Appendix — United States v. Augenblick (No. 45)

„„ 8 23

on Rich ARD G. AUGENBLICK

SS +) “Dima tesa op AMERICA, -

) . a. 7 allt

: ee es fetitioner |

5 anwern N. un

— a

—

3 ear

ee S on um OF CERTIORARI TO THE 2

. "UNITED STATES COURT OF CLAIMS...

*

umd € Court of the United States 7

‘OCTOBER TERM, 1966 , sire ;

; No. 45 ee oe

.

UNITED STATES OF AMERICA,

3 Petitioner,

8 —v.— a N

Ps

722

*

RICHARD G. AUGENBLICK™ _ |

‘UNITED STATES OF AMERICA, 8

ö fie - ‘Petitioner,

—v.—

KENNETH N. JUHL

*

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

TABLE OF CONTENTS

. Page

: United States v. 4 2 5

"Relevant r

Petition filed October 22, 184 1

Detendant's Answer filed Febraary 19, 1968 3

Court Martial Record — 16

Vol. I ee

“Order of United States Court of Military — filed 1

19 3 II. 1968, denying petition for review

x „„ 2 |

a : 8 , hes Page . > :

. "> See

ö

; " Diclon dated September 20, 1962, of United States ;

= Navy Board of Revier a

; Tramserit of Proceedings beld May 14 1 (general , -

court martial) . 50 — |

James 0. Hodges : 59

Norman Round — & . 59 : 1 8

: William @. Mendeleon e . . °

_ . © Raymond W. Glasgow __ 8 66 |

Appellate ‘Exhibit F—Statement of Norman Round 68 1

Vol. 7 —

53 En de TS May 1961 from Consmandésit, Potomac °

ff _Tziver Naval Command to Capt. Franklin + 70

ar Transeript of Proceedings held. May 28-25, 1961 (court . |

of inquiry) 6 72

James 0. Hodges 7 — 72 .

: William G. Mendelson . 3 3

ra IV N

dementen C—Statement of James ©. Hodges - eS .:: 1 -

“Wav: . . : |

— 18 July 1961, From Lt, Col. Pelizer to 5

f Commandant. Potomac River Naval Command 93 2

Letter dated 12 July 1961 from Commandant, Potomac : .

River Naval Command to Lt. Col. Peltser — . N

Letter dated 7 July 1961 from Appointed Defense Coun- |

sel to Com, nt, Potomac River Naval Command 97

Transcript of Proceedings held July 18-17, 1961 (pre-

wii investigation) 98

. Connor 98

William G. Mendelson _ 8 — ua

Louis R. James 142 {

Theodore Fason 158

— ae ) ) | 166

0 Z 5 *

3

Coart Martial Record—Continued

0 —

INDEX

—

Fol. 7A 2 2 f 1

Transeript of ‘Procesdings held ‘September 8-11, 1961

- (general court martial) 8

Jamés O. Hodges

Louis R. James

Charles R. Wilson

Theodore Fason 2

John W. Lynch :

Wendell 3. Carroll

William A. Clenn

Henry v. Schultz

James O. Hodges (recalled for cross es examination)

Norman Round — K

George W. Piekeral —

Joseph P. Conner i —

Emterick 8. Kelone 3

Vol. VII f

Transcript of Proceedings’ held September 11-18, 1961

(general court martial)

John F. Hill 7

Richard G. Augenblick

Frank Whitby, Jr. .

„ George W. Pickeral (recalled)

Ri Normand Round (recalled)

Pol. Ix aie hh ae

Transcript of Pre-Trial —e held 10 February

1961 7

Jamés O. Hodges ‘

Opinion of Court of Claims filed May 12, 1967

Order of Court of Claims filed November 9, 1967, denying

defendant’s oe for reconsideration ;

4

It

mti 2

1 „ — uh 8

“Relevant Dockst intries eden

“Petition fled October 12, 1968 3 a

Defendant's Answer filed January 28, 1935,

dent Iudge Advoonte’s Review of Tris! by Court-Mattial —

Ada vit of Bertha Squire

Affidavit of Forrest Herron Jr.

Affidavit of Donald A. Butner-

of Proceedings held Jantary 80-February 2, 1962.

(general court martial) *

Advice of the Staff Judge Advocate . ;

_~ Opinion of Court of Claims filed October 18,1887

- Order of Court of Claims filed January 19, 1968, denying mo-

deen Sor neee.

359

362

870

872

UNtrep STATES v. AUGENBLICK

| RELEVANT DOCKET ENTRIES 775

Petition Prlled October 22 1964

Defendant’s Answer Filed February 19, 1965

Opinion * be Filed May 12, 1967

order Denying Motion C

Pi for Reconsideration Filed November 9, 1967

.

Filed, Oct. 22, 1964, Court of Claims

PETITION {

(Filed October 22, 1964)

To the Honorable Judges of the | 55 tie

United States Court of Claims 5

1. The petitioner, on February 10, 1961, was a Com-

mander in the U.S. Navy, with eighteen years service.

He had served with distinction; this service included com-

bat service in World War II. and the Korean War, mem-

. bership in the Naval War College, service as an ‘Executive

Officer of a destroyer and an LSD and the

Officer of a destroyer, duty in the Office of the Secretary

of Defense and in the Strategic Plans Division of the

Office of Chief of Naval Operations. He had been selected

for promotion to Captain. Until February 10, 1961, his

record was without blemish. |

2. On February 10, 1961, thé petitioner was placed

under pré-trial investigation of a violation of Article 125;

Uniform Code of Military Justice (sodomy),* with the

specification that on or about January 12 he did commit

‘sodomy with a named airman. This charge and any mis- /

_ conduct associated with it was at all times and is denied

by the petitioner and he was, in’ e evenzually found

not guilty ity of this charge a althoiigh eventually found guilty ,

of a different lesser, op

8. Over objection that this grave charge, which im-

iled an entire career, livelihood and life's reputation,

uld not go to trial" without petitioner confronting his

accuser, this charge was referred to trial without peti-

tioner being permitted to confront and examine the al-

leged ‘eyewitnesses to the alleged offense, two civilian |

policemerh,- This ee geomet (by the Investigating. -

Officer) that: the chargé proceed to trial without à con-

Pa krontation between the accused and the accusers was based

in substantial part on the pre-trial testimony by a civilian

employee of Naval Intelligence, Agent Mendelson, stating -

that he had received sworn’ statements from the two civil-

ian policemen ineriminàting the petitioner. Prior to ar-

raignment, the foregoing objection was repeated and again

petitioner was denied th right to confront his azcusers:

Peꝛtitioner was then arraigned, pleaded not guilty and trial

before a General Court-Martial commenced: at the U. S.

Naval Station, Washington, D. C., on May 1, 1961. Only

then, after other testimony had been taken, but prior to

the receipt of testimony of one of the supposed eyewit /

nesses, was petitioner given an opportunity, in an inter-

view during Court recess, to question this accusing police-

man. It then developed that this accuser’s pretria state-

ment had never, in fact, been sworn. An out-of-court . |

hearing was then called and it was established from the

testimony of the policeman himself that his pretrial state-

ment had nat been sworn although Agent Mendelson had

testified, under oath, that it had. Petigioner, through

counsel, then moved for dismissal of the charge against

him on grounds that the pretrial proceeding had been

defective, the recommendation for trial defective and the

_ proceeding thereafter a nullity. law officer concurred

9 further proceedings would result in a nullity.

Rule 5 (e) of the Federal Rules of = Proce-

Pil pers as follows: ay

„(e) preliminary examination . „The ‘ans

| may cross-examine witnesses — him and may

i introduce evidence. in his, own behalf. '

9

— 2

Article 82 of ‘the Uniform * of um Justice

provides:

„a) No charge or e ‘shall be referred * a

include inquiries as to the truth of the matter set

„b) The accused -shall be sian of the charges :

- against him and of his right to be represented 3

such investigation by counsel . At such investi-

gation full opportunity shall be given to the accused

- to cross-examine witnesses against him if they are Loe

present at such invegijgation and afforded the oppor-

5

tioner's Motion to Dismiss. Nor dicche drder

Instead, he “considered” this motion to be a

Appropriate Relief,” terminated the trial, adjourned the

court, and referred the matter, back to the Convening Au-

thority for whatever disposition that Authority deemed

appropriate. No such Motion for Appropriate Relief“

had been made by petitioner. This action was taken after

5 5 * * 7

1 . 8 — 8 ,

eee en

V.

the General Court-Martial for trial until a thorough

and impartial investigation of all the matters set

forth therein has been made. This investigation shall

forth in the charges, and the disposition-which should

be made of the case in the interest of justice and.

discipline. .

available and to present anything he may desire in

his own behalf, either in defense or litigation, and

the investigating officer shall examine available wit-

nesses. requested by the accusee ld.

e) If an investigation, of the subject: matter E an

offense has been conducted prior*to the time the ac,

‘cused is charged withthe offense and the accused was

tunities for representation prescribed in_subdivision

(b) of this Article, no further investigation of that

charge is necessary under this Artiele unless it is

demanded by the. accused after he is informed of the

charge. A demand for further investigation entitled

the accused to recall witnesses for further a

amjnation and to offer any new evidence in. r

behalf. 72 i . 8 e

‘he law officer proceeded, however, to ‘ignore -

e

W — 1

otion fér . --

eae Me es gar —

petitioner had been put in jeopardy: the General Court-

Martiab had commenced and evidence had been received

on’ the general issue. On May 12, 1961, without, the. con-

sent and over the protest of the petitioner, the matter was

sent by the Convening ‘Authority to a Court of Inquiry.

On August 16, 1961, again without the request, consent

or knowledge of: the petitioner, the matter was sent to a

newly-convened Court-Martial, made up of new members,

for the purpose of trying the petitioner a second time. As

soon as it was appropriate, petitioner raised the objection

of former jeopardy; as he had in his letter of protest to

the Convening Authority. It was denied at the outset of os

the second trial. The petitioner then went on trial for

the second time for the same alleged offense.

6. The Constitution of the United States * * :

the — Amendment -thereto) :

Nor shall any person be subject for the same

dibs to be twice put in jeopardy of life or limb.”

Article 44 of the Uniform = of Military Justice pro-

* vides as follows:

“(a) No person shall, without his consent, be tried

a second time for the same offense. g

(b) No proceeding in which an accused has been

found guilty by a court-martial upon any charge or

specification shall be held to be a trial in the sense

of this article until the finding of guilty has become

final after review of the case has been fully completed.

z le) A proceeding which, subsequent to the introduc-

tion of evidence but prior to a finding, is dismissed

or terminated by the convening authority or on mo-

tion of the prosecution for iailure of available evi-

dence or witnesses without any fault of the accused

shall be a trial in the sense of this article. vd :

7. At the second trial the Government called as its

first. witness the airman who allegedly had been involved

with petitioner in the charged act. Following the airman’s

- testimony, petitioner, through counsel, moved for produc-

tion of 1) a tape recording made by the civilian agent

. oe

1

, a

1 L

of the Office of Naval Intelligence during the interroga-

tion of the airman shortly after the alleged offense took

place, and 2) notes made by the same Agent Mendelson

(see paragraph 3 supra) during this same interview. An

out-of-court hearing was then called to consider this mo-

tion. In testimony of other civilian ONI agents at this

out-of-court hearing, it was admitted that such a tape

recording was in fact made of this interview with the

airman directly after the alleged act. The law officer so

found. Agent Mendelson, himself, had earlier admitted in

pretrial proceedings and.befére the Court of Inquiry that

he had made notes during the interview of the airman

Shortly after the alleged act. Testimony at the out-of-

court hearing further disclosed that the ultimage custodian

of the recording tape in the Office of Naval Intelligence

was either Agent Mendelsof or another ONI employee,

one Scinta. It was further disclosed that the recording

tape of the airman’s interxiew was now missing. Of all

of the tapes taken of the interviews immediately after the

alleged event, the Government disclosed that only the tape

of the airman's interview was missing. Notwithstanding

the admitted taping of, the airman’s interview and the

admitted taking of notes during this interview by Agent

Mendelson, the law officer; at the conclusion of the out-

of-court hearing, ruled that 1) Agent Mendelson\ would

not be called to testify before him regarding both the dis-

appearance of the tape and the nature of the notes taken

‘by him during the airman’s interview, 2) that the Gov-

- ernment would not be required to produce Agent Mendel-

son's notes, and 3) that notwithstanding the mon-produc-

tion of the tape of the airman’s interview by the Govern-

ment and the refusal of the Gove nt to produce Agent

Mendelson’s notes made during this interview, the di f

testimony of the airman would not he strieken. Petitidher

maintains that these rulings are of special significance in

the light of the fact that the airman was not tried for

any offense and received an honorable discharge from the

Air Force at the termination of the proceeding against

the petitioner, which same proceeding resulted in peti- -

tioner’s dismissal from service.

8. Section 3500 of Title 18 e provides as fol-

lows:

„b) After a witness called by the United States has

testified on ‘direct examination, the court shall, on

motion of thé defendant, order the United States to

produce any statement (as hereinafter defined) pf

the witness in the possession of the United States

which relates to the subject matter as.to which the

Witness has testified: If the entire contents of any

such statement relate to the subjéct matter of the tes-

timony of the witness, the court shall order it to be

delivered directly to the defendant for his examina-

tion and use.“ :

. * * *

a “(d) If the United States elects not to comply. with

an order of the court under paragraph (b) or (e)

hereof to deliver to the defendant any such statement,

or such portion thereof as the court may direct, the .

court shall strike from the record the testimony of

the witness, and the trial shall proceed unless the

court in its discretion shall determine that the inter-

ests of justice require that à mistrial be declared.

“(e) The- term ‘statement’, as used in subsections ,

(b), (e), and (d) of this section in relation to any

witness called by the United States means—

11) 2 written statement ade by_said-witness 8

— and signed ar otherwise ado opted or approved by

ic him; or 8 g re

(2) a stenographic, mechanical, electrical, or

other recording or a transcription thereof, which

is a substantially verbatim recital of an oral state

m ment made by said witness to an agent of the

Government and recorded contemporaneously

with the making of such oral statement.“ Added

Pub. L. 85-269, Sent. 2, 1957, 70 Stat. 595.

9. The second General Court-Martial then proceeded as

its conclusion. It found the petitioner not guilty of the .~

charge and specification under Article 125 of the Uniform

Code of — Justice ( e). It did, however, find

*

—

— —— —

the petitioner guilty of a Windes of Article 134 of the

Uniform Code of Military Justice. The Court then modi-

fied the specification of the charge by deleting the word

“sodomy”, on which it specifically found the petitioner not

guilty and substituting therefor the specification “an in-

decent, lewd and lascivious act” with further descriptive .

language denoting an Act substantially different in legal

; significance than that originally charged, and an Act

which wholly conforms to petitioner’s explanation of the

2 exculpating the petitioner. The language of the

iginal charge and specification and that of the finding

of the second General Court-Martial are set out in an

Appendix for use by the Court if it deems them pertinent.

On September 13, 1961, the Court sentenced the petitioner

to be dismissed. from the service. On March 8, 1962, the

sentence was approved by the Convening Authority. On

September 20, 1962, the Board of Review, U. S. Navy,

with one of. the three members dissenting, approved and

affirmed the findings and the sentence of the General

Court-Martial. On October 29, 1962, the petitioner filed

a Petition with the Court of Military Appeals seeking a

Grant of Review in that Court. On January 11, 1963,

the Court of Military Appeals denied, without opinion,

petitioner’s Petition for Grant of Review in that Court.

RNeconsideration of this denial was also denied by that

Court, also without opinion, on January 29, 1963. On

January 30, 1963, the Secretary of the Navy declined

further review under Article 71 of the Uniform Code of

Military Appeals. The petitioner was dismissed with total

forféitures as of February 5, 1963. Petitioner has not

been reinstated to duty since ‘that date.

10. Petitioner alleges that the entire proceeding consti |

against him was a nullity because this proceeding violated ©

the basic safeguards of a fair trial as this is known to

7:

4

federal law; the proceeding violated rights guaranteed to

the petitioner by the Constitution of the United States;

and the proceeding further violated rights gua ateed to |

the petitioner by federal statute. These violations did not

constitute simple errors of judgment or differ be-

tween petitioner and the military officials as to facts. Nor

did these violations constitute 9 *

8 8

error. These violations, in sum, deprived the petitioner

ol due process of law and of a fair trial as it is known in

the aden of = United States. These specie viol * ions

are: )

(a) Petitioner was denied the right to 8 his

accusers at the pretrial stage of the proceeding. He was

thus deprived of his right to secure dismissal of the charge

which subsequent legal determination held to be defective.

He was thus deprived of his right to secure this dismissal

| au to the jeopardy and humiliation ofa General Court-

(b) As a concomitant of the. deprivation set forth in

subparagraph 10(a) hereinabove, petitioner was déprived

of the right to confrontation and questioning of his ac-

cusers at the pretrial. stage ba in his loss of opper-

tunity at that stage of the proceeding to reduce the charge

against him from a viol icle 125 of the Uni-

form Code of Military aatice to . of violation of Arti-

ele 134 This reduction was made at trial by the Court

after h the same witnesses whose testimony was re-

counted at pretrial. Petitioner was thus deprived of the

opportunity: to eliminate the major charge against him

at ‘the pretrial level.

