Petition for Writ of Certiorari — Denton v. Seamans
Supreme Court brief1974
Ask Donna
What actually matters in this document.
Text
LIBRARY FILED
SUPREME COURT, U. 8. OCT 1) 1973
MICHAEL RCDAK, JR.,CLERK
In the Supreme Court ie ;
OF THE
Anited States
a
SFR PEO:
RN
OcTOBER TERM, 1973
No. 73-63 ¢ (
JERE L.. Denton, Petitioner,
vs.
Rosert C. SEaMans, Secretary of the Air Foree,
Pentagon, Washington, D. C.
PETITION FOR WRIT OF CERTIORARI
to the United States Court of Appeals
for the Ninth Circuit
LAWRENCE H. STorrer,
STERN, STOTTER, ROSENBERG & O'BRIEN,
690 Market Street, Suite 1000,
San Francisco, California 94104,
Attorneys for Petitioner.
PIORNAU- WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO - CA 94105
LERNER NE AIS
a ae a
dele eT ee ee a
Subject Index
Page
Citation to opinions below .............. 00. ces ccceececen, 1
NN S50 nie eoek va et ebedvenesesereasadcccre ca: » 8
I Iv sikes di sia ds ade cess 50esaediciseeki. 2
Constitutional and statutory provisions provided .......... 3
1. The Fifth and Sixth Amendments of the United
States Constitution are involved ................... 3
2. Portions of Chapter 860, Title 10, of the United States
SN cg ies, oreo 3
3. Provisions of the 1963 Air Force Regulations 36-2 are
MY rein Cenk Rieke denes erties 3
seip-ocxbopablay ins gC COT TCO TTR CIO Eee 7
I Ti Lis NET n ans k eric ede cides torre ko <,. 12
I. Petitioner was deprived of his rights to fundamental
fairness and to confront and cross-examine an essen-
tial adverse witness, in violation of the Fifth and
Sixth Amendments to the United States Constitution 12
II. Petitioner was denied a fair and impartial hearing
under 10 U.S.C. § 8792(b), and Air Force Regula-
UN EN Giintndeecreeniiceycibaleelcecc.... 15
osestsgee ay cach Eee TOT COTA P ES OR Pe RS eNO 19
Index to Appendix
Page
A. Decision of the United States Court of Appeals for the
SE SES Scan cakicas baddies dekcadneesseaceueade i
B. Decision of the United States District Court for the
Northern District of California ..................000.
Table of Authorities Cited
Cases Pages
Brookhart v. Janis, 384 U.S.1, 86 S.Ct. 1245, 16 L.Ed.2d
a a a as ae oe 14
Greene vy. MeElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d
SOEE SE. Usctcbencacewsweedsschaseuns 13, 14, 15, 16, 17, 18
Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d
Se EE. awvicseneeeha tak cheeses acne dh caessennuiee. 14
Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d
Se COED divine tesdeevuuseuwcicehadeseceava 15, 16, 17, 18
Williams y. Zuckert, 372 U.S. 765, 83 S.Ct. 1102, 10 L.Ed.
2d 136 (1963), on rehearing from 371 U.S. 531, 83 S.Ct.
ey O SAME GD COPIED bin on-ddcacevccrcvecectacccs 18
Constitutions
United States Constitution :
es ec usew ce eG henua 2, 3, 12, 15
Se SU ee ee ate ce eee 2, 3, 12, 15
Regulations
Air Force Regulations 36-2 .........cccccccccccecs 3, 7, 9, 15, 17
PED cv iwhads neon eneeekawdvabeuseaeuees coos 4
PE SEUS Con vc crekaseewdreshceLadeweeeiaers 4,17
PU THRO Sb-n kd da ces se ciesacbéeseavebedsecen 4,17
IIS Sc Cea baa ie eg fe od es oe 4,17
PO UE cae ubGackdedeencd bekse¥ dais kuwduewes 5
PRE IND Fncdcucucwendvaedexeietevevaceureas 5
Ne a art eee 6
Pua Te hs hs ca cada h hs kesoe0ssdeukese 6
Statutes
10 U.S.C.:
SUED oN odes Cea ccakeranewaqeaa tubal. 3
A EE 754 oa db a dooce saab avcisesabkactioule, 11
Se SE occ vaGacccceecusTewbascciii vain 3,15
MOGUIMES TOE whic be ei aete eee Pinion tele 3
MOU RED Ue fo'0cad od pbakeesdiserenunciesas 3, 15,17
28 U.S.C.:
Bt re Parr ee nr Py Tey re 2
a a a : ER ON RIOR
In the Supreme Court
OF THE
United States
OcToBER TERM, 1973
No.
JERE L, Denton, Petitioner,
vs.
Robert C, Seamans, Secretary of the Air Force,
Pentagon, Washington, D. ©.
PETITION FOR WRIT OF CERTIORARI
to the United States Court of Appeals
for the Ninth Circuit
Petitioner prays that this court issue a Writ of
Certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit entered
on June 8, 1973.
CITATION TO OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Ninth Circuit is attached hereto as Appendix
A. The opinion of the United States District Court
for the Northern District of California is reported at
315 F.Supp. 279 (1970) and is attached hereto as
Appendix Lb,
ta We lhitnns!¢ Kane
2
JURISDICTION
The judgment of the United States Court of Ap-
peals was entered on June 8, 1973, and an Order by
that court denying a rehearing was filed on July 16,
1973.
Jurisdiction of this court is invoked under 28
U.S.C. § 1254(1).
QUESTIONS PRESENTED
I. Whether Petitioner was deprived of his rights
to due process and to confront adverse witnesses
under the Fifth and Sixth Amendments of the United
States Constitution by Respondent’s failure to pro-
duce an essential adverse witness and denial, without
reason, of Petitioner’s alternative request to take that
witness’ deposition prior to the Air Force Board of
Inquiry proceeding.
II. Whether Petitioner was deprived of a fair
and impartial hearing before a Board of Inquiry,
under applicable federal statutes and Air Force regu-
lations, by Respondent’s failure to produce an essen-
tial adverse witness and denial without reason of
Petitioner’s prior request to depose that witness,
III. Whether the decision of the U.S. District
Court granting Summary Judgment can be proce-
durally sustained by the Opinion of the Court of
Appeals which either expressly or by implication
disavows and/or refutes the grounds for the decision
expressed by the District Court, and instead affirms
on what it believes the Air Force Board of Inquiry
would have done if petitioner had been granted all of
‘ - ~ : =~ Se a ee. ta =
hewitt CGI EE NEN PE os -
OWEN LIL OYE EAE A 5 PORE IE NY CP NAR ARIE DATE GLO MEN IE AOD versed
PO SE TNR Ee? . ¢
3
procedural and substantive rights which they admit
were denied him,
CONSTITUTIONAL AND STATUTORY
PROVISIONS PROVIDED
1. The Fifth and Sixth Amendments of the United
States Constitution are involved in this case.
2. The following portions of Chapter 860, Title
10, of the United States Code are also involved :'
Ҥ8791. Selection boards: composition; duties.
“The Secretary of the Air Force may at any
time convene a board of general officers to review
the record of any commissioned officer on the
active list of the Regular Air Force to determine
whether he shall be required, because of moral
dereliction, professional dereliction, or because
his retention is not clearly consistent with the
interests of national security to show cause for
his retention on the active list.
**§8792. Boards of inquiry: composition, du-
ties.
* se * * *
‘*(b) <A fair and impartial hearing before a
board of inquiry shall be given to each officer so
required to show cause for retention,”
3. The following provisions of the 1963 Air Force
Regulations 36-2 governing the elimination or release
of officers from active duty by reason of unfitness,
IThe statutory right to a “fair and impartial” hearing is pro-
vided only for regular Air Foree officers; Captain Denton as a
reserve officer is governed by 10 U.S.C. §§1162-63 which have no
such provision. However, AFR 36-2 applies to both regular and
reserve officers and is applicable to Captain Denton, It was promul-
gated pursuant to 10 U.S.C. §§8791, et seq., and reiterates the
guarantee of a “fair and impartial” hearing.
lis |
LEE AE MOET EN AEE RD LLG ARE OMS DAE TD OEP AAT, ITER. OTE AR CT ae «0 CON AE
ipa AS TI Pa E>
4
unacceptable conduct or inefficiency, are also in-
volved :
‘24. Rights of Respondent. An officer whose
ease is referred to a Board of Inquiry for con-
sideration under this regulation has the following
rights:
* * * * *
‘“‘e, Witnesses. He may request the appear-
ance before the Board of Inquiry of any wit-
ness whose testimony he believes to be perti-
nent to his case. He will specify in his request
the type of information the witness can pro-
vide. The Board of Inquiry will invite the
witness to attend if it considers that the wit-
ness is reasonably available and that his testi-
mony can add materially to the case. However,
the respondent will not be reimbursed for ex-
penses in connection with the appearance or
assistance of civilian witnesses or military per-
sonnel] not serving in the active military serv-
ice.
“d. Evidence, He may submit depositions,
sworn or unsworn statements, certificates, affi-
davits, or other stipulations for consideration
by the Board of Inquiry, whether or not he
appears in person before the Board. He may
submit a written brief covering any phase of
his case at any time before the Board of In-
quiry convenes, during its proceedings, or after
conclusion of the hearings as specified in para-
graph 29d(3) (a)2.
* * * * *
“f, Question Witnesses. THe personally or
through his counsel may question any witness
brought before the Board of Inquiry.
5
**26. Conduct and Action of the Board of In-
quiry. The major air commander will furnish
each Board of Inquiry a copy of AFM 36-7,
‘Guidance Manual for Boards of Inquiry,”
which contains specific insructions for the con-
duct and action of the board. He also will furnish
a copy of AFM 36-7 to the respondent. When a
Board of Inquiry is conducted, strict rules of
evidence will not be followed. However, reason-
able bounds of relevancy, competency, and ma-
teriality should be maintained. When the board
meets in closed session, only the voting members
will be present, Advice of the legal adviser may
be sought when necessary, but in that case the
Board will be opened and advice will be obtained
in open session in the presence of the recorder,
respondent, and counsel. However, after the
Board has made a final decision in the ease, it
may request the presence of the legal adviser in
closed session to assist in drafting the findings,
determination, and recommendations of the
Board. In either case, such proceedings will be
made a part of the record.
