Juhl v. United States

• Decision Date: 13 October 1967
• Docket Number: No. 353-65.,353-65.
• Citation: 181 Ct. Cl. 210,383 F.2d 1009
• Parties: Kenneth N. JUHL v. The UNITED STATES.
• Court: U.S. Claims Court

181 Ct. Cl. 210, 383 F.2d 1009 (1967)

Kenneth N. JUHL v. The UNITED STATES.

No. 353-65.

United States Court of Claims.

October 13, 1967.

COPYRIGHT MATERIAL OMITTED

Francis J. Steiner, Jr., Washington, D. C., attorney of record, for plaintiff.

Charles M. Munnecke, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

NICHOLS, Judge.^*

This is an action by Sergeant Juhl, an enlisted career man in the Air Force, to recover back pay and forfeitures he has lost as a result of his conviction, after trial, by a General Court Martial. His counsel asserts on his behalf that the conviction was contrary to the constitution and invalid on several grounds. We hold that the court martial lacked jurisdiction to convict because it was prohibited from so doing by Section 153a, Manual For Courts-Martial, 1951, which declares that "a conviction cannot be based" upon the "uncorroborated testimony of a purported accomplice," when such testimony was "self-contradictory, uncertain or improbable." The conviction of Juhl was so based. In our opinion, the Congress in substance has declared that such a conviction would be fundamentally unfair. Therefore, it is exposed to collateral attack notwithstanding the statutory provisions for finality in 10 U.S.C. Sec. 876, Article 76 of the Act of May 5, 1950, Public Law 506, 81st Cong., 64 Stat. 108. This conclusion makes it unnecessary to consider other grounds the plaintiff relies on, and we do not do so.

To explain the basis of our conclusion it is necessary to consider the facts in some detail. We do not weigh the evidence in order to determine guilt or innocence but simply recite it to determine whether it includes anything that supports the result, within the rule referred to above.

The plaintiff before his conviction had the rank of Master Sergeant. His record included 22 years service in the armed forces and he had several decorations for bravery in action. He was an air policeman, apparently the equivalent of a military policeman in the Army. He was stationed at the R.A.F. air base at Lakenheath, England, which was at that time in use by the United States Air Force as an operating base. He had a number of air policemen serving under his command, including the purported accomplices subsequently mentioned.

The Air Force, like the other armed services, maintains exchanges on its bases on foreign territory where uniformed personnel and their dependents may purchase consumer articles, free of taxes and customs duties of every kind, including those of the United States and of the host country. This is an important fringe benefit, particularly for persons stationed in the United Kingdom, where the local taxes and duties on such articles as tobacco products and liquor are stiff. To avoid abusing the hospitality of the host country it was necessary for the Air Force to make certain that excessive quantities of AFEX (Air Force Exchange) merchandise did not find their way into the United Kingdom economy. To accomplish this, local Air Force regulations limited each airman and each dependent, e.g., to a quota of 4 cartons of cigarettes a month, with like quotas on other tobacco products and liquor. Each serviceman and each dependent had a ration card issued, which had to be stamped and punched by the salesgirl at the AFEX on each purchase to show by how much the monthly quota was depleted. All personnel were forbidden to possess AFEX merchandise in excess of reasonable quantities, or to barter or sell such merchandise to persons not having such privileges. There was apparently no provision against giving AFEX merchandise away, and in light of this, the standards as to what quantities were reasonable to possess, at one time, were not clear. Apparently, it was, at least tacitly, permitted for persons having exchange privileges to purchase with other persons' ration cards as well as their own, purportedly to turn over the purchases so made to such other persons.

About June 1961 an informant, whose name does not appear in the case, disclosed to the Air Force that airmen were purchasing excessive quantities of AFEX merchandise and selling it to British civilians, at advances in price; in other words, they were maintaining a black market. Investigation soon implicated many persons, among whom were air policemen who should have been enforcing the law. Three persons in all informed against the plaintiff, of whom two were the purported accomplices who afterwards testified against him, and one testified but in his favor. Some of the accused airmen were tried and convicted by the British for offenses against their customs laws, and as to others, including plaintiff, the British executed a waiver which, in effect, surrendered them to their own Service for trial and punishment. Plaintiff's two purported accomplices, Airmen Shields and Hughes, were both already convicted and in custody when plaintiff was tried.

