Owens v. United States

• Decision Date: 15 October 1974
• Docket Number: Civ. No. 74-380.
• Citation: 383 F. Supp. 780
• Parties: Paul Braxton OWENS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Middle District of Pennsylvania

383 F. Supp. 780

Paul Braxton OWENS, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 74-380.

United States District Court, M. D. Pennsylvania.

October 15, 1974.

F. Lee Shipman, Goldberg, Evans & Katzman, Harrisburg, Pa., for petitioner.

S. John Cottone, U. S. Atty., Michael D. McDowell, Asst. U. S. Atty., Lewisburg, Pa., for respondent.

SHERIDAN, Chief Judge.

Petitioner, then an inmate at the United States Penitentiary at Marion, Illinois, brought this proceeding under 28 U.S.C.A. § 2255, attacking a sentence imposed by this court. Petitioner was permitted to proceed in forma pauperis. Respondent filed a motion to dismiss the petition as moot, since the petitioner had completed the sentence he was attacking and was incarcerated on other unrelated charges. This court denied the motion and ordered the petition construed as an application for a writ of error coram nobis. 28 U.S.C.A. § 1651; United States v. Morgan, 1953, 346 U.S. 502, 74 S.Ct. 1247, 98 L.Ed. 248; Azzone v. United States, 8 Cir. 1965, 341 F.2d 417, cert. denied, 1968, 390 U.S. 970, 88 S.Ct. 1090, 19 L.Ed.2d 1180; Rini v. Katzenbach, 7 Cir. 1967, 374 F.2d 836; United States v. Garguilo, 2 Cir. 1963, 324 F.2d 795; United States v. Malinsky, S.D.N.Y.1970, 310 F.Supp. 523.

For the reasons stated infra, the petitioner's application will be denied.

On March 13, 1962, petitioner entered a plea of guilty to a two count information charging him with knowingly uttering bad checks on a government reservation in violation of 18 U.S.C. § 13. The court sentenced petitioner to two consecutive sentences of one year. Crim. No. 13690. After serving these terms, petitioner was released, and in 1971, in this district he was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) and § 2113(d) and sentenced to 10 years imprisonment. Crim.No. 14727. He was serving a sentence imposed in that case when he filed this application. He is presently on parole.

Petitioner's first contention is that trial in a United States District Court denied him the due process right to a military court-martial. We are urged to hold that if conduct violates both military and civilian laws and is servicerelated, it must be tried in a military court. See O'Callahan v. Parker, 1969, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291. The only possible authority for this proposition is a footnote in Gosa v. Mayden, 1973, 413 U.S. 665, 681 n. 6, 93 S.Ct. 2926, 2936, 37 L.Ed.2d 873:

"There are some protections in the military system not afforded the accused in the civilian counterpart. For example, Art. 32 of the Code, 10 U.S.C. § 832, requires `thorough and impartial investigation' prior to trial, and prescribes for the accused the rights to be advised of the charge, to have counsel present at the investigation, to cross-examine adverse witnesses there, and to present exonerating evidence. It is not difficult to imagine, also, the situation where a defendant, who is in service, may well receive a more objective hearing in a court-martial than from a local jury of a community that resents the military presence."

Petitioner was advised of the charges against him and represented by counsel at the arraignment. There, he waived both the "thorough and impartial investigation" and the rights "to cross-examine adverse witnesses ... and to present exonerating evidence" which would have been afforded him at a civilian trial by pleading guilty to the charges against him.

Without question, the crimes to which petitioner pleaded guilty are cognizable in a court-martial. Petitioner was a member of the Armed Forces at the time of the issuance of the bad checks, and they were cashed on a United States Army Post. "When a serviceman is charged with an offense committed within or at the geographical boundary of a military post and violative of the security of a person or property there, that offense may be tried by a court-martial." Relford v. Commandant, 1971, 401 U.S. 355, 369, 91 S.Ct. 649, 657, 28 L.Ed.2d 102. The vesting of jurisdiction in one court does not automatically divest another court of jurisdiction over the same subject matter, however; concurrent jurisdiction is a well-settled doctrine in our jurisprudence. Petitioner has cited no authority which supports the proposition that the civilian prosecution of a soldier for conduct amounting to a civilian, albeit service-related, offense denies the latter the due process of law.