* * * * *
‘fe, Delay in Convening the Board of In-
quiry. The respondent, within 5 calendar days
after receipt of notice of place and date of
hearing, may request that convening of the
Board of Inquiry be delayed for a_ specific
period of time, normally not more than 15
calendar days. A delay of more than 15 calen-
dar days will not be granted unless denial
would prejudice the rights of the respondent.
Requests will be submitted in writing direct to
the President of the Board of Inquiry, and
must clearly establish that the delay is essential
Stk O52 Ber pH,
SLIEMA ML GRENIER NALS PENNE LION LET NH LNs HEY AIS STEED tee PETS
ORB EE BLA) BRO tole OB TD Oy
6
for the respondent to prepare his case for pre-
sentation to the Board. The President of the
Board may approve the request, and delay con-
vening of the Board of Inquiry not more than
15 calendar days from the date it was origi-
nally scheduled to convene. He will forward
any request for delay of more than 15 calen-
dar days to the major air commander. The
major air commander may approve requests
for delay of not more than 30 calendar days.
If he disapproves a request or if the request
is for a delay of more than 30 calendar days,
the major air commander will forward the
request to HQ, USAF (AFP-MPKA), Wash
25, DC for final decision. Commanders will in-
clude in their forwarding indorsements a ree-
ommendation for approval or disapproval of
the request for delay, giving reasons for such
recommendation.
‘*d. Witnesses. The Board should invite
witnesses to appear if the witnesses are rea-
sonably available and if, in the Board’s opin-
ion, their testimony is essential or will contrib-
ute materially to the case. Article 49, UCMJ
(10 U.S.C, 849), will be used as a general guide
in determining availability of witnesses. The
use of affidavits or depositions to obtain testi-
mony of witnesses who are not reasonably
available is encouraged. Witnesses will be con-
tacted as follows:
* * * * *
(2) Members of the Air Force Serving
in the Active Military Service. The Pres-
ident of the Board of Inquiry will request
the major air commander concerned to make
PHL IE LL PEE LOC PLEIN: EEE HP CSP TORIES
7
the member available as a witness. The
major air commander may deny the request
if he determines that military requirements
do not permit the member to appear before
the Board as a witness. Direct communica-
tion between major air commands is author-
ized when required. Travel of military wit-
nesses will be limited to official military
transportation when practicable. If official
military transportation is not available, com-
mercial means may be used. Funds for re-
imbursement of travel will be provided from
resources available to the major air com-
mander conducting the Board.”
STATEMENT OF THE CASE
Petitioner was a captain and senior pilot in the
Air Force Reserves, stationed in Germany from 1961
to 1965. He had been on active duty since 1953.
On February 13, 1964, the Air Force initiated pro-
ceedings for his discharge according to Air Force
Regulations 36-2, governing discharges for unaccept-
able conduct. There were five charges :*
Statement of Reasons
1. Captain Jere L, Denton, AOQ2227733, has
conducted himself in a manner incompatible with
exemplary standards of personal conduct, char-
2Captain Denton has repeatedly asserted that these charges were
initially prepared and submitted through channels by his immedi-
ate commanding officer, Lt. Col. James M. Wyse, and that accord-
ingly Lt. Col. Wyse was in fact both the only accusatory witness,
and the principal evidentiary witness, although he was never
present at any stage of the proceedings of the Board of Inquiry.
oS Pas Sa ea |
WPA PEEPLES e te ak a AWE eee CEE rR aR
MERION nest Sidi Ravi Be Boke He Po
8
acter and integrity, as is evidenced by his re-
current misconduct in that:
a. During the period of about 1 October
1963 to about 31 December 1963, he maintained
a close continuing association with one Herbert
Schumacher, an individual known to him to
have been convicted of the crime of conspiracy
to commit treason against the Federal Repub-
lic of Germany; during which period of asso-
ciation with Schumacher he visited the con-
victed traitor in his home and in prison on
several occasions and wrote him numerous let-
ters; such association casting a highly unfavor-
able reflection upon the United States Air
Force, as well as constituting a violation of
lawful regulation.
b. During the period 1 October 1962 to
about 28 February 1963, at Heiligenrode, Ger-
many, he wrongfully and unlawfully cohabited
and engaged in adulterous intercourse with
Ann Mattson, a woman not his wife, he being
at that time married to another woman; such
wrongful cohabitation being open and notori-
ous, Captain Denton maintaining a residence
with Ann Mattson and holding her out as his
lawful wife, introducing her to acquaintances
as ‘Ann Denton”; for which offense of wrong-
ful cohabitation he received a reprimand and
a suspended forfeiture of $300 per month for
two months, under provisions of Article 15,
UCMJ on 10 December 1963.
e. On or about 2 December 1963, he exhib-
ited a defective attitude and behaved himself
with disrespect toward his commander, Lt Col
James M. Wyse, AO420997, while being coun-
RECALLED 8 METI ERI EY
—
ey
MY
eT Sea eae ke teal 1.
AOL Se PYLE PMP LER ASS SOI LNT EMT EI NE EM
ARIA
9
seled by his commander concerning his be-
havior and lack of judgment in associating
with one Herbert Schumacher, a German Na-
tional of unsavory reputation who had been
convicted of conspiracy to commit treason
against the Federal Republic of Germany, by
saying to the said Lt Col Wyse, “Well, if the
service is going to tell me who I can or cannot
associate with, I want no part of the service”,
or words to that effect.
d. On or about 20 October 1962, he did have
in his possession in his BOQ room at Roth-
westen, Germany a number of obscene photo-
graphs of women in lewd and_ provocative
poses and in various stages of undress, includ-
ing some pictures of the females completely
nude.
2. Captain Jere L. Denton, AO2227733, has
mismanaged his personal affairs in that he
failed to provide, without good cause, timely and
adequate financial support to his dependent wife
and three children.
On July 1, 1964, a Board of Inquiry hearing re-
quiring Petitioner to show cause for retention was
scheduled to convene on July 16, 1964 at Sembach Air
Base, Germany. Petitioner received notice of this
hearing on July 9, 1964. The notice required him,
within five days, to acknowledge receipt and provide
8The significant exchange of correspondence relating to the
institution of charges by the Air Foree and Captain Denton’s
timely request for the right to confront and cross-examine the one
adverse witness appears at length in Appendix A (Pertinent
Official Letters of Action under AFR 36-2) to Appellant’s Brief in
the Court of Appeals.
Ans
en a
BYR AER ITS TON TODS PLR NE RR PCLT $ PER IEE SOY EL EOS
10
“names and addresses of any witnesses you desire to
appear before the Board of Inquiry.” The notice also
stated that the “Board will arrange for the presence
of any witness who is reasonably available and whose
testimony the Board believes will materially add to
your case.” Further, it advised Petitioner of his right
to request a postponement of the hearing in order to
enable him to prepare his case. The following day,
July 10, Petitioner acknowledged receipt of the notice,
requested the presence of Lt. Col. Wyse and requested
a fifteen-day postponement of the hearing.
q Petitioner was advised on July 23, 1964 that Lt.
E Col. Wyse had been transferred back to the United
States and thus was unavailable. On that date peti-
tioner requested the Board for a postponement until
: Lt. Col. Wyse became available, or, in the alternative,
- _ until Petitioner could take the deposition of Lt. Col.
; Wyse in the United States. By letter of July 29, 1964,
3 Petitioner was advised that the hearing would be held
on August 12, 1964 and that “your application for
further delay in convening this Board of Inquiry
appears to be without adequate justification and has
been denied by the President of the Board.”!
et ees
4Significantly, the Court of Appeals in its opinion made no
attempt to directly treat or comment upon the reasons expressed
by the District Court for granting Summary Judgment. See
Appendix A. In brief, the trial court ruled, “That the Board did
not consider the testimony of Colonel] Wyse to be essential” and
that “plaintiff failed to make any effort whatsoever on his own
behalf” to obtain Col. Wyse. The Brief on appeal was directed
at great length to these issues and their refutation. The Court
of Appeals admits that, “Denton had no chance to cross-examine
Wyse,” and that this standing alone would warrant reversal,
4 but makes no comment on the rationale of the trial court which
5 9 ak ta REE AB SS
4
xs Rayer Ey ° APRs Sass Or ae = S a SPREE ENS we hit as ee | ak
pers genre ier EIEN FOSS —_ on
11
Petitioner received no further response regarding
his requests for Lt. Col. Wyse’s presence or deposition,
and the Board of Inquiry convened on August 12 and
13, 1964, at Sembach Air Base, Germany. The Board
recommended that Petitioner be given a general dis-
charge without readjustment pay and found against
Petitioner on all five charges. Petitioner then ap-
pealed to the Air Force Board for the Correction of
Military Records, according to 10 U.S.C. §1552, and
his appeal was denied.
Petitioner then brought suit in the United States
District Court for a declaration that his discharge
was illegal, and for back pay. Summary judgment
was rendered in favor of the Air Force, on the basis
that Petitioner had not himself arranged for the
presence of Lt. Col. Wyse. Petitioner appealed to the
United States Court of Appeals, which affirmed the
summary judgment on June 8, 1973. Petitioner
sought and was denied a rehearing on July 16, 1973.
In its decision, the Court of Appeals reasoned that
finding le alone, regarding disrespect toward Lt. Col.
Wyse, might merit reversal because of Petitioner’s
inability to confront Lt. Col. Wyse, but that the other
findings supported judgment against Petitioner. The
decision discounted as “makeweight” both findings 1le
regarding disrespect and 1d, regarding possession of
purportedly obscene photographs. But it declared that
finding la, regarding Petitioner’s association with
appears to assert both a procedural failure by Captain Denton
and an arbitrary ruling of the Board of Inquiry. See Appendix
B, pp. Xxxii-xxxiii,
PAST:
RLMEPR RE MLR ABS PTET RTM HET IL TELE CITRINE PONE a Derry MEM AO UP
rT ton ee eee
12
Schumacher, was “very serious”.’ In so doing, the
court explicitly relied on ex parte statements of Lt.