(e) Petitioner was subjected to double jeopardy for the

6 fe same charge, without having waived his constitutional

right to be protected therefrom, without consenting to dou-

ble prosecution, and without being in any way responsible

for the termination of his former jeopardy, which resulted

from defective procedures engaged in by the Government.

d) Petitioner was subjected to prosecution under com-

mand control when the Government, after taking the trial

out of the hands of the General Court-Martial which had

experienced the defects and errors of the Government’s

proseeution in the first trial, was permitted to submit the

euse for further disposition to a Court of Inquiry, over

the protest of the petitioner. Command control became

especially to the petitioner when it was neces-

ee disclosed at this Court of Inquiry that petitioner

8 been ordered on an earlier occasion—to trial

: ogg whose disposition was before the Court of

oe irrelevant to the nn before

the Court of Inquiry and irrelevant to the disposition of

the case by that tribunal, was prejudieial in that it re-

vealed elearly and unequivocally to the Court of Inquiry

the command: determination to prosecute the petitioner.

(e) Petitioner was subject to prosecution’ under com-

mand control in his second jeopardy, with the Govern-

ment taking the trial out of the hands of the General

Court-Martial, which had experienced the defects and er-

rors of the Government's prosecution in the first. trial,

and placing the ‘prosecution - before a newly conven ~

General . Court-Martial.

(f) Petitioner’s basic right to a fair trial was invaded

when the Government blatantly violated sections 3500 (b)

and (d) of Title 18, U.S.C., to the grave prejudice of the

; petitioner.

(g) Petitioner's bade right to a fair trial was mind

when the law officer prevented the evidence of the Gov-

ernment's violation of sections 3500 (b) and (d) of Title

18, U.S. C., from being presented to the General Court-

Martial.

11. Since the petitione as subjected to a proceeding

which, because of its disregard for due process of law

and petitioner’s constitutional and statutory rights, was

a nullity, petitioner’s sentence of dismissal from the serv-

i iee is a nullity.

12. No action save that before the Board for Corree-

tion of Records of the United States Navy has been taken

upon this claim, either before the Congress, or, except as

noted, before any of the executive agencies of the Govern-

ment. The pending proceeding before the Board for Cor-

rection of Records, U. S. Navy, is a post-conviction rem-

edy whose exhaustion need not forestall action by this

Court.

13. Petitioner is the sole owner of the claim herein

sued upon, and no assignment or transfer of the elaim

or · any part thereof, or any interest therein has been made.

Petitioner is a citizen of the United States and loyal to

the U. S. Government and has not aided or abetted in any

manner or given comfort to any sovereign government

that is or ever has been at war with the United States.

6 F

Navy on February 5, 1968 to the date of this Court’s

judgment and prays for such other. and :

which he may be justly entitled.

/s/ Joseph H. Sharlitt

JOSEPH H. SHARLITT

SHARLITT & SELIGSON

1001 Connecticut Avenue

Washington, D. C. 20006

N Counsel for Petitioner

8

y

: _ APPENDIX

CHARGE AND. SPECIFICATION

Charge:

| Violation of the Uniform code of Military Justice,

Article 125.

‘Specification :

In that Commander Richard Gerald a U. 6.

Navy, did at Wesk Basin Drive, Washington, D. C.,

on or about 12 January 1961, commit sodomy with

James O. Hodges, Junior, airman third — U. S.

Air Foree.

9 P PLEAS

To ‘the charge and the specication: :

. Net guilty |

' FINDINGS

Of the charge and the specification ;

Not guilty of violation of Article 125 but guilty of

violation of Article 184, UCMJ. Of the specification

of the charge guilty, except the word “sodomy”, sub-

stituting therefor the words “an indecent, lewd and

lascivious act“, and by adding at the end of —

specification the words, by willfully and

_ placing his head in the lap of the said Hodges with

his head in close proximity to the exposed penis of

the said Hodges,” of the excepted word, not feds

of the substituted words, _—

—

o

*

te

.

5 ‘

9

bs fox? as pe ose :

Davenpanr’s. ANewan—Filed February 19, 1965

"Defendant for its answer to the petition herein admits, —

denies, and alleges as follows: ° | , 0 :

1. Admits the allegations of the first sentence of para-

graph 1. ‘Admits the allegations of the second sentence

* 238 1 save for the allegation that he had served

with distinction” which. allegation represents a conclusion

denied, - Admits the allegations of the third sen-

of paragraph 1. 5 See

- Admits the allegations of the first sentence of para-

. which is

_ tence of paragraph 1. Denies the allegations of the fourth -

2.

. Denies the allegations of the first sentence of para-

3 graph 8, except that defendant admits that the two mill.

tary were not present at the Article 32 pretrial

the 1 ＋ of the second sen-

‘tence t paragraph except that defendant admits that

testified at the Article 82 pretrial in-

1 policemen. Denies the allegations of the

— — except that defendant ad-

plaintiff again objected to

" westigation that he had obtained sworn statements from

of-court hearing was held whereat

: al € policeman testified. Denies the

he eighth and ninth sentences of paragraph

allegations of paragraph 4 to the extent

f

cat said allegations are borne out by the actual text of

‘a 12 ‘ ; — f 9 *

: E 1 Rules of Criminal P

enth sentence of paragraph 5, except that defendant

ol paragraph 7. Adinits the allegations

. enth sentence. Admits the allegations of

8

93.

, 1

7

and Article 32 of the Uniform Code of Military Justies.

5. Denies the dileg TH

paragraph 6, Admite the allegations of the third sentence

pt paragraph 5, that defendant denies that hs

| officer terminated the trial and adjourned the court.

. / Defendant denies the allegations of the fourth sentence —

of paragraph 6, with the exception ¢ ‘the allegation

that

“this action was taken after. the Gefieral Court-

** martial had commenced and evidence had been received” .

on the general issue,” which is admitted. erage —— 3

of the fifth sentence of paragraph 5 consitute

of law to which a response ia not required, but to

extent that a response may be deemed necessary, it

denied. Denies the allegations of the sixth sentence

4 rr

paragraph 6,-éxcept that defendant admits that on May

12, 1961 the ‘matter’ was sent by the — a

to à Court of Inquiry. Denies the allegations of the sev-

11

mits that on June 16, 1961 the ease was referred

by General Court-martial and was sent to~a

ened Court-martial, made up of new members,

he-allegations of. the eight’ and ninth sentences of para-

aph 5. Denies the allegations of the tenth sentence of

aragraph 5, and by way of further answer,

a after = denial of plaintiſt motion the om

ntinu

6. The Constitution and’ Uniform Code of M

Justice are the best evidence of their contents and

8

al

10

ant admits the allegation of paragraph 6 to the extent

that they are in conformity with the identified sections

of those documents, VV

n

tence of paragraph 7. <> an cn Gk

and.

ninth sentences. of paragraph 7. Denies the. allegations

ot the tenth sentence of paragraph 7, except that defend-

ant admits that the law officer ruled that the Government

fee J

9

would not be required to produce Agent Mendelson’ s notes

and that the direct, testimony of the airman would net be

stricken. Denies thé en of the eleventh sentence

of pdragraph. 7.

8. Section 3500 of Title 18 (U.S. C.) is the best evidence

of its contents and the allegations of paragraph 8 are

admitted to the extent that they are borne out by the

actual wording of that section and they are denied to the

extent that they vary from that wording.

9. Admits the allegations of the first three sentences

of paragraph 9. Denies the allegatiens of the fourth sen-

tence of paragraph 9, and by way of further answer, de-

fendant alleges that the court fotnd plaintiff guilty of the“

specification except the word “sodomy,” substituting there-

for the words “an indecent lewd and lascivious act” and

adding to the specification. further descriptive language.

. Admits the allegations of the fifth, sixth, seventh and

eighth sentences of paragraph 9, and by way of further

a:

6

answer, defendanf' alleges that the dissenting member of

the Board of Review dissented in part, and concurred in

part. Admits the remaining allegations of paragraph 9.

. > §Ocand If. e the allegations of paragraphs 10

and 11.

12. Defendant is n knowledge or {nfoRmation |

sufficient to form a belief as to the truth of the,allega-

tions contained in the first sentence of paragraph 12, and

therefore denies the same. The allegations of the second

. Bentence of paragraph 12 constitute conclusions of law to

which no response is required, but to the extent that they

“4 be deemed allegations of material fact, they are de-

vi

13. Defendant is without N or 3 —

— K

-gufficient to form a belief as to the truth of the alle

contained i in n paragraph 13 and therefore gad are ‘denied.

y

oO

: WHEREFORE, the petition should be dismissed.

ees ie e John W. Douglas

JOHN W. DOUGLAS af

3 5 ao Assistant Attorney General, -

5 ° Civil Division

| „ aa V., Imesingg-

1 /s/ Edgar H. Twine | 5 .

- Epear H. TWINE ee N

Attorney, Civil Division f .

Department. of Justice 1

4 * :

a 2

. ‘

co ae ; *

w ag ” 2 5

„ Se «

* = 8

=-_ 1 1

16

_ UNITED STATES COURT OF MILITARY APPEALS

No, 16,465

UNITED STATES, APPELLEE

v. i

By _ COMMANDER RICHARD G. AUGENBLICK

(102649/1100), USN, a -

ORDER DENYING PETITION FOR ‘REVIEW

On consideration of the Petition for Grant of Review f

of the decision of the Board of Review in case No. NCM

62-0886 of the United States Navy, it is, 5 the Coùrt,

this llth day of January, 1968, ,

ORDERED:: ? a

That said Petition be, oni the same is, “hereby denied.

/

For the Court

‘ec: The J udge Advocate General

A. Kenneth Pye, Esq. -

George W. Shadoan, Esq

Cdr Werner Windus, USNR

Appellate Defense Counsel

Major Elvin R. Coon, Jr., USMC

-Appellate Government Counsel

Filed Jan. 11, 1963, United States Court

of Military Appeals

CERTIFIED TO BE A TRUE COPY

7a, Alfred C. Proulx

C. PROULX

4 Clerk

| | 2

"DEPARTMENT OF THE NAVY, 9 75

- OFFICE OF THE JUDGE ADVOCATE GENERAL, -

a Washington 26, D.C.

In The Board of Review, U. S. Navy, Before

GO. F. 1 IR., Z. W. NEFF, AND W. 8S. “TYSON

NCM62 0886 laa

UNITED SraTEs | .

V.

RICHARD G. Abuniütabte, 102649/11, COMMANDER,

U. 8. Navy

Review pursuant to Article 66(c), UCM, of general

court-martial convened by Commaidant, Potomac River

‘Naval Command, L. S. Naval S tation, ‘Washington 25,

D. C. Sentence adjudged 13 September 1961

(Decided, 20 September 1962)

CDR WERNER Winpus, USNR, Appellate Dahm

Counsel.

CDR Cart B. ‘KLEIN, USNR, Appellate Government

Counsel.

A. KENNETH Pyr, ‘Esquire, Individual Counsel r

- Accused. ~ .

* “DECISION

Upon trial by-general court-martial accused Wandel not

guilty. to the Charge and specification thereunder’ alleging

sodomy in violation of Article 125, Uniform Code of Mili-

tary Justice. He was found. guilty by the court of the

lesser included offense of an indecent, lewd and lascivious

*

act in violation of Article 134 of the Code. He was sen-

ced to be dismissed from the service. On 8 March

_ 1962, the sentence was approved by the convening author- -

ity.

The voluminous recdfd i in this case is composed of eight

volumes which inelude, (1) Article 32, Ts er

a |

tion, (2) the original trial wherein the charge and specifi-

eation was withdrawn by the convening authority, (3) a

Court 6f Inquiry, (4) another Article 32, pretrial *

tigation, and (5) the second. or completed trial. :

Appellate defense counsel has assigned three errors

Wich we shall, insofar as is practicable, discuss in the

order as submitted. However we will first set forth briefly

the facts which gave rise to the preferring of the charge

and specification against this officer.

The evidence adduced indicates that on the night in

question the accused after having attended an office party

where he consumed drinks of scotch with little water, pro-

ceeded to his home. Not feeling like turning in, he left

home and visited a restaurant with a bar located in Vir

ginia, where he had a few beers and then proceeded to an

officer’s club at a nearby Army Post. There he drank

more beer, watched T.V. and then proceeded to Washing-

tion, where he visited a bar and again watched T. V. and

drank more beer. In the meantime, becoming extremely

tired and desiring a cup of coffee he entered a “White

Tower” restaurant, where he secured his coffee and en-

gaged in conversation with an airman who was waiting

for a bus which would return him to his base in nearby

Maryland. It is not clear from the record who initiated

the conversation but it resulted in the accused and the

airman taking a ride in the accused’s automobile. Even-

tually, the accused parked the automobile in the vicinity

of West Potomac Basin where they were apprehended by

two Metropolitan Police Officers, taken to the Third Pre-

cinct, charged with disorderly conduct, and delivered over

to military police. The accused testified i in his own behalf

that he was ‘driving toward the “Fourteenth Street

Bridge”; that he was very, very sleepy and felt that it

was unsafe to drive and therefore stopped in the area

mentioned and went to sleep; that the next thing he re-

members.is the glow from the flashlight of one of the ar-

'. resting officers. The airman, was was in full military uni-

form at the time of the arrest, testified for the prosecution,

that the accused first informed him that he had. his, the

- aecused’s, uncle’s car and that they could.go to his uncle’s

home for some rest; that refusing this offer he went for

eres 8

Samuels, 10 USCMA 207, 27 CMR 280.

A

—

—

a ihe with. the hope of being returned to his 1 that

upon parking the automobile accused asked whether he

could lay his head in the airman’s lap and after certain |

preliminaries an act of sodomy was performed upon him

by the accused. The arresting police officers testified that

they noted the accused’s head disappear from the driver’s

side of the vehicle and upon inspection found the accused’s

face very close to the exposed privates of the airman.

I. The Law Officer Erred in Denying the Accused’s

Action to Dismiss the Chargé and Specification on

the-Ground of Former Jeopardy

For the purpose of clarity it is. felt appropriate to re-

view the particular parts of the various an hav-

ing a bearing upon this assignment.

„At the outset of the first Article 32 pretrial investiga- ;

tion, defense counsel objected vigorously to going ahead

with the proceedings in the absence of the two Metropoli- -

tan Police Officers who would not appear unless sub-

poenaed. The defense counsel stated “There i is a procedure

in existence for securing their presence.” The investigat-

ing officer noted the objection and through sworn testi-

mony of an agent of the Office of Naval Intelligence ac-

cepted as evidence written documents containing jurats

and purporting to be the sworn statements of the two

police officers. Upon completion of the investigation the

investigating officer recommended that. the accused be

brought to. trial before a court-martial. United aap v.

counsel, renewed the ee concerning the appearance

of the police officers, made at the Article 32 pretrial in-

vestigation, and moved that the charge and — sf

be dismissed and stated in part:

Those policemen were readily available by 3

of the Navy with which the Legal Officer was com-

pletely aware, namely that a Court ef Inquiry, which

would have subpoena power, could be employed, and

objections were made at that time to the investigating

officer against proceedings with the investigations in

the absence of those officers. (R14, 16, Vol. II).

We also find the following language in. further argu-

ment on a motion for dismissal by defense;

I believe and I submit to the law officer, that I

don’t think I could. have made it any clearer right

at the very outset that we’ve not only objected, but

without using the words “Court of Inquiry” as such,

which I say again, I don’t think was necessary; the

Investigating Officer, the. Commander, the Legal Offi-

cer, he knew what I meant without using the touch

“stone. Court of Inquiry, but we were told that this

is the proceedings, this is the way we are going to

proceed and ‘that’s it. (R27, Vol. II).

After much argument by the defense and 1

in an out-of-court hearing concerning the defense’s motion

* dismiss, the law officer has this to say:

‘* * * as to the second aspect of the defense motion

as noted I consider it a motion for appropriate relief

since this is the proper motion directed to alleged

defects in the pretrial investigation. As I noted pre-

viously, the defense has an opportunity to examine

these witnesses prior to the time that they testify if

the defense so desires and the request is made for

such opportunity. In this light I would inquire of

the defense for purposes of clarity whether the de-

fense desires at this timé a further pretrial investi-

gation or a court of inquiry to be held in this matter?

(R42, Vol. il). 28 1 3 |

. @

Defense replied:

Yes, sir. The answer to the law officer’s

question is that very definitely we would ask for a

court of inquiry, That was what we had meant by

implication at the very beginning, sir. (R438, Vol.

... oth

The law officer denied this 1 888 of defense motion

stating:

The material 3 by. the defense niles 3

appear that the testimony of the two police absent

_ Witnesses at the pretrial, whose absence was objected

"

to by defense, was received by the pratrial investi-

gating officer in the form. of sworn statements as

prescribed by paragraph 34, Manual for Courts-Mar-

tial, Article 32, UCMJ and currently decided case

law. Further it does not appear that an effort or

request was made on the part of the defense to avail

itself of the procedures specified in Article 49 of the

Uniform Code of Military Justice. Nor does it ap-

pear from the matter presented that the Command-

ing Officer of the accused at the time of the pretrial

investigation acted arbitrarily or capriciously in hold-.

ing an Article 32 type investigation with knowledge

that the 2 police officer witnesses if called for volun-

tary attendance by the investigating officer would de-

cline to so attend and thus render them unavailable

since subpoena powers did not exist with the inves-

tigation officer. Nor does it appear that the Article

32 type investigation was held or directed with the

intention of depriving the accused of confrontation

and cross examination opportunities. It is therefore

my opinion that the proper purposes of Article 32,

UCMJ were served by the pretrial investigation held

and that such investigation’ was lawfully conducted.

