United States v. Augenblick United States v. Juhl, 45

• Citation: 21 L.Ed.2d 537,89 S.Ct. 528,393 U.S. 348
• Decision Date: 14 January 1969
• Docket Number: No. 45,45
• Parties: UNITED STATES, Petitioner, v. Richard G. AUGENBLICK. UNITED STATES, Petitioner, v. Kenneth N. JUHL
• Court: United States Supreme Court

393 U.S. 348

89 S.Ct. 528

21 L.Ed.2d 537

UNITED STATES, Petitioner,

v Richard G. AUGENBLICK.

UNITED STATES, Petitioner,

v. Kenneth N. JUHL.

No. 45.

Argued Nov. 21, 1968.

Decided Jan. 14, 1969.

Edwin L. Weisl, Jr., New York City, for petitioner.

Joseph H. Sharlitt, Washington, D.C., and Francis J. Steiner, Jr., Nashville, Tenn., for respondents.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Respondents, who had been convicted by court -martial, brought these suits for back pay. Augenblick, though charged with sodomy, was convicted of a lesser offense, an indecent act, and Juhl was convicted of selling overseas merchandise of an Air Force Exchange. Augenblick was sentenced to dismissal from the service; Juhl was sentenced to reduction in rank, partial forfeiture of pay, and confinement for six months. Each exhausted the remedies available to him¹ and, not having obtained relief, brought suit in the Court of Claims to recover back pay,² on the ground that the court-martial infringed on his constitutional rights. The Court of Claims undertook to review the judgments of the courtsmartial for constitutional defects and rendered judgments for respondents. 377 F.2d 586, 180 Ct.Cl. 131; 383 F.2d 1009, 181 Ct.Cl. 210. The case is here on petition for writs of certiorari which we granted because of the importance of the question concerning the jurisdiction of the Court of Claims to review judgments of courts-martial. 390 U.S. 1038, 88 S.Ct. 1635, 20 L.Ed.2d 300.

Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, provides that military review of court-martial convictions shall be 'final and conclusive' and 'binding upon all * * * courts * ** of the United States.' The legislative history of the provision makes clear that relief by way of habeas corpus³ was an implied exception to that finality clause (S.Rep. No. 486, 81st Cong., 1st Sess., 32; H.R.Rep. No. 491, 81st Cong., 1st Sess., 35)—an exception not available to respondent Augenblick because he was discharged from the service, not imprisoned, and a remedy apparently not invoked by respondent Juhl during his short period of detention.

An additional remedy, apparently now available but not clearly known at the time of these court-martial convictions, is review by the Court of Military Appeals. In United States v. Bevilacqua, 18 U.S.C.M.A. 10, 11—12, 39 C.M.R. 10, 11—12, decided November 8, 1968, that court held that it has jurisdiction 'to accord relief to an accused who has palpably been denied constitutional rights in any court-martial; and that an accused who has been deprived of his rights need not go outside the military justice system to find relief in the civilian courts of the Federal judiciary.'⁴

Prior to the enactment of Article 76, the Court of Claims had entertained suits for back pay brought by servicemen who had been convicted by courts- martial. See, e.g., Keyes v. United States, 109 U.S. 336, 3 S.Ct. 202, 27 L.Ed. 954; Runkle v. United States, 122 U.S. 543, 7 S.Ct. 1141, 30 L.Ed. 1167; Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823; United States v. Brown, 206 U.S. 240, 27 S.Ct. 620, 51 L.Ed. 1046. These decisions, it is argued, were based on the theory that the Court of Claims had jurisdiction over back-pay suits where the courts-martial lacked 'jurisdiction' in the traditional sense, viz., where 'there si no law author- izing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed.' Keyes v. United States, supra, 109 U.S. at 340, 3 S.Ct., at 204. From this premise it is urged that when, in review of state convictions by way of federal habeas corpus, the concept of 'jurisdiction' was broadened to include deprivation by the trial tribunal of the constitutional rights of a defendant (Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461), the scope of collateral review of court-martial convictions was also broadened. That is the position of the Court of Claims which rejected the view that the adoption of Article 76 introduced a new regime and that 10 U.S.C. § 1552 which provides a remedy to correct a military record in order to 'remove an injustice,'⁵ see Ashe v. McNamara, 1 Cir., 355 F.2d 277, is, apart from habeas corpus, the exclusive remedy.⁶

