Krivoski v. United States, 234-52.

• Citation: 145 F. Supp. 239
• Decision Date: 17 December 1956
• Docket Number: No. 234-52.,234-52.
• Parties: Dusian Alfred KRIVOSKI v. The UNITED STATES.
• Court: Court of Federal Claims

145 F. Supp. 239

Dusian Alfred KRIVOSKI v. The UNITED STATES.

No. 234-52.

United States Court of Claims.

October 2, 1956.

Writ of Certiorari Denied December 17, 1956.

Frederick Bernays Wiener, Washington, D. C., for plaintiff.

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

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

Writ of Certiorari Denied December 17, 1956. See 77 S.Ct. 326.

JONES, Chief Judge.

Plaintiff, a veteran of World War II, was in December 1945 released to inactive service. He remained an officer in the Reserve Corps until February 9, 1948, when he reenlisted in the grade of technical sergeant. On August 10, 1948, he was recalled to active duty as a first lieutenant, Finance Department, Army of the United States, and in 1949 was sent overseas.

Plaintiff was convicted in a court-martial proceeding and given a sentence of confinement at hard labor for 2 years (later reduced to 1 year) and dismissed from the service. He alleges that the court-martial proceeding was void on the ground that he was deprived of the right to be represented by disinterested counsel in violation of the Sixth Amendment to the Constitution, and that he was denied due process of law in violation of the Fifth Amendment.

The facts are clearly stated in the findings filed with this opinion.

In August 1950 plaintiff was on duty at the Army Finance Center at Friedberg, Germany. The commanding officer and central disbursing officer was Col. Samuel J. Taggart. Subordinate to him were Capt. Willard E. Finley who commanded the finance detachment of about 35 enlisted men, and the plaintiff who was deputy disbursing officer.

As such deputy plaintiff had access to the vault, including keys to all parts of it, as well as to safes in the finance center. The vault had a corridor and four rooms, three of which had doors into the corridor; the fourth was an annex room and could be reached only through one of the corridor rooms.

Both military and civilian personnel stationed in Germany at that time were paid in military certificates. It was necessary from time to time to withdraw these certificates for destruction. On the particular occasion involved herein about $478,000 of such certificates were to be destroyed.

Three officers were designated as a committee to supervise the destruction of the certificates. Captain Finley was one of this committee. The committee met with plaintiff on August 3, 1950, and went with him to the vault to count the certificates which were in the annex room. After counting, the certificates were placed in foot lockers in the annex room. The committee and plaintiff then went to lunch, the plan being to complete the destruction during the afternoon.

Prior to this particular time Captain Finley had on several occasions suggested to the plaintiff that the latter should purloin a bundle of the currency for their own use from the supply that was periodically withdrawn and destroyed. Just before the committee went to lunch on August 3, 1950, Captain Finley telephoned the plaintiff to come to his office and there repeated the suggestion and said this would be a good opportunity to take a package of currency to be divided between them.

Before the committee reconvened plaintiff returned to the annex room, took a bundle of certificates with a face value of $9,900 out of the foot locker and placed it in a metal cashier's box that was in the corridor room of the vault. He then went out to witness the burning.

Later that afternoon Colonel Taggart had occasion to go into the corridor room of the vault, noticed the cashier's box therein, brought it upstairs and found the certificates inside. Meanwhile, plaintiff had become disturbed and when he heard that Colonel Taggart had brought the box upstairs, sought him out and told him everything he had done. This was the first intimation Colonel Taggart had of the facts. Plaintiff also told Colonel Taggart that Captain Finley had originally suggested some 8 months previously that some of the certificates be withheld from these periodical destructions, the proceeds to be divided between them, and that Captain Finley had repeated this suggestion on numerous occasions. Captain Finley denied the charges.

Both Captain Finley and plaintiff were placed under arrest and were subjected to court-martial procedure. Two charges were made against plaintiff and four against Captain Finley, two of which are not relevant here. These are set out in finding 9.

Prior to the trial the case against Captain Finley set out in Charge II was dismissed, but he was tried on the other three charges. The remaining charges included conspiracy to commit larceny and the commission of theft in conjunction with the plaintiff.