Your motion in this regard is therefore accordingly

denied. (R44, Vol. II). ,

The out-of-court hearing having been: concluded the court

reopened and the airman testified, giving very damaging

evidence against the accused.. At the conclusion of the air-

man’s testimony the trial counsel announced that his next

witness would be one of the police officers. At this time.

the. Law Officer afforded the defense whatever opportunity

it desired in connection with examining the witness prior

to his testifying at trial. (R107, Vol. II.) The court re-

cessed to afford defense time to examine the witness.

There was then another out-of-court hearing. wherein the

defense stated that in their interrogation of the police

officer he categorically stated that he had not sworn to

the statement which was later accepted by the investigat-

ing officer at the pretrial hearing and to which reference

was made that it was a sworn statement, ee. Vol.

|

22

II.) The defense, because of this, again moved to dismiss

the charge and specification as being defective ab initio.

_(R212,.Vol. II.) The police officer was then called and

examined by the trial and defense counsel. During the

examination the police officer stated. No, sir. I never

swore to the facts in that statement.” (R114, Vol. II.)

After hearing testimony given by the ONI Agent who

took the statement from the police officer and testimony

‘of the Investigating Officer the Law Officer stated that he

considers the motion made by the defense to be a motion

for appropriate relief and “should be granted and is 80

granted in that regard.”: He further considered it a mat-

ter properly within the province of the Convening Au-

_ thority to determine what disposition is to be made of

+

this matter and as to any furthér action in regard to the

charge and speeifiegtion. pe heen

“hereafter the Convening Authority withdrew the

charge and specification from the Court and on 12 May

1961 convened a ( of Inquiry which met on 23. Mey

1961. At this Court of Inquiry the police officers testified

under oath. The Court of Inquiry recommended that the

accused be brought to trial by general court-martial on

echarges of violation of Articles 125, 133 and 134, Uniform

Code of Military Justice. (R185, Vol. III.) ;

On 18 July 1961, at the request of the defense, an ad-

ditional pretrial investigation was held for the purpose

of discovery; through examination of witnesses under

oath, and to obtain and record the sworn testimony of .

ain witnesses. We need not, at this time, concern our-

\- selves with this particular investigation as it does not

bear on the ‘assignment presently before us. (RI, Vol.

V.) | ; | 3:

On 10 August 1961 a new general court-martial com-

posed of new members was convened for the purpose of

trying the accused for the violation of Article 125, Uni-

> 8 2

tion be dismissed on grounds that the Fifth Amendment

of the Constitation was violated. ( R26; Vol. VI.) After

much argument by defense and government, the Law Offi-

cer denied the motion. (R49, Vol. VI.)

With the above background in mind we now move to

the first assignment. In support of this assignment a

pellant avers that it is well settled that jeopardy attaches

when evidence has been general issue, cit-

MA 509, 26 CMR 289,

v. Hunter 336 US. authori-

ent that there was no ex-

From the very beginning of the first Article 32 pre-

trial investigation, the — for the aceused, maintained

their richt to have certain witnesses present for the pur-

of cross examination. Although not using the particu-

te ar “Court of Inquiry”, theedefense made it ‘clear

ating officer that there was, in tHe service, /

administrative procedure which includes

4 —— powers requiring the presence of witnesses for

the of examination.

estigating officer through the sworn testimony

of witness eC an. 8 agent, accepted two state-

ments of the police officers or to the receipt of the

statements the investigating mel had received the oral

of the airman who was subjected to vigorous

eross examination by defense counsel. The investigating

_ officer also attempted to secure the presence of the two

police officers but was informed by ‘competent authority

8

t

would not appear unless subpoenaed.

2 rial inv ee: officer is not re-

quired to decide t legal questions or adhere to the

a oie rules of evidence. Accordingly, he is not precluded

from considering statements of witnesses not available for

personal , even though this unavailability affects

the accused’s te to cross examine. b United States v.

. Samuels, supra.

In examining the sworn testimony of the airman, we

ars of the that the investigating officer possessed

sufficient tion and grounds upon which to base a

recommendation for trial by court-martial. “An Article

22 pretrial investigation is a preliminary proceeding, not

n trial on the merits.” United States v. Samuels, supra.

‘whew of the testimony of the police officer, that he

In

had not sworn to the statement the law officer was faced

with the possibility of a defective pretrial investigation,

reg hyena L. fact that much testimony damaging

to the accused detente had ow tak by the airman and fur-

ther that the defense now taken advantage of the law

oMiesr’s offer affording the defense the opportunity to fully

and completely examine the police officers. Confronted

with this unique situation the law officer made the follow-

.

Lo. Well, I den that on the authority ” the

Samuel’s case at least there is a question of fact here

as to whether or not the statement of Mr. Round

owas in fact sworn to, and, I don’t consider it within

the province of the law ‘officer to determine such a

question of fact. I think it is not properly a matter

for the court to determine, since it is a matter not

concerned with findings. I consider it is a matter *

which is properly within the province of the 5 7 ll \

ing Authority to determine what disposition 754

made as to this matter and as to any furthe

in regard to the Charge and Specification. On that.

basis, I consider that the motion made by the defense, .

which I consider to be a motion for appropriate re-

4 lief, should be granted and is so granted in that re-

gard. Under those circumstances, you will advise the

Convening Authority that the motion for appropriate

relief has been granted based on matters concerning

the validity of the pretrial investigation for whatever .

further disposition he desires to make. (R184, Vol..

II. ) 7 a . * a

The defense made no objection to the law officer’ rul-

ing. Thereafter the convening authority withdrew the

charges and specification from the court and convened a

Court of Inquiry. Thus the defense was finally granted

that which he originally requ . (R48, Vol. II).

United States v. Stringer, 5 US 122, 17 CMR 122.

Appellant relies rather heavily upon the dissent in Wade

v. Hunter, 336 U.S. 684, 69 S. Ct. 834, and the case of

Green v. United States, 355 U.S. 184, 78 S. Ct. 221.

In Wade v. Hunter, supra, the convening authority of

a general court-martial withdrew the charge from a court

which had heard argument of counsel, closéd to consider

the case, and then opened and requested two witnesses

who were 22 miles away and too ill to travel.. This oc-

curred in Germany at a time the American troops were

advancing: ‘In view of the tactical situation, the distance

to the residence of such witnesses had become so great

that the case could not be completed within a reasonable

. time, ce the ease was transmitted to another com-

. 5 | 5

w

26 ms 5 . f f N

manding general rer the witnesses, A new trial was

bald. and the accused pleaded former jeopardy which was

. denied and he was convicted. He then brought habeas

corpus proceedings in fedgral court. The court ordered

his release and the case Went to the Supreme Court. In

’ ‘overruling the lower court the Supreme Court said that

there may be unforeseeable circumstances that arise during

a trial making its completion impossible and in such event

ae the purpose of law to protect society from those guilty of

erimes frequently would be frustraed by denying courts -

power to put the defendant to trial again. The court went

on to say that the law has invested courts of justiee with

the authority to discharge a jury from giving any verdict,

. whenever, in their opinion, taking all the circumstances

into consideration, there is a manifest necessity for the

act, or the ends of public justice would otherwise be de-

a fes ted. The minority asserted that the harassment to the

defendant from being repeatedly tried is not less because

the Army is advancing and that the guarantee of the Con-

stitution against former jeopardy is not to be eroded away

by a tide of plausible-appearing exceptions.

; As stated above, the law officer was faced with a unique

situation, a possible defective pretrial investigation which

may well have been the basis for nullifying the entire

proceedings. The Court of Military Appeals i Samu-

_ + elg ease, supra, made clear that should witnesses ‘not be

', available for examination during a pretrial investigation,

any statements of such witnesses must be sworn state-

ments. This protects the accused from baseless charges

and assures the convening authority of possessing reliable

information upon which to base his decision concerning

the disposition to be made of the matter. The courts are

forever seeking the truth and jealously protect the rights

of an accused not to be tried upon scurrilous information.

United States v. Nichols 8 USCMA 119, 23. CMR 343.

The defect here is considered a judicial one which

\ strikes at the heart of our judicial’ proceedings and, there-

| fore, required immediate remedial action to assure a fair

trial and to keep the proceedings free from substantial

doubt as to legality, fairness and impartiality. We are,

" therefore, of the opinion that the law officer’s action in ae

ae *

\

‘

1

* ee.

* 5 . . eo „

0 — ‘ . ‘ .

5 : ‘ ‘ .

1 0 ? — :

. } »

8 1

AL

27

and that he did not 4bdicate his authority to declare a mis-

trial. Further, we do’ not believe that the convening au-

thority usurped: the authority possessed by the law officer.

We distinguish the case at bar from the Green case,

returning the case dic converiing authority. was proper, ‘ i

supra, in which Green was charged with first degree mur-

der but was found guilty and sentenced on a lesser in- -

cluded offense of second degree murder, however, because

the jury's verdiet was silent as to the original charge of

first degree murder he was retried and found guilty of ö

the original charge. Justice had been done at the first

trial and there was no manifest necessity“ warranting

a second trial to keep the proceedings free from substan-

tial doubt as to legality, fairness and impartiality. In

the case at bar we feel there was a manifest necessity”,

warranting a second trial.

In United States v. Gori, supra, also cited by appellant,

the judge, on his own motion and with neither approval

nor objection by defense counsel withdrew a juror’ and

declared a mistrial: It is unclear what reasons caused the

court to take this action, which the Court of Appeals

characterized as “overassiduous” and criticized as “pre-

mature. Nevertheless, the court below did not hold the

ruling erroneous or an abuse of discretion.’ But after dis-

cussing the wide range of discretion which the “funda-

mental concept of the federal administration of criminal .

justice“ allows to the trial judge in determining whether

or not a mistrial is appropriate a responsibility which

“is particularly acute in the avoidance of prejudice aris-

ing from nuance in the heated atmosphere of trial which

cannot be fully depicted in the cold record on appeal“,

the court concluded that the judge was acting according

to his convictions in protecting the rights of the accused”.

The Supreme Court in affirming the action of the lower

court stated in part:

It would hark back to the formalistic artificialties ,

of seventeenth century criminal procedure so to con-

fine our federal trial courts by compelling them to

navigate a narrow compass between Scylla and

Charybdis. We would not thus make them -unduly

hesitant conscientiously to exercise their most sensi-

*

7. 1

tive judgment —according to their own lights in the

immediate exigencies of trial for the more effective

protection of the criminal accused.

In the case at bar. the law officer clearly set forth his

reasons for submitting the question to the convening au-

thority and we have stated above our reasons for finding

the law officer’s action to be proper. .

We find the cases of Stringer and Ivory, supra, to be

of particular help in resolving the issue before us.

The Charge in the Stringer case was withdrawn from

the first court because the convening authority considered

certain remarks made by the court’s president concerning

the trial counsel’s presentation of the case to be “highly

rejudicial to both Govérnment and the accused”. The

sfense objected strenuously to the withdrawal of the.

charge and reasserted that objection by way of plea in

bar when brought before the second court-martial. -

The court discusses thoroughly the theory of “former

jeopardy” and related articles of the Uniform Code in-

cluding the legislative history of certain of these articles.

The. Gurt decided that the convening authority has the

power to withdraw the charges prior to the finding when

there is a manifest necessity”, without the attachment

of jeopardy and that Congress did not intend to confer

on an accused, either under Article 44, Uniform Code of

Military Justice, or otherwise, a right to be placed, by

reason of trial incidents beyond the control of the Gov-

ernment, in such a position that he may win and cannot

lose in a trial. N

We have determined above that . there was a judicial

mistake present in thi at bar and therefore it was

2. necessary to raw the charge in order to keep the

: proceedings free from substantial doubt as to legality,

fairness, and impartiality.

In Ivory, supra, the accused was charged with desertion

under a specification which described his unit as an ord-

nance unit when in fact his unit was the Overseas Re-

placement t. The error resulted from the misinter-

pretation of “ORD” on the morning) report“, and was

discovered by the president of t urt and made known

at the time he announced the finding of guilty. The trial

29

counsel moved to amend tlie specification. to conform to

the proof. The defense objected and suggested that the

proper procedure would be a dismissal of the specification

on the basis of fatal variance and the convening of a new

court to try the accused on a properly pleaded charge.

The law officer directed the trial counsel to consult the

convening authority. The convening authority concluded

that there was a fatal variance, withdrew the charge and

appointed a new court. Before this second court the de-

fense moved to dismiss the charge on the ground of former

- jeopardy. The motion was denied. ;

The Court of Military Appeals in holding the action

of the convening authority to be proper stated that it

could refuse to consider the merits of the accused’s appeal

since the procedure followed was that suggested by the

defense and usually an accused cannot insist upon specific

redress and then complain because the government gave

him his desired. relief. However, in the interest of justice

the court considered the merits of the appeal. (Headnote

No. 1.) :

In discussing Article 44, Uniform Code of Military

Justice; the Court has the following to say:

It has been axiomatic to our jurisprudence that

‘the jeopardy provisions of the Constitution are waived

by an accused who is enjoying a new trial as a con-

sequence of his own successful appeal from a former

proceeding. This waiver would not, of course be ap-

_ plicable in all appeals in military law since under

our procedure, an accused may be the beneficiary of

certain automatic appeals. Articles 66(b) and 67(b),

*; UCMJ,* * *..

tn summary We ‘find, at tha first trial, that the police

officers were present and available as witnesses; that tes-

timony very damaging to the accused had already been

received by the court through the testimony of the air-

man. It therefore, cannot be said that the Government

lacked witnesses or that it failed to present substantial

evidence. (Article 44. UCMJ) also, United States v.

Stringer and Wade v. Hunter, supra.

The law officer made clear his reasons for intial:

the defense motion which he properly termed a motion for

wa

ae ey,

appropriate relief. His reasons are set forth above. He

believed on authority of the Samuels case supra, there

Was a question of fact as to whether or not the police

officer had sworn‘ to his statement. And indeed there

was a question, since the officer said he did not swear to

the statement and ONI, agent Mendelson was not certain

but felt he had taken the officer’s oath after taking the

statement. The law officer considered this matter not one

for his or the court’s determination but one within the

province of the convening authority and therefore, sub-

mitted the matter to that authority. We do no doubt that

had the law officer considered the matter one for his deci-

sion, he would not have hesitated to declare a mistrial.

We are unable therefore, to see, as stated: before, wherein

the convening authority usurped in any manner the au-

5 thority possessed by the law officer or that the law officer

abdicated his authority. For these reasons we distinguish

this case from the objections set forth by the Chief Judge

in Stringer and Ivory, supra.

From the very outset of the preliminary proceedings,

the first pretrial, and again during the first trial, the

defense made clear their desire to have a Court of Inquiry

convened.. The convening authority acceded to their desire

by convening a Court of Inquiry for the purpose of cor-

recting a possible defective pretrial investigation. There

were other means at the disposal of the law officer and

the convening authority to clarify this issue and remedy

the defect but we do not believe it is for us to be a “Mon-

day morning quarterback” in this particular instance since -

we see nothing here that would lead us to believe that

the action taken by the law officer and the convening au-

“thority was for any purpose other than to cure a defect.

and assure the parties a fair and impartial trial. As

stated, a prima facie case against the accused had already

been made out. There was no objection to this procedure

by the accused, and he cannot now claim prejudice on this

basis. (Ivory, supra.)

There is another matter which appears in appellant's

brief under this assignment, i. e., the concern of the presi-

dent of the first court with what he labeled “administra-

tive delays”. There is no question that this officer dis-

*

5 „

g played: irritation in the a 0 caused by the n n

of court hearings. (R118-120, Vol. II.) Whether or not

this irritation would have affected his and other court ©

members’ impartiality is unknown and a moot question

since the court was adjourned and did not reopen as the _

charge and specification was withdrawn from that.court

and none of its members sat on the new or second court.

Further although it may have been sufficient reason to

declare a mistrial such was not the basis for the with-

drawal of the charge and specification. No prejudice to

the aceu sed resulted from the President's irritation or re-

marks extending therefrom.

It is our opinion that an unforeseeable circumstance.

arose making the completion of the first trial so co grid

defective as to demand a retrial. The law officer and

_- convening authority then took steps necessary to —.—

a fair and impartial treatment of both the accused and

the Government. We therefore, deny this —! of

error.

I The Law Officer Committed Prejudieial Error in

5 Failing to Comply With the Provisions es the.

. Jencks Act 5

(a) The law officer erred in refusing to call Ae

ä Mendelson for the purpose of receiving live

testimony (1) relative to the missing tape re-

cording of Airman Hodges’ oral statement and

(2) relating to the handwritten notes which

‘Mendelson previously testified that he had

made contemporanepusly ten ee orul

statement *

(b) The law officer erred in u denying the 3

motion to strike Airman Hodges testimony

upon the failure. of the government to produce

— the tape recording of Hodges’ oral statement

A statement of the events bearing upon this assignment

is considered appropriate.

On the night in question the Metropolitan Police noti-

fied the Armed: Forces Police that they had placed the

seryicemen under arrest. Sirice the servicemen were mem-

—

82 . °

bers of different services the duty man of the Armed

Forces Police notified’ the investigative organizations of

the Navy and Air Force. Agent Mendelson of ONI Head-

quarters, and Agent Conner of OSI, Air Force, were as-

signed to the case. These agents, accompanied by Agent

James of the local Navy Command’s Intelligence Office

met Commander Augenblick and. Hodges at the Armed

Forces Police Headquarters situated aboard the U. S.