The charges and specifications served upon plaintiff in accordance with military procedure are set forth in full in the findings. Two of the specifications named Airman Shields as an accomplice. The evidence on these specifications was given to the Court Martial by Airman Shields and apparently was not convincing, as the tribunal acquitted plaintiff on these specifications. Therefore, they need not be considered further. Shields also gave, what might be called consciousness of guilt evidence, namely, an effort by plaintiff to get him to alter his testimony. Doubtless the Court Martial considered this as relating only to the specifications under which Shields was the accomplice.

The tribunal also acquitted the plaintiff of two other specifications where Airman Hughes was the purported accomplice. These included specifications that plaintiff purchased 6 transistor radios, in excess of reasonable amounts, and that he sold Air Force merchandise — two cartons of cigarettes — to an English civilian, a Charles R. Cox, who did not have exchange privileges.

The Court Martial convicted plaintiff of the remaining six specifications. It will be convenient first to consider specification 4 which charged him with acquiring cartons of cigarettes and boxes of cigars at the AFEX in an irregular manner. Hughes testified that he introduced plaintiff to certain British female employees of AFEX who thereafter, in his presence, contributed to plaintiff's making irregular purchases by not punching his ration card or, if someone was looking on, by punching through a hole that was already punched. The Air Force had written statements by both of the females which in general supported this charge. However, on the stand they testified they had made irregular sales to Hughes only, not plaintiff, and when plaintiff purchased in apparently large quantities, it was due to his presenting other persons' ration cards as well as his own. They explained the prior statements as due to pressure by investigators and fear of losing their jobs. They had lost their jobs anyway at the time of plaintiff's trial. The written statements were not received in evidence. It is clear that their evidence did not corroborate that of Hughes, unless contradiction is conceived to be corroboration.

Specification 7 stated that plaintiff, in conjunction with Hughes, transported 50 boxes of exchange cigars, in excess of reasonable amounts, between the Lakenheath base and Brandon, Suffolk, England. The testimony was as follows: Hughes testified that he and plaintiff traveled together, in a Volkswagen, owned by another airman, to a certain Airman Squire's home at Brandon, because Squire had told him that he had a customer who would buy the cigars. At Squire's home, Hughes and Squire removed the boxes from the boot or trunk (which, of course, in a Volkswagen is in front). At the preliminary investigation under Article 32 of the Code, Hughes testified that plaintiff remained in the front seat of the car or stood beside it during the unloading. At the trial he testified that plaintiff acted as look-out on the road to be sure that no one surprised them. Plaintiff testified in his own behalf that he made the trip as alleged but knew and saw nothing of any contraband being in the car. Upon arrival at Squire's home he said he went to the front yard and sat with Mrs. Squire (it was June) having a drink of beer. He said that he could not possibly have seen anything coming on the road from where he was sitting. Squire testified for the prosecution but nevertheless stated that the arrangement to bring him the cigars was made with Hughes and the appearance of plaintiff surprised him; that he and Hughes unloaded the cigars from the car; that plaintiff sat, during that time, in the front yard with Mrs. Squire; and that plaintiff was in a position where he could not see the car or act as a look-out. A few days afterwards Squire heard of the investigation and threw away the cigars on a public road, so that they would not be found in his possession. He said nothing to implicate Juhl beyond his mere presence. There was no material variation in plaintiff's story and Squire's and nothing significant was brought out on cross-examination of plaintiff respecting this specification. Mrs. Squire did not testify; an affidavit she furnished later indicates she would not have corroborated Hughes if she had testified. When, as here, an accused testifies in his own behalf, he may of course, inadvertently corroborate the accomplice or make admissions that furnish corroboration. Nothing of the sort happened in this case.

Specification 3 charged that plaintiff, in conjunction with Hughes, sold 140 boxes of Air Force Exchange cigars to a person, not having exchange privileges, at Southend, Essex, England. Hughes testified to the occurrence of two transactions that would meet this description. He said an Airman Wainwright gave him a number to call at...