United States ex rel. Flemings v. Chafee

Decision Date28 March 1972
Docket NumberDocket 71-1997.,No. 528,528
Citation458 F.2d 544
PartiesUNITED STATES of America ex rel. John W. FLEMINGS, Appellee, v. John H. CHAFEE, Secretary of the Navy, Appellant.
CourtU.S. Court of Appeals — Second Circuit

James C. Hair, Jr., Atty. Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Robert A. Morse, U. S. Atty. for Eastern District of New York, Walter

H. Fleischer, Atty. Dept. of Justice, of counsel), for appellant.

Michael Meltsner, New York City, for appellee.

Before KAUFMAN, MANSFIELD and OAKES, Circuit Judges.

Certiorari Granted June 19, 1972. See 92 S.Ct. 2461.

IRVING R. KAUFMAN, Circuit Judge:

Toward the end of its 1968 Term, the Supreme Court virtually sounded the death knell for court-martial jurisdiction which had been exercised over certain cases for more than fifty years. O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), decided that the Armed Services had no power to try servicemen for alleged crimes or offenses triable in civilian courts and which were without substantial military significance or "service connection." We are now asked to decide whether O'Callahan, which itself overturned a final conviction, applies retroactively to another court-martial conviction for a non-service connected offense which became final prior to June 2, 1969, the date of that decision.1

John W. Flemings, in 1944 an eighteen-year-old seaman second class in the United States Naval Reserve stationed at the Naval Ammunition Depot in Earle, New Jersey, failed to return to his base after a seventy-two-hour leave. While AWOL, he was arrested for auto theft near Hollidaysburg, Pennsylvania, by Pennsylvania State Troopers who discovered him in an automobile which had been stolen the previous day in Trenton, New Jersey. The victim of the theft was a member of the United States Signal Corps who lived away from the naval base. The car was his personal property, he was on a purely personal errand in Trenton when the car was stolen, and at no time was he reimbursed by the military for any expenses incurred in the operation of the automobile. After being apprehended by the State Troopers, Flemings was transferred to military custody and incarcerated at Harts Island, New York. A court-martial subsequently was convened at the Brooklyn Navy Yard, the specification charging him with being AWOL for thirteen days and stealing an automobile "from the possession of a civilian." On the advice of military "counsel", he pleaded guilty and was sentenced to incarceration for three years, loss of his pay and a dishonorable discharge.2

In the wake of O'Callahan and long after the completion of his prison sentence,3 Flemings now seeks to have his conviction vacated and his discharge changed to honorable, contending that the auto theft was not service connected and thus not a proper basis for court-martial jurisdiction. This action was brought in the Eastern District of New York.4 Judge Weinstein, in a carefully considered opinion, decided that the theft of the automobile by Flemings5 was not service connected and that the conviction for that offense was void under O'Callahan because the court-martial lacked subject matter jurisdiction. He remanded the case to the Board for Correction of Naval Records with instructions to vacate the conviction and the dishonorable discharge and to enter a discharge no worse than bad conduct.6 330 F.Supp. 193 (E.D.N.Y.1971). From this determination the government appealed. We affirm the district court.7

I.

The threshold question is whether the offense of stealing a privately owned automobile, not being utilized for military purposes, while it was parked on a Trenton, New Jersey street, was "service connected." In O'Callahan the Court was faced with harmonizing the constitutional power of Congress to make "Rules for the Government and Regulation of the land and naval Forces," Art. I, § 8, cl. 14, with the constitutional guarantees of an indictment by a grand jury8 and a trial by a jury of one's peers.9 The Court recognized that "the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply," 395 U.S. at 261, 89 S.Ct. at 1685, but added emphatically that Article I, section 8, clause 14, read in conjunction with the "necessary and proper" clause,10 authorizes Congress only to invest military courts with "`"the least possible power adequate to the end proposed."'" Id., at 265, 89 S.Ct. at 1687, quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 23, 76 S.Ct. 1, 100 L.Ed. 8 (1955), quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (1821). Article I is a narrow concession to military need, not to be read expansively as licensing broadbased exceptions to the protective benefits afforded by civilian trials.

