Osborn v. United States, 19929.

• Citation: 322 F.2d 835
• Decision Date: 10 September 1963
• Docket Number: No. 19929.,19929.
• Parties: Floyd J. OSBORN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

322 F.2d 835 (1963)

Floyd J. OSBORN, Appellant, v. UNITED STATES of America, Appellee.

No. 19929.

United States Court of Appeals Fifth Circuit.

September 10, 1963.

M. B. Montgomery, Jackson, Miss., for appellant.

Robert Hauberg, U. S. Atty., Jackson, Miss., John G. Laughlin, David L. Rose, Edward Berlin, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before RIVES and WISDOM, Circuit Judges, and BOOTLE, District Judge.

WISDOM, Circuit Judge.

The questions for decision in this case relate to the scope and meaning of the Unjust Conviction Statute, 28 U.S. C.A. § 2513, 62 Stat. 941.¹ The plaintiff's theory of the case is that the statute applies to a court-martial conviction set aside on a habeas corpus petition not because of the petitioner's innocence but because of lack of jurisdiction in courts-martial to try a capital offense in time of peace.² We hold that the statute applies to unjust convictions of courts-martial, but that the plaintiff failed to comply with the statutory requirements for recovery.

The basic facts are not disputed. In 1944 a United States Army court-martial found Floyd J. Osborn guilty of striking an officer. The court sentenced him to fifteen years imprisonment. Three years later, at Fort Leavenworth, Kansas, Osborn and three others were charged jointly with a violation of the 92d Article of War,³ the premeditated murder of a fellow prisoner. A general court-martial found the three men guilty and sentenced them to confinement at hard labor for life. Later, the Adjutant General remitted the unexpired portion of Osborn's sentence for the offense of striking an officer.

The 92d Article of War provides that "no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace." In 1959, the Supreme Court held that for purposes of Article 92 this provision deprived a court-martial of jurisdiction over an alleged conspiracy to commit murder on June 10, 1949, at Camp Cooke, California, on the finding that June 10, 1949 was "in time of peace" within the contemplation of the limitation. Lee v. Madigan, 1959, 358 U.S. 228, 79 S.Ct. 276, 3 L.Ed.2d 260. Relying on this decision, one Herman Snow, one of the co-defendants with Osborn in the murder case, filed a habeas corpus petition in the United States District Court for the Western District of Missouri. The court granted the petition:

Nothing had transpired between May 2, 1947, and June 10, 1949, to change the status of the nation from one "in time of peace" to one "in time of war." If the latter period was "in time of peace" I can reach no other conclusion than that the earlier period was also "in time of peace," and that the courts-martial which tried and convicted the petitioner here for the offense that was committed on May 2, 1947, was entirely without jurisdiction under the provisions of the 92d Article of War.⁴

Osborn thereupon instituted habeas corpus proceedings in the United States District Court for the District of Kansas. The court ordered his discharge on the finding that Lee v. Madigan and Snow v. United States were controlling.⁵

May 16, 1961, Osborn brought this suit against the United States claiming damages for his allegedly unjust conviction and imprisonment. After overruling the plaintiff's motion for summary judgment, the district court heard the case without a jury. The court found that the record showed that the plaintiff's conviction had not been reversed or set aside upon the stated ground of innocence and unjust conviction, and that Osborn had failed to show that he had not committed the acts with which he was charged. The court dismissed the suit without prejudice.

The appeal raises three questions:

(1) Is the Unjust Conviction Statute applicable to a conviction by a court-martial?

(2) Does the order granting the appellant\'s habeas corpus petition on the ground of lack of jurisdiction in the court-martial satisfy the statutory requirement that appellant was not guilty of the offense of which he was convicted?

(3) Has appellant sustained his burden of showing that he did not commit any of the acts charged; that his acts did not constitute a criminal offense; and that he did not by misconduct or neglect cause or bring about his own prosecution?

I.

