Gosa v. Mayden Warner v. Flemings 8212 6314, 71 8212 1398

• Citation: 93 S.Ct. 2926,413 U.S. 665,37 L.Ed.2d 873
• Decision Date: 25 June 1973
• Docket Number: Nos. 71,s. 71
• Parties: James Roy GOSA, Petitioner, v. J. A. MAYDEN, Warden. John W. WARNER, Secretary of the Navy, Petitioner, v. John W. FLEMINGS. —6314, 71—1398
• Court: United States Supreme Court

413 U.S. 665

93 S.Ct. 2926

37 L.Ed.2d 873

James Roy GOSA, Petitioner,

v J. A. MAYDEN, Warden.

John W. WARNER, Secretary of the Navy, Petitioner,

v. John W. FLEMINGS.

Nos. 71—6314, 71—1398.

Argued Dec. 4, 1972.

Decided June 25, 1973.

Syllabus

In No. 71—6314, petitioner was tried by court-martial and convicted of rape. His conviction was affirmed by the Air Force Board of Review, and the Court of Military Appeals denied a petition for review. At no time during the trial and review proceedings did petitioner question the jurisdiction of the Military tribunal. Thereafter, following the decision in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (holding that when a serviceman is charged with a crime that is not 'service connected' he is entitled to indictment by a grand jury and trial by jury in a civilian court), petitioner sought a writ of habeas corpus in Federal District Court which was denied, the court concluded that the standards promulgated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 precluded retroactive application of O'Callahan. On appeal, in face of the Government's concession that the offense was not service connected, the Court of Appeals affirmed. In No. 71—1398, respondent, while absent without leave in 1944, was apprehended in Pennsylvania while in an automobile stolen in New Jersey. He was tried by court-martial in New York on charges of unauthorized absence from his duty station during wartime and theft of an automobile from a civilian. He pleaded guilty, and after serving two years' confinement was dishonorably discharged in 1946. He instituted suit in 1970, relying on O'Callahan, seeking to compel the Secretary of the Navy to overturn his court-martial conviction for auto theft and to correct his military records with respect to his dishonorable discharge. The District Court held that the car theft was not service connected in the O'Callahan sense and that O'Callahan was to be applied retroactively. The Court of Appeals affirmed. Held: The judgment in No. 71—6314 is affirmed, and the judgment in No. 71—1398 is reversed. Pp. 672—693 No. 71—6314, 450 F.2d 753, affirmed; No. 71—1398, 458 F.2d 544, reversed.

Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice POWELL, concluded that:

1. The question in O'Callahan was the appropriateness of the exercise of jurisdiction by a military forum, pursuant to an Act of Congress, over a nonservice-connected offense when balanced against the guarantees of the Fifth and Sixth Amendments. Pp. 672 678.

2. Application of the three-pronged test of Stovall v. Denno, supra, '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards,' requires that O'Callahan be accorded prospective effect only. Pp. 678—685.

3. Respondent's claim in No. 71—1398 that he was deprived of the right to trial in the vicinage, as guaranteed by Art. III, § 2, cl. 3, not raised before the military court, lacks merit. General court-martial jurisdiction, derived from Art. I, is not restricted territorially to a particular State or district; the vicinage requirement has primary relevance to trial by jury; and respondent has not demonstrated prejudice. Pp. 685—686.

Mr. Justice DOUGLAS concluded, in No. 71—6314, that the case should be reargued on the question whether the 'jurisdiction' of the military tribunal, being not contested, had become res judicata; and in No. 71—1398, that respondent committed a 'service connected' crime. Pp. 686—691.

Mr. Justice REHNQUIST concluded, in No. 71—6314, that although the prior Court decisions do not support the holding that O'Callahan should not be applied retroactively, O'Callahan was wrongly decided and should be overruled; and, in No. 71—1398, that any crime committed by a serviceman during the time of declared war is 'service connected' and that he can be validly tried by court-martial for that offense. P. 692.

Mr. Justice STEWART concluded, in No. 71—1398, that respondent, a serviceman who deserted his post during a time of congressionally declared war and stole an automobile was guilty of a 'service connected' offense and was properly tried before a court-martial under O'Callahan. P. 693. John R. Saalfield, Jacksonville, Fla., for petitioner James Roy Gosa.

Solicitor Gen. Erwin N. Griswold for respondent J. A. Mayden and petitioner John W. Warner.

Michael Meltsner, New York City, for respondent John W. Flemings.

