# Appendix — United States v. Augenblick (No. 45) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0017%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 ## Text „„ 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. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0017%3A01. Public record. Not legal advice.