# Brief for United States — United States v. Bayer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0231%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for United States - **Published:** January 1, 1947 - **Citation:** 331 U.S. 532 ## Text No, 606 — ~ 7 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) 34 42 56 61 * 62 76 “Ss -y . eee ie It 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 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 i] 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] IV : “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 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 : 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——_-- 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 er 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. 8 ae 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 ss o €, “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 26 ~ 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 * 27 ne 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 2 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 . 28 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 ~ *& 30 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. IV ~— 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 - e- 32 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 my i 33 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 I e 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 7. -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 4 ® 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. ’ o :* 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 40 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 @! a 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 6 ‘ 44 — 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 . >, 45 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- 4 — 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 existing articles (70 and 71), like 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 a ™ & 2, ze 9 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. ry Moe _ upon him.”’ - Gr . t * 48 ~ ‘ . 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 49 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.” : ia . a a 61 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 — ot \ \ \ sO 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 \ os | « . ! \ 53 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- o a 54 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 iN See superior general court: * * * be given in — ‘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 % 56 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 et 57 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 . ? ‘ ad 58 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-. og 61 8 “ ‘ I 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. / “ 63 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. 4 64 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; ’ ~ ‘ s. > im 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- 67 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 & - 68 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. Ea 70 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 71 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 72 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- a. 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 s 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. : . te 76 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" , . : > 73 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. «= i 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 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 4 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 . to commit, any offense. against the’ United © 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 - - : ; (c) A finding of not guilty of any ‘charge, -unless. the recgyd shows a finding of guilty under. a specification laid under a9 —_—* 97 _ 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 98 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 © 11 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 ; : he may desire in his own behalf either in defense or mitigation, and the investigating officer shall examine available witnesses re- quested-by the accused. If the charges are forwardesl after such investigation, they . shall be accompanied by a statement: of the | substance of the testimony taken on both. sides. : , - my P Before directing the trial of any charge by general court martial the appointing authority will refer it to his staff judge advoeate for consideration and advice. » ‘When any person subject to military law is placed in arrest or confinement, im- mediate steps will be taken to try the per- son accused or to dismiss the charge and release him. Any: officer who is responsibte — for unnecessary (delay in investigating or carrying the casf to a final conclusion shall he punished as a court martial may direct. Whien a®persen is held for trial by general court martial the commanding officer will, within eight days after the