Griffiths v. United States

• Decision Date: 06 May 1959
• Docket Number: No. 508-56.,508-56.
• Citation: 172 F. Supp. 691
• Parties: Frederick T. GRIFFITHS v. UNITED STATES.
• Court: U.S. Claims Court

172 F. Supp. 691

Frederick T. GRIFFITHS v. UNITED STATES.

No. 508-56.

United States Court of Claims.

May 6, 1959.

William J. Woolston, Philadelphia, Pa., for plaintiff.

Francis X. Daly, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.

PER CURIAM.

Plaintiff has instituted this suit against the United States to recover the pay and allowances alleged to be due him for service as an Army major for the period since June 19, 1954. The case was referred by the court, pursuant to Rule 45, 28 U.S.C.A., to Mastin G. White, a trial commissioner of the court, with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed November 5, 1958, reaching the conclusion that plaintiff is not entitled to recover and recommending that the petition be dismissed. Upon consideration of that report, together with the exceptions, briefs and oral argument by counsel, the court adopts the trial commissioner's opinion and findings of fact, as hereinafter set forth, as the basis for its judgment in this case. Plaintiff is therefore not entitled to recover and his petition will be dismissed.

It is so ordered.

Opinion of the Commissioner

The plaintiff asserts in this litigation a claim against the United States for the pay and allowances of an Army major. It is indicated in the petition that the claim covers the period "since June 19, 1954."

On the date mentioned in the preceding paragraph, the plaintiff, who was then serving as a major in the Army, was found guilty by a general court-martial of various acts of misconduct prohibited by the Uniform Code of Military Justice (50 U.S.C., 1952 ed., 551-736),^* and was sentenced to be dismissed from the military service, to forfeit all pay and allowances, and to be confined at hard labor for 3 years. The action of the court-martial was subsequently reviewed by the appropriate military agencies and the sentence was approved (except that the period of confinement was reduced from 3 years to 2 years). The sentence, as modified, was duly executed.

The plaintiff contends that the action of the general court-martial in convicting and sentencing him "was void because plaintiff was denied the Constitutional right to counsel of his choice * * *." Fundamentally, this contention is based upon the fact that when the general court-martial was finally convened for the trial of plaintiff's case on June 7, 1954, the court-martial refused to grant a motion submitted on behalf of the plaintiff that the trial be continued until such time as Thomas D. McBride, a civilian attorney whom the plaintiff had retained to represent him during the course of the court-martial proceedings, could be present and participate in the trial.

The granting or denial of a motion for continuance is within the discretion of the court to which the motion is submitted. Sims v. Hundley, 1847, 6 How. 1, 6, 12 L.Ed. 319; Barrow v. Hill, 1851, 13 How. 54, 56, 14 L.Ed. 48; Sechrist v. Bryant, 1923, 52 App.D.C. 286, 286 F. 456, 457. Generally, the question whether a court-martial properly or erroneously exercised its discretion in denying a motion for continuance submitted by an accused cannot be considered by a civilian court (such as the Court of Claims), since a civilian court is not empowered to grant relief on the ground of errors committed by a court-martial in the performance of its functions. Dynes v. Hoover, 1857, 20 How. 65, 82, 15 L.Ed. 838; Ex parte Reed, 1879, 100 U.S. 13, 23, 25 L.Ed. 538; Swaim v. United States, 1897, 165 U.S. 553, 561, 17 S.Ct. 448, 41 L.Ed. 823; Collins v. Johnston, 1915, 237 U.S. 502, 507, 35 S.Ct. 649, 59 L.Ed. 1071; Moses v. United States, 1957, 137 Ct.Cl. 374, 380. The correction of any such errors is entrusted to the appropriate military authorities. Hiatt v. Brown, 1950, 339 U.S. 103, 111, 70 S.Ct. 495, 94 L.Ed. 691.

A person convicted and sentenced by a court-martial can obtain relief from a civilian court only upon the basis of a determination by the civilian court that the action of the court-martial was void (Carter v. McClaughry, 1902, 183 U.S. 365, 401, 22 S.Ct. 181, 46 L.Ed. 236); and such a determination can only be based upon a finding that the court-martial lacked jurisdiction of the person or of the offense, or, if it had jurisdiction, that the court-martial exceeded its lawful powers. Johnson v. Sayre, 1895, 158 U.S. 109, 118, 15 S.Ct. 773, 39 L.Ed. 914; Carter v. Roberts, 1900, 177 U.S. 496, 498, 20 S.Ct. 713, 44 L.Ed. 861; Mullan v. United States, 1909, 212 U.S. 516, 520, 29 S.Ct. 330, 53 L.Ed. 632.

