Petitioners Reply Brief — Gosa v. Mayden

INDEX

S Dandridge v. Williams, 397 U.S. 471 __

4 Duncan v. Louisiana, 391 U.S. 145 ___.

Dynes v. Hoover, 20 How. 65

3 Hanson v. United States, 285 F. 2d 27__

4 McKeiver v. Pennsylvania, 403 U.S. 528.

Milligan, Ex parte, 4 Wall. 2.

OCallahan v. Parker, 395 U.S. 258 ___

| Orloff v. Willoughby, 345 U.S. 83

Quirin, Ex parte, 317 U.S. 1

| Reid v. Covert, 354 U.S. 1

_ Relford v. Commandant, 401 U.S. 355 __.

’ Stovall v. Denno, 388 U.S. 293

_ United States v. Costello, 381 F. 2d 698__.

_ United States v. Dryden, 423 F. 2d 1175,

_ certiorari denied, 398 U.S. 950

United States v. Fabric Garment Co., 262

F. 2d 631, certiorari denied, 359 U.S.

989

United States v. McMaster, 343 F. 2d

176, certiorari denied, 382 U.S. 818 __

- United States v. Polin, 323 F. 2d 549 ___

_ Vidal, In re, 179 U.S. 126

- Williams v. United States, 401 U.S. 646_.

onstitution, statutes, rules, and regulations:

United States Constitution:

. Article I, Section 8 _

Article ITI, Section 2, cl. 3 4, 5, 6, 7,

7

Fifth Amendment

q Sixth Amendment

_ Articles for Government of Navy, Art.

68, 34 U.S.C. (1946 ed.) 1200 ___ in

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2 PA

oD 0 00 COC CO MOWaAn dm

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or

I10Oo DD

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Constitution, statutes, rules,

and regulations—Continued

Uniform Code of Military Justice (1950)

Article 25, 10 U.S.C. 825(c) (1)

Article 25, 10 U.S.C. 826

Article 32, 10 U.S.C. 882 _____

Miscellaneous:

Blume, The Place of Trial of Criminal

Cases: Constitutional Vicinage and

Venue, 43 Mich. L. Rev. 59 (1944).

Henderson, Courts-Martial and the Con-

stitution: The Original Understanding,

71 Harv. L. Rev. 293 (1957) _.._..

Winthrop, Military Law and Precedents

81 (1920 War Dept. Reprint) ___.__.

$n the Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-1398

JOHN W. WARNER, SECRETARY OF THE NAVY,

PETITIONER

v.

JOHN W. FLEMINGS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONER

1. Respondent begins his argument from the same

starting point as did the courts below, urging essen-

tially that O’Callahan v. Parker, 395 U.S. 258, is

entitled to retroactive effect because the decision

anounced a jurisdictional rule depriving military

courts-martial of adjudicatory power to try non-serv-

ite-connected crimes. For the reasons stated in our

Opening brief (pp. 11-17), we submit that the me-

chanical application of a “jurisdictional” label to

0’Callahan does little to further the fundamental

(1)

inquiry presented in this case, and that the proper

disposition of the retroactivity question should turn

on an application of the same criteria that generally

govern the decision of this question. ©

‘2. We have fully discussed in our main brief why

those criteria warrant only prospective application of

O’Callahan (pp. 18-38), and we do not repeat that

discussion here. Respondent’s discussion of our argu-

ments focuses primarily on .the differences between

the military court-martial system prior to enactment

of the Uniform Code of Military Justice in 1950 and

the present system under the Code. But those short-

comings in the court-martial system of an earlier day

should not, we submit, determine the effect now to be

given to the rule in O’Callahan. That decision did

not imply that either the pre-Code or the post-Code

court-martial system was or is generally unfair and

inadequate under the due process clause. Rather, the

decision focused on two specific constitutional rights,

the rights to grand jury indictment and to jury trial,

and decided that, to maximize the availability of these

rights, certain kinds of cases should not be tried by

military courts. The relevant question thus is solely

whether the absence of those two procedures—from

pre-Code or post-Code military trials of “non-service-

connected” offenses—has “ ‘* * * infect[ed] the integ-

rity of the truth-determining process at oan” ©

by courts-martial. Willams v. United States, 401

U.S. 646, 655, n. 7, quoting Stovall v. Denno, 388

U.S. 293, 298.