Col. Wyse. Petitioner had originally sought the |
presence or deposition of Lt. Col. Wyse on all five
charges, in that all charges were initiated by Lt, Col.
Wyse.
$$$ TT
ARGUMENT
I
PETITIONER WAS DEPRIVED OF HIS RIGHTS TO FUNDA-
MENTAL FAIRNESS AND TO CONFRONT AND CROSS-
EXAMINE AN ESSENTIAL ADVERSE WITNESS, IN VIOLA-
TION OF THE FIFTH AND SIXTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
In holding harmless the effect of Petitioner’s de-
privation of either the presence or deposition of
Petitioner’s major accusing witness, Lt. Col. Wyse,
the Court of Appeals stated:
“Wyse would obviously have been a hostile wit-
ness, and all too often cross-examination of such
a witness only serves to strengthen the case
against the cross-examiner’s client. However,
occasionally such cross-examination does produce
the miracle that lawyers like to attribute to it,
and we cannot say with assurance that it would
‘ not have done so here.” (Emphasis added) (See
Appendix A, p. xiii.)
4
7
B
i
j
t
3
9
|
'
‘|
Syd SS OE aa,
5In the Petition for Rehearing by the Court of Appeals atten-
tion is called to the statements of Denton’s Commanding General,
James Edmundson, finding “no single act of conduct” to be
serious, as concluded by the court. It is respectfully submitted
that each reviewing body has been prejudiced or strongly influ-
enced by the service’s wording of charge 1(a) which relates
_ primarily to serious, but unfounded, claims against Denton’s
* aequaintance, rather than Denton himself. It is the possible viola-
- tion of national security, rather than Denton’s association per se
which has tainted these entire proceedings,
whe Pie REE
ey
a
4
= ONT IE Mee REPENS SAT U i BMEEE ASE WEST RAEI MO TRE RL II ee ee ee er en ateeae TT | cS:
13
The Court of Appeals explicitly reeognized that the
finding of disrespect toward Lt. Col. Wyse rested
entirely on ex parte unsworn statements by that
witness, but failed to recognize that the “very serious”
finding of association with Schumacher rested on the
same out-of-court information which Petitioner had
no opportunity to confront. The Court’s opinion ex-
plicitly refers to “several meetings with Col. Wyse
at which Denton’s association with Schumacher was
discussed” (See Appendix A, pp. viii-ix) and in foot-
note 5 quotes an unsworn statement by Lt. Col. Wyse
at which such association was discussed. Though not
explicit in the opinion, the finding regarding Peti-
tioner’s failure to support his dependents was also
influenced by statements of Lt. Col. Wyse, with whom
petitioner was required to and did consult by applic-
able Air Force Regulations. As the instigator of each
of the five charges against Petitioner, Lt. Col. Wyse
was the primary and essential accusing witness whose
absence undoubtedly prejudiced Petitioner’s defense.
Petitioner submits that by its denigration of the
importance of Petitioner’s right to confront and
cross-examine his principal adverse witness, the Court
of Appeals has created a conflict with prior decisions
of this court and has so far sanctioned a procedure
inimical to aecepted judicial standards as to call for
the exercise of this court’s powers of supervision.
As recognized by the courts below, the Sixth Amend-
ment is applicable to administrative and regulatory
proceedings such as those before the Board of Inquiry.
Greene v. McElroy, 360 U.S. 474, 496-497. Where the
eee ed |
14
right to confront and cross-examine has been denied,
‘‘no amount of showing of want of prejudice would
cure it.” Brookhart v. Janis, 384 U.S. 1, 3. The Court
, of Appeals conceded that Petitioner had been de-
- prived of his opportunity to cross-examine his accuser
* at least as to one of the findings and revealed that
_ Petitioner was also deprived of this right on the one
| ‘‘very serious” finding of associating with an indi-
vidual who had been convicted of treasonous activities,
Yet the court affirmed Petitioner’s discharge upon the
assumption that the same result would have obtained
even had he been able to confront Lt. Col. Wyse. Such
an assumption effects an erosion upon fundamental
- constitutional precepts of a fair trial or hearing. In
Pointer v. Texas, 380 U.S. 400 (1965), this court
overturned a criminal conviction which had rested
upon the ex parte testimony of a witness unavailable
» at the time of trial. In holding the right of cross-
- examination fundamental, the court stated:
“... there are few subjects, perhaps, upon which
this court and other courts have been more
nearly unanimous than in their expressions of
belief that the right of confrontation and cross-
examination is an essential and fundamental
requirement for the kind of fair trial which is
this country’s constitutional goal, Indeed, we have
expressly declared that to deprive an accused of
the right to cross-examine the witnesses against
him is a denial of the Fourteenth Amendment's
guarantee of due process of law.” 380 U.S, at 405
Sinlek Seth ots
- Though a criminal case, Pointer cites Greene and con-
--veys a broad directive concerning all accusatory hear-
2
*
reer e ener nne penne ROHN
15
ings required to be fair, including administrative
hearings,
In Greene, this court decided even without recourse
to the mandates of the Fifth and Sixth Amendments,
that on the basis of “our traditional ideas of fair
procedure,”
“ ,. in the absence of explicit authorization from
either the President or Congress the respondents
were not empowered to deprive Petitioner of a
job in a proceeding in which he was not afforded
the safeguards of confrontation and cross-ex-
amination.” 360 U.S. at 508
Like the Petition in Greene, Petitioner was deprived
of his employment based upon evidence from ex
parte reports from a person whom the Petitioner was
denied the right to question, Since Greene was de-
cided, Congress has enacted statutes (10 U.S.C.
§8791 ct seq.) which explicitly provide for the con-
frontation of adverse witnesses, thus aggravating the
denial to Petitioner herein of a fundamentally fair
proceeding under the Fifdi Amendment and_ the
Sixth Amendment right to confront and cross-examine
his accusing witness,
II
PETITIONER WAS DENIED A FAIR AND IMPARTIAL HEAR-
ING UNDER 10 U.S.C. §8792(b), AND AIR FORCE REGULA-
TIONS 36-2.
In Greene v. McElroy, supra, and Vitarelli v, Sea-
fon, 359 U.S, 535 (1959), this court held that federal
VALI | PORE LENO SL TR TRENT ae FP TROY RE, ENON HI Merwe” wr
le he nS : |
e+ eeasercie lL earteret
ewer cinerea prem mmrnnrr m cererwes
16
employees were entitled to confront and cross-ex-
amine their accusing witnesses at administrative
hearings regarding their job retention, In both cases,
the employees had been dismissed for association with
communists on the basis of ex parte reports by wit-
nesses who were never produced. In every respect
but the result in the Court of Appeals, Petitioner’s
case is analogous.
Petitioner was dismissed from the Air Force on
the basis of five findings, two of which the Court of
Appeals determined to be makeweight, but one of
which it regards as “very serious”—Petitioner’s us-
sociation with a German citizen who had been con-
victed of treasonous activities. Thus, guilt by asso-
ciation is imputed to Petitioner, and justification for
his discharge is derived from the serious nature of
the crime, not from Petitioner’s acts. The Court of
Appeals conceded that one of the “makeweight” find-
ings, standing alone, would have merited reversal
because Petitioner “had no chance to cross-examine
his accuser.” But in upholding the dismissal on the
basis of the remaining findings, the Court of Appeals
made the same error as the courts below in Green:
and Vitarelli: it based its decision on er parte reports
from a witness whom the dismissed employee was
unable to confront. In Vitarelli, no witness was pro-
duced at the hearing, but reference was made to a
named person from whom accusing information had
been gleaned, In Petitioner’s case, there is even
stronger evidence that reports from Lt. Col Wyse
were used to find Petitioner responsible for assocint-
ing with Schumacher, This association was the only
17
finding regarded as serious by the Court of Appeals.
The Court of Appeals refers to two statements of
Lt. Col. Wyse (quoting one of them in footnote 5
of the Opinion) which pertained to Petitioner’s asso-
ciation with Schumacher and were used to dismiss
Petitioner from the Air Force, The conclusion is
inescapable that Petitioner was seriously prejudiced
by the failure to produce or allow Petitioner’s depos-
ing Lt. Col. Wyse.
The decision of this court in Greene predated ap-
plicable statutes or regulations for such administrative
hearings, and was based upon “traditional ideas of fair
procedure.” Vitarelli was decided on the basis of
regulations giving an accused employee the right to
cross-examine any witness offered (construed to in-
clude any person whose statement was offered against
the employee).
Petitioner was dismissed pursuant to explicit
regulatory proceedings under Air Foree Regulations
36-2, by which he was entitled to: “a fair and impartial
hearing before a Board of Inquiry” (10 U.S.C, §8792
(}) ; request the presence of pertinent witnesses (AFR
36-2, 24(¢)); submit depositions (AFR 36-2, 24(d));
and “question any witness brought before the Board
of Inquiry” (AFR 36-2, 24(f)). Vitarelli made clear
that a ruling giving the right to cross-examine a
Witness is violated when the witness is not physically
produced at the hearing,
The only ruling of this court based upon the par-
ticular regulations above refine Greene and Vitarell/
only to the extent of imposing an initial burden on
> dea |
Ui AY Hd MARR TSS
18
the Petitioner to make a timely and sufficient attempt
to obtain the presence of adverse witnesses.° Williams
v. Zuckert, 372 U.S. 765 (1963), on rehearing from
371 U.S. 531 (1963). Petitioner was notified that the
Air Force would produce material and available
witnesses and he requested the presence of Lt. Col.
Wyse on the day following receipt of notification of
his right to do so. He requested the opportunity to
depose Lt. Col. Wyse in the United States im-
mediately upon learning of his unavailability as a
witness. Petitioner was never provided a response to
his request to go to the United States to depose Lt.
Col. Wyse. Without even referring to Petitioner’s
conformity with regulations, the Court of Appeals
conceded Petitioner had been deprived of the op-
portunity to cross-examine this witness.
psec SARS ASC A DT ala RE
The Court of Appeals has imposed a harmless error
rule upon three decisions of this court—Greene, Vita-
reli and Williams—which mandate reversal for the
denial of the right to cross-examine one’s accuser.