Naval Weapons Plant, Washington; D. C. The agents,

Commander Augenblick and Airman Hodges proceeded to

an interview room.. It was decided between Conner and

Mendelson that since Hodges was a member of the Air

Force, Conner would conduct the interrogation. Conner

conducted the interrogation, Mendelson was present and

stated he made some rough notes and James stated. that

he was in a sound. booth and made an electrical recording

of the interrogation. At the completion of the interroga-

tion, which is estimated to have lasted 20-25 minutes,

Conner told:Mendelson that he was taking Airman Hodges

to OSI Headquarters and there he would secure Hodges’

written statement and furnish Mendelson a copy. Mendel-

son then interrogated Commander Augenblick and James

states he also, made a recording of this interrogation.

James testified that the next day he took the record-

ings to ONI Headquarters and upon finding Mendelson

engaged, delivered the recordings to Mendelson’s superior,

Agent Fason. Fason first testified that he told James to

give the recording to Agent Scinta but later testified that

he remembered receiving the recordings from James and

3 that he gave them to Mendelson. Mendelson having been

ordered to Norfolk, Virginia, for duty placed certain tape

recordings, including the tape of Commander Augenblick’s

interrogation into the hands of personnel who are charged

with the duty of stowing and preserving such material.

James later secured these tapes and they were played

during the second pretrial investigation but the tape of

; ’ interrogation was not among them. A thorough.

search of ONI Headquarters was conducted with negative

results in an effort to locate the Hodges’ tape. Seven per-

sonnel of ONI Headquarters who had. official connection

with the handling, storage and filing of tape recordings

were questioned concerning the whereabouts of the Hodges’ |

tape. After an extensive examination and cross examina-

tion of these witnesses including Agents James, Mendel-

son and Fason no one could be found who had heard a

play back of the Hodges’ tape or who had seen the tape

éxcept possibly. James who as stated before, gave the tapes

to Fason.

After Hodges had testified on direct examination at

the second trial, the defense demanded production of (1)

the tape recording of Hodges’ testimony made by Agent

James during the interrogation of Hodges and (2) notes

made by Agent Mendelson at the initial interview. The

law officer, without calling Agent Mendelson, reviewed the

testimony of Mendelson and others set forth in thé records

of the pretrial investigations and Court of Inquiry and

denied the motion to produce the notes on the ground that

these notes did not constitute a “statement” within pur-

view of 18 U.S.C. 3500. The law officer ordered Govern-

men to produce the tape recording or show cause why it

was not available. The Government through witnesses

showed that a thorough search for the tape was unsue-

cessful. The defense then moved that Agent Mendelson

be produced to testify concerning the tape, particularly

in view of Agent Fason’s testimony. to the effect that he

gave the recording to Mendelson. The law officer refused

to require his. production and denied the defense motion

to strike Hodges' testimony.

In taking the action outlined above, appellant avers

that the law officer erred in that the so-called Jencks Act,

18 U.S.C. 3500, which outlines.the procedures governing

the production of statements made by witnesses of the

United States, was violated. In support of argument in

this respect appellant relies upon Campbell v. United

States, 365 U.S. 85; Palerno v. United States, 360 U.S.

343; Clancy v. United States, 365 U.S. 312 United States

v. Thomas, 282 F. 2d 191; United States v. Aviles, 200

F. Supp. 711; Cillian v. United States, 82 8. Ct. 302; and

other authorities.

Appellee countered to the effect that through the testi-

mony of many witnesses it was shown that no one had

ever played or heard the tape played and that a thorough.

5 12

34 | ze

search to locate same was unsuccessful, therefore, logie

is more on the side that there was never a tape than it

is on the side that there ever was one. As to Agent Men-

delson’s notes, appellee states the notes were made by

‘Mendelson during the initial interview of Hodges by

Agent Conner; that at this interview Mendelson, Conner

and Hodges were present and upon completion of the In-

-terview Conner took Hodges to OSI Headquarters where

Hodges’ statement was written and therefore his notes

had nothing to do whatsoever with the writings of Hodges’

statement. N a

The Jenck’s Act, 18 U.S.C. 3500, provides:

(a) In any, eriminal prosecution brought by the

_. United States, no statement or report in the posses-

sion of the United States which was made by a Gov-

ernment witness or prospective Government witness —

(other than the defendant) to an agent of the Gov-

ernment shall be the subject of subpoena, discovery,

or inspection until said witness has testified on direct

examination in the trial of the case. :

(b) After a witness called by the United States

has testified on direct examination, the court shall,

on motion of the defendant, order the United States

to produce any statement (as hereinafter defined)

of the witriess in the possession of the United States

which relates to the subject matter as to which the

Witness has testified. If the entire contents of any

‘such statement relate to the.subject matter of the

testimony of the witness, the court shall order it to

be delivered directly to the defendant for his exami-

nation and use. 7 a

: (e) If the United States claims that any state-

ment ordé?ed to be produced under this section con-

_ tains matter which does not relate to the subject

matter of the testimony. of the witness, the court shall

order the United States to deliver such statement for

the inspection of the court in camera‘ Upon such

delivery the court shall excise the portions of such

: statement which do not relate to the subject matter

of the testimony of the witness. With such material

\

jeets to such withholding, and the trial is continued

- to an adjudication of the guilt of the defendant, the

entire text of such statement shall be preserved by.

the United States and, in the event the defendant

appeals, shall be made available to the appellate court

for the purpose of determining the correctness of the

ruling of the trial judge. Whenever any statement

is delivered to a defendant pursuant to this section,

the court in its discretion, upon application of said

_ defendant, may recess proceedings in the trial for

_ defendant and his preparation for its use in the trial.

((d) If the United States elects not to comply. with

an order of the court under paragraph (b) or (e)

hereof to deliver to the defendant any such statement,

or such portion thereof as the court may direct, the

court shall strike from the record the testimony of

the witness, and the trial shall proceed unless the

court in its discretion shall determine that the inter-

ests of justice require that a mistrial be declared.

(e) The term “statement”, as used in, subsections

(b), (e), and (d) of this section in relation to any

e 3 witness called by the United States, means—

(1). a written statement made by said witness

and signed or otherwise adopted or approved by

him; or 5 8 .

(. 2) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof, which

is a substantially verbatim recital of an oral

statement made by said witness to an agent of

the Government and recorded contemporaneously

with the making of such oral statement. Added

Pub. L. 85-269, Sept. 2, 1957, 71 Stat. 595.

There is no question but that the statute requires the

production of any statement of a government witness, in-

| » ;

h electrical recording of an interrogation, in pos-

ernment which relates to subject matter as

— has testified: When it is doubt ful wheth-

production of a particular statement is compelled by

, such statement must be submitted to the judge

in camera determination. The defense, of course,

such material for impeachment purposes. Killian

supra. 7

Campbell case, supra, wherein the judge re-

to require the Government agent to appear and

t to examination by the defense; the record of the

at bar is replete with evidence which supports the

tion that the law officer went to great lengths to as-

and government in their quest to locate

missing tape 2 recording or determine what disposition

been made of it. The law officer demanded the gov-

ernment to produce the tape. When it could not be located

he. ‘recesses. to allow searches to be conducted. for

the tape and the call of witnesses which might shed light

whereabouts. Agent Mendelson testified that he

did not order or request Agerit James to make a record-

ing of Hodges’ interrogation, did not hear a replay of the

2 and did not receive the recording, although he

did receive the recording of Commander Augenblick’s in-

: terrogation and other recordings not germane to this case.

recording, in fact none, except James, had

a tape known as a recording of Hodges’ testimony

during that first interrogation. Agent Mendelson did not

interrogate Hodges, it was Conner who conducted the ini-

tial f ition as he was the OSI, Air Force Agent in

charge of the case and Hodges was an airman. Except

for James u that he made an electrical

of the ini er 3 there is no other

—— ary) ds at this time, a statement by Hodges exists

since Agent Conner 2828 Hodges to the Air Intelligence

Headquarters. where Hodges with Conner'e assistance

made a written statement, a copy of which was given to

| Agent Mendelson and was available for inspection by the

ddetense, Agent appeared as a witness, several

times during the various phases of the proceedings, Si N

i 5

8

Au

tH

FQEERE

8

fe

87

been recalled from Norfolk on one occasion. He was sub-

jeeted to vigorous eross examination by the defense. We

therefore, eannot agree that Agent Fason's testimony to

the effect that he remembered giving certain tape record-

_ ings, received from Agent James, to Agent Mendelson,

warranted the ordering of Agent Mendelson to again ap-

pear as a witness for this purpose. Testimony had been.

received that prior to his transfer to Norfolk, y Horan Men-

delson handed over all recordings in his possession—in-

cluding Commander Augenblick’s to custodians of this

material.

Furthermore, Airman Hodges testified during the first

pretrial, Court of Inquiry, second pretria} and the second

trial. He withstood vigorous cross examination by the

defense. His testimony did not waver.

In view of the foregoing we feel much as the court did

in Aviles, supra when it commented upon: the govern-

ment’s failure to produce certain notes taken by an As-

sistant U. S. Attorney during his interview of a witness

he was preparing to testify at trial, by stating:

_ * * * “and while this question can rarely be an-

swered in the negative without grave doubta, we feel

confident that we are presented here with that rarity

so that we can state, under the circumstances, that

defendants would not have been materially aided,

that denial of access to the notes in issue did not

influence the result and that, in sum, their cross

examination was not unduly restricted.” Mindful of

the Supreme Court’s admonition in Rosenberg, 360

U.S. 871, that a “court should not confidently guess

what defendant’s attorney might. have found useful

for impeachment purposes in withheld documents to

which defense is entitled“, nevertheless, the court

stated, in context of this long trial and in view of

the fact that the witness’s credibility had been so —

exhaustively explored we hold that the failure to pro-

duce the notes was not prejudicial to defendants”.

‘In the case at bar there was no resistance to producing

the tape recording, it was the failure to find the record-

ing, nor ‘is there * evidence of destruction or 2 faith

58.

or Auutberste refusal to produce, ¢ as ed by appel-

lant in his supplemental. brief. All of the witnesses were

under oath and we ‘cannot without substantial evidence

to the contrary, hold that there was a deliberate refusal ,

to deliver the tape or that these government employees oe

— Were guilty of gross negligence of a degree requiring cor- .

— reetive action on oun part. ö

at was the responsibility of counsel for defendants, to

ue ascertainment of correctness of the Government’s

1 that the tape recording which was demanded for

production is no longer in existence, and for no repre-

hensible reason chargeable to the Government. The law

officer, in our opinion, assisted the defense immeasurably

in the attempt to locate the tape. We are unable to. see

wherein he abused the discretion allowed a judge in de-

termining matters of this nature, nor are we able to see

Wherein his action prejudiced: the accused. On this basis

we find this part of the assignment without merit. Camp- +

E Aviles and Killian cases, supra.

“The notes taken by Agent Mendelson were offered to the

& ”\ialinen during the Court of Inquiry investigation. The

following is the colloquy wherein Agent W of- 5

fered defense che notes: | 1

0. Not, where are those ‘hotas that vou took? *

* believe that I can produce them if you feel

necessary. They were just rough pencil notes as far

as I recall. I don't have them with me, but I may

still have them.

f Q. Now at that point’ Said you talked with either

— ol the. eivilian policemen? ve

A. Nb, sir, I had not. (R116, Vol. III.)

At this point the defense questioning concerned the

_ general practice of reporting by the Armed Forces Police.

During the second pretrial Agent Conner was called

ay as à witiress- and, it is. felt that the following colloquy

+ eatin to the interrogation of Airman Hodges, which

took place during 3 by defense sheds some light

8 on the question. before us:

did Mendelson do any of the weten at

this N ber =

A. Ves, sir. As I ‘niall. * asked a fe a

questions as to Now was the individual dressed?”

“Did he Hodges know the individual to be a member

of the U. S. Navy?” “Did he know his rank?” and

a few other questions along that category, and

“Whether or not he could recognize this person

again?“ Just along that category sir.

Q. And do you recall what the answers to those

several questions were?

A. Oh, Hodges replied he couldn't recognize the

individual and he described the automobile, described

the attire, the civilian clothing the commander was

wearing—allegedly wearing—and he did not know his

last name. He knew him as “Dick”. He said the in-

— dividual introduced himself as Dick“.

Q. He didn’t-say that he knew that he was in the

Armed Services or the Navy specifically? N

A. No, he didn't. He didn’t say. If my recollec-

tion is correct, he did not say he was a member of

the Armed Forces.

Q. Well, didn't you say that Mendelson asked him

if he was?

A. Yes, and I believe the answer was “He didn’t

know. eee

Q. And that interview took about fifteen minutes,

you say?

A. That is correct, sir—perhaps less,

Q. And then what occurred?

A. We left Airman Hodges sitting in the inter-

rogation room while Mendelson and I departed. I

told Mendelson at that time I would take Hodges to

our office at Suitland, Maryland, and obtain these

written statements, which at that time Hodges agreed

that he would furnish to the OSI. Having no further

~need for Mendelson—having no further p tons with

Agent Mendelson, having no further need for me or

for me to be there, I departed, taking the airman

with me. Mendelson said that he would proceed to

interview the commander and, of course, a copy of

the statements and the ONI eth would follow.

5

— ——— — —„—-—¼ = ~ 8 —

40

2. Now did either of you take any notes during

this interview at the Weapons Plant?

A. I took no notes. m

Q. And do vou recall what Mendelson did?

A. No, sir, in that respect. I can’t—I don’t believe

he did. (R17-18, Vol. V.)

Agent Mendelson being questioned by the defense, in

the following colloquy, states the nature of his notes taken

* Agent Conner's interrogation of Hodges:

And do you recall any enn, that you

. . did of Hodges?

A. No I didn’t. 1 left most of. the questioning to

Conner. I may have asked him a couple of questions,

but we don’t usually break in on another man's inter,

view. I may have asked him a couple of questions

because I did, as I think I mentioned before, I did

jot down. a couple of rough notes at the time.

Q. And I assume that you made a recording of

this that you could refer to so as to be certain as to

these aspects, isn’t that correct?

_A. No, I’m not certain that we had any recording.

I do recall that the information that was given at.

this interview was later more or less typed up in—

you might say a memo report, from my own informa-

tion just setting down such things as what time 1

was called, what time I. arrived there, and what

_ Hodges said. But in putting down what Hodges said,

I used Navy terminology briefly, which, would not—

in other words it wasn’t verbatin—of what Hodges

said, in my little memo. „

Q. Well, now, Mr. Mendelson, these interview

rooms are set up as such so- that recordings may be

made of the interview of an interviewer, isn t that

correct?

A. Yes, sir.

Q. And is it also correet that an 3 or some

sort of mechanical recording was made of this inter-

: view?

made of a interview r Commander Augenblick. .

‘A. Pm not sure that an electronic or a recording

was made of this interview. There was a recording

l

„

Q. ‘iad that was in the same room which you had

interviewed Hodges, isn’t that correet? 5

„ 3

Q. And the reason that you used that room for

initially the interview of Hodges and subsequently

the interview of Commander Augenblick was so that

it may be recorded, isn’t that correct? *

A. Not necessarily. We don’t record every thtar

view we make, but we can—we. use them because we

can if [we] feel it’s necessary.

Q. Well, now, you know definitely that a recording

was made of Commander Augenblick’s.

A. I do.

Q. With reference to his interview? ‘

A. I do. >

Q. Do you know whether or not it was made of

Hodges?

A.. I can’t recall right now if it was. It might

very well have been, but I don’t have * * *. |

Q. The likelihood i is that it was, was it not?

A. No, the reason that I can't recall whether it

was is beeause we had, we felt, two, witnesses to any

statement that Mr. Hodges may have made and there-

fore we may not have recorded Hodges’ testimony at

that time figuring that the statement and the two

ö agents would be corroborating enough.

Q. Well, aow, how can this be —

Well / I can only make a check on it and find

b A. I think so. I could et make a telephone

call back to the office over there and find out whether

or *# *

| Don't you recall of your own independent rec- -

ollection, Mr. Mendelson?

A. I honestly don't. As I say, the reason I don’t

recall that was because ! don’t have it, as I do have

the recording in the case of Commander Augenblick,

and this was a verbal interview of—where no state-

ment, no written statement at that time was taken,

and we felt that 9 Conner nid he would pre-

2 interview Hodges and later on — me with is

written statement. -(R51-53, Vol. V.)

We see from the above colloquy that Agent Conner

conducted the initial interview of Airman Hodges; that

Agent Mendelson did ask Hodges a few questions; that

Agent Mendelson did make a few rough notes; and that

the rough notes were not a verbatim record of Airman

Hodges interrogation. Also, that no wrftten statement was

made by Airman Hodges at this time. Further, the de-

fense apparently did not consider Agent: Mendelson’ s notes

to be of particular significance as they did not, at this

time, request their production.

Jencks v. United States, 353 U.S. 657, holds that the

defendant on trial in a federal criminal prosecution is

entitled, for impeachment purposes, to relevant and com-

petent statements of a government witness in possession

of the Government touching the events or activities as to

which the witness has testified at the trial. The command

of the statute is thus designed to further the fair and-

just administration of eriminal justice, a goal of which

the judiciary is the special guardian.

U.S. C. 3500,

It is also the function of the trial judge (law officer)

to decide, in light of the circumstances of each case, what,

if any, evidence extrinsic to the statement itself may or

must be offered to prove the nature of the statement. ;

Campbell, supra. |

The Jencks Act. limits 88 by defendants to such.

government papers as fit the act’s definition of “state-

ments“ which relate to the subject matter as to which the

witness-has testified. Palerno, supra.

