In re Di Bartolo

• Decision Date: 17 August 1943
• Citation: 50 F. Supp. 929
• Parties: In re DI BARTOLO.
• Court: U.S. District Court — Southern District of New York

50 F. Supp. 929

In re DI BARTOLO.

District Court, S. D. New York.

August 17, 1943.

Simon J. Liebowitz, of New York City, for relator.

Howard F. Corcoran and Samuel Brodsky, both of New York City, and Archibald King, J. A. G. D. U. S. Army, of Washington, D. C., for respondent.

RIFKIND, District Judge.

A writ of habeas corpus was sued out on behalf of Anthony Arthur di Bartolo, to inquire into the cause of his detention by the commanding officer of the military prison located on Governors Island, New York. For convenience I shall refer to di Bartolo as the petitioner. The return was made by Col. Thomas L. Crystal, commanding officer of the United States Army, Fort Jay, Governors Island, New York, who averred that he held the petitioner in custody at Fort Jay by virtue of a sentence of imprisonment pronounced by a general court-martial.

Upon the argument on the return to the writ the court inquired of petitioner's attorney whether he claimed that any issues of fact required trial. The attorney answered that he needed time to consider the matter and he was granted five days. Thereupon, petitioner filed a paper in the form of a verified answer, containing denials of certain averments of the return and affirmative allegations. Further oral argument was then had in the course of which petitioner's attorney made a number of concessions. For reasons which appear in the discussion which follows I find that no triable issue of fact remains and that the undisputed facts afford an adequate basis for decision.

The petitioner, a civilian employee of Douglas Aircraft Company, Inc. was charged, on August 13, 1942, by an officer of the United States Army Corps of Military Police, with the theft of a diamond ring having a value of $300. It was charged that the offense occurred on August 10, 1942 at Asmara, Eritrea, in violation of Article of War 93, 10 U.S.C.A. § 1565. He was tried by a general court-martial in Eritrea and convicted on October 16, 1942. The application of military law to the petitioner was founded on Article of War 2, 10 U.S.C.A. § 1473(d), in that he was a person "accompanying or serving with the Armies of the United States in the field". Since the case turns on whether he was such a person it is necessary to state in some detail the circumstances of petitioner's presence in Eritrea at the time of the offense and his subsequent trial by military law.

On May 5, 1942, petitioner entered into a contract of employment with Douglas Aircraft Company, Inc. Pursuant to that contract he was employed as a mechanic in connection with the organization, equipment and operation of an aircraft depot at Gura (about 30 miles from Asmara), Eritrea. The employment contract recited that Douglas Aircraft Company, Inc., had theretofore entered into a contract with the United States for the organization, equipping and operation of an aircraft depot at Gura and that the petitioner was hired pursuant to that contract with the United States. The Douglas-United States contract provided that compensation to Douglas was to be determined by a cost-plus-fixed-fee formula.

The employment contract provided further that petitioner would probably be required to work in a war combat zone in a foreign country. Compensation in the event of capture and detention by the enemy was specified. The term of employment was to commence not later than July 1, 1942 and to continue until December 31, 1942, or such later date as might be agreed upon, and thereafter until sixty days after return transportation to the United States was made available by the employer. The petitioner reached Gura on or about July 23, 1942 and was there engaged as a mechanic on war planes.

The affidavit of Major General Russell L. Maxwell is annexed to the return. During the period here under observation he was commanding general of the United States Army Forces in the Middle East. He states that during a period which includes August 1 to October 30, 1942, forces under his command were in occupation of the Italian colony of Eritrea; that Eritrea was in a "theatre of operations" of the United States Army; that the Gura air depot was operated by Douglas "under the supervision and control of officers of the United States Army"; that prior to the entry of American forces into Eritrea it had been entered by British forces and a military government had been there established by the commanding general of the armed forces of the United Kingdom.

His affidavit also discloses that during a period which includes August 1 to October 30, 1942, American and British forces were both in Eritrea, former enemy territory, as co-belligerents. The military government established by the British forces permitted local courts to function but only with respect to inhabitants of Eritrea, in causes which had no political significance and which would not affect the security or interests of the United Nations. The judgments of the local tribunals were subject to the approval, revision or rejection of the British Military Administrator. Military courts were likewise established by the British Military Administration. The commanding general of the United States Forces did not establish any military government in this theatre of operation. However, pursuant to understanding between the British and United States commanding officers, the British Military Administrator exempted all persons subject to the military law of the United States from the jurisdiction of the courts established or reconstituted by the British military government. During the period under review there were no courts possessed of jurisdiction to punish a person situated like the petitioner for criminal offenses committed by him unless such jurisdiction be found in the courts-martial appointed by the commanding general of the United States Forces in the area.

Lt. Col. Goff's affidavit, annexed to the return, recites that he is in the Judge Advocate General's Department of the Army of the United States and that he served at Gura from July 3, 1942 to August 12, 1942 and on that date he became Staff Judge Advocate of the Eritrea Service Command with headquarters at Asmara. He declares that at Gura 100 United States army officers and men were stationed; that none but military aircraft was assembled and repaired at Gura; that both British and American military airplanes were included; that the Gura base was exclusively a military installation and that 1500 civilian employees were then engaged at Gura.

The petitioner takes issue with the allegation of the return that he was employed at Gura through October 16, 1942, the time of his sentence. He asserts by his affidavit that his employment continued only to August 8, 1942, a date preceding the time of the offense. Upon the argument, however, his attorney admitted that on August 8th petitioner suffered a slight injury by reason of which he was relieved of active duty but that his employment was not then terminated. On behalf of petitioner it was further urged and admitted that he was paid by Douglas through August 15th. I call it an admission because it was basis for an inference that the employment relation was in existence at the time the offense was committed. Petitioner, however, seeks to erect upon it an argument that his employment terminated before the military trial and that the military, therefore, lost jurisdiction by virtue of the doctrine that a person separated from the military service ceases to be amenable to military law. Ex parte Wilson, D.C.E.D.Va.1929, 33 F.2d 214. The argument, however, is without merit. Assuming that by analogy, military jurisdiction would expire when the "accompaniment" ceased, it by no means follows that jurisdiction failed when the employment terminated. The primary issue is whether the petitioner accompanied the Armies of the United States.

Before that issue is reached I may dispose of several subsidiary questions. Clearly, jurisdiction over petitioner cannot be claimed merely on the basis of convenience, necessity, or the non-availability of civil courts. Equally clearly, jurisdiction cannot be...