Mr. Justice BLACKMUN announced the judgments of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice WHITE and Mr. Justice POWELL join.

In O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291, decided June 2, 1969, this Court, by a 5—3 vote, held that when a person in military service is charged with a crime that is not 'service connected,' id., at 272, 89 S.Ct., at 1690, the defendant is entitled, despite his military status, to the benefit of 'two important constitutional guarantees,' id., at 273, 89 S.Ct., at 1691 namely, indictment by a grand jury¹ and trial by jury in a civilian court.

The Court noted that O'Callahan was 'properly absent from his military base when he committed the crimes with which he is charged,' ibid.; that there was no connection between his military duties and the crimes; that the offenses were committed off the military post or enclave; that the victim was not performing any duty relating to the military; that the situs of the crimes was not occupied territory or under military control; that they were peacetime offenses; that the civilian courts were open; and that the offenses involved no question of the flouting of military authority, post security, or the integrity of military property.

Later, in Relford v. Commandant, 397 U.S. 934, 90 S.Ct. 958, 25 L.Ed.2d 114 (1970), we granted certiorari 'limited to retroactivity and scope of O'Callahan v. Parker.' When Relford was decided, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), we held that an offense committed on a military post by an individual in service, in violation of the security of another person or property on that post, was 'service connected,' within O'Callahan's language. Relford's offenses so qualified. His case, thus, went off on the scope of O'Callahan and did not reach the issue of retroactivity. We concluded that the latter issue, although having 'important dimensions, both direct and collateral,' was 'better resolved in other litigation where, perhaps, it would be solely dispositive of the case.' Id., at 370, 91 S.Ct., at 657. One of the cases, Gosa, now before us presents that issue solely. The other case, Flemings, presents the issue, but not solely.

I

No. 71—6314. In December 1966 petitioner James Roy Gosa, an airman third class, stationed at Warren Air Force Base in Wyoming, was tried by a courtmartial and convicted of rape, in violation of Art. 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920.

The offense took place the preceding August, in what the respondent has stated to be peacetime,² when Gosa was in the city of Cheyenne. At the time, he was officially off duty and absent from the base on authorized leave. He was not in uniform. The victim was not connected with the military or related to military personnel. Shortly after the incident Gosa was arrested by civilian authorities. He was unable to make bond and was detained pending a preliminary hearing. The complaining witness did not appear at the hearing. Gosa, accordingly, was released. He was taken into military custody, however, and charged with the Art. 120 violation. A general court-martial was convened. Gosa was tried and convicted. He was sentenced to 10 years' imprisonment at hard labor, forfeiture of pay and allowances, reduction in rank to the lowest pay grade of airman basic, and a bad conduct discharge. As required by Art. 61 of the Code, 10 U.S.C. § 861, the convening authority then referred the case to his staff judge advocate for review. The staff judge advocate's recommendation that the findings and sentence of the general court-martial be approved were adopted by the convening authority. Pursuant to Art. 66 of the Code, 10 U.S.C. § 866, the case was referred to an Air Force Board of Review. That Board affirmed the conviction and sentence. On August 16, 1967, the United States Court of Military Appeals denied a petition for review. 17 U.S C.M.A. 648. The case thereupon became final, Art. 76 of the Code, 10 U.S.C. § 876, subject, of course, to the habeas corpus exception recognized in United States v. Augenblick, 393 U.S. 348, 349—350, 89 S.Ct. 528, 530, 21 L.Ed.2d 537 (1969).

At no time throughout the trial and the review proceedings did Gosa raise any question as to the power of the military tribunal to try him.

Following the Court's decision in O'Callahan, Gosa filed an application for a writ of habeas corpus in the United States District Court for the Northern District of Florida seeking his release from the Federal Correctional Institution at Tallahassee where he was then confined.³ Subsequently, he filed with the United States Court of Military Appeals a motion to vacate his sentence and conviction; this was treated as a petition for reconsideration and was denied by a divided vote with accompanying opinions. 19 U.S.C.M.A. 327, 41 C.M.R. 327 (1970). The habeas application also was denied by the District Court upon its determination that the standards promulgated in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), and related cases, precluded retroactive application of O'Callahan. 305 F.Supp. 1186 (N.D.Fla.1969). On appeal, in the face of a Government concession that the alleged offense was not service connected, the Court of Appeals for the Fifth Circuit, one judge dissenting, affirmed. 450 F.2d 753 (1971).

No. 71—1398. I...