United States v. Shibley

• Decision Date: 11 May 1953
• Docket Number: No. 22672-CD.,22672-CD.
• Citation: 112 F. Supp. 734
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. SHIBLEY.

112 F. Supp. 734

UNITED STATES v. SHIBLEY.

No. 22672-CD.

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

May 11, 1953.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter S. Binns, U. S. Atty., by Max F. Deutz, Asst. U. S. Atty., Los Angeles, Cal., for the plaintiff.

Kenny & Morris and Daniel G. Marshall, Los Angeles, Cal., for the defendant.

YANKWICH, Chief Judge.

The defendant, George E. Shibley, an attorney, is charged in an information filed on January 28, 1953, with nine counts of violation of article 47 of the Uniform Code of Military Justice, which declares refusal to appear or testify before certain military tribunals an offense against the United States.¹ Its pertinent parts are given in the margin.²

Provision is also made for the trial of such offenses, on information, in a United States District Court, or in a Court of original criminal jurisdiction, in any of the territorial possessions of the United States, and jurisdiction is conferred on such courts for the purpose.³ It is made the duty of the United States District Attorney or the officer prosecuting for the Government in any court of original criminal jurisdiction, upon the certification of the facts to him by the military tribunal, to file an information against such person, and to prosecute him for violation of the article.⁴

I The Information and the Facts Behind It

Of the nine counts, Count three charges refusal to appear on December 8, 1952, before a Court of Inquiry which ordered him to do so on December 4th, 5th and 6th. Of the other counts, one count, Count nine, charges refusal to answer any and all questions which might be addressed to him on December 10, 1952. The other seven counts charge refusal to answer specific questions. The questions which the defendant refused to answer as they are set forth in the information, and the dates on which the refusals occurred are:

"Count 1: (December 4, 1952)

"`Q. Mister Shibley, did you receive authorization or permission on behalf of your client to write the entire letter of August 26, 1952?'

"Count 2: (December 6, 1952)

"`Q. Yesterday, I inquired from you with reference to your statement that you could not attend the hearing of 18 August because you were on a business trip to San Francisco. At that time you told us that you would check last evening and inform us this morning if such were the case. I now ask you that question, were you on a business trip to San Francisco on 18 August 1952?'

"Count 4: (December 9, 1952)

"`Q. Mr. Shibley, you state on page 18 of your letter after the numeral 6, and I quote, "That you forthwith take effective means and measures to investigate the violations of the Uniform Code of Military Justice and the Manual for Courts-Martial at the El Toro Marine Corps Air Base, and also investigate the non-service income and activities of the named officers and each of them." Do you know of your own knowledge that any officer referred to is receiving non-service income?'

"Count 5: (December 9, 1952)

"`Q. Mr. Shibley, referring to your letter to the Commandant of the Marine Corps, and on page 18 thereof, the following statement is contained, and I quote: "I further respectfully demand that this letter not be referred to Colonel Bigler since I am informed and believe that he has already discussed this matter a great length with General Megee and with others of the officers named, and that he has already prejudged the case, and that several of the unlawful acts committed by the named officers have been attributed by him to the advice of Colonel Bigler." My question is, which of the named officers attributed his commission of an unlawful act to the advice of Colonel Bigler?'

"Count 6: (December 9, 1952)

"`Q. Mr. Shibley, I refer you to page two of your letter to the Commandant wherein you state, and I quote, "Lieutenant Colonel Endweiss has made it known that he believes his promotion to full Colonelcy depends on the conviction of Lieutenant Adams." My question is, did he make it known to you?'

"Count 7: (December 9, 1952)

"`Q. Mr. Shibley, I again refer you to page two of your letter to the Commandant wherein you state, "Lieutenant Colonel Endweiss has made it known that he believes that his promotion to full colonelcy depends on the conviction of Lieutenant Adams," and I ask you if you overheard Colonel Endweiss make such a statement or do you know of anybody who heard him make such a statement?'

"Count 8: (December 10, 1952)

"`Q. Do you recall whether or not on 2nd, 3rd, 4th, and 5th day of September you appeared in the Long Beach court as attorney for MacCagnon?'"