In determining whether notes are producible, i. e., wheth-

er they are “statements” the standard to apply is “do

they set forth in substance w the witness said”. Fur-

ther, the notes must be “substantially. verbatim recital of

an oral statement made id-witness to an agent of

the government and reedrded contemporaneously, with the

making of such oral statement.” See section (¢) 42) of 18

Now then, “the aa

N previous Proceedings

cer had before him. all of the |

t had been eondueted. In denying -

75

5 7 a ar 2 ber

48

the defense motion for the production of Agent Mendel f

son's notes he stated:

0. Well, Pm basing my W Ehen on the

additional pretrial which I have before me and also

the fact that in order to qualify under Title 18 of

the United States Code, Section 3500 is that this must

be a statement, and 1 feel that the tabe recording

eertainly qualifies in that respect; I do not feel at

this time that the notes that. the agent may have

made in particularly using navy terminology, that it

is necessary to proceed further than the tape record-

ing. (R77- 78, Vol. VI.)

There was further argument after which the law officer

stated:

notes for he following reasons:

Mendalson and defense had ample opportunity during

LO. The . ruling I male still stands, that ;

is, the government will not be required to produce ee

any rough notes that agent Mendelson allegedly made,

however, the government is directed to produce the

tape recording of the initial interview of Hodges, if

availahle, and to call witnesses.

We agree with the Law Officer’s ruling concerning the

de equest for produetion of Agent Mendelson's

(1) The notes were” offered to defense by 5

prior ae agg to e the notes. This they

failed to do

(2) The notes do not meet the criteria of a state-

ment“ as set forth in (e) (2) of 18 U.S.C. 3500. g

There is ample evidence ef record that the notes were

a few rough notes” and not a verbatim recital of

the oral statement made by Airman Hodge. 3 at the

initial interview.

() Hodges’ written statement was made in the

presence of and with the help of Conner at OSI Head-

quarters, Suitland, Maryland. Agent Mendelson Was

not present at this itnerviewp.

(4). In the context of these long proceedings Air-

man Hodges was, on several . vigorously

. ²˙ » W ..

44 2

7 0

eross examined * the defense wherein his eredibility

was so exhaustively explored that, in our opinion, the

failure to * the notes was not prejudicial to the

accused.

(5) That in matters of this nature the law permits

the law officer to exereise sound discretion and we do

not believe that this law officer abused that discretion.

We feel that the above reasong, support the law officer’s

holding on this point of law.

We therefore, find no merit in this assignment of error.

ampbell, Killian, Aviles, supra, and United States v.

jombs 28 CMR 866.

III. The Law Officer Committed Prejudicial Error in

Failing to Instruct on the Offense of Disorderly _

Conduct Which Was Reasonably Raised By the |

‘Evidence as a Lesser Included’ Offense of the | |

| _ Offense Charged |

Appellant avers that the law officer should have in- |

struct on the lesser included offense of disorderly conduct |

in violation of Article 134, Uniform Code of. Military

Justice. Appellant concedes that there was no obligation

to instruct the court-martial on the.elements of disorderly

conduct unless it was fairly raised as a reasonable alter-

native to the offense charged. It is argued that in this.

ease the offense was raised as a reasonable alternative

since both Hodges, who had been promised an honorable

discharge, and the police officers were impeached by in-

consistences in their stories. Upon this basis appellant sub-

mits that the court could have possessed reasonable doubt

concerning whether he had commited an indecent, lewd,

and lacivious act, while being satisfied that he was guilty

of disorderly conduct.

‘Appellee counters with the e that when a eiti-

zen becomes a soldier he submits himself to a special code

of laws which have been suited to the requirements 2f

military life and therefore, it is not befitting this concept

to regard sodomy between officers’ and enlisted men as

simply disorderly conduct. It is further argued that the

-law officer. N on the lesser noe offense of in-

45 '

decent, lewd and lascivious acts with another and that

the defense made no objection to these instructions. —

In his instructions to the court the law officer had the

following to say concerning lesser included offenses:

* * * believe, under the state of the evidence,

that only one lesser included offense may be in issue

at this time. However, if during your deliberations

you believe that any other lesser included offense may

be in issue I ask that you open the court; make your

feelings known and I will give you. further instrue-

tions 9n your inquiry concerning any other lesser

included offense. It would be totally improper for you

to come forward with a finding of guilty of any lesser

included offense on which you had received no instrue-

tions whatever. And that lesser included offense, I

‘believe, that may be in issue is that of indecent, lewd

or lascivious act with another. (R369, Vol. VIL) ins

Then at the completion of the instructions and just

prior to informing the court on the method of voting, the

law officer inquired, and we quote:

At this particular point I. would like to inquire, —

now, if the Government has any further requests for

further instructions or any objections to those given?

TC. No- request for further instructions; no ob-

jections. a

Lo. I will ask the same of the defense?

IDC. (Mr. Kendrick): Only those we requested

: in the closed session. (R374, Vol. VII.)

‘Referring back to the closed session indicated in which

the law officer informed both counsel of the instructions

he proposed to give, the. following transpired:

before I proceed, to advise you of any pro-

posed instructions I may have, that I would like to

inquire first of the Government, what if any lesser-

included offense does the Government feel might. be

in issue?

TC. I haven’t given it any thought, as a matter

_of fact. I suggest that the lesser included offense may

E

a

= *

46 ‘0 , *

include an indecent or lewd act with another, which

is indicated at Instruction 149 in the Law Officer’s

Manual, and possibly indecent assault, both of which

would be offenses under Article 134.

LO. Did you mean “indecent assault”, Com-

mander? I believe the only indecent assault-would be

committed on a female.

TC. Well, then, I will le that.

LO. Very Well. Does the defense desire to be

heard on what they consider being a possible lesser

ineluded offense?

IDC. (Mr. Kendrick): We certainly would ob-

ject to a lesser included offense. The charge is sod-

omy. We think that the evidence has got to show

sodomy or nothing and that this proposed lesser in-

eluded offense that has been suggested by the law

officer is not in any. way supported by any evidence.

And we come back to the basic premisè that it’s sod-

- omy or it isn’t sodomy. Its guilty or not guilty, as

I-se it. (R332-333, Vol. III.)

Appellant having taken the position. at ‘trial that there

was no included offense to that charged and litigated, can-

not now, on review adopt a contrary position. We reject

this assignment as being without merit. United States v.

Mundy, 2 USCMA 500, 9 CMR 130; United States v.

_ Wilson 7 USCMA 713; 23 CMR. 177 “hn 3.

We believe that our conclusion is correct for a further

reason. Airman Hodges testified that an act of sodomy

had been committed upon him by the accused. He was

subjected to vigorous eross examjnation by the defense

on at least two occasions. and although his testimony may

have been inconsistent as to minor details it was not in-

consistent when describing the events essential to the com-

mission of the offense charged. We have read and reread

‘the testimony of the police officers and that there

are inconsistencies but only of a minor nature such as

who was driving the patrol‘car, whether the accused’s au-

tomobile lights were on and whether the motor was run-

ning, ete. Their testimony was consistent as to where the

accused’s head was positioned in relation to, the exposed

va

\

| obvious to the naval officer. ‘The ride ended along the

West Potomac Basin where the officer and airman were

„ Police and a es bed

0

ä the findings and bine as approved on

review below are affirmed.

— 455 no. F. STEARNS, JR.

7 (See Conecurring-Dissenting).

Zz. W. NEFF . pee

I concur... ; pee 1

CoNCURRING-DissENTING OPINION

I eoneur in the majority’s s disposition of the first as-

signment, but for a different reason.

In my , there was no abdication of authority: ‘by

the law “when he referred the case to the convening ~

‘authority, nor, 8 was there any ‘usurpation of

the law officer’s prerogatives by the convening authority,

_ who only carried out the actions already indicated by the

law officer: and acquiesced in by the defense counsel. It

appears obvious to me from the record that; all parties

were looking toward a court of inquiry the only military

outside a court-martial, able to satisfy accused’s

— demands for subpoenaing witnesses and which

eould only be convened by the convening authority.

Sine a court of inquiry was convened, correct proce-

dure required the convening authority to withdraw the

case from the original court, for after having called the

two police officers as witnesses and after there having

been ag to cross-examination by. the defense, out

of fairness to the accused the convening authority should

: then a completely new determination as to, wheth

— esse should go on to trial. This brings me o

what I feel Is the determining factor with regard to this

— the conclusion of the court of inquiry and the addi-- ~

tlonal pretrial, the convening authority referred the case

to a new court. From the facts in this case, 1 feel that

_ he was, justified in doing 20 to make sure that the inte

ests of the accused were fully protected. (Gori v. Uni

States, 376 US. 364; United States v. Stringer, 5 USC

ao *

f

co

o

3 0

a 0

122, 17 CMR 122), because the dende ol the court al- \

ready had indicated he was irritated with the delays in i

the case —and this fact was certainly not only well recog-

nized by the defense counsel but causing him concern, as

will be shown below.

Shortly after the initial trial opened, defense counsel

made a number of motions and arguments which ‘resulted

f in out-of-court hearings, and, of course, impeded further

. progress of getting on with the trial at that particular

„ time. The trial then proceeded on through the testimony

and eross-examination of the first witness, Hodges, the

Alleged co-actor in the sodomy. At the conclusion of this

| 1 the law officer made it known that he was go-

ing to afford the defense whatever opportunity that it

desires in connection with examining this witness [one of

the police officers] prior to the time that he testifies.”

This prompted the following colloquy between the presi-

dent and the law officer:

LO. Well, Mr. President, 1 have indicated to the

defense that they will have an opportunity to talk

to these witnesses prior to their testimony * * *.

PRES. Is this going to be a continuing thing, or

is this something we can get the defense counsel

caught up on? Is this going to be. the question. each

time or each time there is a new witness, sir?

LO.. No, sir.

PRES. If this is the case, this is going to take us

an awful long time.

LO. No, sir, this.is just only with regard to two

particular witnesses,

PRES. I wonder if the defense counsel could

promise with respect o when these two witnesses

could be met?

} LO. Well, sir, I feel he can meet at least one of

them today. The other witness has already departed

apparently. as

‘PRES. Is this going to kil the whole day again

tomorrow? -

I. I believe not. I think not, sir: We could pos-

sibly set up to reconvene at 11’ O clock, ‘depending on

whether or — -trial counsel can get that witness back

tomorrow for interviep. g

TC, I will have them both back here tomorrow. ,

PRES. I would rather go beyond 3 o’clock and try

to get something done today, if it runs that late. 1

do not at this time want to make a decision that we

will not have any further hearing today. I prefer to

give the defense whatever time he needs, and I would

lüke to hold in abeyance the decision as to when we

will terminate for. the day. 7

LO. Fine. I am; sure defense has tried to meet

your. suggestion as to: 1500. |

P RES. Well, I would much rather here you not

Worry too much about my time a far as hours are.

concerned: I am more interested about getting busi-

ness done so that we can get ahead with the proceed-

ings. I will worry about the time if they will worry " ”

about gétting business done.

LO. I am sure they had that in mind, sir.

The foregoing prompted this rejoinder from the defense

counsel:

IDG. May: I make this healt to the court, that this

is not our intentional doing, that we have not been

able to talk with these witnesses before. I don't want

the court to feel that we are trifling’ with the. court’s

time, but I think it is very clear that déspite contin-

tiéd efforts on our part we have not been able to even

discuss the case with these two officers, and, of course,

It would not apply to any ‘witnesses that are to be

‘called by the prosecution. .

PRES. Well, I think the thing for us to do is to

close while you do that business and we will remain

available in hopes that we can get on with business. )

After defense counsel had examined the pqjice officer,

he pointed out to the law officer that police officer Round’s

statement at the pretrial had never been sworn, despite

Agent Mendelson’s testimony at that ee to the con-

wey: Counsel for accused 2 stated:

os ‘Now, as I have pointed out here, we are in

. the second day of trial - „ and for the first time

we find out that the statement was not sworn to. It

is clearly a violation of the Samuel’s case. :

‘Now, the other officer, of wun, has been released

to go back to duty *o , feel that we are faced

with a situation which in ‘addition is complicated by

the fact—I think it must have been apparent to the

law officer as it to everyone with whom I have

discussed it. with—that when the court adjourned to

permit * 3 me to interrogate ths police officer, the

court was 8 very much irritated, and what

I feel was not knowing all of the facts, what then

felt sas a. typical defense dilatory tactic of some sort,

ebut I think the law officer recognizes. * * that this

is not of our doing at all. Fet, we have an officer’s

career at stake before an obviously irritated court. I

have a feeling that the feeling expressed by the presi-

dent in 80 mane, Wore and by the obvious demeanor

. ‘a several of the other senior officers immediately

adjacent to him that—is the case ever going to get

on, in effect. In that respect, we will—first of all, I

would renew my motion based on this defect 2 the

pretrial proceedings and I would like to

call this police officer (as a witness for the limited

matter that I have stated) to the eourt. Therefore,

subject to the law officer’s desires on that subject, I

will move. to dismiss the charge ahd specification | as

being defective ab initio. (Emphasis supplied).

Police Officer Round was called and testifled in the out-

of-court hearing that he was not sworn at the time he

made: the pretrial statement. At the completion of his

testimony, the law officer pointed out that the invesigat-

ing officer. and the ONI Agent Mendelson would have to

be called. This again prompted défense counsel to express

his concern over what he felt was the animus against

him and his cause by the members of the court. He asked

the law officer :

‘Sir, before we recall the court, may I Feapectfully 45

-inquiré as to what you plan to say to the court?

52

The bi officer answered in part:

I'm going to admonish them that it is not ot day to

“tg circumstances involving the defense or is it to

8 in any way - reflects on either -counsél

or accused and any member who feels that he Is

beingz-has his mind concerned with this aspect of

delays should kindly so indicate at this time.

IDC. I deeply appreciate that,

The court was reconvened and the on officer kept his

word, which prompted the following ee between the.

law officer and the president: *

. PRES. I would hope that in the future: that the

time of the court could be given some consideration.

While we met from ten until three, I feel that these

ther things may well go in other hours than between >

ten and three. I would like to know administratively ~~”

what can be done to assist either side? I’m not inter-

ested in which side. I'm interested in reducing de-

. , Jays. Who is the man to see in that connection?

— IO. There is nobody to see. It is my responsibility

to see that this trial is ‘conducted in a fair, orderly,

and impartial manner. .

P RES. Including the administrative matters? a ,

LO. Including any matters in that connection. \

: When I think vcs the trial can be speeded up, I will

0 do so.

PRES. Cartainty it hasn’t been speeded up

so far without any question of the legal side. . It

to me that it is unnecessary for us 1 1

things which I think could have been done long before,

sugh. as’ the thin this afternoon. Do you agree?

LO. No, sir. I do not agree with you because my

position is that the defense is entitled to intérview

these witnesses, and that’s what I’m going to do.

PRES. Tiere is no question there administratively

be the opportunity to interview them?

LO. I’m not in a position to so say; Admiral. 5

PRES. I want to find out who is concerned with

‘that.

GN

4 :

LO. Admiral, I recommend that you ascertain uur

answer to that question upon, completion of triaks.<: -

' PRES. Ard accept whetener comes ‘slong in the

meantime.

LO. I can ‘only say; Admiral, that I am bound

— — the law to make the rulings and to let the case

proceed as I best deem it to proceed, and any other

A2speect. of the ease if attempted to be gone into during

the course of trial, I feel would prejudice the Asse.

In ‘other words, administrative assistance to avoid

those delays would help prejudice this case. There

isn’t any administrative assistance that could speed

up this case. There is just no practical way of doing

it any other way. Whether or not it could have ,

done before is not the point.

PRES. Can you indicate to me who has this con-

cern quite apart from the court as to what could be

done to avoid this sort of administrative delay?

LO. This delay, Admiral, is not administrative at

the present time.

P RES. Well, I’m not sure that I understand that.

However, I think there is nothing that can be done

under the circumstances. The court will * ad-

journ 2 „** 0 .

he convening e may wilbärawy the case from

one court and refer it tos another when in his opinion—

taking all the facts into consideration—there exists a

manifest: necessity to prevent a miscarriage . of justice.

As pointed out by the Supreme Court in Wade v. Hunter,

supra, there have been cases where the trial judge has

‘discovered facts, during trial which indicated to him that

a member—or members—of the jury might be prejudiced

or biased against either the accused or the Government,

and “It is settled that the duty of the judge in this event

is to discharge the jury and direct a-retrial.” In my opin-

jon, from the facts in this case, the defense counsel was

i justifled in feeling that the president of the court was

“irritated”—along with “several of the other.senfor off-

eers immediately adjacent to him — at what counsel felt

the president believed to be a “typical defense dilatory —

tactic.” Accordingly, under the facts of ‘this case, the

e

84 . ae

55 0 4 , | 2

convening ee was called upon to 8 Ahe case to

‘| @ new court in order to ensure that the ends of Justice

were not defeated. Wade v. Hunter, supra. / —

In summary, I do not find that accused hag been unduly

harassed by receiving a remedy he soughit/(a solution to-

the problem of the unsworn policeman) ; not do I find any-

thing in this record to suggest that the ¢ vening author-

ity appointed a new court to help the pro:

case that was going badly—by giving it another oppor-

- tunity, under more favorable circumstances, to convict the are

accused. Gori v. United States, supra

2 It is when we approach the second assignment that J

must part company With the majority of the Board. I

keel that prejudicial error was committed by failure to

‘comply with the Jencks Act with respect to the Hodges’

tape.