accused)s arrested or confined, if practieable, forward the sharges to the officer exercising general court-martial jurisdiction and furnish the accused a copy of such charges. If the same, be not practicable, he will report to supertor authority the reasons for delay. The trial judge advocate will cause to be - served upon the accused a copy qf the charges pon which trial is to bé had, and a failare so to serve such charg¢s wil be ground for a contimuance unles the trial be had on the charges furtiished the ac- ime of peace no person shall, against his objection, he brought to trial before a general court martial within a period of five days sub- * sequént to the service of ‘charges upon him. flo UL S.C. 1542.) ; e haw ae Ye y 104 Art. 95. ConpucT UNBECOMING' AN OFFI- CER AND GENTLEMAN.—Any officer or cadet who is convicted of conduct unbecoming an , officer and a: gentleman shall be dismissed from the service. [10 U.S. ©. 1967.] Art. 96. GENERAL ARTICLE.—Though not mentioned in these articles, -all disorders and neglects to the prejudice of good order . , and military discipline, all conduct of a na- LY ture to. bring discredit upon the military . Service, and all crimes or offenses not cap- - ital, of which persons subject to military law may be guilty, shall be taken cogniz- ance of by a general or special or summary ~_ court martial, according to the nature and * degree of the offense, and punished at the discretion of such court. [10 U. 8S. C.. 1568.) , & ~ & . . * APPENDIX B MANUAL FOR COURTS-MARTIAL,’ ben 76a. Investigation of Gharges—I?_ ‘the Jiabivainn and Specifications (1) appear to be in groper form, and (2) praperly: to allege gne or more f- fenses cognizable by a‘ court-martial, against: an -accused, who is (3) a person subject to military law, and (4) belongs or pertains. to his comntand, the commanding officer so receiving them will pro- ceed as follows: ° ) = ¥> 1. If the accused is not an officer, and it appears to the commandingsofficer that’ the charges are trivial or inconsequential, he a” 4 disregard them; Wether e . He will consider ether the case pre- Port is one which he Ganaproperly dispose | , of tinder the one hundred and fourth article of war; and, if so, he will so dispose of it. (See par. 336a, infra. ) Otherwise, he will investigate it, as follows: ° 3. He will cause the person preferring the charges, together with all available wit- nesses mentioned in the memorandum in the charges, and also the accused, and any | available witnesses desired by the accused, * and'any other available witnesses of whom p he may, learn, to appear before him at a stated time (to be fixed either by. standing orders or otherwise), at his office or head- agi or other available place, within the neXt twenty-four hours (except in the ‘ase of an intervening Sunday or holiday, and thei ,within the next succeeding 24 hours thertafter), With all available docu- (105) 106 ‘mnentary evidence, including the service ree- ord of the accused, and ‘will there, infor- _inally investigate the. charges, substantially “in the same manner as upon a hearing be- fore a summary, court. The witnesses (ex- cept the accused) -will be sworn, but no record will be made of the testimony, and no counsel will ordinarily appearither for the accused or for the’ prosecution (al- though in exceptional cases agi available défense counsel of a general or special . court-martial, or other counsel, may be per-- mitted. by the commanding officer, in’ his ‘discretion, to appear for’ the ac cused, and a trial judge advocate of a general or spe-. cial court-martial, or other officer, for the prosecution). At such investigation full opportunity will be given to the accused to cross-examine the witnesses whose state- ' ments are an favorable to him, and to pre- sent anything he may desire in. his. own hehalf, eifher in defense or mitigation: and all available witnesses requested by the . Pre Psd: will he called aiid exainined. The commanding officer sill,” before receiving any statement by the, accused, carefully warn him that it is not necessary for him to make any statement with reference to the charges against hith, but that; if he does make one, if may be used against him. (See par. 225b, inf ra.) Nore.—If exigent circumstances make it impracticable. for the commanding officer to conduct any particul: ir investigation him- Self, he may order it to be madé by the second in-command, or by such other officer as he may designate on account of rank, experie nee, and att: unments, * : * * 107 ¢ 7. Ifeither (a) The accused -is an officer, and, upon such informal investigation, the command- ing officer is of opinion (1) that the charges are not such as can be disposéd of under the one hundred and fourth ariicte of war and (2) that trial by a general court-mar- tial ‘will probably be nécessary; or | ——— , ’ (b) The accused is any person subject. to military law other than an officer, and upon such informal investigation the com- manding officer is of opinion that (1) an _ offense: has been committed, and that. (2) there is substantial evidence tending to show that the accused is probably guilty, and that (3) the charges are not: such as’ can be- disposed of under the one hundred and fourth a-ticle of war, or (4) by trial befure a summary court-martiai within ‘his . command, and .that (5) trial by special or general court-martial will probably be _ necessary; he -will either himself proceed _ with the investigation either then or at such other: convenient time and place as he may . . determine, or else he will refer: the charges for further investigation to the’ summary court officer of the command, or to some other. officer (other than the officer, if any, preferring the charges) whose rank, exper- ‘jence, and qualifications are such as to fit him for the performance of this important - Judicial duty. Nore.