Brief for United States — United States v. Bayer

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Text

No, 606

— ~

Sate erent te Ud Ss

.Octopen Tzrm, 1946

Tue Unrrep States or AMERICA, PETITIONER

- =

SaMUEL Bayer, Evias Bayer anv WALTER Vv. >

Rapovica :

ON WRIT OF CERTIORARI TO. THE UNITED STATES CIRCUIT |

COURT OF APPEALS FOR THE SECOND CIRCUIT

3. | ‘BRIEF FOR THE UNITED STATES

all

“os ete eich ae bands aeawe cusiiiedecsnkdeedaecns

MOOAMIIOD..... « p geinn cocecccsceese een ey epee LT

Question presentedy --.----.-.-------------: ules ah icauteen

EL no ccWhetkeeanuasesdnsacteboane aon in

tae dawenaneek Vataeeakénuseea

” B® Radovich’s confession... .....-.-- svinades wakes

C. Radovich’s plea of double jeopardy -........--.------

ih Be ET GOMOD aio es cc ccnpnssctpasons akan

Specification of errors to be urged. -._-.-.-----.------------

Summary of argument__-------. -.------ sa ao needed a enna

Argument: .

I. Radovich’s confession was. properly received in evi-

OO RTE lr re ery er ree

A. The statMMfnt of September 1944 was legaily

(i) Military practice under the 70th Article of

War provides for the service of qffteges on

two occasions, (1) in gennection With the

investigation ‘and (2) after reference for

(ii) The 70th Article of War pee not pre-

scribe time limits beyond: which. the

custody of an accused. becomes auto-

matically illegal... --- Oe pega ijes aap

B. Any possible illegality m@the September 1944

statement did not vitiate the statement of.

March 1945 voluntarijfy made by Radovich at

atime when he was of all substantial re-

ear ne EM = pee me eo el

II. The plea of double jeopardy is not available to Rado-

i ae ye RR aE y ROLE eee 5s, ene

A. The disapproval of Radovich’s conviction by

court-martial on grounds not going to the merits

eliminates the question of double. jeopardy from

B. Even if the question o of double jeopardy remains

in the case, the plea is not available to Radovich

‘because the civil indictment and the military

charges do not cover the same offense___._ ..___-

It. ‘The district court properly exercised its discretion in

refusing to permit the Bayers to introduce addi-

tional evidence four hours after the jury had retired.

732580—17-—- 1 (t)

* 62

“Ss

-y .

eee ie

Aeganiatt Denial ty @ Page

IV. The trial judge’s concededly accurate charge fetches

no basis for reVersal_____-- ; Eg ee

NY. There ig no merit in other contentions urged a as inde- .

peydent’ grounds for affirmance of the judgment

ee ee A Pree eer 89

Conclusion. - - . - - Saliceiedb eheewcennss were eee balaowie —

Appendix A: Statutes involved Koebtned<cbacucnes sin dacaneda 96

Appendix B: Manual for Coyrts-Martial, 1921_._.. - > ane 105

Appendix C! Board of Review Opinion... .........- RS PO

Appendix D: GCMO 240, War Department, 1946............ 122°

., CITATIONS

Cases: ; apts

Allen v. United States, 164 U. 8. 492 ____- sande 93

Bihn v. United States, No. 675, Oct. TY? 1945, decided

| een eS Sey ‘ 88

.Blockburger v. United States, 284 U. 8. 299.-.. lacuaews 70

Bollenbach v. United States, 326 U. 8. 607..........-_.. 88

Brantley v. Georgia, 217 U. 8. 284..,..-..-.-2,.:---2.-- 65 .

. Burk v. United States, 134,F. 2d 879. canbe eesamees 94...

Burton v. United States, 202 U. 8. 344.2... --. _.- 28, 29, 65, 70

Carter v. McClaughry, 183 U9. ERSTE RECS SR pag Ns 70

Crumpton v. United States, a OR Ye ee ee ee 84

Debs v. United States, 249 U. 8. 211... 2-22. aa oan 89

~Kbeling v. Morgan, 237 U. 8S. 625____- PP PERS Pore Pl ae 70

Egan v. United States, 5 F. 2d 267_. wat (a

Fall v. United States, A9 F. 2d 506, ‘certiorari ‘denied, 283

Seis in khsda ace Mas cad ced bnb ah cnccdae ss ... 30,72

tlasser vy. United States, 315 U. 8. 60... Sere.

\ Ghans ©. Ble, GIO UA GiB sn oo ncc cca nccccnccncanc'ss 94

Hart v. United States, 84 Fed. 799. _.._..........-- 2-2... 4

_ Horton v. United States, 15 App. D. C. 3102. .°__- 4. _-- 93

Kotleakos v. United States, Nos. 457-458, Oct. T. 1945,

i Wh ns dd 6nd Sinsasunowesaeanene _. 32, 88

Levine v. Hudspeth, 127 F. 2d 982, certiorari denied, 317

Dit hivdiuhihs budesenancuvhshacssecdadeonen. +a

Lyons v. Oklahoma, 322 U.S. 596 elias adh aiacasciig nhs niak 27, 58, 59

McCleary v. Hudspeth, 124 F. 2d 445, certiorari denied, 316

i ae narann teed teneeadhkn nisennoukamenen 67

McNabb v. United States, 318. SS rece ne ,

13, 24, 25, 34, 35, 41, 42, 56,60

McRae v. Sithes, 273 Fed. 108, certiorari denieds 258 U. 8 5

Miata ask cteadadavatih eho clccche be xcoles iiicess 69

Murphy v. Massachusetts, 177 U. 8. 155..-.---- 2. 28, 65

Nardone v. United States, 308 U. 8. 338... ....--...+... 87

Pine v. United States, 135 F.2d 353, certiorari denied, 320

fy Faeroe 94

Pinkerton v. United States, No. 719, Oct. Tr. 1945, decided

| area wibkusepanas 29, 70, 71

4 a

; _ wa

Cascs— Continued Page

Safford v. United States, 252 Fed. 471...... ~~... ------- 84

Sanford v. Robbins, 115 F. 2d 435, certiorari denied, 312

eS ee eer tee Hon : 67

_ Shoener v. Pennsylvania, 207 U. f ee eee eee 67

"Silverthorne Lumber Co. v. United States, 251 U. 8. 285... 24, 27, 57

Simmons v. United States, 142 U.S. 148.2... -- .- ~~~. -- 67

Stearns Co. v. United States, 291 U.S. 54... 2-2. 40

Stroud v. United States, 251 U.S. 15... - ~~. --------- 66 -

Thompson v. United Statesf 155 U.S. 271-..--- 67 oon

Town of Weyauga v. ayia, 9 S. 112.. es eee ts. mee 40.

"United States v. Ball, 163 U. 8. 662,.- ~~... .--. _ 28, 64, 67

United States v. Chemicol Foundation, 272 U. 8. Ea ceuk 40

United States y, Johnson, 327 U.S. 106....--. -.----- 84

United States v. Manton, 107 F. 2d 834, certiorari denied,

ee Oe i ean obccases | ees raginpades 73

ie United States v. Mitchell, 322 VU. 8. Ms P .... 26, 56

United States v. W ‘ezler, 79 F. 2d 526, certiorari denied, 297

UR | RE A pa er Soe ee 70

Walker v. Johnson, 96.U. S, 424_--.--. —. aie tape 94

Williamson v. United States, 207 U. 8, 424° _2. ‘ i... -@

- Statutes: ' ,

Act of July 17, 1862, c. 200,12 Stat. ‘594, 595: ; ‘ ae i

DP MciducinncdMessahhsabehs os Anta shasiesuaats "44 -

Act of Aumust 29, 1916, ¢. . 418, 39 Stat. 619, 650, __ Pre Blo

Criminal Code, 18 U. 8. C. 88: Section BD. ceccns--cevee 96

Se eee EUS SS pa DN a

Artic ‘les, of War: :

Art. te i i Bnew seen cdde~coekucene . 15, 63

Art. 12 (10 UL 8. C. ge ie enna ae

Art. 9 (10°U. 8. C. 1810).........-..2.......2... 64

Art.40 (10,U. 8. C. se P * 64, 96

et Oe Se nee 5 ee

Art. 50% (10 U. S.-C. 1522)... .-- 15, 28, 61, 63, 97

Art: 70 (10 US. C. 1542)__ 24, 25, 35, 39, 41, 43, 51, 53, 102

Art. 95°(110 U. 3. C. 1567)... ...._.-- 13, 40, 61, 68, 69, 104

Art. 96,(10 U. oe! | ee: + F eB

Misce!laneous: ' -

2 Bull. JAG 97, par. 408 (5) 2 wasas BERS PPG PARR PD 64

CR Be i Bnd peace tacks anatacsesenna 63

Comparative Print showing 8. 3191 with the Present Ar- “

__. ticles of War (64th Cong., Ist sess.).. 2-2-2... ------- 50

c omparative print on H. R. 12775 (66th Cong., 2d sess.) _- 54

Davis, Military Law of the United States (3d ed. 1913):

Ee, ape ae pe Re Pee A A

. eR ae ee ‘

Pp. 143-144. _...._..- Ee Se ee nail 75

Pi... 0 pA Rae Dh aa ny a ' 44

.. oe]

: “Miscellaneous—Continued Page

- ‘Dig. Op. JAG (1912), p. 6, Whe: 10.43 Bel occ cee 42

Dig. Op. ‘JAG (1912-1940):

We MO ees oc dn enna sees suse Fd. vitae necene 64

Pars. 397 (1) (1) and 397 (1) (4), pp. 241, 242... ..-- . 63

General Court-Martial Orders, Ng. 240, July 26, 1946- 15, 61, 122

Manual for Courts-Martial (1921):

tec etecesebnns kee edle «casa chew haeenee s BT

DN side dann dabuas taeecuenenseaieeee 105

Pat. Fis .0 20054 hed hy nea irs aa gee. PEE eS 37

Pen SROs ena oot a gos Abo ekbanssudeuugs 75

Manual for Courts-Martial (1928 od pie eater to 1943):

P DG ul cant ae ae Stibvides we ataie = omd 646 o one 75

> ROE OR Boe one e ck cae aes chdoe eae sae 63

ae Re a eae ere rere Ney ee

ae Nip peepee Ser eee eee itn ae

PU Beit oc aa eae ceed 15 Canes oh oe 2 aeee mtc 41/7

ER See rome ner L ree oink 38,

* Fee: G..i--- Mp SL Ry Pp ae rabid 37, 39

i) eA Oa hic gies a ch aa a tia gies reat fat NF, DIMER e 40

rea eens eet Pee ae 63

Par. 62... -...-..-----------------+-------+-+---- 42

ie ies ooo i eee

POs See esa ewan ee aad A i ol, See an 64

+ i RE eet ee eee 63, 64

TM-27-255, Military Justice Procedure (1945):

2) eee Panes se ee aceite Fa wees a oyna eh om atek 38

Pp. 105-106......-2--.-2 ie coed <2 ere: 74

MING Su radish cancun s ooreny eee gah 64

RE ee eae ene 74, 75

Procecdings and Report of a Special War Departfitent

Board on Courts-Martial and their en July 17,

hs SR inakdecansenscnndnveehbehasaeasscnns 52, 53

Robertson and Kirkham, J urisdiction of the Supreme Court

Cs MN, Se RR in occ paw cchden teen teenessdss — 62

8. Rep. No. 229, 63d Cong., 2d sess., ita bth cacqenty Sines 45. -

8S. Rep. No. 130, 64th Cong., Ist sesw., to ‘accompany

8. 3191:

Pp. 44, SA ay RUT eee 45

2 46

Wiener, Military Justice for the Field Soldier (Rev. ‘ed, 1944),

. Appendix 1, pp. 126-135. ....__. i é 75

1 Winthrop, Military Law and Precddnde (2d od. 1896);

*352- Mo... Masewhacuduweds ts 4, DRE 42

ae sts os Meee abo 63d oo Cae

GU Cn We Bae’ oe A

Shihe rene ura hetnied Stes

OCTOBER TrrM, 1946: |

No. 606

THe Unitep SratTes OF AMERICA, PETITIONER

; Vv. a a

- Samu 7EL ‘Belen EIAs BaYER AND WALTER v.

.Rapovicu

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the circuit court of appeals (R.

1467-1476) is reported at 156 F. 2d 964. ©

JURISDICTION |

The judgment of the cireuit court of appeals

Was entered August 14, 1946 (R. 1476). On

September 13, by order of the Chief Justice, the

Government’s time to file a petition for a writ of

certiorari was extended to October 12, 1946 (R.

1478). The petition for a writ of certiorari was

filed October 11, 1946, and was granted December

9, 1946 (R. 1479). _The jurisdiction of this Court

(1)

rests upon Section 240 (a) of the Judicial Code, .

as amendéd by the Act of F eerenry 13, 1925. See .

also Rules 37 Ba (2) and 45 (a), F. R. Crim. P.

. QUESTION PRESENTED

‘1, “Whether a voluntary confession by an officer

- of the Army held in military custody was rendered

inadmissible under the rule of McNabb v. United

States, 318 U. S. 332, where such officer, though

duly informed of the charges: against him

in the course of the investigation preseribed by

the 70th Article of War, was not served, within

eight ‘days after his arrest, with the charges that

were referred for triat after that period; and if

so, whether a second confession, voluntarily made -

when the accused was free from restraint, was

rendered inadmissible through the circumstance

that the accused, at his own request, reread his

earlier confession at the time he made his second °

statement. i. Ane

2. Whether 2 claim of double jeopardy may

‘properly be based on a conviction by court-martial

which was disapproved because of failure of the

tribunal to affurd ac cused an opportunity to pre-

sent evidence in support of his plea to the juris-

diction; and if so, whether a trial by court-martial

for conduct unbecoming an officer and.4 gentleman

~ and for conduct to the prejudice of good order

and military discipline and of a‘ nature: tending

to bring discredit upon the military service, by

accepting. money for’ arranging the transfers of -

. ‘ ;

certain enlisted men to prevent their going over-

seas, bars a trial in a. federal district court for

conspiracy to defraud the United Siates of its

right to the honest performance of the officer’s

duty.

3. Whether the district court committed an

‘ abuse of discretion in refusing to reopen the case,

four hours after the jury had retired, to allow the

defense to introduce additional evidence,

4. Whether the court below correctly held that

the trial judge’s coneededly proper statement of

the law in his instructions concerning the defense

of extortion constituted reversible error because

the statement was too eryptie.

STATUTES INVOLVED _—

The pertinent statutes involved are set out in

Appendix A, infra, pp. 96-104.

STATEMENT

* Respondents were convicted in’ the United

States District Court for the Southern District of

New York on d@ one count indictment charging

conspiracy to. defraud the United States of its

right to the faithful and disinterested services

- and judgment of officers of the United States

Army (R. 8-11, 1176). .The indictment specified

that it was part of the conspiracy that respondent

Samucl Bayer, father of Martin Bayer and uncle

of Melvin Usdan, ‘both of them soldiers in the

United States Army, and esi Elias Bayer,

)

uncle of the two loys, would give respondent

-Radovich, an officer of the United States Army,

$7,000 in order to induce Radovich to transfer ~

the boys to various units for the purpose of keep-

ing them from being sent out of the United States —

for duty overseas. Samuel Bayer was sentenced

to imprisonment for two years and to pay a fine

of $10,000; Elias Bayer to. imprisonment for

‘eighteen months and to pay a fine of $5,000; and

Radovich to imprisonment for a year‘and a day

(R. 1211-1212). On appedl, the judgments of *

conviction were reversed (R. 1476).

A. THE EVIDENCE FOR THE GOVERNMENT.

A short time before December 15, 1942, Samuel

-~ Bayer learned that men* enlisting in the Army

before December 15 weuld be allowed to select the

branch of service in. which they wished’ to serve

and that men subsequently drafted would in all

likelihood be assigned to the infantry (R. 184,

276-277). Martin Bayer, Samuel's son, and Mel-

vin Usdan, his nephew, both enlisted in the Air

Corps on Deveraber 15 and were assigned as clerks

to base headquarters at Mitchel Field, Long

Island (Govt. Ex. 27, R. 907, 1312; Govt. Ex. 1,

R. 496, 1233; Govt.. Exs. 28, 29, R. 908, 909, 1313,

1319). In the period following this assignment,

Elias Bayer met and introduced to Samudl various

officers attached to the First Fighter Comimand _

" at Mitchel Field (R. 133, 187, 363, 395; Ex. 8,

R. 491, 1225). Samuel arid Elias Bayer enter-

“. ae

5 Pr. e * 4

tained these officers extensively (R. 149, 399;

Govt. Ex. 114R. 496, 1241-1242; Govt. Ex. 19, R.

505, 1274 > Govt. Ex. 20, R. 505, 1285-1287), and ©

Samuel Bayer, through his company, the Ply-

mouth Thread Company, paid for eniforins made

for the officers "by a firm owned by Samuel’s

brothers-inlaw (R_ 134-135, 152, 166-167, 186-

" 188, 201, 366-367; Govt. Ex. 13, R. 498, 1246)."

In April 1943, members of the Women’s Army

Corps began to replace male clerical personnel at

Mitchel Field with the result that male personnel |

were pooled for transfer-to other fields (R. 369, —

397). One Colonel Jacobson requested the trans-

fer of Martin and Melvin from | headquarters

to the First. Fighter Commas (R.” 397-398).

Samuel Bayer told another officer’ that he under-

stood that thé effect of this tfansfer was to assure

the assignment of the boys to Mitchel Field for .

approximately one year (it. 278). A few days

lafter the transfers were effected, Samuel Bayer

tendered a dinner to Colonel Jacobson at the .

Waldorf-Astoria Hotel and presented him’ with

four new automobile tires+(R. 370-372).

The April transfer placed Melvin and Martin. |

* under the command of Radovich (R. 141, 835).

‘In the summer of 1944, at Samuel Bayer’s ‘request, the

Looks of the uniform company were dltered to indicate that

payment had been made by the officers themselves rather than

the Plymouth Thread Company (R. 190-195). Prior to this,

both of the Bayers, when interviewed by an Army investi- |

‘gating officer, had denied paying for the uniforms and had

denied making payments to Radovich (R. 507-513).

