United States v. Barnes, Cr. No. 27444.

• Decision Date: 16 July 1959
• Docket Number: Cr. No. 27444.
• Citation: 175 F. Supp. 60
• Parties: UNITED STATES of America, Plaintiff, v. William D. BARNES, Clarence E. Coons, John Lee, and Richard Spasoff, Defendants.
• Court: U.S. District Court — Southern District of California

175 F. Supp. 60

UNITED STATES of America, Plaintiff, v. William D. BARNES, Clarence E. Coons, John Lee, and Richard Spasoff, Defendants.

Cr. No. 27444.

United States District Court S. D. California, Central Division.

July 16, 1959.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Asst. U. S. Atty., Criminal Div., and Bruce A. Bevan, Jr., Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Hannon & Hannon, by Robert E. Hannon, Castro Valley, Cal., for defendants.

HALL, District Judge.

On March 4, 1959, an Indictment was returned in this District charging that on or about June 10, 1949, within this District and Division, and in a place under the exclusive jurisdiction of the United States known as Branch United States Disciplinary Barracks, Camp Cooke, California, defendants murdered one Charlie W. Taylor, Jr.

The defendants have filed a Motion to dismiss the Indictment.

While the Motion to dismiss is based on five separately-stated grounds, all of them turn upon the charge that the defendants, and each of them, have been denied a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States in that, through no fault of the defendants, ten years have elapsed since the date of the commission of the offense and the date of the Indictment.

The Motion to dismiss was a speaking motion in that at the hearing, all of the records of the court-martial proceedings of these defendants, which resulted in their conviction, were introduced in evidence.

Before proceeding with a discussion and decision of the points of law raised, it is necessary to briefly give a review of undisputed facts.

On June 10, 1949, Charlie W. Taylor, Jr., then confined as a Military prisoner at Camp Cooke, met his death as a result of force and violence. The four defendants named herein were likewise Military prisoners at the same Camp, and were on August 12, 1949, charged with the murder of Taylor before a Military court-martial, tried, convicted, and given the death penalty which was later commuted.

Thereafter, John Lee, one of the defendants, filed a Petition for Writ of Habeas Corpus, which was ordered granted by the Supreme Court on January 12, 1959 Lee v. Madigan, 358 U.S. 228, 79 S.Ct. 276, 3 L.Ed.2d 260 on the ground that the Military had no jurisdiction under Section 92¹ of the Articles of War (10 U.S.C. § 1564^*) in force in 1949, in that the offense charged was committed "in time of peace."

The formal charge in the court-martial proceeding was filed on August 12, 1949. Preceding that, however, the records reflect that on June 23, 1949, one Robert T. Frederick, Major General, U. S. Army Commanding, Headquarters Fort Ord, California, in a communication to The Adjutant General, Department of the Army, Washington, D. C., reported the incident, and recommended:

"5. The facts set forth in Paragraph 2, supra, and the inclosures attached hereto, compel the conclusion that those responsible for the death of General Prisoner Charlie W. Taylor, Jr., should be tried for murder.

"6. Since Article of War 92 prohibits the trial of individuals concerned for the crime of murder by General Court-Martial, it is recommended that action be taken to effect the transfer of the transfer of jurisdiction to the proper federal authorities." (Emphasis supplied.)

copy of which was sent to the Commandant at Camp Cooke under date of June 24, 1949.

On June 24, 1949, A. A. Watson, Lt. Col. AGD, Asst. Adj. Gen., in a communication to the Adjutant General, Department of the Army, Washington, D. C., stated: "Concur in conclusions and recommendations set forth in Paragraphs 5 and 6 of basic communication."

On July 6, 1949, in a communication from Headquarters of the Sixth Army, San Francisco, through the Commanding General at Fort Ord, to the Commandant, Camp Cooke, E. A. Thornton, Dept., AGD, Asst. Adj. Gen., it was stated in Paragraph 2, as follows:

"2. The original of the attached report should be retained by the Commandant, Camp Cooke, for use by the civil authorities charged with the prosecution of the general prisoners committing the assault on G. P. Taylor, deceased." (Emphasis supplied.)

