In re Varney's Petition

• Decision Date: 27 April 1956
• Docket Number: No. 19257.,19257.
• Citation: 141 F. Supp. 190
• Parties: Matter of the Petition in Behalf of Louis B. VARNEY, Petitioner, For a Writ of Habeas Corpus. UNITED STATES of America ex rel. Tobias G. KLINGER, v. COMMANDANT, UNITED STATES DISCIPLINARY BARRACKS, Lompoc, California, Respondent.
• Court: U.S. District Court — Southern District of California

141 F. Supp. 190

Matter of the Petition in Behalf of Louis B. VARNEY, Petitioner, For a Writ of Habeas Corpus UNITED STATES of America ex rel. Tobias G. KLINGER, v. COMMANDANT, UNITED STATES DISCIPLINARY BARRACKS, Lompoc, California, Respondent.

No. 19257.

United States District Court S. D. California, Central Division.

April 27, 1956.

Tobias G. Klinger, Los Angeles, Cal., for petitioner.

Laughlin E. Waters, U. S. Atty., Max F. Deutz & Andrew J. Weisz, Asst. U. S. Attys., Los Angeles, Cal., James W. Booth, Lt. Col. United States Army Judge Advocate General's Corps., Washington, D. C., for respondent.

JAMES M. CARTER, District Judge.

This case raises the question of the right of the military to try in a military court in a foreign country, a civilian employee of the military.

The prisoner, Louis B. Varney, was employed as a Department of the Army civilian on 26 February 1952. Thereafter he was transported by the Army to Japan, where he arrived on 4 March 1952. He was assigned upon arrival to the Engineer Section of the Yokohama Engineer Depot, Maintenance Division, APO 503. His status as a Department of the Army civilian employee accompanying the Army in Japan was not changed, at least until after his trial by general court-martial.

In accordance with the provisions of Article XVII of the Administrative Agreement Under Article III of the Security Treaty Between the United States of America and Japan, the prisoner was brought to trial before an Army general court-martial in Tokyo, Japan, for violation of several Articles of the Uniform Code of Military Justice, 50 U.S.C.A. § 551 et seq. The prisoner was found guilty of violation of a general regulation prohibiting certain commercial activities and violation of a general regulation prohibiting certain importation into Japan, both in violation of Article 92 of the Uniform Code of Military Justice, 50 U.S.C.A. § 686; of two specifications of false statements in support of a claim, in violation of Article 132 of the Uniform Code of Military Justice, 50 U. S.C.A. § 726; and of an attempt to violate a general regulation prohibiting certain importation into Japan, in violation of Article 80 of the Uniform Code of Military Justice, 50 U.S.C.A. § 674. On 10 March 1955 he was sentenced to a fine of $10,000 and confinement at hard labor for one year, and to be further confined at hard labor until the fine is so paid, but not for more than 18 months in addition to the one year. The conviction of a violation of a general regulation prohibiting certain commercial activities was disapproved by the convening authority who approved only so much of the sentence as provided for a fine of $5,000 and confinement at hard labor for six months, and further confinement at hard labor until the fine is paid but not for more than one year in addition to the six months. As thus reduced, the sentence was affirmed by a Board of Review on 27 September 1955.

On 16 November 1955, attorneys for the prisoner filed with the United States Court of Military Appeals a petition for grant of review. That petition questioned the sufficiency of the evidence upon which the prisoner was convicted. It also charged reversible error on the part of the law officer, and misconduct by the trial counsel. On 25 November 1955, counsel for prisoner moved the Court of Military Appeals for leave to file instanter a supplemental assignment of error. The motion was granted by Order of Court, dated 30 November 1955. The supplemental assignment of error raised the precise point now before this Court, that "the court-martial had no jurisdiction to try the accused prisoner because he was a civilian." Reply to this supplemental assignment of error was made by Government Appellate Counsel on 15 December 1955.

On 23 December 1955 a petition for writ of habeas corpus was filed in this Court on behalf of the prisoner. An order to show cause and restraining order, directed to the respondent, was issued, with the return date set as 3 January 1956. At that time the matter was continued for hearing until 30 January, with response to the petition to be made by 23 January.

