United States v. Augenblick United States v. Juhl, No. 45

CourtUnited States Supreme Court
Writing for the CourtDOUGLAS
Citation21 L.Ed.2d 537,89 S.Ct. 528,393 U.S. 348
Docket NumberNo. 45
Decision Date14 January 1969
PartiesUNITED STATES, Petitioner, v. Richard G. AUGENBLICK. UNITED STATES, Petitioner, v. Kenneth N. JUHL

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

Page 349

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

Page 350

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-

Page 351

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

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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.

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Of course, if knowing use of its...

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441 practice notes
  • Harris v. United States, No. 09-421C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 21, 2011
    ...as reviewed and approved, are binding on all courts. Nevertheless, the United States Supreme Court, in United States v. Augenblick, 393 U.S. 348 (1969), addressed a constitutional challenge in which former service members sought backpay after their court-martial convictions. See id. at 348-......
  • 44 274 Ellis v. Dyson 8212 130, No. 73
    • United States
    • United States Supreme Court
    • May 19, 1975
    ...the same practice. Secretary of the Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974); United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). The Court of Appeals confirmed the District Court's understanding of the law when it affirmed by order, 47......
  • National Wildlife Federation v. U.S., No. 78-1976
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 1980
    ...See Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78, 94 S.Ct. 3039, 3040, 41 L.Ed.2d 1033 (1974); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969); Association of Nat'l Advertisers, Inc. v. FTC, 201 U.S.App.D.C. --- at --- & n.20, 627 F.2d 11......
  • U.S. v. Williams, Nos. 78-1695
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 22, 1979
    ...The notes in the present case were the rough, investigative notes prepared by the officer himself. See United States v. Augenblick, 393 U.S. 348, 354-55, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); United States v. Comulada, 340 F.2d 449, 451 (2d Cir.), Cert. denied, 380 U.S. 978, 85 S.Ct. 1343, 1......
  • Request a trial to view additional results
439 cases
  • Harris v. United States, No. 09-421C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 21, 2011
    ...as reviewed and approved, are binding on all courts. Nevertheless, the United States Supreme Court, in United States v. Augenblick, 393 U.S. 348 (1969), addressed a constitutional challenge in which former service members sought backpay after their court-martial convictions. See id. at 348-......
  • 44 274 Ellis v. Dyson 8212 130, No. 73
    • United States
    • United States Supreme Court
    • May 19, 1975
    ...the same practice. Secretary of the Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974); United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). The Court of Appeals confirmed the District Court's understanding of the law when it affirmed by order, 47......
  • National Wildlife Federation v. U.S., No. 78-1976
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 1980
    ...See Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78, 94 S.Ct. 3039, 3040, 41 L.Ed.2d 1033 (1974); United States v. Augenblick, 393 U.S. 348, 351-52, 89 S.Ct. 528, 531, 21 L.Ed.2d 537 (1969); Association of Nat'l Advertisers, Inc. v. FTC, 201 U.S.App.D.C. --- at --- & n.20, 627 F.2d 11......
  • U.S. v. Williams, Nos. 78-1695
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 22, 1979
    ...The notes in the present case were the rough, investigative notes prepared by the officer himself. See United States v. Augenblick, 393 U.S. 348, 354-55, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); United States v. Comulada, 340 F.2d 449, 451 (2d Cir.), Cert. denied, 380 U.S. 978, 85 S.Ct. 1343, 1......
  • Request a trial to view additional results

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