~ r . 6 | r -

In July 1943, there were rumors current at Mitehel

Field that the Bayers were making gifts to officers

of the First Fighter Command (R. 207-208, 280-

281). Radovich informed Samuel Bayer that the

boys would have to be.transferred (R. 924; Govt. - |

Ex. 25, R.- 661, 1309), - At” Samuel’s request to

have the boys kept at Mitchel Field; “Radovich

approved a trangfer of the boys from his .own

unit to the medical detachment at the ‘field (R.

115-118; Govt. Ex. 25, R. 661, 1309-1310). The

‘transfer was originally disapproved because of <

the, shortage of clerks, but was ffected: by an

— exchange’ of personnel _ between tne two units.

(Bayer’s Ex. D., R. 889, 1334, 1337-1338). °While

‘this transfer was pending, Samuel and Elias went -

to Mitchel Field.and asked Colonel Vidal to fa-

cilitate the transfer (R. 137-139). After the

transfer was effected, Samuel paid Radoviech ap-

proximately $2,000 (Govt. Ex: 25, R. 661, 1310). .

A short. time later; in August 1943, the boys

were transferred to an airborne engineer’ unit

scheduled for duty overseas (R. 140, Govt. Ex.

27, R. 907, 1312). Samuel and Elias called

Colonel Vidal several times and requested him to

prevent the transfer, but were informed that

nothing could be done (R. 140-141). Samuel also

communicated with various Army officers whom

he had previously. met and attempted. to induce

them. to arrange to‘have the boys transfe ‘rred out

of the engineer unit, but these officers declined

‘ . ? pad

‘to intereede (R. 160, 176-177,.374). Samuel said

’ to one officer, ‘I would: do anything in my power

to keep my boy.from going overseas’’ (R. 176). ~

In the meantime, Radovich had left Mitchel

Field and joined the First Air Commando Group

(R. 253). This: organization was given highest

priority on personnel, and its officers’ requests for

transfer of personnel were regularly,and quickly _

honored (R. 231-232, 254). In August and Sep-

tember 1943, Radovich, on three occasions, dis-

cussed with Captaig@%Pepper, a’ personnel officer at

_ Mitchel Field, the possibility of arranging a trans-

* fer of Martin and Melvin out of the airborne

engineers to the Air Transport Command, a unit

set up for service in the continental United States °

~ (R. 208-211). Pepper told Radovich that the...

_ boys could be transferred only at the request of an © =

_ organization having a higher priority than the air-

korne engineers (R. 209). Radovich suggested to

Pepper that it might be possible to have the boys

transferred to the First Air‘Commando Group and \

Nas

subsequently have them dropped a8 surplus and

transferred te the Air- Transport Command (R. -

211). Pepper. agreed that ‘in this way a transfer

might be arranged (R. 211). Radovich told Pep-

per that if he could effeet such a transfer, it would .

be ‘‘worth his while,” ‘and he would see ‘that it .

would be worth Pepper’s while (R. 211-212). °

P In September, 1943, Samuel. Bayer’ asked, an

' Army officer whether he thought there would be

5 ed

‘any trouble if his boys were transferred out of the

alerted unit: When the officer said that he thought

the consequences would be serious, Bayer cried and

.said that he wanted his son out of ‘the unit.

(R. 283-284.)

On November 22, 1943, at the request of Rado-

vich, a teletype message was sent from Head-

_ quarters Army Air Forces in Washington direct-

ing the transfer of Melvin and Martin from the

Airborne Engineers to the First Air Commando

Group at Go sboro, North Carolina, and ordering

them to report not oo than November 25. (Govt.

Ex. 3, R. 118-121, 1217-1218; R. 256). On No- -

__ vember 24, Radovich called.a-clerk in the office of

the Army Air Forces in Washington and requested

that the boys be transferred from the Air Com- _

mando Group to the Airy Transport Command

— (R. 256-257). This request was. honored by a

letter dated November 25,. 1943, from ° Head-

quarters ‘Army Air Forces in Washington (R. 123;

_ ‘see Govt. Ex. 4, R. 121, 1218). Meanwhile, when

. - Vember 25, they were seen by Lieute nant Colonel

Boebel who had previously been at_Mitchel Field -

(R. 262-263). He asked the boys whether they

' iknew that the new organization was made up of

volunteers and they replied that they did (R. 265).

Subsequently, Colonel Boebel told Radovich that

he did not think the boys were the type of men

desired i in the — and Radovich said they

9 ~—

would be transferred out (R. 264). The transfer.

from the Air Commando Group to the Air Trans-:

port Command was effected on November 29, 1948,

pursuant to authority contained in the letter from

Headquarterd Army Air Forces dated November

25 (Govt. Ex. 4, R. 121-123, 1218). Shortly |

thereafter, Elias Bayer and an unidentified man

-met Radovich outside the railroad bation at

Goldsboro and gave him an envelope ¢

~ $5,000 (Govt. Ex. 15, R. 500, 1254-1256; Govt. Ex.

20, R. 505, 1279, 1281; Govt. Ex. 25, R. 661, 1311).

Some time thereafter, Radovich sent Captain Pep-

per a,bank draft'm the sum of $500 (R. 212; Govt.

Ex. 25, R., 661, 1311).

Tn. Srpteniber r 1944, while Radovich was in mili-

tary custody at the hospital at Mitchel Field, he

called upon Co ohonel Jacobson: who was then,jn the

hospital. When asked how he came to be involv ed

Radovich said: ‘I was going overseas on a very

hot job and didn’t expect te come back, had the |

Wife and the baby, firured I might just as well take

care of them2 “(R. 376). “

B. RADOVICHCOS: CONFESSION

ln the course ‘of the trial, the Government

offered in evidence a statement by Radovich giver -

to an agent of the F. B. I. on March 15 and 17,

1945, in which Radovich admitted accepting- $7,000 ;

from the Bayers for, arranging the transfers of

Martin and Melvin (R. 531-533; Govt. Ex. 25; R.

61, 1306-1312). When counsel for Radovich

. g y

objected to the admission of this statement, a

hearing was had outside the presence of the jury .

on the question of its admissibility (R. 533-536).

The facts adduced at the hearing are as follows:

On August 9, 1944, Radovich was placed in

confinement at. Mitchel Field pending a trial by

‘general court-martial for violation of the 95th and

96th Articles of War (R. 591). He was confined in

a separate room in the psychopathic ward of the

hospital at the field (R. 561-563)... On August

10, 1944, charges were preferred against him' (R.

584-585), and on August 25 th¢ report of the fh

vestigation of those charges was-sent to headquar-

ters (R.-606). In the meantime, on August 21,

1944, Radovich had submitted his resignation for

the good of the service, stating therein that he '

had been informed: that charges were pending

against him for violation of the 95th and 96th

Articles of War (R. 590-597)

* The resignation was forwarded to Headquarters Army

Air Forcesswith a favorable recommendation on January

27,1945. The indorsement forwarding the application stated

that the reason for delay was that, at the request of the United

States Attorney, all action in the case had been suspended

pending completion of an investigation of the civilians in-

vélved. (R. 596-598.) The resignation was “not favorably

considered” by the War’ Department in March 194. OR. 598-

601), i. e@., it was rejected. The charges were referred for

trial by court-martial i May 1945, and Radovith was for-

mally served with the charges on which he was to be tried on

May 29, 1945 (R. 583-587). The reason given for the delay

in the trial by court-martial was the request of the United

States Attorney that no action be taken pending cotpletion

of the investigation of the civilians involved (R. 606-607),

ee ge Le ee ee TE ae Ne Cea VSL Sb ae Tee ee

- For the first eight. or ten days of his confinement

in the psyehopathie ward, Radovich was not al-

lowed out of the rooni and was deprived of all

articles whi¢h might be used to inflict injury (R.”

_ 561, 566). Thereafter, he was take: for.a walk

each day (R. 573). In the course of his daily .

exercise, Radovich mentioned to the guard who ac-.

companied him that he would like to consult with

e@WVarrant Officer Bradspies, his counsel.. The

ezuard transmitted this request to his superior

officer, and’ Bradspies was directed to interview ~

~Radovich. (R. 576,.578-579.) Some time there-

after (see R. 579), on September’5 or 6, 1944, a

colonel introduced two F. B. L. agents to Radovich,

told him that the agents wanted to talk to him

about, the case, and that it was up to Radovich

whether he wanted to say anything to the age nts

(R.. 541-542). During the ‘intervie w with the

F. B. I. agents, Radovich made or received some

telephone ealls, and the name of Bradspies was

mentioned (R. 543, 549). Also, during the course

of that interview, an officer delivered to Radovich

an order instructing him not to wear his decora-

tions, but Radovich refused to remove them (R.

93, 977-578). The F. B. I. agents told Radovich

they we re/investigating the matter and had come

to get Nis story (R. 548). . He gave his version of

the transactions without hesitation (R. 542-543).

_Radovich did not appear to be worried; he said

he rdgretted the whole affair and wanted to get

is:

it all straightened out (R. 549). Radovich signed

a written statement at that time (R. 538).

On September 16, 1944, Redovich was released

from confinement and subjected to administrative

restriction.allowing him the: freedom of the base

-exeept for the officers’ club, base oper rations, flying

field and flying lines (R. 593-595). On January

2, 1945, the restrictions imposed on September 16

were removed, except as to the officers’ élub, and

Radovich was required merely to secure permis-

_ sion from the base commander prior to any de-

parture from the limits of the base (RR. 595).

Between September 16,1944, and March 15,

1945, Radovich had a number of conversations

with F. B. [. agents, sometimes on his own initia-

tive and sometimes by appointment (R. 537-538).

In the course of these interviews, he recounted

some facts not covefed in the statement giver to

the F. B. I. in September 1944, and the F. B. I.

arranged a meeiing with Radovich to incorporate

the entire story: into one statement (R. 536-539).

At the request of Radovich, the agent prodticed

the eriginal statement ‘given in September "1944,

and Radovich: read over that statemént hefore |

making his second statement in March (R. 539,

540, 551). Only the March ‘statement, made in

the F. B. I. office in New York Um. I315 533), was

offered in.evidence. ‘

The trial judge ruled that the stateme nt of |

September 5, 1944, was Voluntary, that Radovich’ S

”~

“

‘confinement at that time was not illegal, and that,

in any ev vent, any infirmity in the September

statement did: not apply to the March statement:

(R. 657-658). He accordingly admitted the

March statement, but only as against Radovich

(R. 660). On agpeal, the cireuit court of appeals

held that this was error; it said that since Racdo-

vich had not been served with a copy of the charges

within eight days afte® his arrest, as required by

the 70th Article of War, his custody was analogous

to that of a person held on- a criminal charge

without preliminary arraignment, and, hence, that

any confessio obtained during such period was

inadmissible under the rule enunciated ‘by this

Court in McNabb v. United States, 318 U. S. 322;'

aud that sinee the first“eonfession was used at

the time the second was given, the irregularity of

the custody tainted the second as well as the first.

(R. 1473-1475.) 6 |

CL RADOVICH’S PLEA OF DOUBLE JEOPARDY

On June 29, 1945, Radevich was convicted by

‘court-martial on charges of violating the 95th

and 96th Arti¢les of War (10 U. S. C. 1567,

1968, Appendix, infra, p. 104), 1. e@., of conduct

7 oe . ‘ : >:

unbecoming an officer and gentleman, and of- con-

duct to the prejudice of good order and military -

. diseipline and of a nature to bring® discredit

_-upon the military. service. As to each offense,

“the specifications alleged that in’ August 1943

Radovieh reeeived © from’ Samuel Bayer $2,000

732580—-47——_--< -

. | 14 «: 2

to effect the transfer’ of Martin Bayer ayd

Melvin Usdan from the First Fighter Command

to the médical detachment at Mitehel Field, and

that me about December J, 1943, be accepted

and -received from E lias Bayer “$5,000 for effect-

ing the transfer of the boys from an organization

werted: for duty overseas to the iv ‘Transport

Yommand (R. 14-17),

bio ace? in the ee case was re-

tuned” on July 12, 1945 (RR. « / Ou-September—

96," 1945, | Radovich filed a tn in bar alleging

that his conviction.by” court- -martial precluded

his trial. ander the: present. indictment (R. 4,

13-14). The Government de murred to. the plea

(R. 20-21). |

On the argument of a motion fora ‘continuance

before argument on the plea, counsel for Rado-

vich stated that he thought the court-martial

conviction had been disapproved , ER. 27), but

that he had not been officially so informed (Re

30). The United States Attorney stated that

“he had seen the decision of the Board of: Review.

disapproving the: conviction (R, 41). In ruling

on the plea and the demugyer thereto, however,

the court aceepte ‘d the allegation in the plea that

Radovich had been convicted by court ‘martial

(R. 55). The jyglge sustained the Gove snment’ s\

demurrer on the ground that the offense charged

‘in the indictment was not the saMe as the offenses

for which Radovich had heen, {ried by court. -

martial (R. 83-85),

e 15

On appeal, the cireuit court of appeals ruled

» that the plea: of double jeopardy | should have .

been s stained if Radovich’s conviction by court-

= was’ final. However, inasmuch as the

record left the status of the military judgment

in doubt, and a new trial was ‘being. ordered for

other reasons, the circuit court , of appeals — left

_. open the question of double jeopardy for. de-

. » &ermination on the new trial (R. 1475-1476).

“We are advised that, pursuant fo AW 5014 |

g. (0 USS. C. 1522, infra, pp. 97-102), the Board of

| Review disapproved Radovich’s: conviction on

the ground that the court- -martial committed

prejudicial etror in failing to give him. an op-

portunity to offer evidence in support of his

_ plea to the jurisdiction, in which he had alleged

that the authority convening the , court- martial

was in fact the real aceuser. See» AW 8 (10.

1. 8. C. 1479). The Judge Advocate General

akon in: that holding; his views and those.

-of the Board of Review are set forth ‘in ‘Ap-

pendix C, infra, PP: 110-121. Thereafter, no re

hearing bt court-martial under AW. 501% having

been directed, the War Department ‘published

the disapproval in General Court- Martial Orders

No. 240, July 26, 1946; Appendix, 1), infra, pp. 122-.

795:

-D. THE BAYERS” DEFENSE

The Bayers sought. to defend themselves against -

the charge of. conspiracy on the ground that the

piiyme nt of money, to Radovich was not made

. 2

“7

pursuant to agreement but was extorted by Rado- —

vieh. In slatements given to the United States

Attorney before trial, which were introduced

in evidence by: the Government, the Bayers said

that after Radovich’ had approved the transfer

of the boys to the medical unit in. August 1943

he asked for money (Govt. Fx. 8,-R. 491, 1226—

1228; Govt. Ex. 13, R. 498, 1249-1250; Govt. Ex.

20, R.-505, 1277, 1278), and that after the boys

had been transferred to the Air Commando Group,

‘Radovich came. to New York and told Samuel

. Bayer that he would take the boys overseas to

Burma unless he received $5,000 (R. 1229-1231,

1279). An their defense, the Bayers called as a

witness Samuel Bayer’s secretary, Anne Solomon

(R. 915). She testified that, after the boys were

transferred to the medical unit at the field, Rado-

vich askeel to speak with Samuel Bayer privately ;

that she listened outside the ‘door and heard

Radovich ask Bayer for $500 to send his wife to

. California (R: 925); that in two other conver-

ee sations which she*also overheard Radovich asked

for additional funds (R. 926); and’ that. subse-

quently, after the boys were transferred from

Mitchel Field to the Airborne Engineers. she

heard Radovich say that foF¥1,500 he could have

the boys sent back (R. 927). She. further testi-

fied that on the same morning that Martin Bayer °

telephoned his father that he was heing trans-

ferred, to Goldsboro, North Carolina (R. 929-930),

@ e5 4 ao. |

- a date fixed by Melvin Usdan as November 24,

1943 (R. 862), Radovieh called: from Washing-

ton and asked Samuel Bayer to. meet him for

lunch that day; that at lunch, OWich in her

presence said that he was taking the boys with

him to Burma unless Bayer paid hif $5,000 (R.

- 928-929); that the next day, i. e., November 25,

1943, Radovich again stated that if Bayer.did not

give him $5,000 he Would take the boys with him -

to Burma (R. 930). Miss Goertz, a clerk in the of-

fice of Ileadquarters Army Air Forces, Washington,.

D. C., had previously testified for the Govern-

ment that on November 24, 1943, Radovich called

ler from Goldsboro, North Carolina, and asked

her to transfer Martin and Melvin to the Air’

Transport Command “(R. 256-257), and it had

alse been shown that the transfer had been author-.

ized by a letter from Headquarters Army Air

’ Forees dated November 25, 193 (R. 123; Govt.

Ex. 4, R. 121, 1218). Counsel for the Bayers

had taken particular note of the date of such

letter (R. 123). | | #

In discussing the Bay ers’ defense of extortion

in his summing up, the United States Attorney

pointed out to the jury that Samuel Bayer.had

approached other officers seeking to have his son

transferred out of the airborne engineers (R.—

1069) and further argued that the Bayers’ denials,

when t hey were first questioned by military authori- .

. ties. that they made any gifts to Radovich, were

“a

ees

. a 18

inconsistent with their defense that they were the

victims of extoftion (R.* 1070). Then, . |

noting that ‘the luncheon meeting to which Mi

Solomon testified must have occurred on Novem-.

ber 24th, the United States ee stated (R.’

1072-1073) : o

So, on the very day, November 24th, that

Radovich, according to Bayer, is making

the first threats herein New York to take.

these boys unless he got $5,000, Radovich,

according to Miss Goertz, is actually, in

Goldsboro, North Carolina, and is calling

Miss Goertz from-Goldsboro to Washing-

ton and asking her to issue the orders trans-

ferring the boys as surplus out of the Air

. Commando unit and into the Air Trfps-

‘port Command. Her testimony is. clear,

it is exact, and it is uncoritradicted. She

fixed November 24th definitely as the date

that Radovich ealled -her from Goldsboro

and asked her to issue’ the orders trans-

« - ferring the boys out of the Air Commando

group to the Air.Transport Command.