Plaintiff was the principal witness against Captain Finley. Plaintiff did not claim his privilege against incrimination, although he was reminded of his rights.

The appointed military defense counsel at the general court-martial proceeding was Capt. Roy H. Adams, Infantry, a member of the bar of the Supreme Court of Texas. Captain Finley, however, was principally defended by Milton J. Teiger, an American lawyer practicing in Germany, who was selected by the accused. Mr. Teiger and Captain Adams worked together at the trial of Captain Finley.

At the close of the prosecution's evidence Mr. Teiger moved for a finding of not guilty with respect to Charge IV, the theft charge, on the ground that the plaintiff herein, Krivoski, "is confessing to a crime he never committed." After argument the motion was denied. Captain Finley did not testify. He was found guilty and sentenced "to be dismissed the service, to forfeit all pay and allowances * * * and to be confined at hard labor * * * for five years."

Later the same day the charges against plaintiff were referred for pretrial investigation pursuant to Article of War 46(b).^* The investigation took place on October 6, 1950. Captain Adams, who had previously represented Captain Finley, appeared at the pretrial investigation at the direction of the staff judge advocate and offered his services to plaintiff as defense counsel, offering in the alternative to secure other services for plaintiff if the latter preferred. Plaintiff stated that he had no objection to being represented by Captain Adams in the pretrial investigation. At the conclusion of the pretrial investigation plaintiff gave Captain Adams several names including that of Major Shelton Gaddis, whom he wanted to appear at the trial as character witnesses in his behalf. No definite appointment of defense counsel was made at this time, and it was tacitly understood that Captain Adams would protect the plaintiff's interests until the question of defense counsel could be resolved. Plaintiff understood that he had the option of being represented by Adams or some other person. He expressed no preference, apparently gave no serious thought to the matter, did not dissent to being represented by Adams and expected him to represent him.

At the trial Charge I was stricken and Charge II was the basis of the trial. At the trial Captain Adams was named as defense counsel to defend the plaintiff.

Lt. Col. Julian E. Weisler, the staff judge advocate, recommended that the general court-martial be composed of others than those who heard the case of Captain Finley. He was familiar with the facts involved in the action against plaintiff, but he did not consider that Captain Adams was disqualified by any conflict of interest from representing the plaintiff. Captain Adams had been a regularly appointed defense counsel in many cases at this particular post.

During the period from August 7 until October 6, 1950, the plaintiff made no effort to obtain counsel, civil or military, and prior to the date of the trial had neither requested nor been refused counsel. Plaintiff had three conferences with Captain Adams after the pretrial investigation and before the trial. At one of these conferences there was a discussion covering the elements of the offense charged and whether the prosecution could prove them, and also a discussion as to how to plead. Decision on the latter point was left open. Although Captain Adams explained to the plaintiff that the ultimate decision as to how to plead would be made by plaintiff, he replied that he would be bound by Captain Adams' advice. Plaintiff evidently thought he had committed an offense of some description, was reconciled to a dismissal from the service, and was primarily concerned with avoiding imprisonment.

Captain Adams finally advised that plaintiff plead guilty. The plaintiff acquiesced, the thought being that such a plea might induce clemency from the reviewing authorities.

The prosecution called four witnesses, including Colonel Taggart, and introduced the statement that plaintiff had made on August 7, 1950, and which is referred to in finding 8. The defense called Colonel Taggart, Maj. Shelton Gaddis, Lieutenant Hays and two enlisted men as character witnesses. Plaintiff also testified. He was not asked any questions to elicit what he had told Colonel Taggart and the Finley court-martial to the effect that Captain Finley had repeatedly importuned him to take the certificates, although these facts were recited in plaintiff's written statements of August 7, 1950, which statement was a part of the record before the court-martial.

Plaintiff was found guilty and was sentenced to be dismissed, to forfeit all pay and allowances, and to be confined at hard labor for two years.

Lieutenant Colonel Weisler, the staff judge advocate, recommended in writing on October 24, 1950, approval of the findings and sentence, but stated in that connection that without the testimony and cooperation of the accused a conviction could not have been obtained in the case of Captain Finley.

On October 25, 1950, Captain Adams submitted to the commanding officer of the military post a...