Accordingly, the Court held that the military status of the defendant was not ipso facto sufficient to establish court-martial jurisdiction. It instructed that the nature, the time and the place of the offense must be "service connected," thereby posing a threat to the "special needs of the military." But words, even in their literal sense, frequently require further elucidation. Thus, two years later, in Relford v. Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), the Court enumerated the eleven factors which led it to conclude that O'Callahan, who was charged with assault and attempted rape while on an evening pass from his army post in Hawaii, was not properly court-martialed:

1. The serviceman\'s proper absence from the base.
2. The crime\'s commission away from the base.
3. Its commission at a place not under military control.
4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
6. The absence of any connection between the defendant\'s military duties and the crime.
7. The victim\'s not being engaged in the performance of any duty relating to the military.
8. The presence and availability of a civilian court in which the case can be prosecuted.
9. The absence of any flouting of military authority.
10. The absence of any threat to a military post.
11. The absence of any violation of military property.

Relford listed a twelfth factor implicit in the eleven considered in O'Callahan"The offense's being among those traditionally prosecuted in civilian courts."

Clearly, each case must be approached ad hoc in light of the many factors to be considered. Id. at 365-366, 91 S.Ct. 649. But the balance must be struck on qualitative as well as quantitative grounds. Relford, for example, was charged with the rape of a girl and a woman on the Fort Dix, New Jersey, military reservation. The fourteen year old girl, a sister of a serviceman stationed at Fort Dix, was abducted at the point of a knife while waiting for her brother on a base parking lot; the woman, who worked as a waitress at the post exchange and was the wife of an Air Force man stationed at the adjacent McGuire Air Force Base, was driving to work when she too was abducted at the point of a knife and then raped at the fort's training area. Consideration of factors 4, 6, 8, 11 and 12 and perhaps 5 and 9 weighed against court-martial jurisdiction, while factors 1, 2, 3, 7 and 10 supported jurisdiction. Id. at 366, 91 S.Ct. 649. The court-martial conviction was sustained, Justice Blackmun stating for the court "that 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 of property there, that offense may be tried by a court-martial." Id. at 369, 91 S.Ct. at 657.

In the case before us, it would appear that only factors 1 and 5 support court-martial jurisdiction: Flemings was AWOL, and in 1944 the United States was engaged in World War II. Accordingly, the government argues that the confluence of these two factors was sufficient to sustain court-martial jurisdiction. We do not agree.

The United States Court of Military Appeals, in considering this question, has instructed that AWOL status ipso facto will not confer court-martial jurisdiction over a civilian offense committed while AWOL. See, e. g., United States v. Armes, 19 U.S.C.M.A. 15 (1969) (no jurisdiction where defendant stole a car while AWOL).11 We are not to be understood, however, as suggesting that an unauthorized absence is not a more serious breach of military duty and a greater threat to military discipline during wartime than in peacetime. No court has ever challenged the power of the military to deal swiftly with that offense, and, in doing so, to consider the relative threat it posed to the military's mission. Because the military can protect its special needs by asserting court-martial jurisdiction over the purely military offense of being AWOL, it is inappropriate for it to urge that the "paramount" nature of military discipline during wartime justifies it in sweeping within the jurisdiction any offense committed by a serviceman — no matter where — even when that offense by itself has no inherent relationship to the war effort and in no way hinders that effort. Flemings's offense was not committed on a military installation nor was it violative of a person or of property located there, as in Relford. Although the car Flemings allegedly stole while it was parked on a street in Trenton belonged to a member of the Signal Corps, that fact was a "happenstance" with "no military significance." Id. at 16. The government does not suggest that the theft interfered in any way with the owner performing his military duties.12

We conclude that under these circumstances the fact that this car theft occurred during wartime bore no special relevance to...

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