Now we see clearly here from ‘the un-

* ‘disputed evidence that:this alleged extor-

«~—ioners in fact bringing about the trans-

"fers of the boys out of the“Pransport Com-

mand [sic] on ry day that, according

to Sam er, -he, Radovich, is threatening

te e the boys on a dangerolis mis- |

“sion that he arranged—he, Radovich, ar-

ranged—thvough Miss Goertz for the trans-

fer of these boys out of the Air Commando

unit thexay ‘before -the boys even“arrived

eae as os

: «

at Goldsboro. Because Melvin Usdan’s

testimony is that they did not get to Golds-

boro until'the 25th. So that by the time

they arrived there Radovich, in carrying.

out the conspiracy, with the aid Of the lady

in Washington, had already arranged to

get them out gf the Commando. So that

the absurdity of Sam ‘Bayer’s claim of ex-

tortion is apparent, it is glaring. It is

just another of the falsehoods which have

characterized his statements “continuously

since August, 1944,. when Colonel Snyder

‘asked him. to tell him what he knew about

the Radovieli case and he said he knew very

little. Well, there is certainly no doubt

that $5,000 was paid*by Samuel Bayer and

there is.no doubt that Radovich got $5,000.

Radovith says the Bayers offered him the

‘money. ‘The Bayers say the money was

paid under threat. Well, I leave it to you

ladies and gentlemen to, decile on the basis

of the undisputegl testimony in this case

' and the records in this cage where the truth

lies, t

The next day, before the -judg® charged the

jury, counsel for the Bayers stated that they had

_ been surprised by the Government’s questioning .

of the’ meeting on November, 24 and that a check—™~

of the-¥eeords had. shown a collect call from

. Washington to the Bayers on that date (R. 1116-

1117). The court stated .that, if counsel so de-

sired, he would’ tell the jury that the records.

showed such a collect call, and ‘counsel. requested

Y nae

~ . ° rd

thescourt to tell the jugy that the statement was

‘being made at their request: (R..1125-1126). At

the suggedtip of counsel for Radovich, the court

also stated that he would tejf the jury that the

A records did not show who’ made the call (R. 1127).

The judge made such a statement to thé jury at

the opening of his charge (R. 1129). ©

After the jury had been oyt ‘about four hours

(R° 1154), they. asked for a rereading of the

judge’s charge on conspiracy and of the United

States Atturney’s summing “UPR. 1155)<-"The .

judge declined to read the argfiment of one coun-

sel without reading the arguments of all (R. 1155). -

Some of the jurors stated that they were particu-

larly interested in the United States Attorney’s

summary of the telephone messages and meetings

from November 22 to November 25, 1942 (R. 1163,, -

1166-1167). Thereafter, counsel for the Bayers ,

asked leave to put in evidence retords he had -ob-

tained from the telephone company showing a

- collect eall from*Arlington, Va.,,by one “Ravish’”

on November 24, 1943 (R. 1170-1171, 1472). .The

United States Attorney objected, pointing -out

_ that even if Radovich had made such a telephone

(

‘\eall from Washington, the fact would. not tend

to disproye i the request to transfer the boys

that a letter directing the transfer had been sent

. s

;

= |

— ee ee!

from Washington on the very next day, Novem-

ber 25 (R. 1172), a day when, according to

Miss Sdlomon’s testimony, Radovich was making

threats in"New York (R. 930). The judge de-'

clined to reopen the case at that point (R. 1173).

Qn appeal, a majority of the circuit court. of ap- -

peals* held that, in view of the. jury’s question,

this action by. the trial judge was*ain abuse of ©

discretion “which eonstituted : reversible error

-(R. 1470-1471).

In instructing the jury with -respect to the

‘charged as follows (R 7-1158) :

Bayers’™defense: of Norn the trial judge

“. Counsel for the defendants Bayer claims

that- payments of ,money by defendant

Samuel Bayer to defendant Radovich were

made as the result of express or implied ©

“threats by defendant Radovich to improp-

erly and unfairly include privates Martin

Bayer and Melvin Usdan in the Air Com-

mando Group organized for [an] imme-

diate dangerous overseas mission, which

would be a violation of his duty as an

officer.

* «<The Government contends that such pay-

_ ments of money were made voluntarily by

mutual agreement in the course of the con-

spiracy charged.

If you believe from the evidence beyond

- a reasonable doubt that at any time during

the period alleged these three defendants

mutually agreed to defraud the United

States as alleged in the indictment, and did

a ; ae

some act in pursuance of such agreement,

they would be = guilty -irrespective of

whether the actual payment of money were -:

-made voluntagily - or involuntarily, How-

ever, as to the»pay ments of money, if you

believe that they were coerced by the do-

fendant Radovich, that is, that they would

not have been made af all in whole or in

part except for Radovick}s threats, then

such payments would not be the resuit of

agreement nor any, evidence of a crime.

And if you so believe, and also are not.

- satisfied beyond a reasonable. doubt by

other. evidence in ,the case that the con-

‘Spiracy existed as *chargéed in the indict-

ment, you should ‘find all the defendants |

not guilty, as Radovich is not here charged”

with, extortion. Agi

However, in your consideration: of -this

phase‘ of the case, I charge you that the

' matter of whether or not the payments were

made at the suggestion of Samuel Bayer

or upon the demand of’ Radovich, or

whether the payments were made doi,

> fully or grudgingly, or whether or not they

were greater than Samuel Bayer expected,

are immaterial if you are satisfied beyond

a ret isonable. doubt that the payments were

made by and i in the course of the agreement

of the defendants. f Z

The ‘opinion. of the sivcuit court of appeals in-

dicates that a Majority of the court, while. con-

ceding the correctness of the charge, thought it

‘too cryptic, but it does not appear from the

Bi ¥

are 93°

‘opinion whether reversal of the judgments would :

have been predicated on such ground alone. - —

(R. 1471).

é ; .: . & -

SPECIFICATION OF ERRORS TO BE URGED

- The circuit court of appgals erred:

{ 1.iIn teversing the judgments of conviction.

‘2. In halding that th confession made by | |

~ Radovich in March .1945* was ‘inadmissible in .

evidence. - |

3. In holding that a-confession, made by Rado-

vich in September 1944, whiJe ‘he was in military

custody, after investigation of charges against him

but before the charges were referred to a court-

martial for trial, was illegally obtained. °

4. In holding that the cogfession made by Rado-

, _vich in March 1945, when he was free of restraint;

was inadmissible because at the time he made

that stateawent he"reread his earlier confession at

his own request.

5. In holding that) Radovich’s conviction by

court-martial on charges of conduct ‘unbecoming

an officer and of, conduct to the prejudice of good

order and military discipline and of a nature to

bring discredit, upon the military service -would

sustain a plea of double sopardy to an indictment

_charging conspiracy to defyaud the United States.

6. In holding that the distri¢t judge abused his

discretion in refusing to reopen thé case after

the jury ‘had’ retired in order to permit the

Bayers to introduce evidence.

7. In holding that. the ‘charge to ‘the jury eK-

plaining the law relative to the ‘Bayers’ defense of. .

extortion was too: cryptic.

SUMMARY OF ARGUMENT |.

I : ‘

The circuit court of appeals held that the Sep-

tember statement would have been inadmissible -

in evidence under McNabb v, United States, 318

U.S. 332, on the ground that Radovich was in

illegal custody when such statement was made

because he was not served. with charges within

eight days after his arrest as required by AW 70.

It further held that, since Radovich reread bis.

September statement when he made his second’:

statement, the ‘March statement was-also inadmis*

siblé under Silverthorne Lumber Co. v. United

States, 251 U..S. 385. We submit that the de-

cision below is erroneous both" in its premise and

in its conclusion.

A. The ceurt below faile d to realize that:at mili;

tary_law,under the 70th Article of War notice of

the charges is given on two separate occasions, once

when they are being investigated, and later when |

they are referred for trial. On the first océasion

- there is normally no physical service of the charges

in the sense that the accused retains a copy ‘of them.

It is onl y when trial is directed—and such trial may

involve fewer or lesser charges than those which

were investigated—that there is a physical delivery

€,

“of the charges actually referred for trial. This is

the formal service of charges prescribed-by AW 70.

_ Here there is no evidence that the investigatory *

procedure directed by AW 70 and the Manual for

Courts-Martial was‘not followed; to the contrary,

Radovich’s proffered resignation shows that within

‘at least eleven days he knew fthe-nature of the .

charges against him which were then being? ipvesti-

gated. The provision in AW 70 for the inves-

tigation and forwarding of charges within eight.

days, if practicable, is designed principally to in- _

sure prompt disposition of the charges. The AW

70-investigation is the only precedural step which |

is malogous to arr aignment in.a,civil.court ; there

‘is no such thing as bail at military law. Copse- -

quently, the situation of Radovich on Septem r 5

was not analogous to that of a person held ssithooat

arraignment, but was similar to that of a person who

has been properly. arraigned and held for the dis-

“trict court. Nothing in the McNabb decision. re-

quires the exclusion of a voluntary confession made

hy a person-so held. 3 :

The successive legislative modifications of the

_ 0th Article of War show that, in its present

form, it was designed to allow a reasonable time, .

not measured by arbitrary tine limits, for holding

an accused in custody pending investigation and

. . trial. Considering the nature .of the offense here

wider consideration, which involved civilians and

appeared to involve other officers as, well, a period

of a little more than twa weeks from August 9 to

August 25 was obviously a reasonable time .for

investigation. -And the period from August 25

‘gto September. 5 was a_reasgnab'e time to hold

Radovich in. custody pending—a - decision ; on

whether to try him by court-martial, particularly

sinee Radovich had theretofore ‘ submitted \his

resignation for the good of \the service. It is

unnecessary to consider whether or not his subses :

quent confinement and the subsequent delay of his »

trial by court-martial were illegal; the only sig-

nificant point here, see United States v. Mitchell,

322 U. S. 65, is that he was legally in custody on &

September .5 when he made his first confession. es

Since, therefore, Radovich was legally in‘eustedy,

since he had been properly informed of.the charges,

and since*he had had eon to consult

with counsel, his volun confession .on Septem-

ber 5. would have been admissible in eviaence, if

’ offered... _ Pes

LB. Even if the September confession were,

for any, reason not now apparent, inadmissible,

that. cireumstance would not taint the confession

_—made six months later when Radovich was free

from all substantial restraint. Tad Radovich' de-

cided to limit -or “repudiate his. earlier confession

in any. respect, lie had ample opportunity to do so.

Instead he freely and. voluntarily reaffirfned and

amplified his earlier statement.

In holding that the assumed illegality of the first ”

confession tainted the second becanst) Radovich at

his own’ “request reread the first confession whet

lre made. the. see ‘ond, the court bis low misapplied

“the rule. of Silverthorne> Lumber Co. v. United

States, 254 U. 8. 385, that ‘fruits of evidence

‘illegally obtained are themselves inadmissible.

In that case, the defendants: never® consented

either to, the original search or to the subsequenj

use of the information obtained from that search ;

the secondary evidenc ‘e, the fruits of the illegal’

search, were. the direct results of the Govern-

ment’s own illegal action. —

, Here the second confession did not come into

“existence by virtue ‘of action by the Government

alone; there had to be ‘an. affirmative, independ-

ent, éxercise of free will by Radovich. Henee; it ”

_is immatet ‘ial “whether he did or did not reread his

former statement. The second statement was not

the direct result of the first; Radoyich’s decision

to ‘reaffirm his previous statemént, whieh he him-—

‘self asked to see, was the operational fact which

brought the second confession int) existence.

‘ ‘The second statement was, therefore, properly ad-

mitted in evidence against- him. _ Bee Lyons v.

Oelahong,, 322 U.S. 596:

» ’ m= 6

® II

A. The disapproval of the court-martial convic-_

tion for reasons not going to the merits elimi-

nates the questipn of double jeopardy f me

case. Since no _Tehearing by court- martial

ordered, the ease is in the posture of a civil con- os

viction, reversed om appeal, where. a new indict- .

Mment-is returned against the defendant. .In those -

cireumstarices a plea of double jeopardy is not

available. See Burton v. United States, 202 U.S.

344, 380. Since Radovich could be retried for

the offense for which he wis originally convicted

by court-martial after such. conviction was. dis-’

approved, it does not matter for’ constitutional .

purposes whether that trial is by a civil or a mili-

tary courf. In the end he will have had- only one

~ real trial for the offend.

It is clear that, where a verdict * ‘reversed on ©

appeal, the itement_will not: support a plea of

double: je opardy, E. g¢., M urphy Vv. _Massach: u-

setts, 177 U.S. 155, 159. #On this analysis it is

immaterial. that review under AW 5014, is”

‘automatic; the grounds’ for disapproval by. the

Board: of Review and The Judge Advocate Gen-

» eral were the grounds urved by the accused, and

the result achieved was the result which he sought —

to attain at the trial.. Moreover, thé- Board: of

Review in effect held that the trial by court-

martial was illegal. To suppor a plea of double

‘Jeopardy, the trial’ on which the plea is based

must have been a valid one. United States vy.

Ball, '163 U. S. 662, 669. . f

B, Even if the question’ of double jeopardy re-

mains in the case, the plea is-not available to Rado-

vich for the reason that the court-martial speci-

| 29

fications and the present indictment charged

different offerises: The. indiciment alleged con-

spiracy to défraud the United States by the giving

and receiving of money to influence ‘official aetion.

The military specifications charged the completed

act of receiving money by Radovich alone. The —

question here is controlled by Burton v. United

. States, 202 U. 8.344, 877, holding that the same

individual could properly be punished for the sep-_,

- arate acts of. agreeing to receive and receiving ae

_ bribe, and by. Pinkerton ¥. United States, No. 719,

Oct. T. 1945, degided June 10, 1946, ‘holding that

conspiracy to commit a crime and the substantive .

crime are separate end distinct offenses.

This case does not fall within i.e rule that a

‘conviction for both conspiracy and the substantive

offense cannot be sustained where the agreement

of two persons is necessary for the completion of

the substantive crime. Agreement among Rado-

vich and the -Bayers did not necessarily have to

be proved to sustain the court- martial charges. The

sole question there was whether Radovich had re- -

ceived money from the Bayers to bring about the

transfers. Whether he did so pursuant to agree-

ment with-the Bayers or had extorfed money from

the Bayers without their consent, le could never-

theless have properly been found guilty by the

court-martial. .Under the indictment, however,

agreement was the essence of the offense ‘and the

jury was. specifically instructed that the offense

722580 -47— 3 i .

; Cc

~ *&

was not established if Radovich had obtained the

money from the Bayers by extortion. Hence, the _

offenses before the court-martial were, both in fact .

and in law, different from the conspiracy charged

in the indictment. Fall v. United States, 49 F.

2d 506,.511 (App. D. C.), certiorari denied, 283

U. 8. 867..

II |

The ruling of the court below that thgtrial

judge was guilty of an abuse of discretion in re-

fusing to reopen the case for the further intro-

duction of evidence four hours after the jury had

_tetired is based on a misconstruction of the United

' States Attorney’ s argument and of the signifi-

' eance of the excluded evidence in relation thereto.

The gist of the prosecution’s argument was that

the defense of extortign was untenable for the

reason that at the very time when, according to

the Bayers, Radovich was making threats to take

the boys with him to Burma, he had already ar-

ranged matters so that it was beyond his power:

to carry his threats into effect. The argument —

would have lost none of its force whether Rado-

vich did or did not call Bayer from Washington,

‘or whetker he did or did not see him in New York.

It would ctill be true, as the United States Attor-°

ney argued, that the transfer had been arranged

and authorized before the alleged. threats were

made. . Hence the fact that the jury was interested

in this part of the Unithd States Attorney’s sum-

31. .

ming up did not, as the cout below thought, make _

the question of ‘the telephone call a matter of —

importance. Quite to the contrary, reopening of —

the case to have introduced evidence of the call

would have attached to an inconclusive ee

unwarranted significance.

The evidente as to the dates efi which the inks :

_ fers were requested and authorized had been intro-

duced as part of the Government’s case long before . ;

Miss Solomon testified to threats by Radovich on

November 24 and 25, and counsel for the Bayers’

had then taken particular note of the fact that

the transfer had been authorized from Headquar-

ters in WwW Vashington on Novenber 25. The fact,

that the defense failed to appreciate the effect of

the Government’s evidence in undermining their:

defense of extortion certainly does not constitute

such ‘surprise as would justify the. reopening of

the trial. On this point, the decision below goes

far towards putting a premium on lawyers’ after- .

thoughts, to the prejudice of — judicial

administration.

~—

The trial judge’s charge on the Bayers’ defense —

of extortion was held by the court below to be an

accuraté statement of the law, though a majority r

of the court thought that it was ‘too eryptie.

‘There is no suggestion in the record that the jury

_ failed to understand the charge; indeed, after

they had requested a rereading of the charge on

conspiracy, the judge asked whether there was any

- point that was not ¢lear or that the jury would

like to. have amplified, and no such request was.

made. = 8 ;

In those cit cumstances, reversal of the ace

tion on the basis of the judge’s charge is “wholly

‘unwarranted. Even when ertor is: shown at\ a

trial, such error is not in itself grounds for re-

versal and its significance must be judged in the

light of the whole ease. Kotteakos v. United

States, Nos. 457-458, Oct. T. 1945, decided June |

10, 1946. Here there is rio finding of error and) 7

no suggestion of prejudice. The niere cireum- ©

stance that some other judge might have worded

the charge in somewhat more elaborate phrase-

olegy isnot ground fot :reversal of a conviction . ~

which, as in this case, rests on strong, clear, and

convincing evidence of guilt.

. . a

There is no merit in the other contentions urged ©

as independent grounds for affirmance of the judg- .

ment below. Evidence ef gifts by the Bayers to

Army officers other than Radovich was clearly

‘relevant on’ the question of the Bayers’ intent to |

_ defraud, and became particularly significant in

view. of their contention that they were innocent

victims of extortion. | ’ The contention of revers-

‘ ible error in eotinection with the charge as to f

aliases -falls since that issue was raised by the’

Bayers; the jury would not otherwise have learned

of the use of the alias designation; and the charge

on this point was: perfectly proper. The other

alleged errors are quite without substance and do

not call for extended discussion.

ARGUMENT

RADOVICH’S CONFESSION WAS PROPERLY RECEIVED IN

EVIDENCE .

