Harris v. Ciccone

• Citation: 417 F.2d 479
• Decision Date: 24 October 1969
• Docket Number: No. 19456.,19456.
• Parties: Robert C. HARRIS, Appellant, v. Dr. P. J. CICCONE, Director, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

417 F.2d 479 (1969)

Robert C. HARRIS, Appellant, v. Dr. P. J. CICCONE, Director, Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.

No. 19456.

United States Court of Appeals Eighth Circuit.

October 24, 1969.

John J. Kitchin, Kansas City, Mo., for appellant.

Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., for appellee; Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., with him on the brief.

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

BLACKMUN, Circuit Judge.

On May 1, 1964, Robert C. Harris (born March 14, 1915), then an inmate of the United States Medical Center at Springfield, Missouri, filed his application for a writ of habeas corpus with the United States District Court for the Western District of Missouri. Chief Judge Becker denied that application. Harris v. Ciccone, 290 F.Supp. 729 (W.D. Mo.1968). Harris appeals in forma pauperis with counsel appointed by the district court and reappointed by us. In the meantime Harris, with leave of court, has been transferred to the United States penitentiary at Lewisburg, Pennsylvania, and, still later, has been released on parole.¹

The parties were able to agree upon a statement of issues. Some facts were established through the device of statements and responses thereto. Judge Becker on March 29, 1966, held an evidentiary hearing at which Harris appeared and testified.

Harris in 1950 was charged with committing, on April 23, 1950, at Engelsbrand in the then French Zone of occupied Germany, (1) the murder of a German national, (2) an unlawful entry of a German dwelling with intent to commit robbery, and (3) an assault upon the persons of two German nationals with intent to commit robbery, in violation, respectively, of Articles 92 and 93 of the then existing Articles of War, 62 Stat. 604, 640.

At the time of the alleged offenses and until his trial and the ensuing judgment and sentence became final, Harris was a soldier on active duty in the United States Army in Germany. His official station was at Gelnhausen, near Frankfurt. He held the rank of corporal.

At the pretrial investigation Harris was represented by two lieutenants who were not lawyers. He pleaded not guilty to the charges. His trial by general court-martial was at Stuttgart on July 19, 1950. At the trial he was represented by Wendell J. Willmore, retained civilian counsel, and by Major William J. Owen, assigned military counsel. Both Mr. Willmore and Major Owen were lawyers. Mr. Willmore was a member of the Ohio bar; Major Owen was admitted to the bar of the highest court of a state. Harris did not take the stand. No alleged admission or confession on his part was admitted in evidence.

The trial resulted in Harris' conviction on the charges of murder and unlawful entry and of assault on one of the two German nationals. He was acquitted of the charge of assault on the other named German national. On July 20 the court imposed a sentence of 25 years and ordered a dishonorable discharge and a forfeiture of all accruing pay and allowances. The required review followed. The convening authority referred the record to his Staff Judge Advocate, who rendered his opinion as to legality and his recommendation for approval. In its turn the Board of Review, on August 17, 1950, held the record of the trial "to be legally sufficient to support the findings of guilty and the sentence." The sentence, accordingly, was approved. Harris was committed to the custody of the Attorney General.

In the proceedings before the Board of Review, neither Harris nor the government was represented by counsel.

Thirteen years later, in September 1963, Harris sought review of his conviction by the United States Court of Military Appeals. This was denied for lack of jurisdiction in that the court was not yet in existence when Harris' conviction became final in 1950. See Act of May 5, 1950, ch. 169, § 1 (Art. 67), 64 Stat. 107, 129.

The eight issues before the district court, 290 F.Supp. at 731, are reduced to three in the appellate briefs. Although each side states the issues somewhat differently, they relate to alleged deprival of constitutional rights (1) during the pretrial investigation, (2) during the post-trial review, and (3) at the trial itself.