Petitioner respectfully requests that this court issue
a Writ for the dual reason that the opinion below
reveals that the error was not harmless and mis-
applies the rulings of this court requiring reversal
if a witness is not presented for cross-examination
to an accused federal employee who has made a
timely and proper request therefor.
It was on this issue that the District Court granted Summary
Judgment, asserting that “plaintiff failed to diseharge the initial
burden of attempting to produce those witnesses which he felt were
necessary for the presentation of his ease.” See Appendix B, head-
note [4] p. 285, as justification for the Board of Inquiry’s refusal
to produce Lt. Col. Wyse or permit his deposition. This conclusion
was apparently found crroneous by the Court of Appeals.
sep ccsokarS OF Sift SME EEE RL ITER NLS PLL LIEBE ALLENDE DE LLL IT
19
CONCLUSION
For each of the reasons given in the above argu-
ment, Petitioner respectfully submits that his Peti-
tion for Writ of Certiorari should be granted.
Dated, San Francisco, California,
October 5, 1973.
LAWRENCE H. Storrer,
STERN, STOTTER, ROSENBERG & O’BRIEN,
Attorneys for Petitioner.
(Appendices Follow)
<8 a |
Appendix A
United States Court of Appeals
For the Ninth Circuit
Jere L. Denton, ;
Plaintiff-Appellant, |
= No. 26,565
Secretary of the Air Force,
Defendant-Appellee.
[June 8, 1973]
Appeal from the United States District Court
for the Northern District of California
Before: BrowninGc, DuNiway, and GoopwIn,
Circuit Judges.
OPINION
Dentway, Circuit Judge:
Denton, a former Air Force Captain, appeals from
a summary judgment against him. The action was
for a declaration that his discharge from the Air
Force ‘‘under honorable conditions” was illegal, and
for the recovery of pay and emoluments of office since
the discharge. The court heard the action on the
administrative record. We affirm.
1. The Administrative Proceedings.
Denton was stationed in Germany. In February,
1964, he was informed by his Commanding General
that he was recommending action under Air Force
Regulation 36-2' to effectuate Denton’s discharge.
Four allegations were the basis of the recommenda-
tion: (1) wrongfully cohabiting with a woman not
his wife, he being then married; (2) having in his
possession numerous obscene photographs; (3) fail-
ing to provide, without good cause, timely and ade-
quate financial support to his legal dependents; and
(4) continuing to associate with a person known by
him to be a confessed and convicted agent of a com-
munist government. On March 16, Denton responded,
denying that the matters charged were of such im-
portance that he should be separated from the serv-
ice. On May 6, a Selection Board found that on the
basis of the record before it Denton should show
cause why he should be retained in the Air Force.
On May 21, Denton was informed of this action by
letter accompanied by a ‘‘Statement of Reasons”
which set out the same four allegations, together with
another, (5) that on or about December 2, 1963, he
had exhibited a defective attitude and behaved him-
self with disrespect toward his commanding officer,
Lt. Colonel Wyse. This was based on an unsworn
statement of Wyse.
1AFR 36-2 establishes, inter alia, criteria for identifying officers
of the Air Force serving in active military service who, because of
evidence of unfitness or unacceptable conduct, should be required
to show cause for retention in the Air Force.
Bd WERE M A OIE GI Ra KOBE FS aE RV Sa
iii
At Denton’s request, a Board of Inquiry [the
Board] was ordered convened. On July 1, Denton
was notified that the Board would meet on July 16,
and that he could request the presence of any witness
whose testimony he believed to be pertinent. On July
10, Denton asked for a postponement, and that Wyse
appear as a witness before the Board. A postpone-
ment until July 30 was granted. Wyse had earlier
(July 4) been rotated back to the United States.
Inquiry by the Board of Wyse’s superiors in the
United States resulted in advice that Wyse would
not be available to return to Germany to appear as a
witness. On July 23, Denton requested a further
delay until Wyse would be available, or permission
to travel to the United States to take Wyse’s oral
deposition. Both requests were denied, but the con-
vening date of the Board was postponed until August
12.
The Board met on August 12. After a hearing, it
recommended that Denton be separated from the Air
Foree, and be given a general discharge (under hon-
orable conditions).? The Board based its reeommenda-
tions on five findings:
1. The Board finds that Captain Jere L. Denton,
AO02227733, did conduct himself in a manner incom-
patible with exemplary standards of personal con-
duct, character and integrity, as is evidenced by his
recurrent misconduct in that:
“It has been held that, beeause the vast majority of military
discharges are honorable, anything less than an honorable dis-
charge stigmatizes the recipient and is punitive in nature. Bland
v. Connally, D.C. Cir, 1961, 293 F.2d 852.
< PPL or ML Pg ee
i |
TATA ONE ra 0), ore
a. He did not during the period 1 October
1963 to 31 December 1963 maintain a close con-
tinuing association with an individual known to
him to have been convicted of the crime of con-
spiracy to commit treason against the Federal
Republic of Germany, as set forth in paragraph
la of the Statement of Reasons, but did during
the period 29 October 1962 to about 1 December
1963, maintain a close and continuing association
with one Herbert Schumacher, an individual
known to him to be a confessed agent of the
MFS, an East German Intelligence Agency; such
association casting a highly unfavorable reflec-
tion upon the United States Air Force, as well
as constituting a violation of a lawful regulation.
b. He did wrongfully and unlawfully cohabit
and engage in adulterous intercourse with Ann
Mattson, a woman not his wife, he being at that
time married to another woman, such wrongful
cohabitation being open and notorious, as_ set
forth in paragraph 1b of the Statement of Rea-
sons, but during the period 4 September 1962 to
about 28 January 1963, rather than the dates
specified in the Statement of Reasons.
ce. He did on or about 2 December 1963, ex-
hibit a defective attitude and behave himself with
disrespect toward his Commander, Lt. Col. James
M. Wyse as set forth in paragraph le of the
Statement of Reasons.
d. He did on or about 29 October 1962, have
in his possession in his BOQ room in Rothwesten,
Germany, a number of obscene photographs as
set forth in paragraph 1d of the Statement of
Reasons,
v
2. The Board finds that Captain Jere L. Denton,
A02227733, did mismanage his personal affairs as set
forth in paragraph 2 of the Statement of Reasons
[failing to provide, without good cause, timely and
adequate financial support to his dependents].
This recommendation was affirmed by an Air Force
Board of Review on November 5, and on December
3, by the Judge Advocate General, USAF. On De-
cember 22, 1964, the Secretary of the Air Force
ordered Denton discharged, effective January 26,
1965. On March 22, 1968, Denton applied, under 10
U.S.C. § 1552, to the Air Force Board for the Cor-
rection of Military Records for relief from the dis-
charge on grounds of error and injustice. On May 23,
1968, that Board denied his application. This action
was filed March 14, 1969.
2. Jurisdiction.
Although the Secretary does not urge that the dis-
trict court or this court lacks jurisdiction, we con-
sider the question because of our decision in Arn-
heiter v. Chafee, 9 Cir., 1970, 435 F.2d 691, aff’g
Arnheiter v. Ignatius, N.D.Cal., 1968, 292 F.Supp.
911. There we held that the courts do not have juris-
diction to review a decision of the Navy to relieve an
officer from command of a ship. We relied upon the
famous dictum in Orloff v. Willoughby, 1953, 345
U.S. 83, that ‘‘judges are not given the task of run-
ning the Army.” (345 U.S. at 93). However, we con-
clude that Arnheiter is not applicable here. It related
vi
to a matter strictly internal to the Armed Forces—a
duty order. So did Orloff. The present case differs;
it deals with a discharge, an action that deprives the
affected officer of his livelihood and, when not ‘‘hon-
orable,” can seriously hamper his civilian career, In
at least one discharge case, the Supreme Court has
exercised jurisdiction and invalidated a discharge on
the ground that the Secretary had exceeded his statu-
tory powers. Harmon v. Brucker, 1958, 355 U.S. 579.
See also Marshall v. Brucker, 1958, 356 U.S, 24. The
Court has not, so far as we can discover, spoken
directly to this question since,
The question presented here differs from that in
Harmon, supra. Denton does not assert the kind of
misinterpretation of statutory authority that existed
in Harmon. His claim is, essentially, that the Air
Force Regulations (AFR) guarantee him a fair hear-
ing,’ and that he did not get one, for a number of
reasons. He relies on the general rule, stated and ap-
plied in such cases as Vitarelli v. Seaton, 1959, 359
U.S. 5385; Service v. Dulles, 1957, 354 U.S. 363; and
Powell v. Zuckert, D.C.Cir., 1966, 366 F.2d 634, that
administrative decisions are subject to review, and
can be judicially held invalid, on the ground that the
3AFR 36-2 was promulgated pursuant to statutory provisions
for separation of officers from the regular Air Foree, 10 U.S.C.
8791, et seqg., and for separation of reserve officers, 10 U.S.C.
§§ 1162-63. Section 8792 (separation of regular Air Force officers)
entitles the officer to a “fair and impartial” hearing; there is no
similar provision for reserve officers in 10 U.S.C. §§ 1162-63, Be-
cause Denton was a reserve officer, this statutory guarantee does
not apply to him. However, AFR 36-2 applies to both regular and
reserve officers, and thus is applicable to Denton, AFR 36-2 reiter-
ates the guarantee of a “fair and impartial” hearing.
SiMe
vii
Secretary has failed to follow his own valid regula-
tions. We hold that we have jurisdiction, A number
of other circuits have come to the same conclusion:
Mindes v. Seamans, 5 Cir., 1971, 453 F.2d 197; Feli-
ciano v, Laird, 2 Cir., 1970, 426 F.2d 424; Van Bourg
v. Nitze, D.C. Cir., 1967, 388 F.2d 557; Dummar v.
Ailes, D.C.Cir., 1965, 348 F.2d 51. See also Schwartz
v. Covington, 9 Cir, 1965, 341 F.2d 537, 538, n. 1;
Craycroft v. Ferrall, 9 Cir., 1969, 408 F.2d 587.