~As we liave already pointed out in the State- .

ment, supra, pp. 9-13, the Government offered in

evidence a confession made by ‘Radovich 3-3

1945, the admissibility of which depends jon the —

followirig facts, here briefly repeated in summary :

~~ On August 9, 1944, Radovich was placed in con-

_. finement by the military authorities. Charges were

preferred against him the next day, and a report

of the investigation of’ such charges was for-

warded to headquarters on August: 25. In the

meantime, on August 21, Radovich had submitted

his resignation for the good of the service. “He

was kept in confinement until September: 16/ but

he had talked ‘with counsel some time before. Sep-

tembe 5. On September 5, he gave a signed

statement to agents of the F. B. I., telling them his

version of his.transactions with the Rayers with-

out hesitation. “He was released frorn substantial

restraint on September 16, but was not tried by_

court-martial until May 1945. Between Septem-

. ber 1944 and March 1945, he talked with agents

-Q

—_——— ' 34

of the F: B. I. on a number of occasions, and an

Mareli15 and 17 gave them another signed state-

ment incorporating the facts set forth in his state-

ment of September 2944. At his own request, he .

reread the September statement when making the

March statement. oh mek

A. The Statement of: September 1914 was

legally obtained.—Judging \the September state-

ment without reference to the rule laid down by

- this Court in McNabb v. United States, 318 U. S.-

332, there can be no doubt that such confession

was a voluntary one. It is evident that Radovich

had decided that his best course was ‘to. make a

clean breast of his activities, and that he was will-

ing to cooperate with the ee

asked for his version of the matter and he gave it

without hesitation. ‘He had préviously consulted

with counsel and he may have talked with counsel

while the agents were interviewing him (supra,

p. 11). He was so far from being intimidated

that he refused to. obey an order directing him to

remove bis military decorations (supra, p. 11). :

By any standard of voluntariness, the September

Sth confession was a voluritary one.

¢i) Military practice under the 70th Article of.

War provides for the service of charges on two occa-

sions, (1) in connection with the investigation and

(2) after reference for trial. :

The court below thought, however, thatthe Sep-

tember confession, .if offered in evidenep, would

F a

® 35 :

have been inadmissible under the McNabb rule

because Radovich was not served with the charges

on which he was to be tried within eight days of

his arrest, a requirement which it deemed manda-

tory under AW 70. The opinion below is, how-

ever, predicated on a. complete’ misconception of

‘military procedure. The court failed ‘to réalize

that at militady law under AW 70-hotice of ch&rges

is given on two different occasions, once when they

are being investigated, and then later when they

have actually been referred for trial. ¢

The 70th Article of War, so far as here perti- }

nent, provides that—

No charge will be referred to a general

court martial for trial unt after a thor-

ough and impartial investigation thereof

_ Shall have been mgde. This investigation

will include inquiries as to the truth of the —

matter set forth in said charges, form of.

’ charges, and what disposition of the case '

should be tmade in the interest of justice

_ and discipline. “ At such investigation full

opportunity ‘shall be given to the’ accused

to eross-examind witnesses against him if

they are available and to present anything

he may desire in his own behalf either in de-

fense or mitigation: and the investigating |

. Officer shall examine available witnesses re- ) \*

quested by the accused. If the charges are

forwarded after such investigation, are

shall be atta cea by a statement of the

. ¢.

, : : On

4 > . iiss

hae ae

~ ; “iy

36 - Sy

aaa { bg

substance of the testimony taken on both:

sides. mont

*. *: * * e-

_ When any person niibiject to military law

is placed in arrest or confinement, imme-

diate steps wili‘be taken to try the person

aceused or to- dismiss the charge and re-

lease him. Any officer who is respansible .

for unnecessary delay in investigating or —

carrying the case to a final conclusion shall

be,.punished ,as a court martial may direct. .

. When a person is held for trial by general

court martial the commanding officer will,

within eight days after the accused is

arrested or confined, if practicable, forward

the charges to the officer exercising gen-

-ergl court-martial jurisdiction and furnish

_the aceused a copy ofsuch charges. If the

same be nut practicable, he will report to

superior authority the reasons for delay.

The trial judge advocate will cause to be

served upon the agcused a copys of the m

‘ charges upon which trial is to be had, and | 7

a failure so to serve such charges will be -

ground for: a continuance ‘unless the trial

Be had on the charges furnished the accused

as hereinbefore provided In time of peace:

* no pefson shall, against. his objection, be |

' brought to trial before a general court © ©

martial within a period of five days subse- |

quent to the service of ‘charges upon him.

Normally, there is at the start‘of the investiga-

tion’ no physical service of the charges on the

“accused i in the sense that.he — a copy of them.

’

ae aa ET is

He is given the zharge sheet to Fead and examine,

but in pyactice it accompanies the other, papers

which Neewand to the staff judge advocate and the

appointing authority pursuant to par. 35b, Manual

_ for Courts-Martial (1928 ed,, corrected to 1943).*.

Sugcessive editions of the Manual for Courts-.

Martial show clearly that the charge sheet is not.

required to be physically deposited with the ac-—~

cused in connection with the preliminary investi-

gation prescribed by AW 70. The 1921 Manual,

which represents the contemporaneous interpreta-

tion of ‘the 1920 amendments of the Articles of

War ‘—and the preliminary’ investigation was first

inéluded in the Articles at that time—does not

require that, in connection with the investigation,

a copy of the charges must be left with the ac ,

cused. Par. 76b; infra, pp. 105-109. The 1928 cdi-

tion, though it provided in more succinct language

for a procedurally less cumbersome invesfgation,

en ‘ j » P td

‘The 1928 edition of the Manual for Courts-Martial, cor-

rected to 1943, will be referred saan this br ief simply

as pe 'M,

“The present revision of the Manual for ( ‘ourts-Martial

mS been, prepared primarily to conform the manual tothe .

changes in the Articles of War accomplished by the act of

June 4, 1920, arid to embody the results of decisions made by

_ the Office of the Judge Advocate General and the War

Department, and such other changes in the regulations for °

the government of courts-martial and courts of inquiry as

“have been approved by experience. *, * * ‘This Manual

takes effect February 4, 1921, af; the same time as the new

Articles of War.” — Manuat Tor Courts-Martial (1921), pp.

X~Xi. | 7

; 38

* /did_ not change those’ substantive requirements.

That edition of the Manual (as corrected to 1943)

Specifically, provides (par. 35a, p. 24) :

At the outset of the investigation

-_ cused will be informed of he. following: |.

The offenses charged against: him; the >

names of, the. accuser and of the witneneés, a |

as far as then known to the investigating —

ff officer! the fact that the charges are about _

to be investigated; his right to cross“

examine witnesses _against him if they are

available and’ to present anything he m&y

. desire in his own. behalf, either in defense

or mitigation; his right to have the investi-

gating officer examine available witnesses

requested by him; and his right to make.

or submit a statement in any form subject

to the risk of having such statement used

against him.

And TM 27-255, Military Justice Procedure

(1945), states, in somewhat less technical language:

“(p 38)s

' At the outset,’ the accused ‘should be ad-—

vised that an impartial investigation of

the charges is to be conducted. The nature

of the charges, the name of the accuser, and

the names and substance of: the testimony -

of*all witnesses should be made known to

him. He shonld be shown. the charge sheet

aiid accompanying papers. He should

then be advised that:he has the right to

- cross-examine all witnesses against him if

available, to call any available additional

“>

39. | .

witnesses: in his own behalf, to introduce

any other evidence, and to make any state- ¢

ment bearing on the case subject to the

risk of having it used against him. He

~~ ———must -be-speeifically_warned that it'is not _

necessary for- him to make any statement. |

' He should be made to understand that the.

investigating officer is seeking the truth,

not playing the role of prosecutor.

Thus, at the moment when the investigation

required by AW 70 commences, a person. subjeet

* to military law who is charged with an offense

under the Articles of War is informed, cus-

tomarily by letting him read and examine the

charge sheet, of the nature of the complaint against .

him. The investigation thus commenced must if

' practicable be completed within eight days, AW

.70, and after completion of the investigation, the

charges and the summaries of evidence are for-

warded to the officer exercising appropriate court-. -

martial jurisdiction. Par. 35a,-MCM. Where,

as ,her?~the accused is ‘an officer, so that only a a

general court-thartial has jurisdiction (AW 12;

MCM, par. 14); the papers “must be submitted .

tlie staff judge advocate of the appointing author-

ity for a written recommendation as to whether

trial shall be had. MCM, par. 35b. The officer

exercising general court-martial jurisdiction: de-

&ides whether trial shall be had, and upon which

specifications: - He has tlie power to dfrect that

certain off the offenses charged shall not be re-.

fi ——-

a tne

_\ oh a lesser charge. See MOM, par. 34. It is only

’ | then, when. a. trial is ordered, that the accused is

3 ferred for trial, or that thie accused be tried only

“served with a ¢opy of the char ges actually re-

ferred for triak This time a copy’ is sere

‘delivered. MOM, par: 4te— ns

3 , There i is no showing i in this pin that the. inves-

tigatory procedure prescribed by AW 70 and the.

Manual for Courts-Martial was. not followed. :

The charges were forwarded on August 24, 1944,

after completion of ‘the investigation, 15 days after

Radovich’s arrest, byt the record is silent as to when

the investigation was commenced, at which time the

accused is normally shown (i. e., served with). the

charges. Theré is, ashes presumption, that

‘the- investigating officer acted i compliance with his

plainly prescribed tga See Stearns Co.

v, United States, 291 U. $54, 63; ‘United States v.

Chemical Foundation, 272 U. S. 1, 14-15; Town of -

Weyauwega v. Ayling, 99 U.S. 112,119. . And this:

- compliance does not rest merely in presumption.

_Radovich’s resignation, fated, August 21, 1944,

shows that within at least elevé en days he knew the

nature of the char ges against him which were then — =

under investigation, and that thex were laid under 4

the 95th an 96th Articles of WaX(supra, p. 10). F

At this time, the Bayers were still denfing having

paid him any money (R. 506-518). The evidence

in this case that Radovich was served with charges

on — 29, 1945, relates to the formal service of the

go +

charges which had been réferred. for trial, and

not to service of charges during the course of the

investigation prelisninary to trial.

The basic assumptien-ef. the decision be tow Nat

~. Radovich was not informed of the charges under in-

vestigation within eight days after his arrest, is thus |

‘not supported by the record, and the reasoning of

the opinion below falls with that assumption. For it

is clear that it'is only the investigatory procedure,

not the formal, service of charges on which the trial

is to be had, whieh.can be.considered as analégous to

the.civil arraignment stafute on which Nie. McNabb.

decision was based. Arraignment before a commit-

ting magistrate in erijninal cases ix designed to re

qiire the Government to show probable cause for

holding the accused, and it epables the accused

to learn thee charges ag rainst in (see McNabb v.

United States, 318 U. S. 332, 343-344). These

naliee are séived by the investigatory pro-

: cedtire prestribed , by the AW* 70 and by par.

investigation are forwarded to the officer ex,

3) Of the Manual. Before the results of the

ercising general court-martial jurisdiction, the

aecused has already been informed of the charges

against him and has already had an opportunit)

to learn the natur®of the. Government’s evidence

and offer evidence on his own behalf. The. pro-

Vision for completion ‘of the. investigation and

forwarding of charges within eight ‘days, if prac-

iT -%

Wee oa

‘a

rae ears

42.

ticable, is designed primarily to insure. prompt

disposition of the charges. In no way is it

analogous to arraignment. .

Under these ak we submit that the

situation of Radovich on September 5 5, 1944, when

he made his first statement to the F. B. I., is not

analogous to that of a person held without ar- Ag

raignment, but. is similar to that of a defendant

who has been properly arraigned and held for

the district court. And in such a situation, an

accused soldier is not, tike a civilian charged with

a noncapital offense, entitled to bail; he remains:

in custody. There is, of course, no bail at mili-

tary law. Dig. Op, JAG (1912), p.481, par. t.:

Consequently, nothing in the McNabb decision re-

quires the exclusion of 9 voluntary confession

made by a person so held.

(ii) The 70th Article of War does not pn -escribe

time limits beyona “which the custody. of an ae-

cused becomes autotnatically illegal.

In opposition. to the pecition for certiorari,

Radovich contended that, even though he was in-

formed of the charges. against him durimg the

course of. the investigation, his custody on Sep-

tember 5, 1944, was nevertheless illegal and

* At military law, arraignment does not take place until 7

the trial on the merits, after the court is organized, when

the charges and specifications are read to the accused and ‘he

is asked how he pleads. MCM, par. 62; 1 Winthrop, M//itary

Law and: Precedents (20 ed. 1896) *352-354; Davis, Military

Law of the United States (3d ed. 1913) 96,

fe.

eee |

hence.that the principle of the McNabb decision

was applicable. He apparently interprets AW

70 as laying down’ an-absolute requirement that

service of charges on which trial is to be had be -

made within eight days after arrest, i. e., that a

trial be ordered within such period; and he argues

that since no trial was ordered. in that time, he_

— could not properly be held in custody. (Br.

Opp. 22.) a.

_ Such a contention’ runs contrary both to the

language and the legislative history of AW 70.

That article: clearly contemplates that service of

charges for trial. will be,made some time after

the investigation has closed, for it provides that—

The’ trial, judge advocate will cause to

be served upon the accused a copy of the

charges upon which the trial is to be had,

and a failure so to serve such charges will

he ground for a continuance unless the trial

be had on the charges furnished the ac-

cused as ceimaaacecacks provided. [Italies

supplied.) _

Obviously, therefore. formal service of charges

referred for trial is a matter apart from . and

subsequent to the service ‘of charges being

investigated: | .

Moreover, thie successive amendments made in

‘what ds now the 70th Article of War show con-

clusively that the changes were specifically de-

signed to eliminate the absolute, time limitations

onthe length of an aecused’s custody which

‘

—

petitioner and the®@surt below would now read

. into the atatute. —, e

From 1874 until 1916, the statutory provisions

now in question were as ‘follows .(R. S. 1342):

‘Art. 70.—No officer or soldier put

arrest shall be eontihued. in esed

more than ri days, or until such time

as a court-martial can be assembled,

Arr. 71.—When an officer is put-in ar

restefor the purpose of trial, except. at

reniote military posts or stations, the officer

by whose order he is arrested ‘shall see

that a eopy of ‘the charges on which he

is to be iried is served’ ypon him “within

eight days after his arrest, and that he

_is brought to trial within ten days there- .

after, unless the necessities of the service

prevent such trial; and then he shall be

brought to trial within thirty days after

the expiration of said ten days. If a copy

of the charges be not served, or the ar-

rested officer -be not brought to trial, as

herein required, the arrest shall cease. But _

. Officers released from arrest, under the pro-.

Visi igps of this article, may “fe tried, when-

‘ever the exigencies of the service shall per- ,

mit, within twelve months after such

release from arrest.’

e -.-¢@ @: » fe

* For the history of this article, originally Sec. 11 of the

Act of July 17, 1862, c. 200, 12 Stat. 504, 595, see 1 Winthrop,

Military Law and “Precedents (2d ed. 1896) *166; Davis,

Military Law of the United States (3d ed. 1913), p. 488.

’

ee .

s oe,

Arr. 93.—A_ court-martial’ shall, - for

reasonable cause, grant a continuance to

either party, for such time, and as often

as may appear to be just: Provided, That.

— if the prisoner be in close confinement, the

trial shall not be delayed for a —

__. longer than sixty days.

These provisions proved workable: after

American forees were on foreign service, _in the

Philippines and elsew here, and General Crow der,

- _ Judge Advocate General of the Army after 1911,._

pointed out thir defects to Committees of Con- »

¥.

gress in hearings ypon a projected révision of

the Articles of War: He said in 1912 (S. Rep.

No. 229, 63d Cong., 2d sess., p. 88):

First, that they are all lacking in penal

- sanction; second, that the prescribed -time

limits are often impossible to observe, and,

if obsérved, would in- certain grave cases _

lead to “escapes; and, third, they Were en-

acted when foreign service was not par-

ticMarly in view, and didnot take into

consideration delays which under present

conditions’ are inseparable from the ad-, ra

ministration of military justice.

“These views were elaborated by General

Crowder in his testimony in 1916 before the

Senate Committee on Military Affairs. See S.

Rep. No. 130, 64th Cong., Ist sess., to accompany

S. 3191. He said, commenting’ on old Article

93, supra (S. Rep. 130 at 44, 46): area

That was Civil War legislation. It is pre-

—

served in new article 20, except the proviso —

Tlie 47-— 4

~- .

“3

a ee BS,

“Which provides that in case of close con-

finement trial must not be delayed longer

than 60 days. ‘Trial must of necessity be

delayed more than.60 days in.certain caseé .

or other distant’ possessions in order to

secure evidence from Alaska? or the Philip-

* pines-for use in the United States, or the

. reverse. The right of the accu8ed to a

speedy trial ‘has, however, been ¢arpfully.

guarded by proposed article 70, un

* terms of which any officer who. is: responsi-

ble for unreasonable or umecessary delay

in carrying the proceedings against an ac-

cused to a final -conclusion ‘‘shall be pun-

ished as a court-martial may direct.”’

A * * * * ~ 4,”

*- Gen. Crowver. We found it absolutely

impossible to comply. with that, proviso

after the PhilippinesAwere acquired. We

- had to delay trial longer than 60 days, be-

cause we could not get mail out there and

back and get depositions in his case in that

_¢ time. Ordinarily, a man is not in arrest

_—

when he is before a court-martial for trial,

except in the very gravest cases,

With respect to old Articles 70 arid 71, General

Crowder had this to say (pp. 50-51):

the new article which replaces them (70),

represent an_attempt to extend by statute, - |

to a military accused, the right to a speedy

trial. The objections to the existing Jaw

(70 and 71) are: (a) That the articles %&Fe

™

ie 4

‘47

° lacking in penal sanctions, (b) that they’

Bsa prescribe time limits often impossible « to

observe and whieh, if observed, would in

certain graver cases lead to escape; and

«(c). that they were enacted when foreign

service Was not in view, and, therefore, did

. not take info consideration evils which are

now inseparable in: the. admifistration of

"justice. The General Staff, believing that

2 it "would be impossible to ‘insert superior _

time limits. which .could be observed .in

emergent conditions of military service and

at times under normal conditions, declined:

to insert. any, and, An ‘their article, which

. issthe article before ‘you, made no, attempt

a, of this character. :

* They limited the provision of the article —

to the sesniircibieel tat charges should be

_ investigated promptly anil immediate steps

taken to try and punish, and holding the

officer responsible for unreasonable or un-

necessary delay on Trial by court. |

et The corresponding article of the bill, al-

ready twice passed by the Senate, was placed

upon, the existing Englich article; and reads

as follows: je

“Investigation of and) action upon

charges.—The charge sahinat avy person.

placed in arrest) or confinement shall be

investigated promptly: by the-commanding

officer é6r other proper Inilitary authority,

and imunediate steps shall be taken to® try

~ and punish the persan aéeused or to disfniss

the charges against him and release him

” ae.