Congress and the courts have apparently agreed

that indictments and juries are not essential to re-

liable fact-finding in the military-justice system. The

Uniform Code of Military Justice, while providing

a number of trial protections to the accused service-

men not previously recognized in military prosecu-

tions, imposes’ no statutory requirement that courts

martial be tried before lay juries* or proceed only

upon grand jury indictment.’ Nor have the military

courts, which in recent years have been particularly

sensitive to protecting the rights of servicemen (see

Pet. Br. 22-27), held that these two procedures

are necessary for a fair disposition of the case. And,

as we explained in our main brief (pp. 21-23), that

also appears to be the view of this Court, as most

recently reflected in its unanimous decision in Relford

v. Commandant, 401 U.S. 355. In this regard, what

a plurality of the Court said in McKeiver v. Pennsyl-

vania, 403 U.S. 528, in concluding that due process

does not require trial by jury in a juvenile court

proceeding—despite the fact that the juvenile sys-

tem has been fraught with “disappointments,” “‘fail-

ures” and “shortcomings” (403 U.S. at 545)—is of

equal relevance here (403 U.S. at 543):

* * * [O]ne cannot say that in our legal system

the jury is a necessary component of accurate

factfinding. There is much to be said for it,

to be sure, but we have been content to pursue

1 Compare Art. 25, U.C.M.J., 10 U.S.C. 825.

_ *Compare Art. 32, U.C.M.J., 10 U.S.C. 832.

other ways for determining facts. Juries are

not required, and have not been, for example, in

equity cases, in workmen’s compensation, in pro-

bate, or in deportation cases. Neither have they

been generally used in military trials. In Duncan

[v. Louisiana, 391 U.S. 145] the Court stated,

“We would not assert, however, that every crimi-

nal trial—or any particular trial—held before 4

judge alone is unfair or that a defendant may

never be as fairly treated by a judge as he would

be by a jury.” 391 U.S. at 158. In DeStefano )

[v. Woods, 392 U.S. 681], for this reason and |

others, the Court refrained from retrospective

application of Duncan, an action it surely would

not have taken had it felt that the integrity of

the result was seriously at issue. * * * [Empha-

sis added. ]

3. Respondent makes the additional argument in

his brief that, even if the Court should decide against

him on the retroactivity issue or should conclude

that the offense with which he was charged was

service-connected, his court-martial conviction should

be overturned because the trial was held in violation

of his right to trial in the vicinage, as guaranteed

by Article III, Sec. 2, cl. 3 of the Constitution (Resp.

Br. 49-52).° This claim is based on the fact that the

4

* Article III, Sec. 2, cl. 3 provides:

The Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury; and such Trial shall bé held in the State

where the said Crimes shall have been committed; but

when not commited within any State, the Trial shall be

at such Place or Places as the Congress may by Law

have directed.

5

court-martial proceeding involved here was convened

at the Brooklyn Navy Yard in Brooklyn, New York,

despite the fact that the alleged offense (auto theft)

took place in New Jersey and respondent was ap-

prehended by civilian authorities in Pennsylvania

(see Pet. Br. 2-3).

It would be a sufficient answer to this argument

to point out that respondent failed to raise any ob-

jection at his court martial on grounds of improper

venue, and thus may properly be held to have waived

whatever venue claim he might have had when he

entered his guilty plea. See, ¢.g., United States v.

Dryden, 423 F.2d 1175, 1178 (C.A. 5), certiorari

denied, 398 U.S. 950; United States v. Costello, 381

F.2d 698, 701 (C.A. 2); United States v. McMaster,

343 F.2d 176, 181 (C.A. 6), certiorari denied, 382

US. 818; United States v. Polin, 328 F.2d 549, 556-

557 (C.A. 3); Hanson v. United States, 285 F.2d 27,

28-29 (C.A. 9); United States v. Fabric Garment Co.,

262 F.2d 631, 641 (C.A. 2), certiorari denied, 359

U.S. 989.*

In any event, respondent’s Article III claim to trial

in the vicinage is not well-founded. Court-martial

*The argument was made for the first time in the present

suit in the district court. That court, without passing on the

question, expressed the view in dicta that respondent had

“arguabl[y]” been denied the constitutional right to trial

in the vicinage (Pet. App. B 53). The court of appeals

(Pet. App. A7) did not reach the issue. Although the matter

was not raised in our petition for certiorari or discussed in

our main brief, we do not contest respondent’s right to make

the argument in this Court. See Dandridge v. Williams, 397

U.S. 471, 475, n. 6.

6

tribunals are legislative courts created by Congress

under Article I of the Constitution (Art. I, Sec. 8),

As such, their jurisdiction is independent of the

judicial power created and defined in Article III,

See In re Vidal, 179 U.S. 126, 127; Dynes v. Hoover,

20 How. 65, 79. As this Court stated in Ex Parte

Quirin, 317 U.S. 1, 39:

Presentment by a grand jury and trial by a

jury of the vicinage where the crime was com-

mitted were at the time of the adoption of the

Constitution familiar parts of the machinery for

criminal trials in the civil courts. But they were

procedures unknown to military tribunals which

are not courts in the sense of the Judiciary

Article * * *.

Accordingly, in the military context at least, the

Constitution does not require that servicemen be tried

at the locale of the crime. It has long been recognized

that the “jurisdiction of general courts-martial is

coextensive with the territory of the United States.”

Winthrop, Military Law and Precedents 81 (1920

War Dept. Reprint). As that noted authority ob-

served (ibid.), a military tribunal “assembled at any

locality within that territory may legally take cogni-

zance of an offence committed at any other such

locality whatever, such a court, unlike a civil tri-

bunal, not being restricted in the exercise of its

authority to the limits of a particular State or other

district or region.” (Emphasis in original.)