3. The Scope of Review.
The federal courts do not sit to run the Air Force,
or, except possibly in an extreme case, to tell it on
what grounds it may or may not discharge an Air
Force officer. The Air Force is entitled to discharge
an officer on grounds rationally related to the stand-
ards of fitness for retention in that branch of the
service,
The question before us is, did Denton get the fair
hearing that the Air Force regulations require? We
consider Denton’s arguments seriatum.
4. Finding 1a—association with Schumacher.
The facts are not in dispute. Denton met Schuma-
cher in 1961 and became a good friend of Schuma-
cher and his family. In April of 1962, Schumacher
and one Straube made contact in East Germany with
two persons acting on behalf of the MFS, an East
German intelligence organization. They received about
$200 each, for which they were to obtain information
relating to the activities of the CIC (Counter-Intelli-
OMA FOB IG heme
viii
gence Corps) and its employees in Kassel, Germany.
Neither Straube nor Schumacher followed through on
these plans. In July of 1962 they voluntarily disclosed
their activities to German and United States authori-
ties, and they were eventually convicted of ‘‘treason-
able relations.” (‘‘Treasonable relations” is a minor
crime, as opposed to “treason” which is a major
crime.) Schumacher was sentenced to six months in
prison.
On October 29, 1962, Denton was interviewed by a
special agent of the Office of Special Investigations
[OSI] who was investigating Schumacher’s relation-
ships with Americans, He explicitly told Denton of
Schumacher’s activities. However, Denton decided
that Schumacher’s activities were not quite as serious
as the agent had indicated, and he continued his close
association with Schumacher, During 1963 Denton had
several meetings with Col. Wyse at which Denton’s
association with Schumacher was discussed. Wyse felt
that AFR 205-57* was applicable. Denton disagreed,
feeling that he was violating no Air Force regulation,
and continued to associate with Schumacher. Then, on
December 2, 1963, Denton again met with Wyse and
the subject of his association with Schumacher again
arose, This meeting was described in Wyse’s state-
ment of December 3, 1963. In what we consider the
4AFR 205-57 requires that each Air Force member must notify
his commander immediately upon becoming aware of contacts,
whether intentional or by change, of an Air Force member (in-
eluding himself) or his dependent with individuals or representa-
tives or employees of organizations of foreign governments whose
activities or interests are hostile to, against the best interests of,
or may be harmful to the United States,
ix
important respects, Denton’s version of the meeting
does not differ from Wyse’s. What is undeniabiy clear
is that at this meeting Denton was told unequivocally
by Wyse that his longtime friendship with Schuma-
cher, which had continued despite several meetings
with Wyse on the subject, was in Wyse’s opinion
highly suspect, that Denton disagreed and indicated
he would continue to see Schumacher, and that Den-
ton did in fact continue to see Schumacher,
Denton argues that finding la is not supported by
substantial evidence. The argument is without merit.
He also argues that action under AFR 36-2 with
respect to findings la and 1e had first to be approved
under the provisions of AFR 35-62. Under 14(f) of
AFR 36-2 proceedings based upon qualifications re-
garding national security must have first been ap-
proved under AFR 35-62. Thereafter, if warranted,
proceedings under AFR 36-2 are held. Denton argues
that findings la and le relate to questions of national
security, and the Board should not have made findings
regarding those allegations until further proceedings
had been approved under AFR 35-62, We do not think
that finding le is related to national security, and
therefore we treat Denton’s argument only with re-
spect to finding la.
Paragraph 3(f) of AFR 35-62 provides that that
regulation will not he used where security is not the
primary consideration, Here, action under AFR 36-2
was taken on the basis of five allegations. Only one
dealt with security qualifications. Therefore, under the
language of 13(f) of AFR 35-62, the Air Force could
PS EE 3
reasonably conclude that it need not proceed under
that regulation.
Denton next argues that under paragraph 10 of
AFR 36-2 the Board was required to follow the pro-
visions of AFR 124-4, which it did not do. AFR 124-4
deals with the handling of OSI reports. More specifi-
‘ eally, 19(d) of that regulation provides that OST re-
i ports are not to be introduced in evidence in proceed-
3 ings such as the one here, and prohibits furnishing
: OSI reports to Article 32 investigating officers. Den-
ton does not argue that an OSI report itself was in
evidence before the Board. However, an Article 32
Investigating Officer’s report (concerning Article 32
charges brought against Denton for unlawful cohabi-
: tation) was in evidence before the Board. The Investi-
gating Officer had evidently at one point been shown
part or all of the OSI report concerning Denton’s
relationship with Schumacher, Assuming that this was
4 so, it may have been a security violation under AFR
124-4. However, we cannot see how this circumstance
is relevant to the use as evidence of the Article 32
Investigating Officer’s report. We see no merit in this
argument.
Denton argues that the Board improperly consid-
ered the statements of Captains Wolff and Hummel.
These statements were both part of the Article 32
Investigating Officer’s report which were before the
Board. One of them relates to finding 1b, and we con-
sider it infra. The other, that of Captain Hummel,
outlined the results of the legal action taken against
Schumacher. He stated that Schumacher had been
ni a
a Se eee
a 3 AMATI LEE TNT LIN I RE SEED LAE LD NEIL St OTC TEIN see HRP LN OTRO PERE OE, tf 4
xi
found guilty of ‘‘treason,” and had been sentenced to
ten months in prison. Denton offered no rebuttal be-
fore the Board. However, he later submitted to the
Board of Review an affidavit of one Henry F. Wald-
stein, a member of the West German bar. He contra-
dicted the Hummel statement in two respects. He
stated that Schumacher had been convicted of ‘‘trea-
sonable relations,” not ‘‘treason,” and that Schuma-
cher had been sentenced to six months in prison, not
ten months, Denton argues that by virtue of the errors
in the Hummel statement, the Board was misled when
considering finding la, and that its finding was con-
sequently prejudiced. The four-month difference in
the length of the sentence we think irrelevant. Hum-
mel’s characterization of Schumacher’s crime as ‘‘trea-
son” as opposed to “treasonable relations” is not
significant. The Board found that Denton maintained
‘‘a close and continuing association with ... an indi-
vidual known by him to be a confessed agent of the
MFS... .” Schumacher’s actual crime, ‘‘treasonable
relations,” supports finding 1a.
Denton argues that finding la is fatally vague in
that the ‘“‘lawful regulation” which it is alleged Den-
ton violated was never specified. The argument is friv-
olous. From the record there is no doubt that Denton
was aware that AFR 205-57 was being referred to,
Res |
5. Finding 1b—wnlawful cohabitation
This finding is not seriously attacked—nor could it
be. It is amply supported by the record.
In the statement of Captain Wolff, there is a dis-
cussion of Denton’s alleged relationship with German
women and his use of his apartment in that connec-
tion. Wolff was of the opinion that no one particular
woman lived there, but that Denton kept the apart-
ment to entertain various German women. It is clear
that this statement did not prejudice Denton with
respect to the only issue it concerned—the alleged
wrongful cohabitation with a particular woman. The
statement does contain hearsay. However, the Board
is not required to follow strict rules of evidence, and
because we can see no prejudice here, we find no error.
6. Finding 1c—disrespect toward Col. W yse.
This finding is based entirely upon the unsworn
statement of Col. Wyse, the relevant contents of which
are set out in the margin.’ Denton argues that had he
5“On 2 December 1963, at approximately 1130 hours, in my
office at Sembach Air Base, Germany, I was approached by Cap-
tain Jere L. Denton, AO2227733, and he again renewed his request
that I assist him in acquiring the return of some photographs of
women in various stages of undress that are presently in the hands
of the JAG. I told him that I would look into it. The conversation
then revolved around his behavior and apparent lack of judgment
in his associations. I informed him that it has been brought to my
attention that he had spent a weekend in either late September or
early October 1963 in the home of one Mr. Schumacher, a man
who had been convicted as an agent of the East German Sovict
Intelligence. This weekend referred to was at Kassel, Germany,
where Captain Denton had previously undergone investigation on
the same allegations. He readily admitted that he had spent the
weekend there and indicated that he still considered Mr. Sehu-
macher a good friend. When I informed him that this was in
had the opportunity to cross-examine Wyse he would
have been able to convince the Board that the alleged
disrespect was but a disagreement over the proper
interpretation of an Air Force Regulation, that he
had at all times maintained a respectful attitude to-
ward Wyse, and that his remarks regarding his no
longer wanting any part of the service were taken
out of context and given undue emphasis. We cannot
escape some skepticism about this argument. Wyse
would obviously have been a hostile witness, and all
too often cross-examination of such a witness only
serves to strengthen the case against the cross exam-
iner’s client. However, occasionally such cross exam-
ination does produce the miracle that lawyers like to
attribute to it, and we cannot say with assurance that
it would not have done so here,
The only other evidence relating to finding le is an
unsworn statement by Denton. In it, he does not
really deny using the words that Wyse says he used.
What he does say is that his statements related to
what he believed to be the unfairness of the Air
Force’s attempt to control the lives of its members,
and that he did not intend to indicate that he wanted
out of the service. It is for the Air Force, not this
violation of AFR 205-57 and that the government frowned on
behavior such as this, he remarked, ‘Well, if the service is going to
tell me who I can or cannot associate with, I want no part of the
service’. I then told him that I would see if I couldn't oblige him.
I also informed him that if my guess was right that he also spent
time in the Schumacher home over the Thanksgiving weekend. He
readily admitted that he did. Neither of these visits was reported
to me by Captain Denton, as required by regulation, and when I
told him that he was violating regulations by associating with
known agents of a government unfriendly to the United States, he
stated that he ‘would like to see them’.”
xiv
court, to say whether the words used were incompat-
ible with Denton’s duty toward his superior.
Nevertheless, if finding lc stood alone, we might
well reverse because Denton had no chance to cross
examine Wyse. See Greene v. McElroy, 1959, 360 U.S.
474, 508. However, it is but one of five findings, and,
for reasons stated infra, we hold that the decision
must be upheld on the basis of other findings.
7. Finding 1d—possession of obscene photographs.
There is no question that Denton possessed the pho-
tographs; he took them himself. He argues that they
are not obscene, citing recent Supreme Court cases.