Moe

_ upon him.”’

- Gr . t *

~ ‘ .

from arrest or confinement. [n every case

where a person remains in military custody

‘for more than five days without being

served with charges npon whiely he is to be. .

tried a special report of the necessity for

‘the delay shall bé made by his commanding

officer, in the manner preserjbed by regu-

lations, and a similar report shall be for-

warded every five days thereafter until

charges are served or until such person is

released from custody; and if the person

remains in military custody for more than .

thirty days withouf"being brought before%

court-martial. for trial the authority re-

sponsible for bringing him to trial shall

render to superior authority a special re-

port of the necessity for the delay. Any

officer whose duty it is to make such in-

vestigation or to take such steps or to |

render such report who willfully or ‘inegli-

: gently fails to do sv promptly and any

officer who is responsible for unreasonable °

- or unnecessary delay in carrying.the case to

a final conelusion shall be punished as a

court-martial may direct: Provided, That

.in time of peace no person shall against his

objection he brought to trial before @& gen-

eral court-martial within a period of five

days subsequent to the service of charges

The General Stage in considerin is

article, criticized the fiv e-day pe rieds's the.

lished as too short, and wrote in, tentatively,

a period of eight days. Further reflection

convinced them that any preseribed periotis

would prove embarrassing, and they there-

fore reported the article in the form in which

it appears in the bill before you. Personally,,

I favor the article as already twice passed

by the Senate and whieh, as passed, reads

as follows, substituting eight-day periods for

five: ‘

“Apr. 72. Investigation of and action upon.

charges.—The charge against any person

placed in arrest or confinement shall-be in-

vestigated promptly by the commanding

officer or other. proper military authority,

and immediate steps shall be taken to try

and punish the person accused or to ‘is-

miss the charges against him and rele se -

him from arrest and confinement. In every —

case where a person remains in military

custody for more than eight days without

being served with charges upon whieh he is:

to he tried a special report of the neces-

sity for the delay shall be made by his

commanding officer in the manner pre-

scribed by regulations, and a similar re-

port shall be forwarded every eight days

thereafter until charges are served. or un-

til such person is released from custody ;

and if the person remains in military cus.

tody for more than thirty days without

being brought before a court-martial for

trial, the authority responsible for bringing

him te trial shall render to superior author-

ity a special report @ the necessity for fhe

delay. Any officer whose duty it is to make

«such investigation or to render such re-

» . 50

port who willfully or negligently fails to do

so promptly, and any officer who is re-

. sponsible for unreasonable -or unnétessary

delay in carrying the case to a final con-,

clusion shal) be punished as a court-martial®

_ may direct: Provided, That in time of peace

no person shall against his objection be

brought to trial before a general court-

martial within a period of eight days sub-

» _. Sequent to the service of charges upon him.’’

I see no other way to establish that rigid

accountability to superior authority for ex-

pedition in trial than by incorporating time

limits as théy are proposed in this article, j

4 Which, as Tsay, the Senate has already passed :

twice. ; od

In a“‘Comparative Print showing 8. 3191.* * *

‘ with the Present Articles of War” (64th Cong.,

“Ast sess.), it was said, commenting .on ‘the old

prov ision. (Qa. 41-42)—

The fact that the officer has committed

same grave crime may be definitely known, :

but the preparation and service of charges

in such ease, which will charge the particu-

lar crime he has committed,.may have to

await an investigation: which would pro-

tract itself over a considerable period.

After pointing out that the proposed revision pro-

vided for punishment of officers responsible fdr |

delay, the - comment continues, “THe accused

should not, it is believed. be the beneficiary of

__ their failure.” :

But new Articlé 70 as actually enacted in 1916

werely combined old Articles 70 and 71,.while

making them applicable to all persons subject to

military law, instead of simply to officers. Only

the proviso to old Article 93 was eliminated.

Here is AW 70. of 1916 (Act of August 29,

1916, ¢. 418, 39,Stat. 619, 650, 661)>

«Arr. YO. INVESTIGATION OF AND ACTION

UPON CHARGES.—No. person .put in arrest

- shall bé continued in confinement more than

eight( days, or until such time as a court-

~ martial can be assembled. When any per-

‘son is putin arrest for the ptrpése of

trial, except at remote military posts or

‘ stations, the officer by whose order he is

arrested shall see that a copy of the charges

on which he isto be tried is served upon.

him within eight days after. his arrest, and

that he is brought to trial within ten days

thereafter, unless the“necessities of the

service prevent such trial;‘and then he

shall be brought to trial within thirty days

after the expiration of said ten days. If

_ acopy of the charges be not served, or the

varrested person be not brought to trial,

as herein required, the arrest shall cease.

But persons. released from arrest, under ~

the provisions of this article, may be tried,

permit, within twelvé months after such:

whenever the exigencies of the service sch |

release from arrest: Provided, That in time

of peace no person shall, against his ob-

jection, be brought to trial sap iy general —

court-martial within a period of five days

subsequeat to the service of charges upon

him.

_ The defects which General Crowder had stile

out in 1912 and 1916 and which Congress failed

‘to remedy in the latter year became once more -

apparent in World War I, and by 1919 a War .

Department, Board headed by General Kernan

_ recommended a new_Article 70 reading in part as

follows (Proceedings. and Report of a Special

War Department Board on. Courts-Martial and

their Procedure, July 17, 1919; pp. BSE)

When any pergon subject to militar v law

is arrested or confined ‘for the purpose of

trial the officer by whose order this is done:

‘ shall see that,a copy of the charges on

_ which the arrest or confinement ‘is based is

served upon the accused party within eight

days after his arrest or confinement, and

it is the duty of the officer ordering such

arrest or confinement to expedite, in so far

as in-him lies, the speedy trial of the case.

It is the like duty of al) other officers hav-

ing to do with the trial of the case to expe-

dite it-in every practicable way. If the

trial can not, for good and sufficient rea-

sons, be begun within a period of 30 days:

from the date of arrest or confinement the

immediate commanding officer, unless other-

wise ordered by superior authority, shall

release the accused from arrest or con-

finement.

a Myre m > pee,

- A r

eo a

| «

In ecantuenting on the proposed _— the

report stated (p. 34):

The present article 70 calls upon local

commanders to do the impossible. The

changes proposed are intended to make the ©

law conform to good practiee which -has |

» never been possible under old article 70.

Article 70 as enacted in 1920, infra, pp. 102-103,

7 — farther ; it eliminated ail provisions for release

a prisoner held in custody beyond a fixed period,

and substituted a criminal sanction agains “any

officer who isaxesponsible for “wnnecessary deiay

in investigating ‘or carrying the case to a final .

conclusion. ’” It is therefore perfectly clear that

under existing law. the naked fact that an aceused

is held in military custody without trial for a

~ period of more than eight days after his -arrest

does not in any sense render his custody illegal.

In. this ease, an examination of the ¢ircum-

stances, under which Radovich was held. establishes

that he Was not illegally in, custody én September

5, 1944. He was confined on August 9, and the

- investigation of the charges against him was not

_~ completed: until August 25. While AW 70 does,

of course, contemplate that, ordinarily, an investi-

gation will be completed in eight days, it is plain

that the addition of the words ‘if practicable’”’

establishes that the time limitation was_not in-

tended to be absolute. Nor is there any justifica-

tion for the suggestion in the opinion. helow- ‘that .

the words “af practicable” were inserted’ only to

+ provide. “for unusual situations arising ‘out of the

peculiar. exigencies of military life” ‘(R. 1474).

The legislative history quoted above shows that

the revision of AW 70 was definitely designed to

‘cover a situation such as this where an investiga-

tion of a serious offense might take more than

eight days. As is shown by a comparative ‘print

on H. R. 12775, 66th Cong., 2d sess., the bill which .

became the present Articles of War, the pro-

visions: for investigation of charges were inscrted.

in AW 70 to make certain that charges were fully

_ examined before ing ee for trial. That

* document states (p. 3): 7 |

It has been deemed advisable also that

the more essential existing regulations, pre-

scribing the procedure to be followed to

secure a thorough investigation of charges

- before reference for trial, with a view to

diminishing the menariaal of trials by the

statutory sanction.

The offense here under investigation was not an

ordinarymilitary offense. It involved civilians

who, as the record shows, were attempting to

conceal facts from the military investigators when

they were interviewed on August 15, 1944, six

days after Radovich was arrested (R, 507-513)—

1.-¢, While the charges against Itim Were being

See

superior general court: * * * be given

—

‘55

investigs ated? The ‘seienes also shows that the .

~ Army authorities might well have believed that

other officers niay have been involved in the

tri insactions. Under such circumstances, the pe-

riod of a little more than two weeks that was

actually used for an investigation of charges was,

we'snbmit, reasonable and proper under AW 170.

It is important to recall in this’connection that

the evidence shows that Radovich was informed

of the charges against hint during that period.

Nor does the time from August 25 to September

5 seem. to us an unreasonable period to hold in

custody an. officer who, after investigation, has

“been found to be implicated in the ¥ hill of offense ©

here charged. Manifestly, some, time! would he

required in a case of this character to examine

the résults of the investigation. “Moreover, .in thre

meantime, Radovich had submitted his resignation

for the good of the service, and it would be reason-

able to withhold decision as to trial until that re-

quest had been acted upon. We are advised that

such is the normal pi ‘actice: ) |

It is not necessary to consider‘whether it was

reasonable to hold Radovich in confinement from

September 5 until September 16, nor whether

it was proper to delay his trial by court-martial

"Examination of Radovich’ 3 record of trial by court- mar-

tial (CM 283142) shows that the charges against him were

investigated pursuant to AW 70 by Lieut. Col. George Sny-

der. Cf. R. 506, 517. ay

uptil May 1945. ie subsequent illegality in ‘his 4

confinement ver any unreasonable delay in his

trial would not affect the validity .of his Sep-

‘tember 5 statement if on September 5 he was

legally in custody. United States v. Mitchell, in

322 U. 8. 65.. The significant facts here are that,

as of September 5, 1944, Radovich was legally in

custody ; he had been informed of the charges

™, against him and had had an opportunity-to-con-

stk. with counsel ; and his statement to.the F. B. I.

was fréély_and vobuntasily given. Since the mere

_ fact that he ‘was in custody when he -made the

confession would not, in itself render the con-

fession inadmissible (United States v. Mitchell,

and McNabb vy. United States, supra), the court

below was in error in holding that the September .

5 - confession would have .been _inadmissible in

es if it had been offered.

B. Any possible tiiegality in the September

1944 statement did. not vitiate the statement of |

_ March 1945 voluntarily made by Radovich at @

time when he was free of all substantial re-

straint—Even if for some reason not now ap-.

parent the September confession should be con-

_ sidered inadmissible, we submit that the. court

below was clearly wrong in holding that such in-

admissibility tainted. the .second confession made ©

six months later when Radovich was free of ‘all’

_ substantial restraint. During that six month pe-

riod Radovich had full opportunity to consult

such. counsel as he chose. Had he desired to

limit or repudiate his earlier confession in any

respect, he had ample opportunity to do so. In-

stead, he freely and voluntarily reaffirmed and

amplified his earlier statement. To hold a con-

fession thus freely given unavailable as evidence

merely because, at his own request, . Radovich

reread his previous statement, se@ms tous a dis-

service to the cause of criminal justice. \

The deeision below, we submit, misconstrues

the decisions of this*Court in Silverthorne Lum-

ber Co. v. United States, 251 U. 8. 385, and Nar-.

done Vv. United States, 308 U. 8. 338, which held

‘that the fruits of evidence improperly obtained |

are themselves inadmissible. There, after having®

obtained evidence.as: a result of an illegal search,

the Government, from such evidence alone and

without any action-by the defendants, obtained

other evidence which it sought to use at the triak"

The defendants never consented either to the

original search or to ‘the subsequent use of the.

information obtained from that search to secure

other evidence. Surely, in those cases, if after the

first illegal search the defendants had voluntarily

delivered to the Government the evidence il-

legally seized or had made a voluntary eonfession

setting forth the information illegally obtained,

such evidence would not have been inadmissible

inerely, because the Government happened to have

prior knowledge thereof as a result of the illegal.

age .

‘

search. The important'cire uinate ce in those cases

was the fact that there was no inte ig independ-

ent exercise 8f free will-on the part of fhe defend-

ants; the secondary evidence obtained -was the

direct result of the: Government's ‘own illegal

action. - .. 7

. Here, the sgcond coiffession by Radovich coulde

‘not come into existence by virtue of aetion by ‘the

Government aloe; there had to be affirmative ac-

tion by Radovich. He did the talking; he made the

statement. Theridence establishes that his. de-

cision to take such-actior~was freely and’ volun-

tarily made, without evercion, and at a time when

he was free of restrain and hac ha€ ample o- por

tunity to consult with counsel. It is therefor

_ immaterial whether he did j or did not reread his. .

previous statement. The significant fact is that,

“at a time when he was free to repudiate or re-

’ affirm his earlier statement, he himself, in the

exercise of his freé will, voluntarily confessed his

guilt, The second confession was “not evidence

obtained as the result of the first independently

of any intervening action by Radovich; his volun- .

tary decision to reaffirm his previous statement,

which he himself asked to see, was the oj ational

fact which brought the second confession into °

existence, Lint ‘

In Lyons v: Oklahoma, 322 U? S. 596, this Court _

held ‘that, even’ after a confession haf been .

obtained by duress, a later voluntary confession

could properly be received ini evidence, and that the

mental freedom éf the aceused at the time of the.

later confession was, the signifieant factor to be’

considered. in determining the admissibility of

such later dnfession This Court there said

(p. 603) : ‘

————1e Fourteenth Amendment does ‘not ;

protect one who has admitted his guilt bé- *

cause of forbiddegr inducements against the

use at trial of his subsequent confessions

under all possible cireymstanees. .

‘Although this Court: exereises greater control

over the admissibility of evidence in federal prose-

eutions than dt does over state court ‘decisions, the:

same rule must necessarily obtain as to federal

prosecutions, viz., that one illegal confession eannot

thereafter bar all subsequent confessions,. no wiat-

‘ter how freely and, v6luntarily made. Here; the -

first confession, if inadmissibfevat all, could have

heen rendered so only by virtue of the illegality

of custody; no coercive, influences rendering. the. a

first confession involuntarily were shown.. What-

ever illegality wax originally present had been re-

moved by the-time the second confession was made,

and the second confession was wholly voluntary. ’

Under such cireumstaheces, we submit, thére is. no.

basis for excluding: fhe second confession. ee,

The fact that Radovich at his own request re-.

read his earlier statement at the time he made his

second statement seems to us to present no grounds

itt holding that the second statement was in-

4 :

———

si ; 60 ;

admissible in evidence. Evel though the first

confession was reread, the second conféssion was

not the result. of the first; it was the result of an

-exercise of fee Will on the part of ‘Radovith to

reaffirm his earli¢r. statement. As such, it was

_ proper evidence. . ‘ws

The logical effect of ‘ieee ialalenl below would

be that: whenever a, confession has been obtained

_ under circumstances which ‘would “ges it in-

admissible under the McNabb Tule,

10 future con-

fession, however freely giver, eould be admitted

into evidence. The decision below does not pur-

port to go that far, but its reasoning, consistently |

foHuwed, would require such a result. . Any per-

son-who has once'made a confession must be aware

of that fact, and his later statement will almost

always to some extent, be influenced by what he-

has previously ‘said. The circumstance that an

accused rereads his earlier statement instead of |.

relving on his memory does not seem ‘to us a sound

basis for distinguishing between the admissibility

and inadmissibility of the later confession. The

true test is, whether’ the second confession is a

voluntary” one made under circumstances free‘ of

_ coercive influence or illegal restraint. Since the °

second confession’ here clearly met: that test, it

_ was properly admitted in evidence. /

f-.

8 “ ‘

THE PLEA OF DOUBLE JEOPARDY IS NOT AVAILABLE

TO RADOVICH

‘As we have pointed out, supra, pp. 13-15, Rado- |

vich was tried by court-martial on charges of

‘conduct unbecoming an officer and a gentleman

in violation of the 95th. Article of War and of

conduct to the prejudice of good order and mili-

tary discipline and of a nature to bring dis-

credit upon the military service: in violation of

the 96th Article. The specifications under each

‘charge alleged that he received money from the.

Bayers to effect the transfers of Melvin and

-Martin to various units in the Army. Radovich’s*

conviction by court-martial was disapproved by

the Board of Review and The Judge Advocate

General, acting urider AW 5014,

that the court-martial had comm

error. in ‘failing to give him an opportunity to

offer evidence in support of his plea to the juris-

diction, The opinion of the Board pf Review

js set ‘out, for the - convenience of he Court,

4 Appendix -C, infra, pp..110-121. No rehearing

under AW 501% was ordered, and the disapproval —

Was publish@® in War Department General Court-

* Martial Orders’ No, 240, July 26, 1946; Ap-

pendix D, infra, pp. 122-125.

Neither. the fact nor the circumstances of the

disapproval were before the district court when

a °

T32580..-47 wall

1 the ground .

ed prejudicial °

; 62

it ruled on Radovich's plea of double jeopardy,

The district court overruled the pea on thessole

ground that the military charges did not allege.

tle same offense as the conspiracy to defPaud

set out in the-indictment (R. 83-85). The circuit

court of appeals held that such ruling was error,

but left ‘the. question of the effect of the dis- ;

approval to bé determined. on a new: trial (R.