~ Briefly, the facts which frame this -issue follow: The

Government called as its first witness at the second trial

7 — — 2 Airman Hodges. At the conclusion of his

> timony on direct, defense moved for production of notes

ae malt ee and a tape recording. taken by ONI

es during the evga waa of Hodges imme-

ey following the incident. law officer reviewed

the pretyjal investigation record concerning the notes and

the recording, denied the motion té produce the-notes on

the ground that they did not constitute a statement“

within the meaning of the Jencks Act, but ordered pro-

duction of the tape recording or show cause why it was

unavailable.

. Agent James testified unequivocally that he did make a

tne recording of the Hodges interview—along with two

Au ugenblick tapes —and that he took the three tapes to

the ON ONI office which housed Mr. Mendelson. The latter

was not there so he left the tapes with Mr. Fason, Men-

delson’s supervisor. Fason at first denied that the tapes

were turhed over to him, instead testified that they

— bad been turned over to a Mr. Scinta. Subsequently, how-

ee.eer, when the tapes were traced to him by other wit-

— he recalled that James did turn the tapes over to

- him and that he had then turned them over to Mr. Men-

‘delson. : X ;

*

¢

Testimony was received. that a search was al

in locating the Hodges tape; although the other Augen-

a tapes had been carefully sree reine ia ee

able

3 it was obvious that the H

as a witness. to testify —_ the tape. The law

cer refused to require Mendelson’s production as a

ness on the basis that he had already testified extensively —

at the pretrial 3 and would add little or nothing

to that testimony, and che law officer also denied ‘the de-

fense motion to strike Hodges’ testimony.

The Jencks Act, 18 U.S.C. 3500, establighed the proce-

dures governing production of statements made by wit-

nesses before United States courts, and it applies to all

prosecutions brought by the United State. 5

Pursuant to the Act, the trial judge is required to order —

produetion by the Government of any statement of tlie

witness in the possession of the United States, relating to. .

the subject matter to which the witness has testified. If. .

the. Government elects not to comply with a court’s order

directing production, the trial judge must strike the wit-

- ness’ testimony or declare a mistrial if justice so dictates.

18 U.S.C, 3500 (b), (d). Case law has interpreted the

Act as placing upon the Government the burden of. prov:

ing, once statements are shown to have been in existence,

_ that C yo phe Ph om pe

noi mal business practices in order to escape the sanetion of

the Act. Killian v. United States, 82 8. Ct. 302; United

States v. Combs 28 CMR 866.

As stated previously, Agent James testified 1

"oA bn

118 U.S. C., section 3500 le) (2) defines a statement as:

12222 8

a transcription thereof, which is a substantially verbatim recital

„% ĩðV b eieanaslincetenatiie te aan

0 .

A

: Hodges and that he had thereafter turned chat tape —

along with two other Augenblick tapes —over to Agent

Fason. This testimony of a prosecution witness was forth- -

right and unimpeached in any pa articular whatever. Agent

Fuson at first testified that he had directed that the tapes

be turned. over to Agent Scinta, but, subsequently, he

cha ‘his testimony and recalled that James had, as ne

testified, in fact given him the tapes, and that he, Fason,

had turned the tapes over to Agent Mendélson.

It can hardly be disputed but that the Hodges’ tape had

in fact been in 2 and that it was a producible

item under the Act, Mendelson. when asked about, the

tape at the court of inquiry was very vague. He was not

certain” that a recording was ever made of the Hodges’

interview, yet he knew Agent James was in the recording

room at the time and that his only purpose for being

there vas obviously to record the Hodges’ interview. Fur-

ther, James. testified that he bound the tapes together

with a rubber band and turned them over to Agent Fason,

who testified that he turned these same tapes over to

. «Mendelson, Agent Carroll then testified that some months

| pang — counsel urged that he be called to

testify, noting that it was important that his credibility.

be weighed by the law officer and since there had already

been a change in Fason’s testimony it was quite possible

that Mendelson might change his and thus the mystery ‘of

- the Hodges’ tape would be cleared up. ar

It is important to keep in mind that Mendelson Was

one of the moving characters in this trial. He is the one

who testified that he had taken a sworn statement from

Officer Round, yet Round denied under oath that he ever

. .wore to the statement, and it is significant that the sub-

dequent testimony of both policemen was somewhat weaker

worn statements. Mendelson was

about the recordings: It was impor-

to have the recording of the initial

cna a 20 — old, frightened enlisted

Ete

ce

11

57

: man, 3 inter viewed by two agents, with a third moni: 7

toring, in the early hours of the morning, especially since « 5

there are some indications in the record that at « very

%

outset Hodges denied that “anything” happened. I feel

that had Mendelson been called he might have been able to

answer more specifically the question of what happened

to the tape. Certainly he was available and the defense -

should have been given an opportunity to examine him

on that issue. Since the law officer ruled that he would

„not strike Hodges’ testimony in the absence of proof of

wilful suppression of the recording, the defense was pre-

cluded testimony of the individual who was in charge of

the investigation and in whoge possession the recording.

had apparently rested. Under these circumstances, it was

virtually impossible for the defense to have sustained

- burden placed upon it. Campbell v. United States, 5

U.S; 85. 1

The question of what action should be taken when state-

ments once available can no longer be produced was dis-

cussed by an Air Force Board of Review in United States

v. Combs, supra. According to the Board “ordinary pru-

dence requires that if verbatim notes are made at all,

they should be retained until final review of the case.”

Further, it was noted that since the Jencks decision (353

US 657) and statute, supra, had been expressly brought

to the attention of all Air Force J udge Advocates, there

exists a duty to preserve any statements until at least

after it has been determined whether their production |

will be required at trial. The Board went on to remark

that “The evidence establishes that the destruction or dis-

posal of the stenographer’s notes occurred as the result

of negligence, rather than through an act of ‘conscious’

destruction, by the Government. Nevertheless, we cannot

allow the intent of that law to be circumvented by such

negligence.” In addition “The Jencks decision and statute

were aimed at preserving and perfecting the accused’s

rights to cross examination of prosecution witnesses. on

the basis of certain prior statements made by them. Here,

the accused was precluded from examining such ‘state-

ments through the rr of the Government.” |

— ä

ese ry I would return. the ease for a .

‘ 5

a

— 1

— * —

4 . . 7

1 . —

The evidence in this record shows that in fact—and no

doubt influenced by the Jencks Act —a careful procedure

for the preservation of tapes had been worked out by the

Office of Naval Intelligence until final disposition of the

case. The record discloses that the tapes in question were

carefully ‘labeled and numbered by Agent James; that

there was a designated custodian for them; and that the.

Augenblick ‘tapes (exeepting Hodges’) were in fact care-

kully preserved and stored. Of all the tapes made in this

case, it: seems odd that only the tape of the prineipal

prosecution witness, Hodges’, suddenly comes up missing

—the others being so carefully preserved. Under such

- circumstances, it is difficult to explain this mystery—in

the absence of deliberate destruction or gross negligence.

Perhaps Mendelson would have explained how the tape

could have been missing, outside these possibilities, since

the tapes were in his possession, but he. atone not called

„ specifically for that purpose.

I am not prepared to speculate, in view ‘of: Fason's

change in testimony regarding Mendelson's possession of

the tapes and Mendelson's vagueness about any tape be-.

ing taken when he knew that James was in the sound

room monitoring the interview, that Mendelson would not

have added anything to his initial testimony. It is cer-

tainly a good possibility that his memory—like Fason’s— . -

would have been jogged into recollection by the testimony

of the other witnesses.

I believe the Government should have the burden ‘of

proving that once statements are shown to exist that they

were destroyed in good faith and in the routine course

of business to avoid the Jencks Act. Here, it was clearly

shown by the evidence that the routine course of business

called for preservation of the tapes until final review.

—

*

1 2. w. New,

[103]. TRANSCRIPT OF PROCEEDINGS

Held May 1-3, 1961. ( general court Ae

8 * * *

The 175 office reconsidered his initial ruling ‘ina will

permit counsel’ to pursue the matters to which objection

previously had been made. |

Would you call the witness. | ‘s ta

James Orland Hodges resumed his seat on the witness

stand, was reminded that his previous oath was stil bind-

ing and testified ag follows: , :

- CROSS-EXAMINATION (con’td)

Questions by the defense (IDC):

Q. Hodges, to go back to the parked ear for a ; moment,

were there any other cars in the neat where you were

parked? . l ‘

A. There was one car ahead of us.

Q. About how far ahead of you?

A. Approximately 50 feet.

„. And it was parked during the entire tim

from the tithe you parked. up until the time a ice pon

~ rived, Hodges? :

A. No, it wasn’t.

2. How long was it parked?

A. It was just shortly after they had pulled un there,

I believe.

2. Now isn’t it a fact, Hodges, that you were asked

the same question previously in a preliminary ‘hearing

and stated that so far as you knew that car remained

there until the fime the ers arrived and you all pulled

away? *

ng I don’t know, sir. I don’t remember this.

2. Lou don't remember it?

A. No, sir. 5

— a et °

* „ * * ‘ we

[Witness Norman Sound}

[114] Questions by the defense, o.

. Did you on or about January 13; 1961 give a state-

ment to an agetit of the Office of. Naval money tees

ä A. Tes, I did.. ’

ee Nee aa that Agents shat: 8

Paes believe it was Mendelson, some name similar to

¢ “that. e exact nes or Pronunciation, I don’ t know.

Tm not sure.

Q. Now, would you. alate 8 the law officer whether or

not your oath was taken as to the facts in that statement?

A. I never ‘swore any oath to the facts in the state- -

ment.

— Q. Were you asked to take auy oath by him?

A. Not to my recollection, no.

Q. And do you recall seeing that statement at. a later

time?

55 Not the one that 1 signed. ‘I saw a copy of the

e.

Q. And did that recite in that copy that you saw the

‘ “fact that you were sworn? .

Down at. the lower lefthend corner there w. a no-

tation that it was . and sworn before is ONI 5

man.

Q. And is that a fact: Tete

A. No, sir. I never swore to A ae facts, in “that stale

ment.

IDC: Thank vou. That's all

LO: Counselor, do you have the statement that was

presumably utilized by the 1 —* in connec-

tion with the proceedings?

TG: Yes, sir. That was ‘Government Exhibit No, 3 at

the pretrial.

ö LO: We will make this an appellate erhibitzin the

next sequence. I d t know whether it's D. or E. :

REPORTER: It's E.

IO: This appears to be some kind of reproduced copy.

J want rm. a be to the defense.

a * * *

(Witness: William G. Mendelson] -

[124] to take a sworn statement from him concerning the

incident in which he had been involved as a patrolman.

He said it was all right with him, and there was a police

re 8 available—I had none ‘of my awn—and I pro-

ceeded to type out, at his direction, a statement while he

was there giving me the information rejating ta the inci-

‘dent. After I got through typing the statement out,

showed it to: * He was unhappy with. it, and be made

ae

some corrections 8 his own Base on it. He was

still unhappy with it, and I. said, Well, this is a- sworn

statement and must to the best of your knowledge and

belief be taken in that fashion.” I said, “I will be very

happy to do it over for you so that we can get it as ac-

ceurate. as you can recall the circumstances.” With that,

he agreed, and I typed over ‘a statement utilizing further

information that he gave me and which . is is a copy a.

the second statement. es ee

Q. That is the Appellate. Exhibit? ae

A. That is the copy of the second statement that I .

Both’ $£ these statements had on them “Subscribed and

worn to before me this 18th day of January 19617 at the

Third Precinct, Metropolitan Police Department, Wash-

ington, D. C.” and I assume from these, it 18 customary

after a perscx reads a_statement—

IDC: . I object to what is customary. ‘It’s whit hap-

pened in this case, ee

LO: We will get te that, counsel. > ©

WITNESS: Im trying ta testify to the best of my-rec-

“ ollection. Em trying to explain how I take the statement,

counsel. I gave him the statement back. The first one |

hé a rejected. I gave him the second one back. He

said it was ali right. I said, “Would you sign it.“

He did. Then I signed the_swearing part of it, and that

was to the best of my recollection the way this statement

was obtained. I canhot actually remember, but I’m sure

-that I did swear him in some fashion. He was well aware

that ‘these were sworn statements, ‘because at the time of

1125] taking the second statement. I reiterated. the fact

that this was a sworn statement a d must be as accurate”.

as he could recall the circumstan

Q. Lou don’t recall giving him any kind Pe an bath

and having him 8 argto it. What is your recolleetion

now? You say you ‘believe that tis what ik pieced

based on your customary progédure?

A. Right. I take hundreds of statements, ena I try to

p them as close to what we call the book as possible.

d J cannot, e. right now exactly the mechanics of

how I took the statement on January 18th: It’s my as-

sumption, that I took it in this ofashion from e

8 * statements. n

3

° ; = 7 —

x

LO: Do you have any questions, counsel? |

IDC: Just.a few, sir.

; EXAMINATION BY THE IDC:

bia?

A. No, sir, I’m not.

Q. Are you a notary sabi anywhere?

A. Jam not.

Q. Other than the authorization which you —_

the Secretary of the Navy in your job as an ONI agent,

do you have any authority to administer an oath?

A. I do not believe so. I believe that the Secretary of

the Navy thatrnction is the only one that gives, me that

authority.

Q. Now, if we have testimony before us to the effect

that: that jurat which you have referred to on there was

not on that paper, would you deny that fact?

A. Absolutely. If you want to inspect the original,

counsel, you can see that it is typed on there with the

same type writer that the original statement was typed.

Q. Did you use a police typewriter or your own which

you carry with you?

* No, sir, a police typewriter in Patrolman Round's

11269 Q. Now, you have twice in your testimony uged

the expression “sworn statement.” Other than for the

purposes of our inquiry here, would you use that expres-

sion to a witness before you swore him? |

A. Before I take the statement I tell him “this is to be

a sworn statement,” depending on the witness, of course,

and the circumsts ces.

Q. But you will agree with me that you did not swear |

him before. the statement, is that correct?

A. I will agree to that, yes, sir.

Q. So it was not a sworn statement?

A. It was a sworn statement in. accordance with the

regulation that we use.

Q. At the time he made the statement—

A. I swore him after he made it.

~~ Just a moment, piease.

Q. Are you a notary publie in the District of Colum-

5 68

* Im sorry.

Q. At the time he made the statement, it was not a

sworn statement, was it?

A. Lou mean at the time of his verbal statement to

me, I had not prexicusly sworn him? 5

Q. At the time that you redueed it to typing, it was

not sworn, was it

A. Not until he swore to it, that’s true. ae

Q. Well, now, when did he swear to it? i

A. I can ‘only assume that he swore to it mn

following his signature.

Q. You have no picture in your mind of his raising his .

hand or-doing anything of fpat sort or saying. “I 80

swear’?

A. I can’t, place it either ae I have no recollection

either way.

Q. So that when you say à sworn statement you are

saying that for the purposes of this record this morning,

that's all, isn't it, because vou have no independent recol-

lection?

or

(Witness: Raymond wW. Glasgow]

[180] Q. I see. He actually introduced the original 258

it 8 understood that a copy would be substituted.

Ves.

LO: Counselor, would get the original at this time

if it’s available.

TC: Yes, sir. 1 5

LO: Let the record show that the trial 1 left

the courtroom. to obtain the origina! copy. ‘Let the record

show that the trial counsel delivered to the law officer

_ what: purports to be the original statement. It will be

marked Appellate Exhibit F.

Will you show that to the witness, please.

The trial counsel handed the witness Appellate Exhibit

5.

Q. 1 hand you an item marked Appellate Exhibit .

and ask you if you can identify it?

A. Well, it appears to be the document that. was intro-

duced at the pretrial and the copy which was substituted

appears to be the — of. the copy which I just had

in my hand.

64 i : * 8 ö ; 2

. i ni 1 4

»

0. Did you 1 utilize this document in nina your

recommendation as.to ) what disposition should be made of

the charges?

A. Well, not necessarjly. There was an original wit-

ness by the name of Hodges, and this was only corrobo-

ration to go along with the Airman’s testimony. So this

was just actually added to it. There was a witness who

appeared in person afid was subject, to cross-examination

before the pretrial. So, this is only corroboration. .

Q. But this was utilized in place of calling the wit-

ness, is that correct?!

A. Certainly, yes. This was introduced as a sworn

statement of the witness who was, I believe the pretrial

investigation shows, the Metropolitan Policeman, and he

would not appear except when subpoenaed, which 1 pre-

enme he was subpoenaed for this court. So this was in-

troduced in lieu of that.

[131 Q. You understood it was a sworn statement at

the time?

A. Yes, sir. I believe that the testimony before the

pretrial indicates that it was a sworn statement, because

Mr. Mendelson was on the stand at the time. It was in-

troduced through his testimony.

2. This was one of the items of evidence, was it not,

that you utilized in formulating your opinion as to what

‘disposition should be made of the charges

A. As I say, this was just eumulative. “Actually | one nies

witness, Hodges, was sufficient evidence to make the rec-

ommendation. This was cumulative. This was just cor-

‘yoboration. Now, without the witness who appeared at

the pretrial you could say it had to depend on this, but to

say say that this was not considered would not be exact-

Iq correct, and to say that this was the basis for the rec-

ommendation also would not be absolutely correct. -

4 re you say that you did consider this document?

es, sir. |

Lo: Do you have any questions?

IDC: Yes, sir.

s *

7

_

EXAMINATION BY THE IDC - 8

. Commander, you also listed as witnesses on your

peal report the statement of Norman Round, dated 13

January 1961, as a part of your recommendation to your

Commander that a general court-martial be ordered, isn’t

that correct?

A. I’m sure it's listed, Round and the other ances of-

ficer.