We certainly do not find them shocking. But we also
think that this ground for discharge is a makeweight,
and that the Board would have reached the same re-
sult without it. See the discussion, infra.
8. Finding 2—failure to provide for dependents.
The evidence on this question is in conflict, but there
was sufficient evidence to support the finding. We do
not sit to retry the question, and it makes no differ-
ence that, if we had been the Board, we might have
found the other way.
9. The effect of the doubtful validity of
findings 1c and 1d.
For the purpose of this discussion, we assume that
findings le and 1d cannot stand, 1¢ because it is based
entirely upon unsworn hearsay and Denton had no
chance to cross examine his accuser, and 1d because
xv
the photographs are not obscene. It does not follow
from this that the judgment must be reversed.
When a court finds error in a finding of an admin-
istrative body, this does not lead to automatic reversal.
Reversal follows if the court has substantial doubt
that the same result would have been reached if the
questioned finding had not been made. Fairmont
Foods Co. v. Hardin, D.C.Cir., 1971, 442 F.2d 762,
770-71; Tashof v. FTC, D.C.Cir., 1970, 437 F.2d 707,
713; NLRB v. Reed & Prince Mfg. Co., 1 Cir., 1953,
205 F.2d 131, 189; see generally Braniff Airways, Inc.,
v. CAB, D.C. Cir., 1967, 379 F.2d 453.
Here the Board’s recommendation was based upon
five separate matters, each a ground for the action
recommended. At least one of them, finding la, ap-
pears, even to this non-military body, to be very seri-
ous, In addition, the original initiating action did not
mention disrespect to Col. Wyse. That ground, like
1d, appears to be a makeweight. Under the circum-
stances, we have no doubt that the Board would have
made the same recommendation if it had found the
other way in findings le and 1d.
10. Double jeopardy.
Denton’s final argument is that, in charging him
with unlawful cohabitation, the Air Force subjected
him to double jeopardy. The basis of the argument is
that he had earlier accepted nonjudicial punishment
under Article 15, UCMJ (10 U.S.C. §815) for wrong-
ful cohabitation, and was therefore subjected, in vio-
lation of the Federal Constitution, to double jeopardy
IOS Fre Seater
DOGMA EAL PF Te
xvi
when his general discharge was based in part on this
same cohabitation. The Board of Inquiry proceedings,
however, were administrative in nature, conducted to
determine the fitness of an officer for retention in the
Air Force. Paragraph 3b of AFR 36-2 provides that,
‘‘TRJecurrent misconduct is a basis for initiation of
action under this regulation when the officer has by
the pattern of his actions raised serious doubt regard-
ing his fitness for retention, regardless of whether such
misconduct has or has not resulted in prior judicial
or nonjudicial punishment.” In following this provi-
sion of the regulation, the Air Force was not subject-
ing Denton to double jeopardy as prohibited by Fed-
eral Constitution.
Second, Denton argues that under Article 15, UCMJ,
punishment for an act or omission which is not a seri-
ous crime is a bar to further prosecution. The statute
provides that punishment imposed is not a bar to a
subsequent court martial for a serious crime or offense
growing out of the same act or omission. Appellant
argues that by implication the punishment is a bar to
further prosecution for an offense which is not seri-
ous. This argument is misplaced. We are not dealing
here with a subsequent court martial, and the statute
is inapplicable. Denton was separated from the Air
Force for ‘‘recurrent misconduct” which consisted of
several elements, and it was proper for the Board to
consider the unlawful cohabitation, for which Denton
had admittedly been punished, as evidence of such
misconduct.
Affirmed.
Appendix B
DENTON v. SEAMANS
Cite as 315 F.Supp. 279 (1970)
Jere L, DENTON, Plaintiff,
v.
Robert C. SEAMANS, Secretary of the Air Force,
Pentagon, Washington, D. C., Defendant.
No. C-50957.
United States District Court,
N. D. California,
July 1, 1970.
Suit by former Air Force officer for declaration
that general discharge under honorable conditions was
illegal and for pay and emoluments of his office since
that date. On motion of defendant Secretary of the
Air Force for dismissal or for summary judgment, the
District Court, Sweigert, J., held that failure of Air
Force to produce such officer’s commanding officer be-
fore Board of Inquiry did not deprive officer of fair
and impartial hearing, though statement of command-
ing officer was admitted and considered, where officer
was fully notified of all charges and statements against
him, including the sources thereof, failed to make any
effort whatsoever on his own behalf to obtain either
commanding officer’s presence or his statement, and
failed to request that Air Force make such effort un-
til some five months after he was fully notified of
charges against him,
Motion for summary judgment granted,
xvi
1. Federal Civil Procedure <=901
Insufficiency of complaint, which contained only
conclusory allegations to the effect that discharge of
Air Force officer was illegal for reasons set forth in
brief, which referred to administrative record which
was never filed by plaintiff-officer, was cured, where
administrative record was filed by defendant Secretary
of the Air Force.
2. Armed Services <—11
No judicial relief is available from action of Board
for Correction of Military Records concerning correc-
tion of discharge errors or injustices, absent showing
that the action was arbitrary or capricious or was un-
supported by substantial evidence. 10 U.S.C.A. § 1552.
3. Armed Services <=11
Constitutional right to confrontation with witnesses
and compulsory process for obtaining witnesses ap-
plied to proceeding before Board of Inquiry with re-
spect to discharge of Air Force officer. 10 U.S.C.A.
$§ 8791-8796; U.S.C.A. Const. Amend. 6.
4. Armed Services <=11
Prior to hearing before Board of Inquiry as to
whether Air Force officer should be discharged, bur-
den was upon officer to make timely and sufficient at-
tempt to obtain presence of all witnesses he desired
or, if his failure to do so was justified, to make proper
and timely demand upon the Air Force for production
of witnesses; and without such demand, there was no
requirement that witnesses requested by officer be
produced.
5. Armed Services o—11
In hearing before Board of Inquiry as to whether
Air Force officer should be discharged, failure of Air
Force to produce such officer’s commanding officer did
not deprive such officer of fair and impartial hearing,
though statement of commanding officer was admitted
and considered, where officer was fully notified of all
charges and statements against him, including the
sources thereof, failed to make any effort whatsoever
on his own behalf to obtain either commanding offi-
cer’s presence or his statement, and did not request
that Air Force make such effort until almost five
months after he was fully notified of the charges
against him.
6. Searches and Seizures <=7(1)
Protections of Fourth Amendment are applicable
to administrative discharge proceedings. U.S.C.A.
Const, Amend. 4.
7. Searches and Seizures <=7(10)
Search of Air Force officer’s bachelor quarters and
seizure of photographs therein were reasonable, where
search was ordered by officer’s commanding officer
after he had been advised of such officer’s association
with suspected East German agent, and where photo-
graphs seized, consisting of snapshots of women in
various stages of undress and in various suggestive
poses, were evidence of improper conduct on part of
such officer, U.S.C.A. Const. Amend. 4,
8. Armed Services <=11
Photographs of women in various stages of undress
and in various suggestive poses, found in Air Force
officer’s quarters and apparently taken therein, were
properly before Board of Inquiry on hearing as to
whether such officer should be discharged, regardless
of whether or not they were correctly found to be ob-
scene, as photographs were evidence of misconduct
and officer was discharged for recurrent misconduct
and not for possession of obscene photographs.
C)
Y
Stern, Stotter & Rosenberg, San Francisco, Cal., for
plaintiff.
Asst. U. 8. Atty. Steven Kazan, San Francisco, Cal.,
for defendant.
MEMORANDUM OF DECISION
Sweicert, District Judge.
This suit is brought by plaintiff, a former Air Force
Captain, against the Secretary of the Air Force for a
declaration that his general discharge certificate (un-
der honorable conditions) was illegal and of no effect
and for pay and emoluments of the office since that
date.
The record shows that plaintiff’s discharge resulted
from a Board of Inquiry proceeding convened in Ger-
many on August 12-13, 1964, under 10 U.S.C. § 8791
et seq. and Air Force Regulations 36-2. The Board of
Inquiry proceedings were thereafter reviewed and af-
xxi
firmed as provided by the statute and the discharge
by the Secretary of the Air Force followed on J anuary
26, 1965.
Thereafter, on March 22, 1968, plaintiff applied,
pursuant to 10 U.S.C. § 1552, to the Air Force Board
For The Correction of Military Records for relief
from the discharge on grounds of error and injustice.
On May 23, 1968, that Board denied plaintiff's appli-
cation, This suit was commenced March 14, 1969.
[1] The complaint alleges' that the proceedings
were illegal for various reasons hereinafter set forth.
The case is now before the court on motion of the
defendant Secretary for dismissal or in the alternative
for summary judgment hased on the certified admin-
istrative record filed by counsel for defendant.
The record shows that plaintiff was charged with
and discharged for (1) Improper association with one
Schumacher, an alleged agent of East German Intel-
ligence Service (Finding 1(a)); (2) Cohabitation and
adultery with a woman not his wife, he being married
(Finding 1(b)); (3) Improper attitude toward his
Commander, Lt. Col. Wyse (Finding 1(¢)); (4) Pos-
session of obscene photographs in his Air Force quar-
'The complaint contains only conclusionary allegations to the
effect that “the discharge of plaintiff was illegal for the reason«
set forth in detail in Exhibit A.” Exhibit A is merely a copy of
plaintiff's argumentative application or brief before the Air Force
Board For The Correction of Military Records. It makes reference
to the administrative record but plaintiff never filed that record
with the court. However, we consider this obvious insufficieney of
the complaint to have heen eured for practical purposes by the
filing of the administrative reeord by the defendant. Our ruling
will be made on that record,
a |
xxii
ters; (5) Mismanagement of his personal affairs
(Finding 2); said charges all allegedly being in vio-
lation of the applicable regulations.
DENIAL OF CONFRONTATION AND
CROSS-EXAMINATION
Plaintiff's first contention is that the Board improp-
erly admitted into evidence and considered a state-
ment of his commanding officer Lt. Col. Wyse without
granting plaintiff’s request for delay of the hearing
to take depositions of Wyse or until Wyse would be
available to testify.