* 1475-1476). we

Our position here is that the question 6

double jeopardy has been renlered moot by

reason of the disapproval of te military con-

viction for reasons not going to the merits, “but -

that, if the question is still in the scase, the

distriet court properly ruléd that there was ne

identity between the military and the civil

. defenses.

A. The. disapproval of Radovich’s conviction

by court-martial on grounds not going, to the

merits eliminates the question of double jeopardy

from the case—Since it is always the duty of |

one of the litigants to eal} the attention of the

Cowt to facts which render a question before

it moot? we have set forth the facts as to the

reversal of Radovich’s convietion, for, in our.

, opinion, those facts eliminate the question of

double jeopardy as an issue in the case. Rado-

vich’s court-martial conviction .was disapproved

*See Robertson and Kirkham, Jurisdiction of the Su-

prente Court on pp. 440 ef seq., aud cases there cited.

“

on the ®Bround that the court-martial erred in

failing to give him un opportunity to offer evi-

dence in support of his plea to its jurisdiction,

namely, that the officer who appointed the court .

_ was in fact the accuser, * See pp. 112-119, infra. If

Radovich had been able to establish. this conten-

tion, the court-martial would have been without

jurisdiction, AW 8 (10 B.S. G. 1479); MOM,

pars. Ja, 60, and he would never have Been in |

jeopardy. Digs Op. JAG (1912-1940), _ pars. ;

397 71) (1) and 397 (1) (4)..pp. 241, 242; 4 Bull. -

JAG 3, par. 371 (1).

Since the record of trial was legally insufficient,

- ii Was not subinitted te the Seevetary of “War

for the action of the-Presideyt, even though it

was a case for presidential ¢onfirmation under

AW 48 (10 U.S. ©. 1519); instead, following

the ystablished practice under AW 50% (s€€

MOM, pp. 216-217), it was returned to the re-

viewing authority for rehearing or such other

ation as might be proper. No rehearing was

lered.” At military law, a direction for re--

pa (i. ¢., a new trial, see AW 50!) must

ie made at the same time as the action dis-

approving the sentence; it cannot be made later.

* We are advised by the Office of the Judge Advocate Gen-

eral that this was a consequence of the fact that, by the time

the record was returned, the officer who had been president

-of the court-martial which tried Radovich had succeeded to

the commangl of the First Air Force and thus had become the

*. reviewing authority.

MOM, par. 89; I'M 27-255, Miléary Justice Pro-

_ cedure, p. 128; 2 Bull. LAG 97, pary 408: (5) ; see.

_ Dig. Op. JAG (1912-1940), par. 396 (3). Con-

sequently, Radovich can not now be’ retried on

. the original charges; and, even if he were still

in the service,” new .charges would be barred

by limitations. AW 39 (10 U.S. GC. 1510).

_ The cireumstance that here Radovich* was not ~

ordered retried by the same authority that re-

viewed the original conviction,’ so that the dis-

approval was probably a final one within the

meaning, of the 40th Article of War (OU. S.C. |

1511, infra, pp. 96-97) ,* does not mean that the dis- .

approved conviction by court-martial will sup-

port a plea of doukle jeopardy. The contrary is

‘ indicated by a vefy precise analogy from the

civilian criminal jaw. Where an indictnvent is

dismissed on appeal, a new. indictment Tmaay be

returned against the defendant (United States v.

Ball, 163 U. 8. 662, 672), which, manifestly, need

not follow the terms of the old indictment. If a

jury should be disc rged for some réason, or

the judgment reversed on: some ground not in-

validating the indictment, there is nothing: tg pre-

” We are advised that he was recently separated from the

service.

"It may well be, of course, that since there’ was a confirm-

ing authority, and since under the practicewslready ad verted

to (MCM, pp. 216-217) the confirming authority never acted,

there was no final judgment within the first paragraph of

AW 40. But we prefer to rest our r argument on the grounds

stated in the text.

vent a prosecutor, if he per such course desir-

able, from procuring a new indice tment charging

the same offense in,a different manner, and then

prdeeiting on the new rather than the~old in- |

dictment.~ See Burton v. United States, 202 U.S.

44, si cen this Court said: |

* * * As the effect of the reversal of:

the judgment in the former case was to set

aside the judgment. of conviction. on the

first and second counts of-the original in-

dictment, the way was opened for another

triak on those eounts. . But the Govern-

mentlelected® not. to proceed under that

indifment, but to have a new ene embody.

ing the same charge as to the £500 that

‘was made in the former ease. Its right

to adopt that «course c#hnot be ques-:

_ tioned. a ;

The civil prosceutor’s option is at military law

exercised by the reviewing~ authority after a con-

vietionshas been set awide under AW 5014; The

significant faet in each instance is that the first

trial is not a valid ‘tu for the sonar " a plea

of double jeopardy.

Essentially, ‘the court-martial couivietioin is in

the same posture as that of a verdict in a civil

trial which has been reversed on appeal; there it

is-well established that, under such circumstances,

the verdict will, not sustain a plea of dbunte

Jeopardy. Murphy v. Massachusetts, 177 U. 8.

10d, 159; Brantley v. Georgia, 217 U. S. 284;

’

‘

feveiia v. United States, 251 U. , 18. The

circumstanee. that under AW ro bg appeal in

court-martial convictions is automatic and does

nof, as in a civil trial, require affirmative agtton

by tlie aceused, does not in our view affe this

conelusion. ‘The grounds fors reversal by. the

Board of Review and The Judge’ Advocate Gens

eral were the grounds urged by the accused, and

the result achieved was the result which he sought | ©

to attain at the trial. Hence we submit that. the

principle of the eases cited, that an accused. may

not base a claim of double jeopardy on a judg-

ment which he himself has caused to be set aside,

is controlling here. |

Even if it be ‘held that, by virtue of the auto-

matic nature of an appeal in court-martial pro;

ceedings, the theory of waiver eannot be applied

in this ease, the trial by court-martial nevértheléss

will not sustain the plea of double jeopardy. In

disapproving the conviction for failure to allow

the accused to offer evidence in support of his

‘ plea to the jurisdiction of the court-martial, ‘the

Board of Review in effect held that all subseque -nt

proceedings | by the court-martial were invalid.

The decisions of this Court on the issue of double }

jeopardy establish that, to serve as 4 basis for

such a plea, the prior proceeding relied upon must

have been a valid one. Where a jury is dis-

charged because of misconduct of the juror, even”

without the consent’ of the accused, the proceed-

ings up to the point of discharge will not sustain

a plea of double jeopardy. Thompson w, United

States, 155 U. S. 271; Simmons y. United States,

142 U.S. 148, 153. Similarly, a trial on a fatally

defective indictment or a trial before,a court hav-

ing no jurisdiction will not sustain the plea.

United States v. Ball, 163\U. S. 662, 669; Shoencr

v. Pennsylvania, 207,U. S. 188, 195-196. As the

Circuit Court of “Appeals for the Tenth Circuit

said_inr McCleary v. Hudspeth, 124 ¥. 2d 445, 447,

certiorari denied, 316 U. S. 670, holding that a

discharge on habeas corpus did not bar a subse-

quent tetrial— ;

i ee OR Oe proceeding, to constitute a

,coper basis for a claim of former, jeopardy,

must be valid. If the proceedings are lack-

ing in any fundamental prerequisite which

renders the judgment void, they will not

constitute a proper basis for a claim of

former jeopardy.

Sce-akso, Levine v. Hudspeth, 127 F. 2d 982, 984

(C. C. A, 10), certiorari denied, 317 U. S. 628;

Nanford v. Robbins, 115 F. 2d 435, 438-439 (C. C.

A. }), certiorari denied, 312 U.S. 628.

The’ same ‘considerations are applicable hére.

The Board of Review and The Judge Advocate

General have ruled that Radovich’s trial by court-

martial was not a valid trial. If a rehearing had

‘heen ordered, the defens® of double jeopardy

_ would not have been available on. such retrial.’

-Since, therefore, Radovich could have- been re-

“4

tried: for the offense consistently with the 40th

_. Article of War, it does not matter for constiti-

tional purposes whether the new trial is by a.

' civil or a-military court. In the end he will have —

had only one real:trial for the offense.

The opinion of the court below Pecognizes that,

if the record had shown that the conviction by

court-martial htid been disapproved for reasons

not going to the merits, the plea of double jeop-

ardy would not have been available. See R? 1475-

1476. Since the facts as to the disapproval are

matters of official récord, we submit that, on re-

view of the other as ‘pects of this case, tis Court

is properly entitled to consider the actual situa-

tion, and may, if it finds the trial otherwise free

from error, reinstate the judgment as to Radovich.

B. Even if the question of double jeopurdy re-

mains in the case, the plea is not available to

Radovich because #2 civil indictment and the

military charges do not cover the same offense.—

If the question of double jeopardy remains in the

case, then, we submit, the court below was in error

in holding that Radovich’s trial by court-martial.

eould sustain a plea of double jeopardy to the

present indictment. -

Radovich was tried by court-martial for ¢on-

duct unbecoming an officer and a genfleman, in

violation of AW 95, and for conduct to the prej-

udice of good order and military discipline and

of a nature to bring discredit upon the military

os 69

service, in violation of AW 96. _ As to each charge,

Specification 1 alleged that, in August 1943, Rad-

ovich received from Samuel Bayer $2,000° to

effect the transfer of Martin Bayer and. Melvin

Usdan from the First Fighter Command to, the

Medical Detachment, Station Hospital, Mitchel

Field, and Specification 2 that on or about De-

cember 1, 1943, he accepted and received from

Elias Bayer $5,000. for effeeting the transfer of

-. the boys frum amerganization alerted for duty

- overseas to the Air Transport Command (R. 14-

17)... The indictment in this case alleged that —

Radovich and the Bayers entered into a con-

-spiracy to defraud the Uaited States of its .right

to the unbiased services of Radovich as an officer

of the United States Army, and that as part of

the’ conspiracy the Bayers would give Radovich

money with intent to influence.,his action as an

officer and induce him to arrange the transfers

_ of. Melvin and Martin, The indictment, alleged

a number of overt acts in support of the con-

spiracy, none of which consisted of the actual

payment of money to Radovieh (R. 8-11). —

We think it is clear that the military charges _

and specifications and the present indictment set

forth different offenses. In- determining ques-

tions of double jeopardy, it is not the identity

* The conviction of an officer for the’same acts under both —

AW 5 and AW 96 was held proper in McRae v. He nkes, 203

Fed, 108 (C. C. A. 8), certiorari denied, 258 U. S. 624.

of the evidence actually adduced to support the.

charge which is significant; rather, it is the ele- —

; p ®. ‘ °

ments of the offense and the evidence required

: to establish those elements which furnish the

criterion.:for resolving the question of identity.

Pinkerton v. United States, No. 719, Oct. T.

~ 1945, decided Jue 10, 1946; Blockburger v.

United States, 284 U. S. 299, 304; see also

Ebeling v. Morgan, 237 U. S. 625, 631; Burton

v. United States, 202 U. 8. 344, 377-878; United

States v. Wealer, 79 F. 2d 526 (C. O. A. 2),

certiorari denied, 297 U. 8.703. The same rule

applies at military law. .Carter v. McClaughry,

183 U.S. 365, 394-395." |

Here, the elements of the offense charged in

the court-martial specifications were different |

from the elements of the offense charged in the

indictment. ‘The indictment alleged conspiracy

to defraud the United States by giving and re- |

ceiving money to influence official action, The

military specifications uarged the completed

act of receiving a bribe by Radovich alone. In

Burton v. United States, 202 U. 8S. 344, 377,

this Court held that the. same iridividual could

properly be punished for the separate acts of

agreeing ; to receive and receiving a_ bribe.

And in Pinkerton v. United Statesy supra, this

Court recently reaffirmed a long line of previ-.

_ ous decisions holding that ‘the commission of

the substantive offense and a conspiracy to

commit it are separate and distinct offenses.’’

(Slip opinion, p. 3.) Those decisions are control-

ling here. _- ,

Radovich seeks ‘to avoid the effeet of the Pink-

-erton decision by arguing that the present case

comes within the exception recognized by that

decision, to the effect that there cannot be a ¢onvie-

tion for-conspiracy and for the substantive offense

“where the agreement of two persons is necessary

for the completion of the substantive erime and

there is no ingredient in the conspiracy which is

not ergs in the completed crime.”’ (Slip opin-

ion, p. 2 But this ease-does not fall within that

rule, " the first place, as we have shown, the

‘overt acts charged in the éonspiracy were not the

acts of payment which would be necessary to estab-

lish the substantive offenses eharged in the specifi-

‘cations. More significantly, an agreement need

not necessarily have been proved to sustain the

court-martial charges. The sole question before

the court-martial was whether Radovich had _re-

_ ceived money from the Bayers to bring about the

transfers of Martin and Melvin. Whether he did

so pursuant to agreement with the Bayers, or

whether he extorted the money from the Bayers by

threats as they. claimed, he would nevertheless have

_ been guilty of the offense charged in the miltary

specifications. The conspiracy alleged in the in-

dictment, hawever, could not be established with-_

out proof of a meeting of minds between Radovich

and the Bayers, and: the trial judge specifically

charged the jury that the offense was not estab-

lished if the jury found that Radovich had ob-

tained the money from the Bayers by extortion.

See infra, pp. 85-86. Hence the offenses before

the court-martial were, both in fact and in law,

different from the conspirac y charged in the in-

dietment.

‘A directly analogous situation was involved

in the case of Fall v. United States, 49 F. 2d 506,

510-511 (App. D. C.), certiorari denied, 283 U.S.

867, in which Fall's conviction for bribery was

sustained. Fall and Doheny had previously been

acquitted of conspiracy to defraud the United

States at a trial in which the facts alleged in the

indictment and the evidence offered in support

thereof were substaniially the same as those

alleged in the bribery indictment returned against

Fall alone. Indeed, one of the overt ‘ac ts alleged

in the conspiracy indictment was the payment by

Doheny to Fall of: the $100,000 involved in the

bribery charge. The court held that the- ‘acquittal

on the conspiracy. indictment did not .prechude

Fall’s trial for bribery, since in the conspiracy

case the jury might have reached the cdn-

clusion that Doheny had given the money to Fall [

in good faith as .a loan without intent to defraud, |

whereas, in the bribery case, the jury was eun-

cerned with Fall’s state of mind alone. So here,

in reverse, the court-martial was concerted only

with Radovich’s state vf mind when he accepted

the money; it was “not copied’ to. find any agree-

ie a Pee

ment by the Bayers to defraud the United States

in paying over the money. At the givil trial; how- —

_ever, agreement among the Bayers and Radovich

was the essence of the offense, and the jury had

to find tliat the Bayers had voluntarily agreed. to

make payments to Radovich. 2

One further factor differentiates the court-

martial specifications from the conspitacy charge. .

In substance, the military specifications charged

the receiving of a bribe; the. indietment charged

conspiracy to defraud the United States. In Glas-

ser V. United States, 315 U.S. 60, 66-67, this Court —

made it glear that a charge of conspiracy. to de-

proive the United Stutes of its goverxmental fune-

tions by accepting payments iy res official.

action is a different offense Trom conspiracy to

take or giveea bribe. The Court there quoted

with approval the following statement from .

United States v. Manton, 07F. 2d 834, 839 (C. CA

2). certiorari denied, 309 U.S. 664: *

The indictment does not charge as a sub-

stantive offense the giving or receiving of

bribes; nor does it charge a eonspiracy to

give or accept bribes. It charges a con-

spiracy to. * * * defraud the United .

‘ States, the scheme of po to bribery —

being averred only to be ‘a-way’ of con-

summating the conspiracy and which, like

the use of a gun to effect’a conspiracy to

nfirder, is purely ancillary to the -substan-

tive offense. Se ah

Mae

If conspiracy to defraud | the United States by

means of accepting a bribe is a different offense

from conspiracy to give or pay a bribe, then cer-

tainly the substantive offense of bribery is differ-

ent from the offense of conspiracy to defraud the

United States by, agreeing with an officer to pay

him money to influetice his official action.

~ Radovich ar gued in opposition to the petition

for certiorari “that because of the practice of

_courts-martial of making findings by exceptions and

substitutions, i. e., of finding the accused guilty of

a lesser offense included’ in the one with which

he is charged (MOM, par. 78¢; 1(Winthrop, Mili-

tary Law and Precedents (2d ed. 1896) “918-583 ;

Davis,* Military. Law of the United States (3d

ed. 1913) 142-145; TM 27-255, Military Justice

~~ Procedure, pp. 105-106, 244-247), any failure of

proof at the nrilitary trial would have meant that

_ “the partic ‘ular military specification would have

been amended by the court- martial to conform.to .

— gthe proof. and a- conviction under the char ges as .

they stood would havc followed.”? Br. Opp. 15; .

and see id., 14-17.. The difficulty with this argu-

ment is that a court-martial’s power to make find-

ings by exceptions and substitutions is strictly

limited to instances where the offense charged

includes every element of the offense found; a

court-martial cannot le gally find the accused guilty

Tr awe te Flere

Lend .

io °

of a lesser, offense Where that offense involves

elements not included within the offense charged.

Manual for Courts-Martial (1921, pars. 299-300 ;*

1 Winthrop, Vilitary Law and Precedents (2d ed.

1896) *581-583; Davis, - Military: Law of the

United States (3d. ed. 1913), pp. 143-144."

As we have shown, thé court-martial was not

required. to-find an agreement in or der to convict ;

the-jury was. The court-martial was concerned

-only: with Radovich’ s state of. mind, the jury with

the Bayers’ as well. Consequently, the offense

alleged an the. infitctment could not by exceptions

and substitutions have been carved out of the

offe 4ises alleged in. the military specifications, . _

It follows that, since the elements of the offenses

On which Radovieh. was tried by court-martial *

were not the same’as the elements of the offenge.

charged in the present indictment,- the trial court

properly overruled the plea-of double jeopardy,

and the decision of the court below as to this

aspect of the case was error,

*'The ‘provisions of the 1921. Manual. are still applicable

i Where not mR A changed. See MCM, p. vii.