The Government points out at the beginning of its argument the familiar principle that where the sovereign has given its consent to be sued, suits against it will be allowed only if they are clearly within the scope of the consent. United States v. Michel, 282 U.S. 656, 659, 51 S.Ct. 284, 75 L.Ed. 598 (1931). Limitations on governmental consent to suit must be strictly observed. Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). In arguing that the Unjust Conviction Statute does not apply to convictions by military tribunals, the Government carries strict construction too far. It first points out that the statute was originally entitled "An Act To grant relief to persons erroneously convicted in the courts of the United States," Act of May 24, 1938, 52 Stat. 438, and then argues that military tribunals are not federal courts or courts of the United States. It is undoubtedly true that courts-martial are not "federal courts;" they are not among the "inferior courts" which Congress, under Section 1, Article III of the Constitution "may from time to time ordain and establish." Trial of offenses by way of court-martial is an exceptional jurisdiction derived from Article 1, Section VIII, Clause 14 of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces." Dynes v. Hoover, 1857, 20 How. 65, 61 U.S. 65, 15 L.Ed. 838. See United States ex rel. Toth v. Quarles, 1955, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8; Winthrop, Military Law and Precedents (2d Ed.1896). "Congress has the power, to provide for the trial and punishment of military and naval offenses" and this power "is given without any connection between it and the 3d Article of the Constitution defining the judicial power of the United States." Dynes v. Hoover, 20 How. at 78, 61 U.S. at 78, 15 L.Ed. 838. What is important here, however, is that the Unjust Conviction Statute, on which the plaintiff's claim is based, provides, "The Court of Claims shall have jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C.A. § 1495. Thus by the strict, literal terms of the statute the only requirement, on this score, is that the imprisonment be for an offense against the United States. A heading employed in the original form of the statute cannot change the clear meaning of the statutory language. Here, Osborn was accused of a violation of an Article of War, convicted, and imprisoned. The Articles were enacted by Congress and the violation of one of them, as an Act of Congress, constitutes an offense against the United States. See Grafton v. United States, 1907, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084. Since there is no provision in the statute as to any specified court or courts in which the conviction must be obtained to meet the conditions of the statute, the plaintiff has satisfied this prerequisite to recovery by showing he was convicted of a violation of the 92d Article of War.

The Government contends that to allow a member of the Armed Forces to maintain a suit for damages for unjust conviction would "clearly have adverse consequences in terms of military discipline." The adverse consequences are not so clear to us as they are to the Government. On the contrary, a good case may be made for the beneficial effect on military morale if the law is construed as not operating to the disadvantage of men in uniform. The evil at which the statute is aimed is unjust conviction for an offense against the United States. The stigma of conviction and the physical and mental effects of unjust imprisonment are no less great merely because the unfortunate sufferer happens to wear a military uniform.⁶ We agree with Judge Wyche in McLean v. United States, W.D.S.C.1947, 73 F.Supp. 775, 778:

"This Act is a remedial act designed by a fair-minded government as a means of at least partially righting an irreparable wrong done to one of its citizens. It has the beneficent purpose of attempting to compensate, as well as money can compensate for such an injury, the plaintiff for the loss of his liberty through an error on the part of his government. One convicted in a court martial is just as effectively deprived of his liberty as one convicted in the district court of the United States."

Accord, Roberson v. United States, 1954, 124 F.Supp. 857, 129 Ct.Cl. 581, cert. denied, 349 U.S. 954, 75 S.Ct. 883, 99 L.Ed. 1279 (1955).

The armed services today are vastly different from the small standing army and navy of professionals formerly characteristic of the country's military services. In a war we are a nation in arms. Even in time of peace substantially all able-bodied young men are subject to service. Over the years Congress has extended more and more benefits to the service men. Over the years the courts have kept pace with Congress in increasingly recognizing the constitutional rights of service men. The Code of Military Justice and Reid v. Covert, 1957, 354 U.S. 1, 76 S.Ct. 880, 1 L.Ed.2d 1148, are two sides of a single coin. Considering the manifestly broad object of the Unjust Conviction Statute, to rectify governmental injustice, we consider it unthinkable that Congress intended to make the statute inapplicable to service men who have been unjustly convicted. We conclude that an unjust conviction before a military court-martial comes within the scope and operation of the statute before us.

II.

We now pass to the statutory requirement that the plaintiff "allege and prove that: (1) His conviction has been reversed or set aside on the ground that he is not...