The statute under which the Air Force Board of
Inquiry was held (10 U.S.C. §§ 8791-8796), provides
in effect that the Secretary of the Air Force may con-
vene a board of officers to review the record of any
commissioned officer to determine whether he shall
be required, because of moral dereliction, professional
dereliction, or because his retention is not clearly con-
sistent with the interests of national security, to show
cause for his retention on the active list (§ 8791) ; that
such officer shall be given a fair and impartial hear-
ing; that the officer shall be notified in writing of the
charges against him at least 30 days before hearing
and allowed reasonable time, as determined by the
Board of Inquiry under regulations of the Secretary,
to prepare his defense and allowed to appear in per-
son and by counsel before the Board and allowed full
access to and furnished copies of records relevant to
his case (§ 8795) ; that if the Board of Inquiry deter-
mines that the officer has failed to establish that he
xxiii
should be retained, it shall send the record to a board
of review (§§ 8792, 8793) ; that the Secretary may re-
move an officer from the active list if his removal is
recommended by a board of review and the Secre-
tary’s action in such a case is final and conclusive.
On the subject of ‘‘witnesses” the pertinent regula-
tions AFR 36-2 (Par. 24 (¢)), provide that the officer
under charges may request the appearance of any
witness whose testimony he believes to be pertinent
to his case, specifying in his request the type of in-
formation the witness can provide, and the Board
will invite the witnes to attend if it considers that the
witness is reasonably available and that his testimony
can add materially to the case (Par. 24(c)).
Further, on that subject, Paragraph 26(d) pro-
vides that the Board should invite witnesses to appear
if reasonably available and, if in the Board’s opinion,
their testimony is essential or will contribute mate-
rially to the case, Art, 49 USMJ (10 U.S.C. § 849)
being used as a general guide in determining avail-
ability. The use of affidavits or depositions to obtain
testimony of witnesses who are not reasonably avail-
able is encouraged. Further, Paragraph 26(d) (2)
provides how the Board may request the appearance
of members of the Air Force in active military service,
On the subject of “evidence” the pertinent regula-
tions AFR 36-2 (Par. 24(d)), provide that the offi-
eer may submit depositions or unsworn statements,
certificates or affidavits for the consideration of the
Board of Inquiry and, further, Paragraph 24(f), he
may question any witness brought before the Board,
eee |
want TA WADI ahi yt Pin de! OO. Pair
xxiv
Paragraph 26 provides that strict rules of evidence
will not be followed but reasonable bounds of rele-
vancy, competency and materiality should be main-
tained.
On the subject of delay of the hearing Paragraph
26(d) provides that the officer under charges, within
5 calendar days after receipt of notice of place and
date of hearing, may request that the hearing be de-
layed for a specific period of time, normally not more
than 15 calendar days; that a delay of more than 15
days will not be granted unless denial will prejudice
the rights of the respondent; that requests for delay
must clearly establish that the delay is essential for
respondent to prepare his case. The Board President
will forward any request for delay of more than 15
days to the Major Commander who may approve re-
quests up to 30 days, but, if he disapproves, he in turn
will forward it to Air Force Headquarters for final
decision.
The record on this point shows that plaintiff was
notified as early as February 13, 1964, that he was
being recommended for elimination under AFR 36-2
and was furnished with a copy of the letter of rec-
ommendation with the evidence in support of the rea-
sons for recommendation attached; his request for a
28 day delay ‘“‘to obtain statements from certain
individuals who live within the United States” was
granted to the extent of 15 days under AFR 36-2,
par. 14; on March 16th plaintiff filed his rebuttal; on
May 6th a selection board recommended that plaintiff
be required to show cause for retention and on May
xXV
20th the Commander-in-Chief, Air Force Europe, ap-
proved; on May 21st plaintiff was so notified and was
again furnished a copy of the elimination recom-
mendation and a copy of the selection board report;
on June 2d plaintiff stated his intention of appearing
before a Board of Inquiry, acknowledged having
counsel and stated his full understanding of the pro-
cedures involved and of his rights and options; on
July 1st plaintiff was notified of hearing scheduled
for July 16th; on July 10th plaintiff requested a 15
day delay to July 31st which was granted, and also
requested the appearance of Lt. Col: Wyse as a wit-
ness; on July 21st plaintiff acknowledged advice of
Lt. Col. Wyse’s unavailability (Wyse having departed
Germany on July 4th for normal return to the United
States) and suggested his deposition be taken or in
the alternative requested that plaintiff and his coun-
sel be permitted to return to the United States for
oral deposition of Wyse or a delay until Wyse would
be available to appear and testify; on July 27th plain-
tiff acknowledged notice of a further continuance of
the hearing to August 12th; on July 29th plaintiff
was notified that August 12th was a firm date, citing
the previous postponements of the hearing and stat-
ing there was inadequate justification for further
delay.
On August 12th the Board of Inquiry convened, the
hearing concluded on August 13th and the Board
made its findings and a recommendation that plaintiff
be discharged by general discharge certificate without
readjustinent pay.
‘
my
te
y
pi
5
§
f
ih
ee
te
®
é
xxvi
On this record this court is called upon to review
the final decision of the Air Force Board For the Cor-
rection of Military Records—a board created under
10 U.S.C. §§ 1552, 1553.
[2] It has been held that we may inquire into
allegedly wrongful refusal of such a Board of Cor-
rections to grant deserved relief concerning the cor-
rection of discharge errors or injustices and that we
may determine whether the Correction Board has
acted within the sphere of its statutory and constitu-
tional authority. (Van Bourg v. Nitze, 128 U.S.App.
D.C. 301, 388 F.2d 557, 563 (1967)). It is the law of
this circuit that no judicial relief from action of such
a Board for Correction of Military Records is avail-
able in the absence of a showing that the action was
arbitrary or capricious or was unsupported by sub-
stantial evidence. Sanford v. United States, 399 F.2d
693 (9th Cir. 1968).
It has been held that, since the vast majority of
military discharges are honorable, anything less than
an honorable discharge stigmatizes the recipient and
is punitive in nature. Bland v. Connolly, 110 U.S.App.
D.C. 375, 293 F.2d 852 (1961); Van Bourg v. Nitze,
supra, 388 F.2d at 559. In the present case the plain-
tiff’s discharge was not characterized as less than
honorable. On the contrary, it was characterized as a
general discharge ‘‘under honorable conditions”.
| AFR 36-2, Par. 7, expressly provides that, except
under special determination of the Secretary, the offi-
cer will be discharged ‘‘under honorable conditions”
and furnished a General Discharge Certificate.
ee ‘ Y UTNE: TF AMY BAYA NONE napeariaes , — Pe
ee
It is difficult to understand how such a discharge
could be considered as a stigmatization of plaintiff or
as punitive. Since, however, that point is not urged
by defendant we will assume that it is such and will
so regard it for the purpose of this case.
In Brown v. Gamage, 126 U.S.App.D.C. 269, 377
F.2d 154 (1967) involving the same statute and reg-
ulations as in the present case, the record showed that
ex parte statements had been introduced at the Air
Force Board of Inquiry hearing—four from retired
Air Force personnel (over which the Air Force had
no power of subpoena) and one from an active duty
Air Force Colonel on foreign duty (but over whom
the Air Force had subpoena control). Although the
court found that these statements could have affected
the decision, it held (citing Williams v. Zuckert, 372
U.S. 765, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963) that
their use in evidence without production of the wit-
nesses for confrontation and cross-examination, did
not invalidate the discharge proceedings because, al-
though plaintiff had received the file of which the
questioned ex parte statements were a part (together
with the names and addresses of the five witnesses
whose statements were used) and although’ plaintiff
had been granted adjournments to prepare his de-
fense, plaintiff did not (until at the hearing) request
the assistance of the Air Force in obtaining the pres-
ence of the only witness over which the Air Force
had control. Nor did he request assistance in taking
the depositions of the other four witnesses over which
there was no Air Force subpoena control,
see
In Williams v. Zuckert, 371 U.S. 531, 83 S.Ct. 403,
9 L.Ed.2d 486 (1963) and 372 U.S. 765, 83 S.Ct. 1102,
10 L.Ed.2d 136 (1963) a discharged civilian member
of the Air Force claimed he was denied right of con-
frontation and cross-examination of witnesses whose
affidavits had been used at a Civil Service Commission
hearing. The Supreme Court, noting that the regula-
tions contemplated that the petitioner had the initial
burden of making timely and sufficient attempts to
obtain the presence of the witnesses in question, rec-
ognized there was an issue whether petitioner had met
such initial burden or was, under the circumstances
and without fault of his own, justified in failing to so
attempt and, if so, whether petitioner made timely and
proper demand on the Air Force so that it was re-
quired to produce the witnesses for examination.
On the other hand, in Grimm v. Brown, 291 F.Supp.
1011 (N.D.Cal.1968), the only other case involving
these same regulations, this district granted relief
where the record showed that the Air Force Board of
Inquiry failed to provide the respondent officer with
a copy of a certain unclassified summary of an OSI
report, as required by AFR 36-2, Par. 1le, and that
the report was basic to a charge that the respondent
had engaged in discussion of classified subjects with
certain persons resulting in the OSI investigation and
a reprimand. The court held the finding of guilt on
this charge was invalid and, further, that the finding
was so interwoven with other findings, that summary
judgment should be granted for plaintiff in that case.
xxix
In Powell v. Zuckert, 125 U.S.App.D.C. 55, 366
F.2d 634 (1966) a civilian employee sought judicial
review of his discharge for alleged violation of an Air
Force regulation. The court held, among other things,
that proceedings under Air Force grievance pro-
cedures (affirmed on administrative review) were in-
valid in that certain charges had been established,
over objections, by affidavit of a witness who was not
produced at the hearing. Applicable regulations pro-
vided that employees had the right to question any
person who testified at the hearing; that the employee
would be supplied with a list of the witnesses but
that, if a witness was unavailable, a signed statement
could be received in view of live testimony. The court,
distinguishing Williams v. Zuckert, 372 U.S, 765, 83
S.Ct. 1102, 10 L.Ed.2d 136 and citing Vitarelli v, Sea-
ton, 359 U.S. 535, 545, 79 S.Ct. 968, 3 L.Ed.2d 1012
(1959), noted that, although the particular witness
was not available in the sense that she could have been
compelled to attend the hearing, the board could have
invited or requested her attendance but made no effort
to produce her and had not informed plaintiff she
would be used,
In Brown vy. Zuckert, 349 F.2d 461 (7th Cir. 1966)
a civilian employee of the Air Force had been dis-
charged for violation of safety practice regulations
and sought review by the Civil Service Commission
as provided in 5 U.S.C. § 6526 and 5 U.S.C. § 863
(Veterans Preference Act). The employee had re-
quested that individuals who had signed statements
attesting to his violation of the safety regulations, be
present at the hearing for cross-examination. The wit-
nesses were not produced.
