of land and naval Forces" contained in Article I, Section 8, Clause 14 of the Constitution, and the Bill of Rights language which excepted only cases arising in the land or naval forces, and excepted those cases only from the Fifth Amendment's requirement of grand jury presentment or indictment, Mr. Justice Douglas, speaking for the majority, pointed out that Congress had developed a system of military justice with fundamental differences from civilian courts. He stated the issue in these words:

If the case does not arise `in the land or naval forces,\' then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. III, § 2, of the Constitution which provides, in part:
`The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ; and such Trial shall be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.\'
Those civil rights are the constitutional stakes in the present litigation. (395 U.S. 262, 89 S.Ct. 1685) (Final sentence emphasis supplied.)

Then, after a discussion of pre- and post-Constitution military court history, the conclusion of the decision was put in this language:

We have concluded that the crime to be under military jurisdiction must be service connected, lest `cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger,\' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers. (395 U.S. at 272, 89 S.Ct. at 1690).

Clearly then, grand and petit jury protections were the core rights sought to be vouchsafed. Since the opinion also spoke of other procedural aspects of the military system and compared some of these to civilian court processes, we cannot state with absolute assurance that the Court will later hold that only these two Bill of Rights protections were involved. However, this uncertainty is not critical to our conclusion.

Our analysis of O'Callahan must also center upon determining whether the Court decided that military tribunals lacked adjudicatory power over servicemen's offenses which were not "service-connected". Did the opinion hold that courts-martial lacked power over the subject matter and person of such a soldier because Congress had no constitutional authority to vest it, or did O'Callahan decide that the lack of grand and petit jury procedures (and perhaps other civilian court protections) resulted in the loss of jurisdiction otherwise within the control of congressional grant? In United States ex rel. Flemings v. Chafee, 330 F.Supp. 193 (E.D.N.Y. 1971), a most thorough and scholarly judicial determination, Judge Weinstein comes to the somewhat guarded conclusion that lack of adjudicatory power was the rationale of the decision. He also notes that other jurists have reached the opposite conclusion. See the decision here on appeal, Gosa v. Mayden, 305 F.Supp. 1186 (N.D.Fla.1969) ; Mercer v. Dillon, 19 U.S.C.M.A. 264, 41 C.M.R. 264 (1970) ; Schlomon v. Moseley (1971) Civ.No. L-1003, May 19, 1971 ; and the opinion of the Board of Review Art. 66, U.C.M.J. in United States v. King, ACM 20361 (July 30, 1969), review denied U.S.C.M.A., 40 C.M.R. 327 ( ).5

Despite the weight of authority to the contrary, we find the reasoning of Flemings persuasive on this issue. Read with an open mind, O'Callahan's foundation, framework and structure deny to the legislation which breathed the breath of judicial life into the forum that tried Sgt. O'Callahan, the necessary basis in constitutional power to reach his type of case. It declares that because of the Bill of Rights, Article I, Section 8 cannot be read to enable Congress to authorize the military courts to try a peacetime...

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