In Caldwell v. Parker, 1920, 252 U.S. 376, 40 S.Ct. 388, 64 L.Ed. 621, the Court held that the jurisdiction to try and punish for a crime is not vested exclusively in a military court but is concurrent with the civilian tribunal having jurisdiction over the locus criminis. O'Callahan, supra, does not disturb this rule of law, and it is certainly of continuing validity. United States v. Guido, 3 Cir. 1947, 161 F.2d 492; United States v. Hodge, 5 Cir. 1973, 487 F.2d 945; Schmitt v. United States, 5 Cir., 413 F.2d 219, cert. denied, 1969, 396 U.S. 959, 90 S.Ct. 432, 24 L.Ed.2d 423; Kennedy v. Sanford, 5 Cir., 166 F.2d 568, cert. denied, 1948, 333 U.S. 864, 68 S.Ct. 737, 92 L.Ed. 1143; Lucas v. Sanford, 5 Cir. 1944, 145 F.2d 229; Robinson v. United States, 9 Cir. 1949, 175 F.2d 4; cf. Simmons v. United States, M.D.Pa. 1954, 120 F.Supp. 641, 648 n. 12; see also Madsen v. Kinsella, 1952, 343 U.S. 341, 349-350 n. 16, 72 S.Ct. 699, 96 L.Ed. 988.

O'Callahan, supra, cited by petitioner, insofar as is here relevant, stands for the proposition that for non servicerelated crimes, a member of the Armed Forces must be given a civilian "due process" trial. The rationale is that "a court martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved." 395 U.S. at 265, 89 S.Ct. at 1686. The suggestion that a court-martial — which is something less than a "due process" trial — should be required to the exclusion of a "due process" trial is not well taken. In fact O'Callahan recognizes that military court proceedings are "in general less favorable to defendants," id. at 265, 89 S.Ct. at 1687, than civilian trials.¹

Accordingly, jurisdiction was properly exercised by this court.

Petitioner's second contention is that the judgment against him should be vacated due to irregularities in the procedure used by this court in sentencing petitioner at the time of his plea of guilty.

Under the Youth Corrections Act, 18 U.S.C. § 5005 et seq., an alternate system of corrections is provided for younger offenders. The statute, passed in 1950, Act Sept. 30, 1950, c. 1115, § 2, 64 Stat. 1086, is a recognition on the part of Congress that young persons who find themselves at odds with the law may well be best served by a sentence outside the corrections structure applicable to adults. It has been found that socio-psychological factors operate on individuals between their sixteenth and twenty-second years to produce habitual criminals, that these factors are present in an adult prison environment and that a specialized program for young offenders can be more successful in avoiding recidivism in selected cases. Dorszynski v. United States, 1974, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855; H.R.Rep. No. 2979, 1949, 81st Cong., 2d Sess., at 2-3.

Following the entry of a judgment of guilty, in lieu of imposing an adult sentence such as incarceration in a prison, the sentencing court has the power, under the Youth Corrections Act, to order that youths normally between eighteen and twenty-two years of age be placed on probation in lieu of any commitment. 18 U.S.C. § 5010(a). The court is also authorized to order commitment for treatment under the Act. 18 U.S.C. § 5010(b). For the latter event, a specialized program of treatment has been created, intended to carry out the rehabilitative purpose of the Act.

Petitioner's contention that he is entitled to vacation of the judgment against him due to an error in sentencing is incorrect. The appropriate remedy for a sentence found to be inappropriate under the Youth Corrections Act is not to alter the judgment; it is for the sentencing court to reconsider the sentence it has imposed. United States v. Coefield, 1973, 155 U.S.App.D.C. 205, 476 F.2d 1152; United States v. Kaylor, 2 Cir. 1974, 491 F.2d 1133 (en banc); United States v. Dover, 5 Cir. 1974, 489 F.2d 688.

At the time of his conviction, petitioner was certainly eligible for specialized treatment under the Youth Corrections Act. 18 U.S.C. § 5006; 18 U.S.C. § 5010. However, the fact of eligibility does not confer the automatic right to such a sentence. Dorszynski v. United States, supra, 418 U.S. at 433-442, 94 S.Ct. 3042; 18 U.S.C. § 5010. In the only hearings held on the bill which became the Youth Corrections Act, Chief Judge John J. Parker of the United States Court of Appeals for the Fourth Circuit testified:

"The act ... does not interfere with the power of the judge with respect to sentencing youth offenders but gives him merely an alternative method of treatment of those people. ... He may still give the youthful offender the punishment prescribed by existing statutes, there is nothing in the bill that prevents that. All that the bill does is to provide that if in his judgment and discretion, he thinks that the offender before the court is one that can be treated with advantage under this bill, he can sentence him under this bill instead of under existing law. . . . "I do not see any possible objection to the Act. They say that there are some of those fellows that ought to be given serious punishment notwithstanding their being young and it the Act does not prevent their being given serious punishment. Nothing prevents a man from getting 25 years punishment if he deserves it. Nothing prevents him from being executed if he deserves such sentence." Hearings on S. 1114 and S. 2609, 1949, 81st Cong., 1st Sess., at 43-44.

Thus, it is clear that while the trial judge may...