The constitutional requirement of trial in the

vicinage where the offense was committed has tra- |

7

ditionally been associated only with trials by jury.

Indeed, the Sixth Amendment to the Constitution,

which in this regard particularizes the general di-

rective of Article III, provides:

In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law * * *. [Emphasis added.]

This provision, of course, has never been thought

applicable to trials by military courts. The concept

that the rights to jury trial and to trial in the

vicinage are interrelated has its roots in early English

history. See Blume, The Place of Trial of Criminal

Cases: Constitutional Vicinage and Venue, 43 Mich.

L, Rev. 59, 94 (1944); Henderson, Courts-Martial

and the Constitution: The Original Understanding,

71 Harv. L. Rev. 2938, 303-315 (1957). Those who

live in the community where the crime is committed

—which is frequently also the place of residence of

the accused—have long been considered to be best

situated to pass judgment on the validity of the

charges brought. It is their “participation in the

determination of guilt or innocence” (Duncan v.

5It has long been held that “ ‘cases arising in the land or

naval forces,’” which are expressly excepted from the opera-

tion of certain clauses of the Fifth Amendment, are also im-

plicitly excepted from the Sixth Amendment’s guarantee of

trial before a jury of the vicinage. See Ex Parte Milligan,

4Wall. 2, 123, 138-139. Respondent advisedly does not premise

his “trial in the vicinage” argument on the Sixth Amendment.

8

Louisiana, 391 U.S. 145, 156) that the vicinage rule

is designed to obtain.

But in the military context, an application of that

rule would be of little value. Members of the armed

forces have no geographical “community” in the sense

conceived by the constitutional provisions attending

the right to jury trial for criminal offenses in civil

courts. Their “community” is, as recognized in Orlof

v. Willoughby, 345 U.S. 88, 94, a “specialized” one;

it consists primarily of other servicemen (and their

families), who come from all parts of the nation and

are constantly moving about among a variety of

military installations throughout the world.

Moreover, these transient servicemen and _ their

families have never been the ones selected to sit in

judgment at a court martial. It is well settled that

the guarantee of trial by jury does not apply to

military tribunals. See O’Callahan v. Parker, supra,

895 US. at 272-273; Reid v. Covert, 354 U.S. 1, 37;

Ex Parte Quirin, supra, 317 U.S. at 38-40; Ex Parte

Milligan, supra, 4 Wall. at 123; and see id. at 138-

139 (concurring opinion). The trial is traditionally

before a panel of commissioned or warrant officers,

although now a limited number of enlisted men (no

more than one-third of the total panel) may, if the

accused makes a timely request, serve on the court-

martial, so long as they are not members of the same

unit as the accused (Art. 25, U.C.M.J., 10 U.S.C.

825(c)(1)).

In these circumstances, the place where the military

trial is held is of marginal significance to the ac

»

9

cused. The benefit of “community participation” that

is derived from the vicinage requirement in civil

prosecutions is simply inapplicable in a court-martial

proceeding. There is no basis, therefore, either in

constitutional history or in practical necessity, for

adopting respondent’s novel interpretation of the vi-

cinage clause of Article III as applicable to courts

martial.

Respondent is thus in no position to claim prejudice

because his court martial was convened in New York

rather than in New Jersey. While he asserts (Resp.

Br. 52) that his trial outside the vicinage deprived

him of an opportunity to subpoena civilian witnesses

from a State other than the one in which the court

martial occurred, he does not dispute the fact that

he made no effort to obtain the depositions of out-

of-state witnesses, which he could have done under

Article 68 of the Articles for the Government of the

Navy (34 U.S.C. (1946 ed.) 1200).° This failure,

coupled with his plea of guilty, precludes entertain-

ing his present objection to the venue of the court

martial whose judgment he is collaterally attacking.

If the respondent had not pleaded guilty, the prosecu-

tion would have had to prove its case and the re-

*The claim is particularly thin on the facts of this case

where the offense took place in New Jersey but the evidence

that respondent suggests might have been helpful ( Resp. Br.

52) related to the circumstances surrounding his arrest in

Pennsylvania. Thus, had he been tried by court martial in the

district of the offense, he would not have been in any substan-

tially different posture vis-a-vis obtaining witnesses from

Pennsylvania.

10

spondent would have been able to cross-examine thes

witnesses. The respondent made the decision that

no proof was required when he determined to plead

guilty.

CONCLUSION

For the reasons stated herein and in our main

brief, it is respectfully submitted that the judg.

ment of the court of appeals should be reversed.

ERWIN N. GRISWOLD,

Solicitor General.

HENRY E. PETERSEN,

Assistant Attorney General.

PHiLip A. LACOVARA,

Deputy Solicitor General.

WM. BRADFORD REYNOLDS,

Assistant to the Solicitor General.

RoGerR A. PAULEY,

SHIRLEY Baccus-LoBEL,

Attorneys.

Ws. 8. covannuenr paurine orrice; 1972