‘ “M™ Nunierong rulings of The Judge Advocate General which

. discuss whether particular offenses aré included or ot in-—

cluded within the principal offense are collected in red i

Sto TM 27-255, Military Justice Procelure, pp. 244-247;

~ and in Appendix 1 to Wiener, Military Justice for the Fix ld

Noldie r Rev. ed, 1944), pp. 126-135. :

tie

THE DISTRICT COURT PROPERLY EXERCISED ITS DIS-

CRETION IN REFUSING TO .PERMIT ‘THE BAYERS TO.

INTRODUCE ADDITIONAL EVIDENCE FOUR HOURS

AFTER THE JURY HAD RETIRED

As has been shown in the Statement, supra,

pp. 15-17, 'the Bayers sought to defend themselves

against the charge of conspiracy on the ground.

that the [payinents ‘to Radovich were not made

pursuant} to an‘agreement but were extorted. In

_ their defpnse they called Samuel. Bayer’s secre-

tary, Miss Solomon, who testified that on Novem-

ber 24, 1943, Radovich ealied from W: ashington

and asked Samuel Bayer to meet him for lunch

that eday ; and that at luich Radovich, in her

presence, said that he was taking the boys with

him to Burma unless Bayer paid him $5,000; and

that Radovieh repeated’ such threats on the next:

day, November 25. -A clerk in the Office of Head-

quarters Army Air Forces had previously testi-

fied for the Government that on November *24,

1943, Radovich had ealled her from Goldsboro,

North -¢ Cardtina, and asked her to transfer the

boys from the Air Commando*Group to the Air

Transport Command; and it had“also been shown

that this transfer’had been authérized by a letter

from Headquarters Army Air Forces ‘dated

November 25, 1943. ,

In his summing up, the United States Attorney —

laid great stress on the November 24 date, point- ;

: 77

ing out that the Government’s evidence ‘as. to

- Radovich’s request for the transfer on November

24 undermined Miss Solomon’s testimony. relating

to the claim of extortion, because it showed that,

at. tho time Radovich | was allegedly. making

- threats, he had already put it beyond his power

to carry out those threats. For leonve ‘nience, we

repeat here the pertinent paragréphs of his argu-

me nt to the jury (R. 1072-1073)

‘So, on the very day, November >4th, that

Radovich, according to Bayer, is making

the first threats, here in New- York to take

these boys unless he got $5,000, Radovich,

according to Miss Goertz, is actually in

_. Goldsboro, North Carolina, and is calling

a Miss Goertz from Goldsboro to Washing-

~* “ton and asking her to issue the orders trans-

fer ring the boys as surplus out of the Air

Commando unit and into the Xir. Transport

Command. Her testimony is clear, it is

exact, and it is uncontradicted. She fixed

November 24th definitely as the date that

Radovieh called her from Goldsboro and-

‘gsked her to issue the orders transferring

the boys out.of the Air Commando grip to

the Air Transport Command.

Now we see clearly here from the undis-

7 puted evidence that this alleged extortioner

is in fact bringing about the transfers of

the boys out of the Transport Command

[sie] on’ the very day that,-according to

Sam Bayer, he, Radovich, is threatening to

take the boys on a dangerous mission that.

732580476" , . :

he arranged—he, Radovich, arranged

— through Miss °Goertz for the transfer of |

these boys out of the Air Commando unit —

the day before the boys evein arrived at

Goldsboro. Because Melvin Usdan’s testi-

mony is that they did not get to Golds-

“boro until the 25th. So that by.the time

they arrived there Radevich, in carrying

out the. conspiracy, with the aid of the

lady in Washington, had already arranged

to get them out of the Commando.‘ So @

that the absnrdity of Sam Bayer’s claim @

of extortion is apparent, it is glaring. It

is just another of the falsehoods, Which have

characterized his. statements confinnously

since August, 1944, when Colonel Snyder

asked him to tell him what he knew about

the Radovich case and ‘he said he knew

very little. Well,. there is certainly no

doubt ° that $5,000 was paid by Samuel

Bayer and there is no doubt that Radovich

got $5,000. Rardovich says the Bayers of-

fered him the money. The Bayers say

the money was »aid..under threat. Well,

T leave it to you ladies and gentlemen. to

decide on the basis of the undisputed testi-

mony in this case and the records in. this

case where the truth lies. Pe

The next day, before the judge charged: the

jury, counsel for the Bayers stated that they ‘had

been surprised by the Government’s questioning

of the luncheon i.eeting on November 24, and

that a cheek of the records had shown a collect ;

call from W ashington to the Bayers on that day.

79.

At the sxequest of counsel, the judge instructed

‘the jury that the record showed such a call, but,

at a suggestion by counsel for Radovich, stated

that the record did not show who made the call.

«=

After the jury had been out for about four ~

hours, they requested a rereading of the United

States Attorney’s summing up, making particular

comment on his summary of the telephone mes-

sage and meetings on November 22 to 26. The

court declined to ‘Tread the argument of one coun-

sel. without reading the arguments of all. -There-

after, counsel for the Bayers asked leave to put

in evidence records he had obtained showing a

collect call from Arlington, Virginia, to the

Bayers from ore * Ravish”’ on November 24, 1943.

The judge deciined to reopen the ease at that

stage. On appeal the circuit court of appeals held

that, in view of the jury’s question, this action ‘

by the trial judge ‘constituted an abuse of

discretion. : |

The decision below in this respect involves, we

‘submit, a wholly unwarranted substitution of the

_ judgment of the circuit court of appeals for the

discretion of the trial judge. It is based on a

misconstruction of the United States Attorney's

ygument and of the significance of the excluded

“evidence in relation thereto.

The gist of the prosecution’s argument was’

that the defense of extortion was untenable for

the reason that, at the very time when, accord-

Ang to the Bayers, Radovich was making threats

‘

4 7 80

to take the boys with him to Burnia unless : he

received $5,000, he had already arranged matters.

so that it was beyond his power to carry his

threats into effect. According to the defense, °

Radovich was making the threats on November

24 and, 25, but the Government ’s“evidence showed

that the transfer out of the Commando group to

the Air Transport Command had been arranged |

for,on November 24° and was offic mi directed

on November 25. ;

The United States Att orney did not pines

question that there may have been.a meeting in

New York. He said (R. 1072-1073), ‘“The ab-

— surdity of Sam Bayer’s claim of extortion is ap-

parent, it is glaring. It is just another of the

falsehoods: which. have characterized his state-

ments “continuous since August 1944, when

Colonel Snyder<sked him to tell him what he knew

‘about the Radsvich case and he said he knew very.

little.””, He was characterizing as false not the ~~

alleged meeting in New — but the claim of

extortion.

Regardless of whether Radovi ic ‘h did’ or did not

call Bayer from Washington an November 24,

‘regardiess-Of whether he did or did tot see him

in. New York, the Government’ $ argument Yoses

none of its foree, It would still, be true, as the

United States Attorney. argued, that the transfer,

had been arranged and officially authorized at the

time that, according to the Bayers, Radovich was

making threats to extort money. Hence the fact:

that the jury. was interested in this part. of ‘the

United States Attorney’s summing up did not, as —

the court below thought (R. 1472), make the ques-

tion of the telephone call from .W ashington a

matter of importance. The fact of the matter is

that if the defense had been allowed to put in its

evidence in respect of the telephone call, after

the trial judge had. declined to read the. United

States Attorney’ s argument, an inconélusive fact

would have been endowed with a significance that

was wholly unwarranted. The mere fact that

Radovich made the telephone call from Washing-

ton og November 24 would not detract from the

testimony that he.had requested the transfer on -

November. 24th, and that, according to official

records, the, trarisfer was authorized by a letter

from Headquarters Army Air Forces Washington

on November 25th. The United States Attorney’s

argument would remain as potent as before.

Other evidence sought to be adduced by. the

Bayers, in support of a motion fora new trial on

newly discovered’ evidence,” tends to support

“Tn opposition to the petition for certiorari; Elias Bayer

’ referred to evidence set forth in his motion in the circuit

court of appeals for leave to file a motion ‘n the district court

for a new trial‘on the ground of newly discovered evidence.

This document, entitled “Petition, Affidavits, and Notice of

Motion to suspend *AppeHate Proceedings, etc.,” was not in-

tg luded i in the record, since the determfiation of that motion

was not an issue in the judgment as to which the Govertiment

sought review. However, a certified copy has been filed with

the ¢ Clerk by. Elias Bayer.

rather ‘than to negative the foree, of the United

States “Attorney's: argument, and shows even more

: clearly than the evidence at the trial the insignifi-.

eanve of the fact, if it was one, that Radovith

calladg the Bayers from Washington on Novem-

“ber 24. | | ae

One point made in that motion was that’ Miss

Goert#, the clerk. in. Headquarters Army Air

Forees, who testified at the tri al that ‘Radovich

shat called her from Goldsboro ori November 24

— to awwange the transfer. fro the Air Commando:

group to the Air Transport Command, had testi-

fied at -Radovieh’s court- martial that the request

Sor sich transfer was made on November 23 (pp.

(35-36). If her prior testimony were correct, it

would even more clearly establish that the traris-

fer Jad been ar ranges hefore the — threats

were made.

There was also include da record of: Radovich! Ss.

flights which ‘shows him to have come to Washirrg-

ton from New Yerk on the morning of November

24 with no other flights that day (p. 48). Rado--

_vich in his affidavit stated that he might. have gone

back to New York in ‘some otlfer plane and had

lunch with'the Bayers tn New. York, although he

had no independent recollection of such fact. The

‘record: further! shows, however, that on November

25, Radovic. left Washington at 9:30 in the,

morning. for Connecticut. apy? did not arrive at

La Guardia field, New ¥ork, until 4:00 p. m. that

day (p. 48). This completely demolishes: the

Bayers’ theory that Radovich arranged for the

* “Jetter from Headquarers Army Air Forces on

November 25 after he had secured a promise of pay-

ment from the Bayers on November 25; he could

not have secured the promise from the Bayers a fter

arriving at La Guardia Field at four o'clock and

hada letter sent from I Teadquarters in Washington

‘ that same day. ie

All that the record of the, telephone, call tends

to prove is that Miss Goertz may have been *

mistaken’ in stating that) Radovich ‘called her

from Goldsboro, and ‘that’ in fact ‘he may have

called’ her from Washingtan on November 24th.

The significant point is that the record of the tele-

phone eall did-not in any way tend to prove extor-

tion by Radovich, nor weaken in.any way the argu-

ment that he did not make any threats because he

had already put it out of his power to carry out such

threats. | 2

The evidence that the transfer had been re-

; quested by Radovich on November 24, 1943, and

pe §

officially authorized on November 25, had been .

introduced as part of the Government’s case long

before Miss Solomon testified to threats by Rado-

vich on November 24 and. 25. We have alveady

noted above, p. 17, ‘that defense counsel took

particular note of the date of the November: 25th

letter authorizing the transfer (R. 123). The

‘5,

84 - |

fact, thas the defense’ failed to appreciate that

the Government's evidence tended to undermine -

their claim of extortion certainly does not consti-

tute such surprise as would justify the reopen-

- ing of the trial. On such a theory, any failure

of counsel to draw inferences from known evi-

dence is ‘prejudicial surprise which ¢an prolong

a trial. indefinitely; amd -certaifily the decision .

below on this point. goes a long way towards

attaching a premium to the afterthoughts of, de-

fendants’ lawyers, to the prejudice of orderly

: administration of the criminal law.

The crux of the matter is that the Gove rnment’ s

_Avidence was put in long before the Bayers were

* called upon to present their defe ‘nse, and that

the evidence offered. by the Bayers four hours_

after the jury had retired in no. way detracted

f¥m the substance of the Government's argu-

ment. In those circumstances ‘it is clear that

the district judge properly refused to reopem

the case. At that stage of the trial the matter

was clearly one for the discretion of oe trial

judge (Crumpton vy. United States,.138 U.S. 361,

364; Safford v. United States, 252 Fed. 471, 474

(C. C. A. 2)5 Hert v. United States, 84 Fed. 799,

804 (C. C. A. 3)), and the cireuit court of ape

peals exceeded its appellate function in finding

an abuse of discretion on these facts. Cf: United

Stales vy. Johnson, 327 U.S. 106.

~ *

THER TRIAL JUDGE'S CONCEDEDLY ACCURATE: CHARGE

FURNISHES NO BAS$S\FOR REVERSAL.

We repeat here; for edyvenience, the trial.

judge’s charge dealing with the Bayers’ defense

of extortion (R. 1157-1158) :

Counsel foy the defendants Bayer claims -

that yayments of money by defendant

Samuel Bayer to defendant Radovich were

made as the result of express of implied «

threats by defendant Radovich to .improp-

erly and unfairly include privates, Martin:

Bayer and Melvin Usdan in the ms Com-

mando Group organized for [an} immedi-

ate dangerous overseas, mission, which

would be a violation of his duty as an

’

officer.

The Goverument contends that such pay-.

ments of money were made voluntarily by

mutual agreement in the course of the

conspiracy charged. |

If you believe from the jesieton beyond

_ a reasonable doubt that ‘at any time during —

the period alleged ‘these three’ defendants

mutually agreed to defraud the United

States as alleged in -the indictment, and

did some act in pursuance of such agree--

- ment, they would be guilty irrespective of

whether the actual payment of money were

made voluntarily or involuntarily. How-

ever, as to the payments of money, if you

believe that they were coerced’ by the de-

fendant Radovich, that is, that they would _

. ; ° 2 \

™~)

“oF

@-2

part except for. Radovich’s thredts, then

not have been made at all in aN or in

such payments would not be the result of

agreement nor any evidence of a crime.

And if you so believe, and als6 are not satis-

fied feyond a reasonable doubt by other .

evidence in the ease that the conspiracy

existed as charged in the indictment, you |

should find all the defendants not guilty,

as Radovich is not here charged with ex-

tortion.

_ However, ‘in your consideration of this °

phase of the case, I’ charge you that the

matter of whether or not the payments

were made at the suggestion of Samuel

Bayer or upon the demand 8€ Radovich,

. ° or Whether the payments were made

cheerfully or grudgingly,-or whether or

not they were greater. than Samuel

Bayer expected, are immaterial if you are

satisfied beyond a reasonable doubt that the

-payments were made by and in the course —

of the agreement of the defendants.

The opinion of the coirt below indicates that a

majority of the court, while conceding the correct-

ness of the chatge, considered it ‘‘so eryptie as to

he difficult to Stand, if not te be actually mis-

leadiz

have been rested on this ground alene (R. 1471).

We have some difficulty in understanding the

basis, of’ the objection to the judge’ s charge. As

J udge | ‘ark, writing the opinion, puinted out ( R:

ya jury of laymen” (R: 1471), but it is not | -

‘ar Whether reversal of the, judgments would ..

1471), ‘‘There is no question but that this charge _

was an accurate, albeit brief, statement of the

law.” To us the ry teen to ‘have stated

in clear terms that, if thé jury found that the pay- ;

_ ments by the Bayers were made as a result of

threats by Radovich, the payments could not be:

the result of a criminal agreement, and hence

also correct to tell the jury.that, if an agreement

were proved, the crime was established ‘even’

though the Bayers may have’ been reluctant to,

carry out the agreement by actually paying over

the money or may have paid more than they orig-

’ S

inally expected.

here is no evidence that the jury failed to un-

derstand the charge. During the course of: their

deliberations, they did, itis true, request a reread-

ing of the charge on conspiracy (R, 1155). But,

after the judge had pepeated his instructions on

the jury would like to have amplified (R. 1162),

. and no stich request was made. x FE

Under the circumstances,-we submit that a re-

—ver ‘sal of the Bayers’ conviction on the basis of the

judge’ S charge was wholly unwarranted. Even

6 Our reference to.“concededly accurate” is, of course, to the

concession made by the court below; we do not suggest that

the Bayers conceded its accuptcy. Cf. Samuel Bayer, Br. |

Opp. 6; Elias Bayer, Br. Opp. 27.

the subject (R: 1156-1162), he asked whether - .

‘ there was any point-which was uot clear or which:

. ; : & 88

Sh error is.shown at a trial, such error is not

in ‘itself ground for i esi its significance must —

be judged and weig in the light of the whole |

-case. See Kotteakos v. United States, Nos. 457-

458, Oct.'T. 1945, decided June 10, 1946, where the

history of the harmless error statute is set out in

‘s detail.- In the present case there is no finding

that there was error, and there is not even a sug-

gestion of prejudice: Lhe evidence: of the de-

fendants’ guilt was cleftr, strong, and convincing.

‘The mere circumstahce that a majority of the -

court below might have worded the charge ci

‘somewhat more elaborate phraseology does not

seem to us a proper ground for the reversal ofa

. well’ merited conviction. The decisions of this

. Court in Bollenbach v. ‘United States, 326 Uz 8.

607, and Bihn v. United States, No. 675, Oct. T..

1945, decided June 10, 1946, require ag that a

charge be.ace ‘urate, not that it be, yerbose."

+" The Bayers argue that the trial judge erred in failing to

. charge the jury that the Air Commando group was a volun-

tary one arid in failing to mention their contention that the

a boys*were not adequately trained for duty overseas (Samuel —

Bayer, Br. Opp. 6-7, 13; Elias Bayer, Br. Opp. 18-19, 25-26).

ver, the trial judge did not undertake to review the evi-

deiice and thus was under no obligatign to cover evidential de-

tails. Rhere was nevér any doubt in thi@ case that the transfer

Of the boys into the-Air Commando group was improper and

that, they were not fit materia] for such an organization. The a

est ion wat merely whether Radovich arranged that transfer

us a means of getting them out of the alerted airborne engi-

neer unit’ pursuant t6 an agreemeni with the Baers, v-

_ whether he arranged the i improper transfer as a means of ex-

‘. torting money from the Bayers.

woe

THERE IS NO MERIT IN OTHER CONTENTIONS | “URGED AS

INDEPENDENT GROUNDS FOR AFF IRMANCE OF THE

, JUDGMENT BELOW

In: opposition to the petition for certiorari,

Elias Bayer has suggested several independent |

grounds for affirmance of the judgment below,

none of which, we submit, present any- -issue i

merit.

