United States v. McElroy

• Decision Date: 12 September 1958
• Docket Number: No. 14304.,14304.
• Citation: 259 F.2d 927
• Parties: UNITED STATES of America ex rel. Dominic Guagliardo, Appellant, v. Neil H. McELROY, Secretary of Defense, Department of Defense, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

259 F.2d 927 (1958)

UNITED STATES of America ex rel. Dominic Guagliardo, Appellant, v. Neil H. McELROY, Secretary of Defense, Department of Defense, et al., Appellees.

No. 14304.

United States Court of Appeals District of Columbia Circuit.

Argued March 3, 1958.

Decided September 12, 1958.

Mr. Michael A. Schuchat, Washington, D. C., for appellant.

Mr. John W. Kern, III, Assistant U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief for appellee.

Before EDGERTON, Chief Judge, and FAHY and BURGER, Circuit Judges.

FAHY, Circuit Judge.

Appellant was a civil service employee of the Department of the Air Force of the United States, employed as an electrical lineman at the Nouasseur Air Depot near Casablanca, Morocco. His duties were to maintain and repair airfield lighting and to inspect and repair electrical conduits, transformers, lights, controls, ducts, and manholes. He lived with his wife off the Depot, in nearby Casablanca. He was entitled to quarters allowance, mail, Commissary and Base Exchange privileges, a United States Air Force ration card, membership in the Air Force Officers Club, and medical and dental care at the Depot.

On July 18, 1957, he and two enlisted men¹ were charged with stealing certain leatherette goods and fabric material at the Depot, in violation of Art. 121, Uniform Code of Military Justice, 10 U.S.C. § 921 (Supp. V, 1958), and with conspiring to commit larceny, in violation of Art. 81, U.C.M.J., 10 U.S.C. § 881 (Supp. V, 1958). They were tried by a general court-martial and found guilty. Appellant was sentenced to pay a fine of $1,000 and to be confined at hard labor for three years.

In due course the case reached the Board of Review in the Office of the Judge Advocate General, pursuant to Art. 66 U.C.M.J., 10 U.S.C. § 866 (Supp. V, 1958). Appellant then petitioned the United States District Court for the District of Columbia for a writ of habeas corpus. He contended that the military authorities lacked jurisdiction to try him and that accordingly his confinement under the court-martial sentence was unlawful. Relief was denied by the District Court, opinion reported at 158 F.Supp. 171, followed by this appeal.²

Appellees³ contend that the jurisdictional question is prematurely raised because appellant has not exhausted the judicial processes available to him under the Uniform Code of Military Justice. They rely upon Gusik v. Schilder, 340 U. S. 128, 71 S.Ct. 149, 95 L.Ed. 146. But that case we think is in apposite, for there court-martial jurisdiction over the accused unquestionably existed since he was a member of the United States Army. He sought to attack collaterally a court-martial judgment because of alleged errors in the court-martial proceedings, without exhausting the administrative remedies available for their correction. Here, in contrast, the question is whether appellant is subject to court-martial jurisdiction at all. Habeas corpus proceedings were used to determine such a question in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, and United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed.8.⁴ The point was not discussed, but in view of Gusik v. Schilder, supra, could not have been overlooked by the Supreme Court, especially as the Court in Reid v. Covert specifically noted that the petition was brought "while Mrs. Covert was being held * * * pending a proposed retrial by court-martial * * *." 354 U.S. at page 4, 77 S.Ct. at page 1224, 1 L.Ed.2d 1148. If appellees have no court-martial jurisdiction whatever over appellant the Great Writ is available to release him from their custody.

Appellees defend their jurisdiction solely by reason of Art. 2, U.C.M.J., 10 U.S.C. § 802 (Supp. V, 1958). This provision in terms does extend court-martial jurisdiction to appellant for the offense charged. The provision reads:

"The following persons are subject to this chapter The Uniform Code of Military Justice:

* * * * * *

"(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States * * *."

Appellant's contention is that this provision is unconstitutional as applied to him, a civilian employee, in time of peace.

The question thus raised must be decided in light of the decision of the Supreme Court in Reid v. Covert, supra. The Court there held that in a capital case the wife of a member of the armed forces, who accompanied her husband abroad and there killed him, could not be tried by court-martial — that Art. 2 subparagraph (11), supra, was unconstitutional as so applied. The basis for the decision was that the wife was entitled to a jury trial as provided by Art. III, § 2 of the Constitution and to the safeguards of the Fifth and Sixth Amendments.