On July 14, 1949, a letter to The Judge Advocate General, Department of the Army, Washington, D. C., from Preston B. Mayson, Lt. Col. AGD, Asst. Adj. Gen., for the Commanding General, stated partially as follows:

"3. It is apparent that the matter of jurisdiction over criminal offenses committed on Camp Cooke Military Reservation, which are not punishable under the Articles of War, should be determined prior to the filing of charges in the murder case under consideration. While the question of jurisdiction is a matter to be affirmatively raised by the defense, nevertheless, the question should be settled prior to any criminal proceedings. * * *

"4. In the event it is determined that Federal jurisdiction exists in the instant murder case, and no action has been taken to institute criminal proceedings, it is the proposal of this headquarters that one of the eyewitnesses to the murder be taken before the appropriate U. S. Commissioner for the purpose of swearing out a complaint, in order to compel the institution of criminal proceedings. A period of over thirty days has passed since the commission of the crime, and delay has become serious. Expeditious action is therefore requested." (Emphasis supplied.)

On July 25, 1949, E. A. Everitt, Colonel, Cavalry, Commandant, sent the following message to the Commanding General, Fort Ord, California:

"For your information, two Federal Bureau of Investigation Agents, Mr. A. Rose and Mr. John J. Canny, were here investigating subject case during the period 21 to 23 July 1949. Results their investigation is unknown."

On August 9, 1949, W. Landry, 1st Lt. AGD, Asst. Adjutant, Camp Cooke, advised the Commanding General at Fort Ord that:

"1. At the request of Mr. Norman W. Neukom, U. S. Attorney, Sgt 1/Cl. Oran A. Parker, RA 32022415, of this Organization, was placed on Temporary Duty to Los Angeles, California, for the purpose of appearing as a witness in the Grand Jury indictment involving the homicide of General Prisoner Charlie W. Taylor, Jr. ASN 34532295, R/N 2295."

In the meanwhile, August 3, 1949, W. P. Connally, Jr., Colonel, JASC, Assistant Judge Advocate General, advised the Commanding General, Sixth Army, Presidio of San Francisco, California, that: "The Secretary of the Army, pursuant to the provisions of the War Department letter, * * * authorized the trial of General Prisoners (Barnes, Coons, Lee and Spasoff) by general court-martial for murder of General Prisoner Charlie W. Taylor, Jr."

At the time of the hearing on the Motion to dismiss, it was stipulated by the United States Attorney that in June, 1949, the United States Attorney's Office of the Southern District of California, prepared an Indictment charging these four defendants jointly with first degree murder of Charlie W. Taylor, Jr. It is also clear that the matter was investigated by the Federal Bureau of Investigation, a civil authority, and that an Assistant United States Attorney had either partially presented the matter to the Grand Jury, or was preparing to do so.

It is quite evident from the above-quoted correspondence in the Military files that two Federal Bureau of Investigation Agents, on July 21 and July 23, 1949, were at the Base investigating the murder, and that as late as August 9, 1949, (after the authorization for Military court-martial on August 3, 1949) Sgt. Oren A. Parker of Camp Cooke was placed on temporary duty in Los Angeles at the request of the United States Attorney at Los Angeles for the purpose of appearing as a witness in a Grand Jury investigation concerning the murder of Charlie W. Taylor.

It is also clear that no indictment was returned by the Federal Grand Jury for the Southern District of California empaneled in 1949, and that none was returned against the defendants until March 4, 1959, in the instant case.

The record of the Military file of the court-martial also shows that at the commencement of the trial before the court-martial, counsel for defendants raised the question as to the jurisdiction to proceed against the defendants by court-martial under Article of War, Section 92, in that it was claimed that the offense was committed "in time of peace." This contention was ultimately upheld by the Supreme Court in Lee v. Madigan, supra.

The essence of defendants' contention is that the delay in bringing them to trial on the Indictment of March 4, 1959, was occasioned by the "deliberate choice" on the part of the government.

The principal authority relied upon by defendants is United States v. Provoo, D.C., 17 F.R.D. 183, where Judge Thomsen wrote an extended opinion exhausting the authorities,...