A. The propriety of admitting proof of pitts by

the Bay ers to Army officers other than Radovich

. ‘is challenged a % permitting prejudicial irrelevant

- matters to go before the jury. Assuming, as Elias

: Bayer contends, that at: the trial the broa

- .«harge of the indictment was narrowed to an issue

of conspiracy to defraud the United States of the

honest services of Radovich alone, the testimony

as to the Bayers’ relationship with other officers

was nevertheless clearly relevant. Proof that the

Bayers made a practice of distributing largess,

to officers who were in a position to help the boys

certainly “had a bearing on the question of their

intent to defraud, and became particularly, rele- |

vant in view of their claim that they were the

innocent victims of extortion. ‘The admissibility

of this kind of evidence bearing on the question

‘of motive and intent is well established. ‘Glasser

' vy, United States, 315 U. S. 60, 81-82; Wilhamson.

v. United States, 207 U. S. 425, 451; Debs v

United States, 249 U. S. 211, ‘J j

ace ean | |

“

~ In his main charge, the judge stated (R. 1137) : ,

* "3 “Whether these persons, or any

~®

of them, or any of the persons who have

testified as witnesses, were guilty of partic-

ipation in the conspiracy here alleged, is.

of no concern to you except insofar.as their- -

activities have a besting on the guilt ‘or

_ innocence of the. defendants of the offense |

charged, and as such participation may _

bear on the weight or credibility of their

e .

evidence. . »

* Again, in responses to a question by the jury,

the judge made clear the purpose of the evidence

relating to other officers, stating as follows (R. ig

1168-1169): yes, week Lug

_Thé only persons whom you are trying

: In this case are the three defendants, Elias

Bayer, Samuel Bayer and the defendant’

Radovich, and the only persons as to whom

your verdict.can in any wise affect, and . -

. they are the-only persons whose guilt ‘or

‘innocence you should consider." Now thee

are other persons who have been mentioned —

in the testimony, persons who have testified

here about their own. activity in connection

with the activities of these deféndants:

Now as to whether those persons, or any of

them, are gailty or jinnocent of anything,

should not concern you at all, they arey not

here on trial, with this exception: you may ,

consider that for what bearing their activi- -

ties have upon the actions of the defendants

who are upon trial and for what effect in ~

your r judgment the activities of these other

persons might have upon ‘the testimony ~

which they have given, that is whether it is

4 true or not, @hether it. is all true or part

true.- But as to whether they-are guilty,

~ « whether any,person other than those named

in this indietment are guilty of any offense

or not, is not a matter which should concern

you.at all.” You are charged with the duty

of trying the. persons named in the andiiet-

ment arid those only.

Although the court may net have expressly

stated that evidenee of the dealings with other®

offiéers was limited to motive and intent, the in-

struetions quoted above. had such effect for they’

permitted the jury to consider such evidence only

- ins spfar as they tended to show an agreement with

Radovich.

The Bayers did not ebied to the admission of

such evidence and did not reqnest an instruction

limiting its applicability to intent. They merely

sought aff instruction to the effect that they were

guilty of no mi onduct in their dealings with

other officers ( 11007 1104), a ‘request whieh

~ was, of course, properly refused.

- B. The .contentioh tHat the judge sitions

reversible error in his charge with respect to the

aliases set forth in the indictment is not well

taken in view of the fact that the whole issue

_was raised by the defense. The jury would never

have learned of the ‘use of the aligs . rani avwich

° 92 .

-if Bayers’ counsel had not unnecessarily brought

it to their attention for the first titne in his sum--

ming up (R. 990). Neither the United States At-

torney nor counsel for’ Radovich ever referred

to the alias, and the indictment was neither read

to the jury during the trial: nor a copy given. o-

them when they retired. After the judge had in--

structed the jury, counsel for the Bayers ‘specifi-

cally asked him to instruct ‘the jury on the mean-

ing of an alias (R. 1147), and asked leave to add

such a prayer to his request#to charge (R. 1149). .

The judge then charged the jury as follows (R. |

1152-1153): ER meg ene

Ladies. and gentlemen, I have only one

matter to add: It has been called to my

attention that. the indictment as to the two

defendants Bayer, refers to them as Samuel

~ and Elias Bayer, alias, Samuel Boyarsky

‘and Elias. Boyarsky. I charge: you that

. there is no inference to be drawn by you

ce from that statement in the indictment. The

literal meaning. of the wording “alias” is

‘other or otherwise,” and carries no infer-

énee.. However, in common acceptation of -

the word it sometimes is considered to refer

to a person who has more than one name.for

improper purposes. There is no proof about

‘that, and I charge you to not infer anything

of an evil nature from the fact. I do not

think on the other hand ‘that you. should

infer ‘any improper conduct on the part of

» « the Government by so naming them in. the

; Pe

indietment, because it appears somewhere

from their: statements, .I_ think, that the .—

name Boyarsky was their Russian name be-

fore they became "Americanized. So I di-

yeet youeto disregard the alias’ reference

‘entirely. 7s .

When defense counsel ohjected to this instruction

as being inflammatory, the judge said to the jury .

(R. 1153): ; |

In view of the-exception just made, by

counsel, I wish to state that I certainly .

meant nothing jnflammatory or derogatory

-you that: I certainly mea

yo none and I

-, don’t believe you received any. |

* * *

C. Petitioner's requested instruction concerning

the duty of each individual juror, to arrive at an

independent conclusion with respect to guilt

(R. 1091) was properly . refused. The requested

language is taken from the opinion of this Court °

in Allen v. United States, 164 U.S. 492, where

this Court was considering the propriety of an in-

struction impressing upon the, fury the duty of

considering the opinion of ‘others in-an attempt

to reach an agreement. The Court was justified

in: refusing to enrphasize one aspect of the juror’s

duty as against the other. Egan Vv. United States,

5 F. 2d 267, 268 (App.-D. (.): Horton v. Eearit ead

States, 15 App. Dp. ¢ *, 310, 329. Moreover, failure

to give one out-of numerous requests to charge.

‘which does not relate to a vital issue i: the

gaa 47 7

- we

sf 94

ot ae MS %

case, does not constitute reversible error, éven

though such. request “may be a correct abstract

‘statement of law. Walker Vv; Johnson, 96 US:

_ 424; 429; Pine v. United States, 135 F. 2d 353, 355,

(C. C. A: 5), certiorari denied, 320°U. 8. 740;

Burk v. United States, 134. F.- 2d- 879, 883‘ 2.

(C. C. A. 5). ;

, D. The requested charge that frind Nis never

presumed but must be proved (R. 1088) had no.

application. to the facts of this case. The trial

* judge ‘correctly told -the jury that the fraud

charged in the indictment was the deprivation of

the GoverAment’s righ he honest and faithful

services of its officer ( ). Haas v. Henkel, 0)

216 U. 8. 462, 479. as :

E. The request to distegard immaterial state-

ments in the statements by the Bayers (R. 1100)

was so intermingled with improper requests to

charge on the evidence as to the purchase of uni- -

forms and entertainment. of other officers that the

. failure to give such charge could be justified on

- such ground alone. In addition, at should be

noted that the court expressly afforded the de-

“fense opportunity to specify the alleged” irnma-

terial matter in the statements and that subse- .

~ quently counsel withdrew the objection to the

portion then under consideration eR: 684-685).

_ Thereafter, defense counsel objected. to other

parts of the statements apparently on the theory _

that ‘the. Bayers’ dealings with officers other than

: 7 OBR, |

Radovieh were inmaterial cR. 686-687). Subse-

~ quently, when the Government preposed to omit

part of a statement, defense counsel stated that

they did not object to having it-all read (R. 692).

“The allegedly immaterial matter to which Bayer

objects is apparently the portion of the state- -

ments referring to officers other than Radovich.

Since, as we have shown, evidence of the Bayers’

dealings with these officers was clearly relevant

on the issue of their. intent, the objection is with>

out merit. ; ee te |

_ , ° .=* CONCLUSION . )

For the foregoing reasons, the judgment of the

_ eircuit court of appeals should, be reversed and

: -, the judgment of the district cotrt , pffirmed. ;

Respectfully submitted. ene cst oe

; / GeorGe T. WASHINGTON,

.. Acting Solidjtor General.

net hes - THERON L. GAUL, |

Assistant Attorney General.

2! . -FREDERICK BERNAYS WIENER,

Speeial Assistant*to the Attorney General.

‘ ') Rosert S. Erpant,

/| BEATRICE ROSENBERG,

way Po Attorneys.

Fesruary 047. | Ee ea

732580—47——8 a

APPENDIX A

STATUTES INVOLVED

Section 37.of the Criminal Code, 18 U. S.-C. 88,

- provides: ; : ’

If two or more’ persons conspire either .

States, or to defraud the United States in

any manner or for any purpose, and ore

_. . or more of sueh parties d6 any act to effect

- the object of the conspiracy, each of the —

parties to such conspiracy shall be fined

not more than $10,000, or imprisoned not

morethan two years, or both.

_ The Articles of War here involved (10 U. S.C.

1471 et seq.) are as follows: | |

Arr. 40.fAs To NuMBER.—No_ person

shall, without his consent, be tried a second

time for the same offense; but no proceed-

ing ™ which an aecused 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 reviewinge -

and, if there be one, the eoufirming author-

ity shall have taken finial action upon the

"case. . naa | |

No authority shall return a reeord of

trial to any couét-martial for, reconsidera-

tion of— =

(a) An aequittal; or mea x

(b) A finding of not guilty of any gspeci-

fication; or - - : ;

‘charge, -unless. the recgyd shows a finding

of guilty under. a specification laid under

—_—*

_ that charge, which sufficiently alleges a vio-

lation of some Article-of War; or

(d)’ The sentence — originally imposed,

with a view to inereasing its severity, un-.

less such sentence is less than the manda-

tory sentence fixed) by law’ for the offense

or. offenses upon which a conviction has

been had.

And no court-martial in any proceedings —

on revision, shall reconsider its finding or

sentence in any particular in which a re-

turn of the record of trial for such recon-

sidevation is hereinbeforexprohibited. [10

U.S. ©. 1511.)

» Arr: 5014. Review; REHEARING.—The |

Judge Advocate General shall constitute, in

his office, a-board of review consisting of

. not less than three officers of the Judge

Advoeate General's Department. ear?

- Before any record of trial in which there

has been adjudged a_ sentence requiring

- approval or confirmation by the President.

under the provisions of article 46, article

48, or atticle 51 i® submitted to the Presi-

; -dent, such record shall be examined by the

board of review. The board ‘shall submit

jts opinion, in writing, to the Judge Advo-

‘ate General, who shall, except .as herein

otherwise provided, transmit the record and

the board’s opinion, with his recommenda-

tions, directly to the Secretary of,vagr for

the action of the President.

Except as’ herein provided, no ai

*shall order the eXecution of any othe

tence .of*a general court-martial inv

the penalty ‘of: death, dismissal not sus-

pended, dishonorable diseharge not “sus-

pended, or confinement in a penitentiary,

unless and until-the board of review shall,

* with the approval of the Judge Advocate

General, have held the record of trial upon

which such sentence is based legally -suffi-

cient to support the sentence; except that

the proper reviewing or confirming author-

ity may upon his approval of a.sentence

involving dishonorable discharge or confine-

ment in a penitentiary. order its execution _

if it is based solely upon findings of guilty

of a charge or charges and a specification

or specifications to which the accused. has

pleaded guilty. When the board of review,

with the approval of the Judgé Advocate

General, holds the record in a case in which

the order of execution has been withheld

under the provisions of this paragraph

legally sufficient to support the findings and

sentence, the Judge ry vocate General shall?

so advise the reviewing or confirming au-

thority from whom the'record was received,

who may thereupon order the execution of °

the sentenee. hen in a ease in which the

: order of execution has been withheld under |

the provisions of this paragraph, the board

of review holds the: reeord of trial legally

insufficient to support the findings or sen-

tence, either in whole or in ‘part, or that

errors of law have been committed injuri-

ously affecting the substantial rights of the

accused, and the Judge Advocate General

concurs-in such holding of the board of re-

view, such findings and sentence shall be

vacated in whole or in part in accord with

~ such holding and the recommendations of

. the Judge Advocate General thereon, and

the record shall be transmitted through the

proper channels to the convening authority

for a rehearing or such other action as may

_ be proper. In the event- that the Judge

Advoeate Gpneral shall not coneur in the

_ holding of She board of review, the Judge

The first proviso to this paragraph was added by Section }°

99 *

Advocate General shall forward. all the. 3

papers in the ease, including the opinion

of the board of review and his own dissent

therefrom, directly to the Secretary of War

for the action of the President, who may .

confirm the action of the reviewing author-

ity or confirming authority below, in Whole

or in part, with or without remission, miti-

in whole or in part,.any finding of guilty,

and may disapprove or vacate the sentence,

in whole or in part: Provided, .That the

functions prescribed in this paragraph to

be performed by the President may be per-

* gation, or commutation, or may disapprove, -

formed by the Secretary of War or Acting °-

Secretary of War:' Provided further, That

whenever a branch of the office of the Judge

Advocate General is established, urider the

provisions of the last paragraph’ of this

article, with a distant command, such func-

tions maybe performed by the commanding

general ‘of such distant command in all

vases in’which the board of review in such

branch offiee is empowered to act and_in

which the commanding general of such dis-

-_ tant command ‘is not the appointing or”

confirming authority.’

When the President or any reviewing or

confirming authority disapproves or vacates

a sentence the execution of which has not

theretofore been ditty ordered, he may au-

thorize or direct a rehearing. Such rqhear-

ing shall take place before a court composed

of officers not members of the court which

first heard the ease. Upon such rehearing

of the Act of August 20, 1937, ¢. 716/50 Stat. 724.

The secoist proviso to this pars graph was added by the:

Act of August 1, 1942, c. 542, 56 Stat. 732.

me)

100

“the accused shall*not be tried for any

offense of which ‘he was found not guilty

by the first court, and no sentence in excess

of,.or more severe than the original sentence

shall be enforced unless the @entence be

based upon a finding of guilty of an offense

not considered upon the merits in the orig-

inal proceeding: Provided, That \such. re-

hearing shall be had in all cases where a

finding and sentence have been vacated by

reason of the action of the board of review

approved by the Judge Advocate, General

holding .the record of trial legally insuffi-

cient to support the findings or sentence or

that errors of law have been committed

injuriously affecting the- substantial rights.

of the accused, unless, in accord with such |

action, and the recommendations. of the

Judge Advocate, General thereon, the find-~ .

ings or‘sentence are approved in part only, .

or the ree is returned for revision, or

unless the case is dismissed by order of the .

reviewing or confirming authority. After

any such rehearing had on the order of the

President, thé record of trial shall, after

examination by the board of review, be

transmitted Me the Judge Advocate Gen-

eral, with the board’s opinion and his. rec- —

ommendations, directly to the Secretary of

War for the action of the President.

Every record of trial by. yor court-

‘martial, examination of which by the board.

of review is not hereinbefore in this article

| provided for, shall nevertheless be examined _

‘jn the Judge Advocate General’s Office ; and

if found legally insufficient to support the:

findings aid sentence, in whole or in part,

_ Shall be examined by the board of review,

and the board, if it also finds that "such

record is legally ‘insufficient to support the

findings and sentence, in whole»or in part,

shall, in writing, submit its opinion to the

Judge Advocaté General, who shall trans- .

mit the record and the board’s opinion, with

- his recommendation, directly to the Secre-

tary of War for the action of the President-

In any such case: the President may ap-.

prove, disapprove or vacate, in whole or in

part, any findings. of guilty, or confirm,

mitigate, ‘commute, remit, or vacate any

sentence, in whole or in part, and direct

the execution of the sentence as confirmed

or modified, and he niay restore the acensed

to all rights affected by the findings apd

sentence, or part thereof, deld ‘to be infalil

and the President’s nee orders to this

end shall be binding upor all departments

and officers of the Government’: Provided,

That the functions prescribed in this para-

graph to be performed wag" a President

may be performed by the Secretary of War

or Acting Secretary of War:* Provided

further, That whenever a branch of the of- |

fice 6f the Judge Advocate General is estab-

. lished, under the provisions of the last para-

graph of this article, with a distant com-

mand, such functions may be performed by

the commanding general. of/ such distant

command in all eases in which the board of

--review in such branch office is empowered

to act and in which the commanding gen-

eral of such distant command is not the ap-

pointing or confirming authority.‘ Bae che

. Whenever necessary, the Judge Advocate

‘General may constitute two or more boards >.

-of review in: his ‘offree, with ‘equal powers **' -

and duties. . he

* See note 1, ‘eupra, p. 99.

* See note 2, supra, p. 99.

seu oa 102

Whenever the President deems such ac-

tion necessary, he may. direct the Judge —

’*- Advocate General to establish a branch

of IMs office, under an Assistant. Judge

Advocate Genefal, with ‘any..distant com

mand, and to establish in sueh branch office

a board of review, or more than ‘one. Such.

Assistant Judge Advoe ate General and such

board or boards of review shall be empow-

ered to perf for that. command, under

. the general supervision of the Judge Ad-

-voeate General, the duties which the Judge

Advoeate General and the Board or boards

of review in his office would otherwise be

required to perform in respect of all cases

- involving sentences not requiring approval

or confirmatign by the President. [10

U.S. C. 1522.] ‘

Art. 70. CHARGES; ACTION — harges

and specifications must ae a person

subject to military law, and under oath either

that he has personal knowledge of,-or has

investigated, the- matters set forth ‘therein,

and that the same are true in fact, to the best

vf his knowledge and belief.

No charge will. be referred to a general

court martial; for trial until after a,thor-

ough and impatrtiz] investigation thereof

shall have been made. This investigation

will include inquirics as to the truth of the

matter set forth in said charges, form of

- charges, and what disposition of the case

should be made in the interest of justice

and diseipline. At such investigation full

opportunity shall be given to thefaccused

to cross-examine witnesses against him if

they’ are available and to. ‘present anything.

‘The words Kto a genéral court martini were inserted by

Section 2 of the Act of August 20, 1937, of 716, 50 Stat. 724.

@ « ae

~-7-

cused as hereinbefore provided. i

103 ; :

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