Article III, § 2 of the Constitution provides that the trial of all crimes excepting cases of impeachment shall be by jury. The pertinent Fifth Amendment provision is that no person shall be held to answer for a capital or otherwise infamous crime unless upon presentment or indictment of a grand jury except in cases arising in the land or naval forces. The pertinent Sixth Amendment provision is that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed. None of these provisions was complied with in Reid v. Covert. And none was complied with in the present case.

Appellees point, however, as was done in Reid v. Covert, to Art. I, § 8, cl. 14, of the Constitution, which empowers Congress "to make Rules for the Government and Regulation of the land and naval Forces." It is urged that this provision, together with the Necessary and Proper Clause of the Constitution, Art. I, § 8, cl. 18, has enabled Congress to establish the court-martial jurisdiction specified in subparagraph (11) of Art. 2, U.C.M.J., supra, by carving out exceptions to the application of Art. III, § 2 of the Constitution and of the Fifth and Sixth Amendments. Clearly the Constitution does authorize such an exception for members of "the land and naval Forces." But in Reid v. Covert the Chief Justice and Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan, in the opinion written by Mr. Justice Black, would not permit an exception related to the "land and naval Forces" to include civilians unless in rare and unusual circumstances; and Mr. Justice Frankfurter and Mr. Justice Harlan would not permit such an exception to include a civilian wife charged with a capital offense, though accompanying her service husband with the forces outside the United States.

The same considerations, set forth elaborately in the opinions, which thus brought agreement among a majority of the Supreme Court as to the wife in Reid v. Covert, would not permit a civilian employee in the situation of appellant to be tried by the United States by court-martial on a capital charge. He would be entitled to a civilian trial by jury. We can think of no constitutional basis for approving the court-martial of such an employee for a capital offense which would not apply equally to Mrs. Covert. Of course the case before us is not a capital one, but if Mrs. Covert or an employee such as appellant could not be tried by court-martial on a capital charge, notwithstanding the provision of the Military Code purporting to authorize such a trial, the existing congressional plan for extending court-martial jurisdiction to persons accompanying or employed by the armed forces outside the United States exceeds constitutional bounds. Congress did not exclude capital cases. The statute embraces without exception persons "employed by" the forces outside the United States and thus would deprive all civilians in that category of the right to trial by jury for any offense defined in the Military Code, capital or noncapital, and regardless of the nature of the offense or of the relation of the offense or of the employment to the security, discipline, or effectiveness of the forces. The scope of Art. III, § 2 of the Constitution and of the Fifth and Sixth Amendments, as expounded in Reid v. Covert, prevents such a curtailment of trial by jury and concommitant extension of court-martial jurisdiction over civilians in time of peace.

This is not to say that legislation bringing some civilian employees within court-martial jurisdiction for some offenses would necessarily be unconstitutional. Cf. Reid v. Covert, 354 U.S. at pages 22-23, 77 S.Ct. 1222, 1 L.Ed.2d 1148. It is reasonable to assume that the fullness of the Necessary and Proper Clause, considered with the authority of Congress "to make Rules for the Government and Regulation of the land and naval Forces," and considered also with the present and potential responsibilities of the United States throughout the world, has not been exhausted. But Reid v. Covert plainly shows that these sources of legislative power do not sustain the all-inclusive extension of military jurisdiction over civilian employees attempted by subparagraph (11) of Art. 2 of the Military Code.

Since the intended broad sweep of subparagraph (11) is unconstitutional the question arises whether the courts should rewrite the provision along narrower lines and decide the question of its validity as applied to this particular employee for this particular offense. There are numerous instances in which the Supreme Court has held that such judicial reframing of legislation should not be attempted. Butts v. Merchants & Miners Transp. Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422; Howard v. Illinois Central R. Co., (Employers' Liability Cases) 207 U.S. 463, 496-504, 28 S.Ct. 141, 52 L.Ed. 297; Illinois Cent. R. v. McKendree, 203 U.S. 514, 515, 528-530, 27 S.Ct. 153, 51 L.Ed. 298; United States v. Ju Toy, 198...