As to each of the counts charging refusal to answer a specific question or all questions, the information alleges (a) that the defendant was subpoenaed to appear as a witness before a Court of Inquiry convened by the Commanding General, Aircraft, Fleet Marine Force, Pacific, appointed by letter, serial 29612, dated November 25, 1952, in the United States Marine Corps Air Station, El Toro (Santa Ana), California; (b) that he was duly paid or tendered the fees at the rates allowed to witnesses attending the Courts of the United States; and (c) that he appeared, was sworn and asked a particular question, and, on being ordered by the Court to answer, (d) unlawfully refused to answer a particular question or all questions.

As to Count three, it is alleged that he was subpoenaed to appear, and, after appearing on the 4th, 5th and 6th of December, 1952, and being ordered to return on December 8, 1952, to testify further, he "willfully" neglected and refused to appear.

In response to a request for a bill of particulars, the Government tendered into court a transcript of the proceedings before the Court of Inquiry on the dates on which the defendant appeared, and certain documents attached thereto. They disclose the background of the present proceeding.

The defendant represented before a court-martial Master Sergeant John Russell Bennette of the United States Marine Corps, who, on August 4, 1952, was sentenced to certain punishment for infringement of military law and regulations.

In conjunction with the appeal to the Commandant of the United States Marine Corps, the defendant attacked the regularity of the proceedings, and made certain charges of misconduct against certain officers of the Marine Corps stationed at El Toro.

A communication from the Commandant of the Marine Corps to the local Commanding General, dated October 29, 1952, stated that a full report as to the "enclosures to references" was necessary, in order that "appropriate replies" be made.

It was urged that "the trial of Master Sergeant Bennette and the review thereof be expedited". "Full report" was asked "covering the matter", upon completion of action.

A court of inquiry need not be authorized in a specific manner. The full report asked concerned not only the trial of the Master Sergeant, but also the charges against the officers made in his appeal. These were referred to as "enclosures to references".

Such report could not be made without convening a court of inquiry. So the local Commanding General, in obedience to the communication of October 29, 1952, convened a court of inquiry to consist of certain high ranking officers of the Marine Corps other than himself. Counsel and assistant counsel for the court were designated.

The Court was directed to notify Lieutenant Colonel Charles E. Endweiss, United States Marine Corps, the Commanding Officer, Service Squadron, Aircraft, Fleet Marine Force, Pacific, as a party to the inquiry. The proceedings were ordered to be in closed session.

On November 25, 1952, a subpoena for the appearance of the defendant as a civilian witness on the 4th day of December, 1952, was served on him. He appeared on that day, and on the 5th and 6th of December, 1952, when he was directed to appear on the 8th of December, 1952. He, not having appeared on that day, a Warrant of Attachment was issued on December 9, 1952, and served on him. He was then taken before the court on that day. He was also before the court on December 10. 1952, but refused to answer first a specific question and then any and all questions. There is also in evidence a certificate dated December 9, 1952, showing the tender of one day's witness fee, and a later voucher for additional fees in the sum of $16.95 duly tendered.

The defendant has filed a motion to dismiss the complaint as amended by the facts disclosed in the Bill of Particulars. The Motion goes into great detail in attacking the validity of the information. The chief contention is that the complaint fails to show the jurisdiction of the Court of Inquiry. The particular grounds of challenge will be referred to more specifically in the discussion to follow.

II Confidential Communications

We may dispose briefly of the contention stressed at the oral argument that the matters as to which the questions were asked called for the disclosure of confidential communications between the attorney and client, in violation of the California Code and the accepted Code of Ethics of the Bar.⁵ The object of the privilege is to protect the client against disclosure of confidential matters. In order to achieve this result, it is necessary that the communication be, as Wigmore puts it,

"made with the intention of confidentiality."⁶

An oft-quoted statement of Lord Eldon, when Lord Chancellor, expresses the reverse of the situation:

"The moment confidence ceases, privilege ceases."⁷

And the Courts of California have held repeatedly that the privilege does not extend to matters communicated to the attorney with the intention that he communicate them to others.⁸ This rule applies not only to communications which are made with such intent, but also to those which the attorney, in discharge of his duty to his client, finds it necessary to disclose.⁹

The defendant in this case, in the course of his representation of his client, sent to the...