United States v. Lee, Crim. No. 9019.

• Decision Date: 20 March 1964
• Docket Number: Crim. No. 9019.
• Parties: UNITED STATES of America, Plaintiff, v. Lester Clifford LEE, Defendant.
• Court: U.S. District Court — District of South Dakota

227 F. Supp. 450

UNITED STATES of America, Plaintiff, v. Lester Clifford LEE, Defendant.

Crim. No. 9019.

United States District Court D. North Dakota, Southeastern Division.

March 20, 1964.

Richard V. Boulger, Asst. U. S. Atty., Fargo, N. D., for plaintiff.

Lyle Huseby, Fargo, N. D., for defendant.

RONALD N. DAVIES, District Judge.

The above-entitled Defendant has filed a motion to dismiss the indictment charging that he, being a person convicted of a crime punishable by imprisonment for a term exceeding one year, transported in interstate commerce a firearm in violation of Title 15 U.S.C. § 902.

The grounds upon which the Defendant has based his motion are: (1) That it does not state facts sufficient to constitute an offense against the United States, (2) That a court-martial conviction of carnal knowledge and sodomy is neither a conviction of a crime of violence nor a conviction of a crime punishable by imprisonment for a term of one year, and (3) That Subsection (e) of § 902 of Title 15 is, as applied to the facts of this indictment, unconstitutional as an ex post facto law.

Grounds (1) and (3) may be disposed of without difficulty. The test as to the sufficiency of the indictment is whether it can reasonably be said to have informed the Defendant of the charge against him so that he may prepare his defense thereto and plead the judgment thereon as a bar to any further proceedings against him for the same offense. The indictment in this case meets the test. Portnoy v. United States, (1 Cir.), 316 F.2d 486. Nor is the provision of the Section referred to, making it an offense to transport a firearm in interstate commerce by one who has been convicted of a crime punishable by imprisonment for a term exceeding one year, an ex post facto law. Smith v. United States, (10 Cir.), 312 F.2d 119.

It is the second ground for dismissal that causes this Court concern. To state the matter succinctly: Is a court-martial "conviction" a conviction of a crime within the meaning of § 902(e) of the statute? Neither counsel for the Defendant nor the Government has cited any authority directly in point. It is the Defendant's contention that "conviction" as used in this Section relates only to convictions in a state or Federal court as distinguished from a military court. That a distinction exists there can be little doubt, the difference being graphically stated by Mr. Justice Black, speaking for the United States Supreme Court, in Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8:

"We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in

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