Myers v. United States

• Decision Date: 11 August 1969
• Docket Number: No. 36-69.,36-69.
• Citation: 415 F.2d 318
• Parties: William Charles MYERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

415 F.2d 318 (1969)

William Charles MYERS, Appellant, v. UNITED STATES of America, Appellee.

No. 36-69.

United States Court of Appeals Tenth Circuit.

August 11, 1969.

Ray Tabet, Albuquerque, N.M., and Albin E. Danell, Los Altos, Cal., for appellant.

John A. Babington, Asst. U.S. Atty. (Ruth C. Streeter, U.S. Atty., with him on the brief), for appellee.

Before PHILLIPS, SETH and HICKEY, Circuit Judges.

SETH, Circuit Judge.

On April 24, 1968, a New Mexico State Police officer in Las Cruces, New Mexico, observed two young men with short military-style haircuts in a Volvo station wagon turn into a motel and to park. The appellant, who was a passenger in the car, emerged from the car, wearing fatigue pants, Marine Corps boots, and a sweater bearing the U.S.M. C. insignia. The officer then approached and inquired of them both together whether the two men were on leave, and they said that they were but were unable to produce leave orders. They then admitted being absent without leave from their Marine Corps unit and thereupon were arrested to be held for delivery to the custody of the military authorities. The codefendant driver of the car pled guilty to violating the Dyer Act, 18 U.S.C. § 2312. Appellant waived a grand jury, and his trial was first set for June 10, 1968. The trial date was later changed, and on September 27, 1968, at a trial before the court, appellant was found guilty of violating the Dyer Act and was sentenced under the Youth Corrections Act.

Appellant raises four contentions on appeal: (1) That his arrest was unlawful and that any evidence obtained from him thereafter was inadmissible; (2) that he was denied his Sixth Amendment right to a speedy trial; (3) that his conviction was based entirely on circumstantial evidence and cannot stand; and (4) that he was not mentally competent either at the time of the commission of the crime or at the time of his trial.

As to the arrest point, it must be held that it was neither unreasonable nor unlawful for the New Mexico State Police officer, when he observed two young men in military fatigues riding in a car with California plates, to investigate and inquire whether they had the proper leave orders. When they were unable to produce them and when they then volunteered the information that they were AWOL, the officer had the authority and the duty to arrest them. 10 U.S.C. §§ 807, 808 and 809 authorize civil law enforcement officers to apprehend members of the armed forces when absent without leave.

Almost identical points were raised in Sablowski v. United States, 403 F.2d 347 (10th Cir. 1968), and there similar statements were volunteered by the accused. The decision in Sablowski controls this case and answers the appellant's contentions on this point.

The appellant also raises the speedy trial issue, but an examination of the record shows this to be entirely without merit. Webber v. United States, 395 F.2d 397 (10th Cir. 1968); Miller v. Rodriguez, 373 F.2d...