Q. illbe glad to show it to you. a.

A. I'm sure it’s listed there. If it’s not it should be.

LO: Let thé record show the witness is receiving what

purports to be a copy of the pretrial investigation from

the defense counsel. .

_ WITNESS: What was the question again.

* * * *

11341 LO: Well, I believe that on the authority of the

Samuels' case at Jeast there is a question of fact here as

to whether or not the statement of Mr. Round was in fact

‘sworn to, and I don’t consider it within the province of

the law officer to determine such a question of fact. I 1

think ft is not properly a matter for the court to deter-

mine, since it is a matter not concerned with findings.

I consider it is a matter which is properly within the. |

province of the Convening Authority to determine what

— disposition is to be made as to this matter and as to any

further action in regard to the Charge and Specification.

On that basis, I consider that the motion made by the

. defense, which I consider to be a motion for appropriate

relief, should be granted and is-so granted in ‘that re-

gard. Under those circumstances, you will advise the

Convening Authority that the motion for appropriate re-

lief has been granted based on matters concerning the

validity of the pretrial investigation for whatever further

disposition he desires to make. . 5

Is there anything further at this out of court hearing?

I will call the court. We will go into open court session 80

that I may point out for their information the general

matters that have transpired so that the president ean

adjourn the court to meet at his call.

TC: May J ask the law officer if these out of court pro-

ceedings which have been recorded will be made available

— 66 . . 1 * 2,

. — append to 10 pcominuntostion 4 the Convening Author-

Io: They must be otherwise the Convening Authority.

has no way of ascertaining what transpired during the

course of these preliminary matters in this trial.

4 —5 eit the entire record up to this moment be

4

EO: Yes. Counsel have any views on that? ,

IDC: I’m guided"by the views of the law officer. -

LO: Very well.- The out of court hearing is concluded, °

and we will await the return of the court so we can go

into open session and advise them.

. * out of court hearing concluded at 0950, 8 May

1 The court was ‘called: to order at 1000, 3 May.

e court will come to order.

7 All parties to the' trial who were present when

the court closed are again present in court.

LO: The court is advised that during the course of out

of court hearings the defense made a motion which is

considered one for appropriate relief directed to stated

defects in the pretrial investigation. Testimony elicited

from witnesses as to this issue makes it apparent that to

proceed further with this case at this time to a. deter-

mination of any findings would result in these proceedings

being set aside as a nullity. I have, therefore, granted the

motion of the defense for appropriate relief and directed

the trial counsel to refer the matter back te the Conven-

ing Authority for whatever disposition he deems appro-

priate to make in the premises. It is, therefore, appro-

priate, Admiral, to adjourn to meet at your call. |

. For the information of the court, the matter that arose

during the out of court hearings pertained to whether or

not 2 ef witnesses who were not called at the

pretrial investigation were sworn or unsworn. During

the course of these proceedings —

IDC: May it please the court, 1 must object to the

law officer informing the court as to the reason for

ting the relief.

LO: Your objection is noted. During the course of

these * it became * to the law officer

Ren

resolve, since it does not go to the guilt or innocence of

the accused. I, therefore, consider it appropriate for

the Convening Authority to resolve this issue and take

whatever disposition he desires in the premises. ;

ie

— — —

—

Arnim. Ern : F ( guia ay martial)

iy Norman Round, Patrolman, Metropolitan Police Dept.

Washington, D.C. attached to the 3rd Precinct, make the

following voluntary statement to Mr. W. G. Mendelson;

who has identified himself to me as a Special Agent of

the Office of Naval Intelligence.

On 12 J anuary 1961, I was on routine patrol in a scout

car with my partern, George W. Pickerel, Patrolman also

attached to the 3rd Precinct. We were patroling in the

vicinity of the Tidal Basin. As we cruised along West

Basin -Drive we observed an automobile parked alongside

the drive, just on the curve of the drive before it meets

Independence Aye. N earby are some old temporary build- -

ings that are used as offices. As my partner and I pulled

up: behind the parked car which was a 1959 white chevvy

with California License RWM 407, we could see two “peo-

ple sitting side by side throught the rear window. As we

pulled up, we saw the person on the drivers side bend

over out of sight toward the person sitting next to him.

My partner, Pickerel, got out and walked up to the car and

looked in. He then waved to me to come up and I called

the Dispatcher and told him to hold us out of service for

a few minutes. The time was just about 1:13AM on 12

January 1961. I walked up to the car and just as I looked

in I saw a man, who had been bent over with his head

down toward the other person’s lap, start to move to an

upright position. I then saw. that the other person ‘was in

an Air Force uniform and as I watched, he took his penis

which I had seen was exposed, and put it back into his

pants and zipped up his fly. In the meantime, the other

man turned on the car lights and made as if to start the

car. Pickerel walked to.in front of the car and I ran

around to the drivers side and opened the door so the man

would not start the ear. We got their ID cards when we

asked for identification and we asked the men to follow us

to the Police Station. Both men were booked for “dis-

orderly” and because they were service men, the Armed

Forces Police were called and the two men who were

_ jdentified as Airman HODGES and Naval Officer AUG-

EN BLICK. There was W of Bent | in the Area for us

9 * . - ‘ 68 .

tö see what was going on at the time we arrested the two

men. Pickerel told me that he ha nan on ne

drivers side sucking the other man’s dick just re

called me up to the other car. 5 .

7s Norman Round

Nonax RouND

Subscribed and sworn to before me this

13th day of January 1961 at the 8rd Precinet.

Met PD, Wash. D. C. 7

/s/ William G. Mendelson

WILLIAM G, MENDELSON

Special Agent, ONI

3 *

9 2 :

5 HEADQUARTERS * 1

POTOMAC RIVER NAVAL COMMAND

‘Washington 25, D. G.

— Code 22

File 5830 (7) |

Ser: 1763

12 May 1961

*

From: e Potomac River Naval Command

To: Captain William R. FRANKLIN, U. S. Navy,

Office of ag gM n. U. 8. Naval Station,

Washington, D

Subj: Court of 3 to inquire into the alleged- mis-

conduct on the part of Commander Richard G.

AUGENBLICK, U. S. Navy.

1. A court of inquiry, consisting of yourself as | president

and of Commander William C. BENDER, US: Navy,

and Commander Joseph J. FLAHERTY, U. S. Naval Re-

serve as additional members, is hereby ordered. to convene

at the U. S. Naval Station, Washington, D. C., at 0900 on

Tuesday, 16 May 1961, or as soon thereafter as practica-

ble, for the purpose of inquiring into all the circumstances

connected with the alleged act of misconduct reported to

have been committed by Commander Richard, G. AUG-

ENBLICK, U. S. Navy, on or about 12 January 1961

with James O. HODGES, Jr., airman third class, U. S.

4 Force, at or near West Basin Drive, S. W., Washing

ton, District of Columbia. Commander Lazar H. BEN.

RUBI, U. Naval Reserve i is hereby detailed as counsel

for the court. .

2. The court shall snake a thorough investigation into all

the cireumstances connected with the alleged act of mis-

conduct.. The court shall report its findings of fact, opin-

pe ions and recommendations. In case disciplinary action

is recommended, your attention is directed to the 1955

Naval S8 upplement, — for Courts-Martial 1961, Sec-

tion 0302d ( 11) (e).

e e Riche

ard G. AUGENBLICK, U. S: Navy of the time and place

7G

a

ae * . 3 : ; é Ss , . |

ö a” | yi

2 0 9 — my i 4 °

| rod : 7

- 9 ,

*

inquiry and N his rights’ as moe pursuant to the

provisions of the 1955 Naval Supplement to the Manual

N for Courts-Martial, 1951.

4. The court, directed to take the 1 o ‘bit

nesses under oatit and to make and — 4 8

record of the: procedings.

5. The District Legal Officer, Potomac River N walk wii

mand is hereby directed to furnish the necessary reporters

and other clericd] asstance for the p of assist-

ing the counsel’ for the recording *

of this court of inquiry. iis :

— ‘

4 . 4

88 ' aA 5

7s, Thomas H. Robbins, Jr. «

an THOMAS H. RoBBINS, J.

Copy to: N .

CDR BENDER

CDR FLAHERTY

CDR.BENRUBI « «+ .-

CO, NavSta, WashDC * f 8

—

. * 5 3

3

TRANSCRIPT OF PROCEEDINGS |

Held exe 23-25, 1961 (court of inquiry), yee

@ -;: a 2 — a: , * 1

“Wikies: James O. Hodges! a

[81} Q. Where was he located at that time? Strike that,

What position was-his body?

A. Laying from under the driver’s side éver across me.

Q. Where were his | | of

A. Underneath the steering. wheel.

Q. And was his: dody acing—either * the front

of the car or the back of the car? ier i ee

A. More toward the front of the car.

= Ter sin toward the front of the car?

Q. No vou say he leaned =~ you?

* Ves.

. All right. Go ahead.

5 He had his hands around- behind my legs and moved

them over to the areasof my ꝓenis and asked if I was

comfortable or all right, if I wanted to ga

2. What did you understand by do you want to go? |

K. If I didn’t want this, to leave, he’ d take’ me back

to the bus stop.

What did you ‘tell him? 5

A. I told him I was all right.

Q. Go ahead.

A. Then he asked me to take my pants dows. I’ re-

fused. I unzipped my trousers. er

Q. He asked — to unzip your trousers?

A. He asked me to take my pants off. =.

Q: You. say he asked you to remove. your trousers?

A. Les, sir.

Q. Theh what did you do? fra”

A. I refused this. P

my penis, and Wed Augenblick ‘took hold of it and

Pa . ee e 5

188 Q. Had yon met Commander Agen pre-

vioust. rt : 5

5 N Theda’ a *

0. You 2 know him? a »

~

A. I didn’t base him, 7 ey

Q. Had he indicated to you previously whether hes was er

in the military or not?. 5

As. No, he didn’t. AN.

Q. You’ all went n to 1 police station?

A. We did. 5

Q. Then what hap ed? 2

A. Then we a val After. we put our names in

the book, we waited @or the military police to come in,

and we were turned over to the military police when they

came. We left there to go down here to * Armed Forces

Headquarters Building.

Q. Did you have an westen with Commander

Augenblick on the: way to the police station?

A. Yes, sir.

2 What Was the aw of that .

He told me that they couldn't prove anything, that

we should get a story to match when they questioned us,

and said we should tell them we were parked there to go

out and take a leak; and I believe that was all; and we

were just temporarily there. So, he had me repeat it on

the way to the station to make sure that I had the same

story. We got down to the police station, and we were

turned over to the authorities there. >

CC: I have no further a. ‘Crose-examination?

oe | “CROSS-EXAMINATION

- Question’ by the 10:

Q. Did you have any further conversation with him

after this conversation that you state togk place in the

car on the way to the police precinct? .

a * . *

[102] A. That any, sir,.at her ‘dormitory at ie: Hos A)

* School of Nursing.

And when did you let her off or say good night?

A. Right about eleven-thirty at night, sir.

Q. And that was where? .

A. That was at the same place at the Washingtan

f 3 Center.

70

Q. Are you still free to come and go: from Andrews

Air Force Base?

A. Yes, sir. a

2. Are you still getting your honorable discharge?

A: I don’t know, sir.

Q. As far as you know, it is still being processed the

way the Commander originally recommended it?

A. I don’t know.. I know it is being: processed, but I

don’t know what the result is going to be.

. Q. But as far.as you know; his original Wande

tion of an honorable’ discharge still holds?

A. Tes, sir.

ICP: 1 have no further questions.

REDIRECT EXAMINATION

Questions by the CC:

Q.. One question. Ba pes you 8 to the court how

your: penis was exposed through your buttoned shorts?

A. The shorts, sir, are buttoned just at the top just

about two inches. There. i is about a six inch space of un-

buttoned shorts. That's the way they are made, sir.

Q. You say. you unzipped your trousers. By unzipping,

do * mean ae: opening or just unzipping the zip-

A. Just unzipping it, sir.

Q. Just unzipping the zipper?

A. Yes, sir.

9

es,

CC: No further questions.

uus RECROSS-EXAMINATION

Questions by the ICP: | \

Q. You didn’t unbutton the top button, that illite

plastic button at the top? Did you unbutton that button \

that was at the top of your trousers? ng ae

A. No, sir.

| There is a button there first and. then the zipper

follows from there, does it not?

A. Yes, sir.

7

ICP: No further questions.

CC: Do you have any further questions? *

ICP: Does the court? '

EXAMINATION BY THE COURT

| Questions by the president:

How old are you, Hodges?

Twenty, sir.

How long have you been in the Air Force?

About sixteen. months, sir. |

Sixteen months? B

Yes, sir.

On a two year enlistment? :

Four year, sir.

¥ou are getting an honorable discharge, you think? i

I don’t know, sir, I expect— ._..

That’s what in process as far as you know?

Sir, my Commander, my Squadron Major Haffer

* recommended me for an honorable, and that is all

that I know. Im expecting a general, sir.

[104] . REDIRECT EXAMINATION |

Pe POPOPOPOPO

Contin by the CC:

9. By general, you mean not a general court-martial?-

A. Yes, sir. ä

CC: Any further questions?

3 i have one question, if I may, sir.

_RECROSS-EXAMINATION

Questions te the ICP:

Q. What makes you think you may 1 a ‘general when

your Commander recommended an honorable?

A. Because, sir, it has to be up to Genera] Smith and

General Allen, and they are the one’s who will determine

ct St to —

9 76 * | |

CC: For edification: of counsel, I might add if the.

court needs it, they can probably request it. I don’t think 4

‘IT need it.

ICP: I'm not concerned. Thank you, Commander.

. REDIRECT EXAMINATION

~ Questions by the CC:

Q. Is it your understanding that a pa discharge

is under conditions other than honorable?

IC: I think the court knows the legal effects of this.

We all know what they are. —

. CC: You raised the question. The question has been

ö = I want to know what the witness thinks this is all

about.

Q. Do you know what a general discharge is?

~ No, I don’t know.

RECROSS-EXAMINATION

Questions by the ICP:

Q. Your understanding from your Comair is that

you have been recommended for an honorable dincharge?

A. Yes, sir.

ICP: No further questions. 8

The witness was duly warned and withdrew from the

* . * 2 * :

112) ' DIRECT EXAMINATION

Questions by the CC: 3 |

+ Would you state. your name and your occupation?

William G. Mendelson; I’m a-Special Agent with

the Office of Naval Intelligence.

io re peewee |

00 Your witness git Ss N owt ag?

2 Questions by the ICP: 9

Tore assigned, I believe, to the Navy Service

oe

ges

D

° 77

1 I am.

Now, Mr. Wee we're inquiring abet an 4

cident alleged to have occurred on the morping. of Janu-

ary the 12th, 1961, involving a Commander Augenblick.

Will you tell us when you first were notified of that day

that your services were required as a result of a civilian ~

arrest. |

A. To the best of my recollection, it was around 1

o’clock in the morning. a

_Q. And that was at your home?

A. At my home.

(113) Q. And by whom were you notified?

A. Special Agent Fason. Ted Fason.

ke would be what might be called the Duty Agent

at the time?

A. Well, he's the supervising agent; not necessarily the

Duty Agent, but the Armed Forces Police would normally is

notify him.

CC: Would you spell Fason’ 8 name?

WIT: F-A-S-O-N,

CC: Continue, I’m sorry.

Q. Did he also call you from his home?

A. He did.

Q. And that was about 2 o’clock in the morning?

A. Just about. 7

Q. “And what did you do pursuant to that call?

A. I went to the Armed Forces Police Headquarters

the Potomac River Naval Command.

Q. And what did you do there?

A. I spoke to an Armed Forces Peliceman—I tind

he was a Sergeant, Im not certain of that. ant < |

Q. What Service?

A. Of the Air Force, I W Air Force Ser-

geant—and he made a verbal report to me concerning

Commander Augenblick and Airman Hodges of the U. S.

Air Force, :

Q. And at the time ‘that you arrived, where were

these two individuals—Commander Augenblick and

Hodges, to your knowledge.

X. I believe they were in the area of the ‘Armed

Forces Police. area—in the ia a. ;

at

Q. But the first persom you saw was this Sergeant that

you think was an Air Force Sergeant?

A. The first person that I can recall actually seeing,

I believe was Special Agent Conner of OSI—the Office of

Special Investigation—who had also been called because

of the. possible involvement of the Airman. He was the

; [114] first one I can remember seeing and he was stand-

ing, as I recall, near the desk, and this Air Force Ser-

geant—I believe he was an Air Force Sergeant—was

standing there also.

2. And did the Sergeant in effect report to both of N

you, or did you receive any information independently

From the OSI Agent?

A. I believe the OSI Agent had already been informed,

but he was standing by as the Sergeant made this report

to myself and to Conner who was standing right there.

And then pursuant to the information you received

from this Sergeant, what did you do then?

A. Agent Conner of OSI desired to talk immediately

to Airman Hodges concerning this incident and we asked

that both Commander Augenblick and Hodges be per-

mitted to go into the next building, which is the Intelli-

gence Office, PRNC, which is part of our organizational

set-up ee

2. Well, 4 in other words, the building that you first

went into where you talked with this Sergeant and the

_ OSI Agent was not the same building that these men were

in, or they were in that building and later taken to an-

other building. |

A. As far as I recall they were in the Armed Pures

Police Building which is adjacent to the Intelligence Of-

fices at PRNC, which is an adjacent building: So that it

was necessary for the purposes of interviewing these gen-

tlemen to take them over to our office at IO, PRNC.

Q. Are the two buildings connected by a passageway

or do you have to go out of one to go into the other?