Under some circumstances, however, the denial of a motion for continuance can have the effect of depriving the accused in a criminal prosecution of the right to the assistance of counsel for his defense guaranteed by the Constitution. Avery v. State of Alabama, 1940, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377. In this connection, it has been held that to deprive the accused in a criminal prosecution of the right to the assistance of counsel is a jurisdictional defect which will invalidate a conviction by a Federal civilian court (Johnson v. Zerbst, 1938, 304 U.S. 458, 467-468, 58 S.Ct. 1019, 82 L.Ed. 1461), or by a court-martial (Shapiro v. United States, 1947, 69 F.Supp. 205, 107 Ct.Cl. 650, 655).

In the present case, if the plaintiff's conviction by the general court-martial on June 19, 1954 was void because he was denied the assistance of counsel, the plaintiff's entitlement to his pay and allowances as a major in the Army was not affected by the conviction and the subsequent actions that were taken to execute the sentence imposed upon him. Shapiro v. United States, supra, 69 F.Supp. at pages 207-208, 107 Ct.Cl. at pages 654-655; Fly v. United States, 1951, 100 F. Supp. 440, 120 Ct.Cl. 482, 496-497. Therefore, it is necessary to consider whether the action of the court-martial in refusing to continue the trial of the plaintiff's case until the civilian attorney McBride could be present had the effect of depriving the plaintiff of his right under the Constitution to the assistance of counsel for his defense.

Court-martial charges were originally preferred against the plaintiff on January 4, 1954. The plaintiff was then stationed at the Schuylkill Arsenal in Philadelphia. Ten days after the charges were preferred against him, the plaintiff retained Thomas D. McBride, a civilian attorney practicing in Philadelphia, to represent him at the pretrial investigation of the charges and at the court-martial trial. On the same day, Mr. McBride, in the presence and with the acquiescence of the plaintiff, requested John R. Carroll, another civilian attorney practicing in Philadelphia, to render assistance in connection with the defense of the plaintiff, and Mr. Carroll agreed to do so. The assistance of Mr. Carroll was sought because he was familiar with court-martial procedure.

Messrs. McBride and Carroll appeared for the plaintiff at the pretrial investigation of the charges against the plaintiff that was conducted under Article 32 of the Uniform Code of Military Justice on or about January 22, 1954.

After the pretrial investigation, the court-martial charges against the plaintiff were referred on February 11, 1954 by the Commanding General of the Second Army to a general court-martial for trial.

Subsequently, sometime during the month of February, Mr. McBride advised the convening authority of the general court-martial that he had previously been engaged as counsel for the defendants in a case entitled United States v. Kuzma, 141 F.Supp. 91, a criminal prosecution in the United States District Court for the Eastern District of Pennsylvania, and that the trial of the Kuzma case was scheduled to begin on March 15, 1954. Mr. McBride requested that the plaintiff's court-martial trial either be completed prior to March 15, 1954, or else be continued until after the completion of the trial in the Kuzma case. However, additional court-martial charges against the plaintiff were being processed in February and March of 1954, and no action was taken by the convening authority to schedule the plaintiff's court-martial trial so that it could be completed prior to March 15, 1954.

With respect to Mr. McBride's involvement in the Kuzma case, the evidence shows that he had entered his appearance on September 14, 1953 as attorney for the defendants in that case. The evidence also shows that nine other attorneys, including Mr. Carroll, had become associated with Mr. McBride as counsel for the defendants in the Kuzma case on December 18, 1953.

The additional court-martial charges mentioned above were formally preferred against the plaintiff on March 16, 1954. They were investigated in accordance with Article 32 of the Uniform Code of Military Justice on or about March 24, 1954. Mr. Carroll appeared for the plaintiff at the time of the investigation of the additional charges against him. Mr. McBride was not present at this investigation, because he was already involved in the trial of the Kuzma case at Philadelphia, which trial had begun on March 22, 1954.

The additional charges against the plaintiff were referred on March 30, 1954 by the Commanding General of the Second Army to the same general court-martial previously mentioned, and it was directed that the additional charges and the original charges be tried together.

Under the date of April 7, 1954, Mr. McBride wrote to the Commanding General of the Second Army a letter requesting that the plaintiff's court-martial case be continued because of Mr. McBride's involvement in the trial of the Kuzma case. With respect to the latter trial, Mr. McBride stated that "It looks as though it will last until July." In a reply dated April 19, 1954, Mr. McBride was informed that although his request for an indefinite continuance was denied, the plaintiff's trial would be scheduled for May 3, 1954, in order to give the defense additional time for...