On that issue there have been a variety of views expressed in this Court. See Burns v. Wilson, 346 U.S. 137, 149, 152—153, 73 S.Ct. 1045, 1052, 1053—1054, 97 L.Ed. 1508. There is likewise unresolved the question whether, if the view of the Court of Claims is correct, the District Courts might have a like jurisdiction as respects suits not exceeding $10,000 under the Tucker Act, 28 U.S.C. § 1346(a)(2).⁷ After hearing argument and studying the record of these cases we do not reach those questions. For we conclude that, even if we assume, arguendo, that a collateral attack on a court-martial judgment may be made in the Court of Claims throguh a back-pay suit alleging a 'constitutional' defect in the military decision, these present cases on their facts do not rise to that level.

The Court of Claims gave relief to Juhl because of the provision in paragraph 153(a) of the Manual for Courts-Martial which states that the court-martial 'cannot' base a conviction 'upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable.'

We do not stop to review the evidence which bears on this issue and which the Court of Claims sets forth in detail. See 383 F.2d, at 1012—1017, 181 Ct.Cl., at 215—225.

The Manual was prescribed by the President pursuant to Article 36 of the Uniform Code, 10 U.S.C. § 836. It is a guidebook that summarizes the rules of evidence applied by court-martial review boards. See Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399. The paragraph regarding accomplice testimony is a statutory rule of evidence. Such rules do not customar ly involve constitutional questions. See Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986; Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed.2d 141. The Whelchel case involved various paragraphs of the Manual dealing with the defense of insanity. We did not sanction review of those paragraphs in a collateral remedy but held that only a denial of the opportunity for the military to consider the defense of insanity 'goes to the question of jurisdiction'; and we added that, '(a)ny error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts.' 340 U.S., at 124, 71 S.Ct., at 148.

Rules of evidence are designed in the interest of fair trials. But unfairness in result is no sure measure of unconstitutionality. When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions. Of course, if knowing use of its perjured character were linked with any testimony (Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), we would have a problem of different dimensions. But nothing of the kind is involved here.

Augenblick's claim of constitutional defect in his court-martial concerns a phase in the discovery of evidence. He and a young airman, Hodges, were apprehended late at night in a parked car. The civilian police who arrested them turned them over to the Armed Forces Police who questioned them separately at a naval station in Washington, D.C. Hodges was then taken to an Air Force base in Maryland where he swore to a five-page written statement.

Augenblick was questioned at the naval station after Hodges. During this questioning of both men, Agent James made a tape recording of the conversations. Agent Mendelson either took some notes or wrote up some notes later.

Hodges apparently started out by denying that anything happened in the parked car and later maintained that sodomy had taken place, though, as we have said, Augenblick's conviction was for an indecent act, not for sodomy. Hodges later received an honorable discharge; and it was the theory of the defense that he may have been induced to change his testimony on a promise that one would be given. It is indeed heavily impressed on us that Hodges was kept available for some months and left in good standing, in spite of his reprehensible conduct, and given an honorable discharge only after Augenblick was convicted.

The defense moved for the production of the notes which Mendelson had taken—or later typed up—and of the tape which James had made. As to the notes, the law officer, without examining them in camera or otherwise, denied the request. As to the tapes, the law officer ordered that they be produced or that the Government produce witnesses at an out-of-court hearing who could explain their nonexistence. The tapes were not produced; but each agent who had had contact with the recording was called, except Mendelson who was in Norfolk. James testified that there was a tape but no one knew where it was or what had happened to it. The defense urged that Mendelson, to whom the tapes had apparently once been delivered, be called; but the law officer after reading the record of Mendelson's testimony on the tape recording at a pretrial investigation, refused.

The question of the production of Mendelson's 'notes' as well as the question of the production of the tapes bring into focus the Jencks Act, 18 U.S.C. § 3500. This Act, enacted after our decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, provides that when a witness testifies for the United States the Government may be required to produce 'any statement' of the witness which relates to his testimony. § 3500(b). The term 'statement' is defined in subsection (e) as:

'(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or

'(2...