A. Tm almost certain that I went outside to go into

the other one, but I don’t know whether there is a pass-

ageway in between them. I believe that I went outside..

Tm not too familiar with that area.

Q. Now, pursuant to this request by Conner of the

OSI, what physically took place at that point? You tes-

=

tified that he stated that he wanted to talk to HODGES?

[115] A. That's right. IJ believe that he and I walked

over to the other building and went up to the area—

spaces of the Intelligence Office, PRNC where a duty

agent let us in and afforded us an interview room.

Q. Well, now when you went up to this office and ob-

tained ingress to the particular hearing—or interview

room—were these two, the officer and the man, following

along with you at that time?

A. No, I do not believe they came with us. I believe

they must have come over after us rather than physically

with us. 1 5

Q. Rather than kp ee a emt

A. Rather than physically accompanying us, I believe

they followed us over, because as I recall, Conner and I

did go up to see if there was an interview room available;

we found out there was; and to the best of my recollec-

tion we came back out to a sort of a reception area where

Hodges and Commander Augenblick were. :

Q. And then what did you do after you came‘out to

this reception area?

A. We asked Hodges to accompany us back to the

interview room, which he did, and Conner interviewed |

Hodges in my presence,

Q. Now, was there any other OSI Agents there ‘at that

time? .

A. No, sir.

Q. And were there any other ONI Agents * at

that time?

A. Well, there was a duty .

Q. I mean who participated? . N

A. Not in the room, no.

Q. So that the two of you, Mr. Conner and you, took

Hodges back into this interview room to interview him?

E

- Q. And about how long did that interview take, do you

recall?

A. Between 20 and 25 minutes I'd say.

‘Q. And was any statement in * given during

that interview? *

A. Not at that time.

*

i

1 80

[116] . Did you take any notes? |

A. I believe that I did.

Q. Now, ‘at that point, this would have been a

what time

A. I'd say 0345 would be approximately the time we

finished, talking to Hodges.

Q. Are you in the Naval Service?

A. No, I'm a civilian. é

2. Have you ever been in any branch of the ae

Forces?

1 have been. I’m a Naval Reserve Officer.

Q. You are.

A. Not on active duty.

Q. a you on status is as a civilian?

es.

All right . t did the 0845 refer to—the be-

ginning or the ending? ;

A. \The end of the interview with Hodges.

Q. Now, where are those notes that you took?

A. I believe that I can produce them if you feel nec-

essary. They were just rough pencil notes as far as I

N T\don't have them with me, but I may still have

Q. Now at that point: had you talked with. either of the

civilian policemen? - b

A. No, sir, I had not.

Q. And had you. received any report in writing of

anything stated by them?

A. I cannot recall, but it may is that that Air Force

Sergeant gave us an Armed Forces Police Report stating

what these police had said; I’m not sure on that point.

Q. Wat is the practice generally if there is one?

A. Well, the practice generally during an investigation

of this nature is to obtain some kind of a written report

or statement.from any person who might have knowledge

of the incident:

(117) d, Well, as a ov over-all part of the investigation

vou mean

A. Right. f

2. But I mean, n

. Were you have been called by the.ASPD to come down

. , 81.

ahi result of a civilian ceca ce e eee

of a member of the Naval Establishment, haven’t you?

A. Off hand I would say that I probably have. .

Q. And that’s what Pm particularly referring to. At

that point, what is the general practice? Do they have a

report waiting for you or do they bring that up later?

A. I don’t believe there’s any; I believe it’s happened

both ways—that we've either received a verbal report or a

written report. It depends on how much time they have,

I would assunf, to prepare such a report. The report

form that the Armed Forces Police have is a printed form

which is filled in with pertinent information and therefore

sometimes it doesn’t take very long to fill it out.

. Right. But you don’t recall specifically on this oc-

casion whether you got one from this Sergeant or not

when you came in? :

A. No. I believe that I did, but I’m not sure.

2. Now, the interview with Hodges included.. . . or

concluded, as you recall, around 0345 What did you do

then?

A. I perso ronal went out and asked Commander Au-

genblick, I ve, to come back to the interview room as

Hodges and Special Agent Conner departed. Conner told

me that he would supply me with a written statement

from Hodges as soon as he had an opportunity to prepare |

it—or Hodges had an opportunity to prepare ft.

Q. Which? Conner prepare it or Hodges;

A. Well, Hodges would give him— supply him with the

pertinent information and give him a report on the mat-

ter. 0

Q. Now, so this was around—somewhere between 0345

and 0400 that you asked Commander Augenblick to ac-

rer ge you for an interview?

[118] Q. Now how long did that interview take?

A... It took place ftom 0400 to 9545 in the morning.

Q. Right on the dot?

A. Just about.

Q. And that took: place 1 the same intelligence Office?

A. It did. 2

* * 2 *

* * .

°

— 3

82

- [128] A. To the best of my recollection, I apprised my

superiors of the results: of thé’ investigation of the pre

vious evening. :

Q. In other words, what you had done 74 far?

A. What had done so far.

Q. And when James left you, did that terminate his |

connection with the investigation? ,

A. Yes, sir, it did.

Q. All right, now after apprising your superiors of

what had occurred so far, what did youdo? _

A. I’m not sure, but I think that I called Special Agent ä

Conner to find out from Conner about any report he may

have received in writing from Airman Hodges and I be-

lieve he told me that he had obtained a report in writing

krom Airman Hodges containing the same information

that Hodges had given us the night before.

2. About what-time of the morning was this, —

mately?

A. I would say 9:30, bags 10 O'elock.

2. And, when, if at ‘all, did you receive a copy of, or

see the original of the statement purportedly drawn up

by Hodges?

A. I don’t know whether it was that day or the fol-

lowing day. I’m not sure.

Q. Well, now.

A. I received a copy of the statement, not the * a

„Q. Well, now, you interviewed Patrolman Round about

8:30 in the morning, didn’t you, on that same morning?

A. If that what the record shows, that's what I did

now you're speaking of the 12th of January. I dont

8 believe. it was the same morning, I think it was the next

morning. I’m not certain of that. I’d like to check the

[124] date on the statements that were obtained.

Q. Well, it’s your recollection that the interview that

you had with Round was on the following day—in other

words, another 24 hour period elapsed before you inter-

viewed Round? Is that your recollection? :

PRES: . May the original question be repeated?

The reporter repeated the last question.

Q. In other words, your recollection now is, the inter-

view with Round took place the following day? fe."

— — . 83

A. Yes, sir, my Fecollection is that it took place the

following day rather than the same day the ineident hap-.

pened. This can be verified by rds.

— Well, if it will assist you any, I Will tel you that

this statement bears the date of the following day and

that. was also the time that you interviewed , is that

correct — the following day?

A. It was, yes, sir.

Q. And at the time you interviewed - Round, id you

have in your possession the statement made by H iges?

A. I do not believe I had that statement, sir.

Q. And on that same day you also interviewed Officer

Pickeral at his home, is that correct? ~ . „

A. Yes, sir, I did. | .

“@ Did you have in your possession at that time a

statement made by Round? —

A. Yes, sir, I f .

Q. Was it displayed to Piekeral? 2 * .

ad obtained such a

fe 2

A. No, sir, I do not believe it was

*

Q. Did you tell Pickeral that yo

statement? . a

A. I told Pickeral that I had just received a report—

statement—from Round, yes, sir.

. And did you, when you interviewed Pickeral, can

you tell us approximately what time of the day that was?

[125] A. I believe you mentioned to me that I had in-

terviewed Round at 8:30 in the ee I guess that’s

from your own records.

Q. Well, what is your recollection?

A. Well, my recollection is about 8:30 in the morning

because I believe Round had been on watch the night be-

fore and I had to catch him as he came off his duty that

morning. From there I believe I had to call Pickeral on

the phone to make sure he was at home because he was off

duty that day and he did tell me that I could come out

and I think I spoke to Pickeral around 2 o’clock in the

afternoon of the 13th of J anuary. ‘Some where around

that time.

Q. And is it your recollection that at that time you had

with you the statement of Hodges

As. No, I do not believe I had ü the statement of Hodges

vom me at that time.

f

Q. But your recollection is that you did get such a

statement some time on that day of the 18th?)

A. I just can’t be sure of that, counselor. I know that

I received a statement; I didn’t get it personally myself;

it was appangatly picked up by somebody else and brought

to my desk or given to me by the supervising agent who

had received it from another agént. In other words, that

Conner, the OSI Agent did not contact me personally and

give me a copy of the statement. I cannot be sure of the

exact date that I ived: the OSI statement.

Q. The last point that we came up to on the day of the

12th was approximately 9:30 to your best recollection, at

which point you reported the progress of the investigation :

to your superiors?

A. Yes, sir.

Q. Did you do anything further on that day with re- :

gard -to pursuing: the investigation?

A. Yes, sir, I believe that I went personally to see

Commander Augenblick’s superior to brief him on the

outcome of thé investigation up to that point.

Q. That was a Captain Calhoun or was Captain Cal-

houn present at that time?

[126] A. .I think 1 Calhoun was there but 1

don’t think that was the . 7 | |

Captain Vanarsdall?

Captain Vanarsdall was the jeman.

And was also a Commander Cher ak present?

I think so, I’m not certain.

And that was over in the Pentagon itself?

| That was in Commander Vanarsdall’s office—or

Captain Vanarsdall, I beg your. pardon.

Q. And other than informing them of the status of

the investigation, did vou do anything else regarding the

investigation that day?

A. I believe I checked Commander Augenblick’s record

for background information. I think his record is held in

the Pentagon by one of the Personnel Departments over

there, and I believe I went through his record to get date

—date of birth and things of that nature. .

. Anything else—I mean that day? ‘Ahem

A. Did I. do anything else that day? we

a re 505

6

connection with this particular investigation? |

think I made an een of eee am

vias “Seah that evening. |

Q. Was that with his permission? |

A. No. That was with Captain Vanarsdall’s permis

sion.

Q. Did you find anything of significance i in his desk?

A. I did not.

Q. By his desk, you mean at the office? A

A. At the Pentagon—his office desk. :

ICP: If the court will indulge me for one *

think I’m about finished. :

ICP consults with CP and accused. , 3

Q. Now, coming: to the i terview itself with Com-

mander Augenblick in the interview room, did you pur-

port to read to the Commander, statements an you

[127] had?

A. No, sir. I had no statements 15 that SM Sx. 2”

Q. But did you not purport to read from statements

to him during that interview?

CC: Now I want to object to this form of questjoning.

I can see no reason to go into investigative techniques.

The fact is that he did interview the Commander, he has

testified to this. I don’t see that the techniques used is

relevant unless, of course, he intends to introduce further

evidence to connect it up.

ICP: I don’t see any in 8 in it and if investi-

gative techniques are involved, I think it might be. of in-

terest to this court to know.

PRES: Objection overruled.

Q. Did you understand the nt

A. Yes, sir. I did not read from any statement to

Commander Augenblick —read from any statement to

Commander Augenblick any information concerning this

incident. I told him why he was there and I advised him

fully of his rights under Article 31 of the Uniform Code

and I asked him during the course of the interview if he

would like to make a statement concerning it.

Q. All right. Now, my question, however, Mr. Mendel-

son, was did you purport... ... do you know. what I mean

by — read ae | statements? 2

*

86

A. ‘Yes, I eden No, I did not. I bed

told him that I had no such statements but that I was

hoping to obtain a further report on this matter and I

told him repeatedly that what I had was given to me

verbally at that time—the ‘information was given to me

"verbally, and I wanted to discuss it with him. At no time

did I purport to read from anything whatsoever.

Q. Did you.ever have a file folder in front of you

~ which you referred fo and indicated that you were read-

ing from the report?

A. I had some notes in front of me which were taken,

1 think, as I already testified, when Airman Hodges was

being questioned by OSI Agent- Conner. I don’t recall

actually having any folder; I think I had some rough

notes in front.of me and inasmuch as I actually had no

statements, I could not therefore tell Commander Augen-

[128] blick that I did, and I know that I told him that 1

did not have any, but that I would get written reports.

He was quite emphatic on certain parts of the interview.

Q. Now, one final question. What, if any, assertions

did he make in that interview as to his guilt or innocence?”

A. Do you want an exact quote? silt

Q. If there is such a quote, yes.

A. He said that no homosexual act had taken place

and no wrong-doing had taken place.

IGP: That's all. Thank you.

* * * *

lh

RECOMMENDATIONS

1. That Commander Richard G. AUGENBLICK, U. S.

Navy, be brought to trial by general court-martial on the

charges of violation of Articles 125, 133 and 134, Uni-

form Code of Military Justice. The appropriate charge

sheet, signed by the president of this court as — 1

forwarded herewith, .

2. That a resignation for the good of the service to es-

cape trial by general coyrt-martial if submitted by Com-

mander Richard G. AUGEN BLICK be accepted.

ra)

/s], William R. Franklin

WILLIAM R. FRANKLIN

Captain, U. S. N avy

President

/s/ William C. ‘inte

WILLIAM C. BENDER .

Commander, U. S: N me.

Member

jaf Joseph J . Flaherty

JOSEPH J. FLAHERTY |

Commander, U. *

Naval Reserve

Membef

/s/ L. H. Benrubi

L. H. BENRUBI

Commander, U. S.

Naval Reserve

Counsel for the Court

*

" HEADQUARTERS

POTOMAC RIVER NAVAL COMMAND

7 1 25, D. C

s 8 15 July 1961

From: 1 Colonel Vernon A. PELTZER, 08469/ ;

0195/0802, U. S. Marine Corps

To: Commandant, Potomac River Naval Command

(Attn: DLO) a

Subj: Report of further Investigation conducted in the

ease of Commander Richard G. AUGENBLICK,

102649, U. S. Navy Ar

Encl: (1) ComPRNC itr Ser: 2486 of 12 July 1961

w/enel. (Appointing Order) |

(2) Verbatim — 9 of inveatigative-hearing

proceedings conducted on 13, 14, and

July 1961, in the case of Commander AU: 5

ELI |

1. Pursuant to the provisions of eheloouine (1), an inves-

tigative-hearing was conducted and the verbatim tran-

script of that proceeding is submitted as enclosure (2).

2. For the reasons indicated below, the report · is sub-

mitted in this form and manner, and without entering

findings, opinions, recommendations or other comments,

a * I have not had access to the report of the earlier

investigation which enclosure (1) indicates was conduct-

ed; such access was neither tendered or proposed by the

government or the defense and was not sought by me be-

cause of the apparent nature and purpose of the hearing.

b. The proceeding was ordered in response to a re-

quest by the defense; the apparent purpose and objective

sought by the defense was discovery, through examination

of witnesses under oath, and to obtain and record the

sworn testimony of certain witnesses. This has been ac-

domplished.

e. The defense N waived. the submission of

ok items by the investigating officer

mrs ©

94

3. It is requested chat a member of your staff append

the record of this proceeding to the record of the earlier

wae proceeding, apparently conducted in this case, |

4. Unless advised to the contrary, the investigative-hear-

ing officer considers the assigned duty has been discharged

and will return to and resume his normal duties, taking

v0 further action in this n 1

B. As indicated by the acknowledgement executed below,

„the defense has been provided a copyof this record.

„ / Vernon A. Peltzer

Mie ee A. PELTZER.

ae ne hereby ‘acknowledge that I-have been accorded an op-

— pPortunity, to review the original record and have been

Provided a copy of this record. 3 225

Date: 19 July 1961 r *

8 /s/ W. Windus 4 |

5355 , : W. WINDUS, Con, USNR

\

HEADQUARTERS hates

POTOMAC RIVER NAVAL’ COMMAND

- Washington 25, D. 1 |

: oe Code 22 : 2

sattis. 8830 (15)

b Ser: 2485 |

12 July 1961

From: Commandant, ‘Sedat River Naval Command

To: Lieutenant Colonel Vernon A. PELTZER, U. S.

Marine Corps

Subj: Further investigation demanded by Commander ve

Richard G. AUGENBLICK, U. S. Navy arene

Ref: (a) ComPRNC ltr Ser: 1763 of 12 May 1961

(b) Ltr from appointed defense counsel of CDR

AUGENBLICK* to ComPRNC of 7 a7 :

1961

Enel: (1) Copy of ref (b)

1. Reference (a) is -· an order appointing ‘a court of in- ;

quiry to inquire into certain alleged acts of misconduct

of Commander. Richard U. AUGEN BLICK.

2. Reference (b) is a request by appointed defense coun-

sel for further investigation of the matter, pursuant to

paragraph 0508 of the 1955 Naval We 9

1951.

3. You are hereby appointed WN . to .

and record such additional evidence as may be presented

on behalf of Commander AUGEN BLICK.

4. For this purpose you will hold a hearing at 0900 on

Thursday, 13 July 1961, or as soon thereafter as practica-

ble, in building T-34, U. S. Naval Station, Washington,

D. C. You. will make such findings, opinions and recom-

mendations, if any, as you may deem appropriate. You

will receive testimony under oath and submit a verbatim

record of the evidence, which will be appended to the

— record of wees court of inquiry.

0 | |

5. ‘The District Legal Officer, Potomac River Naval Com-

‘mand is hereby directed to furnish the necessary clerical

assistance,

~

* Chetan H. Robbins, Jr.

THOMAS H. Ronnnis, IR.

Enclosure (1)

HEADQUARTERS

_ POTOMAC RIVER NAVAL COMMAND

. Washington 25,D.C. -.

Code 22

FE

From: A Defense Counsel,

This text is long and has been trimmed here. Open the source document for the complete record.