Civil Service Regulations (5 CFR 22.603-22.607)
provide that opportunity will be afforded for the
cross-examination of witnesses but that the Commis-
sion is not authorized to subpoena witnesses and that
the employee must make his own arrangements for the
appearance of witnesses. The court, citing Williams v.
Zuckert, 371 U.S. 531, 83 S.Ct. 403, 9 L.Ed.2d 486
(1963) held that the employee must do something
more than merely notify the agency that he desires
certain witnesses; that the employee has the initial
burden of attempting to contact and arrange for wit-
nesses’ attendance at the hearing and that, only after
this initial burden is discharged, is he entitled to have
the agency (in that case the Air Force) attempt to
produce the witnesses; that under the regulations and
the decisions, the employee, who had made no attempt
to arrange for the witnesses, could not be said to have
been deprived of his procedural rights; that defendant
was entitled to summary judgment.’
[3] Defendant, citing Bailey v. Richardson, 86
U.S.App.D.C. 248, 182 F.2d 46 (1959), contends that
6th amendment protection-confrontation with wit-
2In Brown v. Zuckert, supra, a dissent was merely to the effect
that on the particular record in that case summary judgment
should not have ben granted but that a trial court hearing should
be held as in Williams v. Zuckert, supra, on the issue whether the
employee had met his burden of attempting to obtain the witnesses
and, failing that, to request the Air Force to produce them.
Xxxi
nesses and compulsory process for obtaining witnesses
—applies only to criminal prosecutions; that the pro-
ceeding here involved is a civil proceeding.
It has been held, however, Greene v. McElroy, 360
U.S. 474, 496-497, 79 S.Ct. 1400, 1414, 3 L.Ed.2d 1377
(1958) that the right of confrontation and cross-exam-
ination exists ‘‘not only in criminal cases * * * but in
all types of cases where administrative and regulatory
actions were under scrutiny ;” that, where government
action seriously injures an individual and the reason-
ableness of the action depends on fact finding, the evi-
dence used to prove the government’s case must be
disclosed to the individual so that he has an oppor-
tunity to show that it is untrue; that this right, im-
portant in the case of documentary evidence, is even
more important in the case of where the evidence con-
sists of the testimony of individuals; that this protec-
tion has heen formalized by the courts in the require-
ments for confrontation and cross-examination.
Defendant further contends that plaintiff’s July
10th request for delay need not have been granted at
all because it was not made within five days after
plaintiff's admitted receipt of notice of hearing; that
plaintiff's July 23rd request for further delay was not
within Paragraph 26(¢) because it was not for a spe-
cific period of time; that in any event, plaintiff had
at least 152 days within which he could have made
arrangements to depose or otherwise interrogate Lt.
Col. Wyse but failed to do so, citing Brown vy. Zuck-
ert, supra; that the Board had the right under the
circumstances to consider the statement of Lt. Col.
Wyse, which in any event was substantially corrobo-
rated, says defendant, by plaintiff’s own evidence.
The question presented for review on this aspect
of the case is whether the failure of the Air Force to
produce Colonel Wyse at the hearing before the Board
of Inquiry deprived plaintiff of the fair and impartial
hearing to which he was entitled.
Under Air Force Regulation 36-2 para. 26(d) the
Board of Inquiry is only required to invite witnesses
to appear if the witnesses are reasonably available and
if, in the Board’s opinion, their testimony is essential
or will contribute materially to the case. (emphasis
added).
It is apparent that the Board did not consider the
testimony of Colonel Wyse to be essential and, there-
fore, did not request his appearance.
[4] The burden then was upon plaintiff to make a
timely and sufficient attempt to obtain the presence of
all witnesses he desired. Regulation 36-2 para. 23(c) ;
assuming plaintiff’s failure to make such attempt was
justified the burden remained upon plaintiff to make
proper and timely demand upon the Air Force for
the production of witnesses. Without such demand
upon the Air Force there would be no requirement
that the witnesses requested by plaintiff be produced.
Brown v. Gamage, supra, 377 F.2d at 158-159; Wil-
liams v. Zuckert, supra, 372 U.S. at 765, 83 S.Ct. 1102.
[5] The record now before us establishes that
plaintiff was fully notified of the charges against him,
and of the evidence in support thereof (including the
ex parte statement of Colonel Wyse), as early as Feb-
ruary 13, 1964; and yet, plaintiff did not attempt to
take a haben of Colonel Wyse, nor, apparently,
did he attempt to interview Wyse, prior to requesting
his appearance on July 10, 1964.
It should be noted also that plaintiff filed a rebuttal
to the charges against him with the Selection Board
on March 16, 1964; and yet plaintiff did not seek to
attach a statement or deposition of Colonel Wyse to
his rebuttal although he had ample opportunity to do
so, and although he attached statements from several
other witnesses.
The primary concern in cases relating to admin-
istrative discharge has been to guarantee the element
of ‘‘fairness” which is involved in full disclosure of
charges and adverse statements with identification of
the sources of those charged and statements so that
the accused could effectively prepare a defense. Brown
v. Gamage, supra, 377 F.2d at 158; Vitarelli v. Seaton,
309 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1958);
Greene v. McElroy, supra.
In the instant case plaintiff failed to make any ef-
fort whatsoever on his own behalf to obtain either
Wyse’s presence or his statement; and his request that
the Air Force make such effort was by no means
timely.
We find that plaintiff was fully notified of all
charges and statements against him, including the
sources thereof and that plaintiff failed to discharge
the initial burden of attempting to produce those wit-
nesses which he felt were necessary for the presenta-
tion of his ease.
ae
f
pe
LPS OAT GEE ALE ERB ENR LRILELLE PE Z
xxxiv
ILLEGAL SEIZURE OF PHOTOGRAPHS
Plaintiff contends that it was improper for the
Board to admit certain allegedly obscene photographs
into evidence because they had been illegally seized
and that the legal advisor of the Board, himself, in
effect, conceded that the photographs had been ille-
gally obtained (page 20 of the Board Proceedings) ;
that they were admitted solely on his opinion that “the
rules applicable before a court-martial are not neces-
sarily the same rules that are applicable before this
Board. Essentially, the Board should be concerned
with the reliability of the evidence which is presented
to it.” (emphasis added).
Plaintiff’s brief, however, is not explicit, nor even
clear, in explaining in what respect the acquisition of
the photographs was an unreasonable search.
Defendant contends that, according to the record,
the search was ordered in October, 1962, after plain-
tiff’s commanding officer had been advised of plain-
tiff’s association with one Schumacher, a German
national, who allegedly had confessed to being in the
employ of the East German Government; that the
search was authorized to ascertain if there had been
any security violations committed by plaintiff; that
this search revealed the photographs; that the search,
ordered and conducted in good faith and incidentally
revealing the photographs, was reasonable and admis-
sion of the photographs was proper.
[6] The protections of the Fourth Amendment are,
if not expressly, at least impliedly applicable to ad-
ministrative discharge proceedings.
Le
sates
“It would seem wholly at odds with our traditions
to allow the admission of evidence illegally seized by
Government agents in discharge proceedings; which
the court has analogized to proceedings that ‘invoke
the imposition of criminal sanctions * * *,’” Greene
v. McElroy, supra, 360 U.S. at 496-497, 79 S.Ct. at
1413; Powell v. Zuckert, supra, 366 F.2d at 640,
[7] However, applying the Fourth Amendment
standard, we find that the search and seizure in ques-
tion was reasonable and that the photographs were
admissible before the Board of Inquiry.
The photographs were seized during a search of
plaintiff's bachelor officer’s quarters, the search was
ordered by plaintiff’s commanding officer after he had
been advised of plaintiff’s association with a person
accused of being an East German agent.
The photographs consisted of individual snapshots,
apparently taken in plaintiff’s quarters, of several
women (one woman per photograph) in various stages
of undress and in various suggestive poses,
We agree with the argument put forth by the de-
fendant that the search, having been authorized to
ascertain if there had been any security violations
committed by plaintiff, was reasonable; and that the
photographs, regardless of any ultimate finding of ob-
seenity, were certainly evidence of improper conduct
on plaintiff’s part and were, therefore, properly seized
incidental to a lawful search.
[8] Moreover, it is true that whether or not pho-
tographs were obscene they constituted evidence of
misconduct on plaintiff's part; and, since the ultimate
a
xxxvi
charge against plaintiff was one of recurrent miscon-
duct, the photographs were properly before the Board
of Inquiry.
Therefore, we find it unnecessary to reach the ques-
tion whether the Board’s finding of ‘‘obscenity” was
correct since plaintiff was discharged for recurrent
misconduct and not for possession of obscene photo-
graphs.
CONCLUSION
Plaintiff raises several further arguments relating
to double jeopardy, failure by the Air Force to follow
its own regulations and insufficiency of the evidence
in support of the findings by the Board of Inquiry.
We have considered each of these arguments in
some detail and find that they fail to present any sub-
stantial questions concerning the validity of plaintiff’s
discharge.
The Air Force hearing by which plaintiff was dis-
charged was, in our opinion, fair in that the proce-
dural requirements were substantially complied with
and the action by the Air Force authorities was
neither arbitrary nor capricious.
We are of the opinion that there is no issue of ma-
terial fact present in this case and that defendant is
entitled to judgment as a matter of law pursuant to
Rule 56 of the F.R.Civ.P.
Accordingly, it is the order of this court that de-
fendant’s motion for summary judgment should be,
and the same is, hereby granted.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.