On 17 January 1956, the United States Court of Military Appeals granted the prisoner's petition for review of his case by that Court. In granting the petition, the Court limited briefs and arguments to the questions:

a. Whether the evidence is sufficient to support the findings of guilty on specifications 1 and 2 of Charge II; and

b. Whether the court-martial had jurisdiction to try the prisoner.

Time was fixed for filing of briefs before the Court of Military Appeals.

The writ of habeas corpus proceedings in this Court presents the claim made on behalf of the prisoner that he was deprived of his constitutional right to a jury trial. His petition mentions specifically the Fifth Amendment, and presumably he relies also on the Sixth Amendment and Section 2 of Article III of the Constitution. He is not entitled to the writ for four good reasons, here stated and taken up in order.

First. The prisoner has not exhausted other remedies available to him. In fact, he is at this moment pursuing such remedies within the military appellate system. Those remedies must be exhausted before he may seek habeas corpus.

Second. Persons who occupy a status such as that of the prisoner at the time of his offense and trial have never been entitled to demand a jury trial under the Constitution.

Third. An American citizen who, like the prisoner, goes voluntarily to a foreign country thereby surrenders, for the duration of his stay, the constitutional right to trial by jury.

Fourth. The statute under which court-martial jurisdiction was exercised over the prisoner is a valid exercise of the power granted Congress in Article I, Section 8 of the Constitution "To make Rules for the Government and Regulation of the land and naval Forces," as supplemented by the Necessary and Proper Clause.

I

The prisoner has not exhausted other remedies, which he must do before he may seek habeas corpus.

The respondent's return and answer, and exhibits filed with the Court show the prisoner is even now pursuing remedies available to him within the military appellate court system. On 17 January 1956, the United States Court of Military Appeals agreed to hear the prisoner, not only on the jurisdictional question he raises in this Court, but on other points as well.

The question of exhaustion of remedies, insofar as it affects military habeas corpus cases, was set at rest by the Supreme Court in Gusik v. Schilder, 1950, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. In that case, the petitioner had sought, and been denied, habeas corpus in the District Court at the time Congress created in the court-martial system the new remedy of petition for a new trial. The Supreme Court held that Gusik had to petition for a new trial before he could proceed on appeal with habeas corpus in the civil courts, even though that particular remedy was not available when his habeas corpus case was heard in the District Court. The reasoning expressed by Mr. Justice Douglas on behalf of a unanimous Court is pertinent. On pages 131-133 of 340 U.S., on page 151 of 71 S.Ct., he said:

"If Article 53 had been in force when the habeas corpus proceedings were instituted, the District Court would not have been justified in entertaining the petition unless the remedy afforded by the Article had first been exhausted. An analogy is a petition for habeas corpus in the federal court challenging the jurisdiction of a state court. If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere. That is not only the holding of the Court in a long line of cases, see Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791; Ex parte Hawk, 321 U.S. 114, 116, 64 S.Ct. 448, 449, 88 L.Ed. 572; it is the rule which Congress recently wrote into the Judicial Code. 28 U.S.C. § 2254, 28 U. S.C.A. § 2254. The policy underlying that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion. If it is, any friction between the federal court and the military or state tribunal is saved. That policy is as well served whether the remedy which is available was existent at the time resort was had to the federal courts or was subsequently created, as indeed is implicit in cases from a state court whose review we denied pending exhaustion of a newly created state remedy. See Walker v. Ragen, 338 U.S. 833, 70 S.Ct. 37 94 L.Ed. 507; Marks v. Ragen, 339 U.S. 926, 70 S.Ct. 613 94 L.Ed. 1347. Such a principle of judicial administration is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.

* * * * * *

"Petitioner says that resort to Article 53 will be futile. If it proves to be, no rights have been sacrificed. Habeas corpus will then be available to test any questions of jurisdiction which petitioner may offer."

The Court of Appeals for the Ninth Circuit has followed Gusik v. Schilder in Osborne v. Swope, 1955, 226 F.2d 908, affirming the action of the District Court in dismissing a petition for habeas corpus. The Court of Appeals held, on the basis of the Gusik case, that if a petitioner has failed to exhaust available remedies in the military system, he will not be heard on habeas corpus.

Further support for this position is found in the language of the Supreme Court in Burns v. Wilson, 1953, 346 U. S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508. At page 142 of 346 U.S., at page 1048 of 73 S.Ct., the...