Preliminary and general comments are perhaps in order:

This court has indicated that a civil tribunal's range of inquiry on habeas review of a military conviction is narrower than on habeas review of a non-military conviction. Swisher v. United States, 354 F.2d 472, 475 (8 Cir. 1966). Chief Judge Murrah has made the same observation and has further noted that the civil courts have limited themselves to a consideration of the jurisdiction of courts-martial and have assumed no supervisory or correcting power over their decisions; that, nevertheless, in military habeas cases the civil courts do have jurisdiction to determine whether the accused was denied any basic constitutional right; and that, where the constitutional issue involves a factual determination, the court's inquiry is limited to determining whether the military court gave full and fair consideration to the constitutional issues. Kennedy v. Commandant, 377 F.2d 339, 342 (10 Cir. 1967), and cases cited. But we must note, too, that the Supreme Court recently has reminded us that "courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law." O'Callahan v. Parker, 395 U.S. 258, 265, 89 S.Ct. 1683, 1687, 23 L.Ed.2d 291 (1969).

With this as background, we turn to the respective phases of the military proceeding to which Harris was subjected.

A. Pretrial. Because a general court-martial was indicated, a pretrial investigation was ordered pursuant to the requirements of Article of War 46, subd. b, as then in effect.² Major Fred E. Rosell, Jr., was appointed April 28, 1950, to conduct this investigation. The following day Harris asked that he be represented in that investigation by B. E. Gower, a civilian attorney who practiced in Frankfurt. Major Rosell initially gave Harris until 8 a. m. on May 1 to obtain civilian counsel.³ It appeared that Mr. Gower was not available to represent Harris before May 4. Accordingly, the two lieutenants, neither of whom was a lawyer, were appointed to assist Harris during the pretrial. Major Rosell took the testimony of 20 witnesses. Only one of these, Faber, was subjected to inquiry on behalf of Harris and that inquiry was limited to two questions. The lieutenants were not present while seven witnesses were examined or during the inspection of laboratory findings.

Harris' argument here is that he was denied meaningful representation during the pretrial, for the investigation was not delayed a few additional hours until lawyer Gower would become available, the lieutenants were not legally trained, and they did nothing for him anyway and even were absent from part of the proceeding; that this amounted to a denial of his sixth amendment right to assistance of counsel; and that the military pretrial is a critical stage of the proceeding.

This issue, we feel, must be decided against Harris for the following reasons:

1. In Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986 (1949), the Supreme Court affords us insight as to the nature and character of Article 46, subd. b, of the Articles of War. Under consideration there was the earlier 70th Article of War, 41 Stat. 759, 802, enacted in 1920, as amended, 50 Stat. 724, in 1937. Article 70, as so amended, was identical to the later Article 46, subd. b, except that the third sentence of Article 46, subd. b, was not present in Article 70. It was contended that the provision, "No charge will be referred to a general court martial for trial until after a thorough and impartial investigation thereof shall have been made", was jurisdictional, that the pretrial investigation was an indispensable prerequisite, and that, without it, a court-martial judgment of conviction was wholly void. The majority ruled otherwise. They noted, p. 697, 69 S.Ct. 830, 831-832, that the Articles served important functions and provided safeguards, that the accused could object to trial in the absence of the investigation, and that

"Its original purposes were to insure adequate preparation of cases, to guard against hasty, ill-considered charges, to save innocent persons from the stigma of unfounded charges, and to prevent trivial cases from going before general courts-martial. * * * All of these purposes relate solely to actions required in advance of formal charges or trial. All the purposes can be fully accomplished without subjecting court-martial convictions to judicial invalidation where pretrial investigations have not been made.

* * * * * *

"This court-martial conviction resulting from a trial fairly conducted cannot be invalidated by a judicial finding that the pre-trial investigation was not carried on in the manner prescribed by the 70th Article of War" (footnote omitted). 336 U.S. at 698-699, 701, 69 S.Ct. at 833.

In Smith there had been an investigation but the claim was that it was neither thorough nor impartial. The case, therefore, is flat authority against Harris' position here. Indeed, the language we have quoted qualifies as dictum for even the more extreme situation where there is no pretrial at all. The following year, in Hiatt v. Brown, 339 U.S. 103, 110, 70 S.Ct. 495, 498, 94 L.Ed. 691 (1950), the Court held that a lower court "was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as * * * the adequacy of the pretrial investigation, and the competence of the * * * defense counsel." To the same effect as Humphrey v. Smith, on this point of pretrial investigation and Article 70, and decided after the Smith case, are Rought v. Steele, 184 F.2d 118 (8 Cir. 1950) (alleged lack of thorough and impartial investigation and lack of sufficient opportunity to cross examine); ...