—If_ such. commanding officer is himself the officer exercising general cvurt- martial jurisdiction o¥er the command, he - will proceed in case the accused is an offi-’ cer, in the same way as if the accused were --not‘an: officer. No authority inferior to. the officer exérvising general court-martial | jurisdiction over the command will dismiss “9108 4 , properly drawn charges against an. officer, excépt upon disposing ef them by punish; ae fit under the 104th Article of Wat . The officer so, proceeding with the in- RR cor Bs (whethe r the commanding of- ‘ficer himself or anothér officer) .will -ex- ~ amine. all available witnesses and doétimen- tary evidence in the same manner heréinbe- fore directed: in clause No. 3 of this para- ad graph, except that he will, upon such exam- _. ination, redutve the material testimony given_- - by each, witness, on direct examination and on eross-examination, to a elear, mae ‘statement or summary (for form, See A pendix 18), which, in the presence of the accused, will be read: over to the witness and signed and swérn to by him. When. it is not: practicable to obtain’ personal- ‘testimony frofp any distant witness, ‘whose testimony is 111 Specifivation 1: In that Major Walter V. Rado- vich (then Captain), Air °Corps, did, at New York, New York, between 1 August 1943 and 31 August 1943,. wrongfully and unlawfully accept ‘and receive from one Samuel Bayer, the.sum of $2000.00, lawful currency of the United States, -for the purpose of effecting the transfer of Pri- vate First Class Martin B. Bayer and Technician - _ Fifth Grade Melvin Usdan from Headquarters and Headquarters Squadron, I Fighter Command, to Medical Detachment, Station Hospital, Mitchel Field, New York. | . Specification 2: In that Major Walter V. Rado- vich * *, *, did,-at Goldsboro, North Carolina, on or about 1 December 1943, wrongfully and un- lawfully accept ‘and receive from Elias Bayer,» the sum of $5000.00, lawful currency of the United States, for the purpose of effecting the transfer of ’ Private First Class Martin B. Bayer and Techni- cian Fifth Grade Melvin Usdan from Project Number CA-281 (First Air Commando Group), an’ organization then alerted for overseas move- — ment, to Second Ferrying Group, Second Ferry- ing Division, Air Transport Command, an organi- zation not alerted for overseas movement. ia ‘Charge II: Violation of the 96th Article of . War: ° Specification 1: In that Major Walter V. Rado- vich-* © *, Air Corps, ‘did, at New York, New York, between: 1 August 1943 and 31 August 1943, wrontfully, and unlawfully accept and receive from, one Samuel Bayer, the sum of ‘$2000.00, lawful currency of the United States, for the purpose of effecting the transfer of Private First Class Martin B. Bayer and Technician Fifth TA2580. 47—--9 112 Grade Melvin. Usdan from-~Headquarters and Headquarters Squadyon, I Fighter: Command, to Medical Detachment, Station Hospital, Mitchel ° . Field, NewYork. , Specification 2: Tn that Major Waiter V. Rado- ‘Vieh * ™ * . did, at Goldsboro, North Carolina, en or‘about 1 December 1943, wroigfully and un-® lawfully accept and receive from Elias Bayer, the sum of $5000.00, lawful currency of the United States, for the purpose of effecting the trangfer of. Private Fiyst Class Martin B. Bayer ‘and Technician Fifth Grade Melvin Usdan from Proj- ect Number. CA-281 (First Air Commando Group), an organization then alerted for over--- seas movement, to Second EFerrying Group, Seeond Ferrying Division, Air Transport? Command,~an organization not alerted for overseas movement. The accused pleaded not guilty to and was found guilty of all charges and specifications.. No evi-* .dence of previous convictfons was introduced. ‘He was sentenced to be dismissed /the: service, to . forfeit all pay and alléwances due or to become due, and to’ be confined at hard labor for three years. ‘The reviewing authority approved the sentence but remitted one year of the confinement and. forwarded the “record of trial vr action unidgr Article of War 48. 3. Charges Were preferred -against accused on 10 August 1944. The report of investagafion is dated 24. August 1944. Charges Were served on ~neeused 39 May 1945. Accused was tried pi June 1945. After arraignment and béfore pleading: to the general issue, accused entered a special plea to the jurisdiction of the court on the ground . 3 a. “that the Convening Authority’ im this case was the aceuser and the prosecutor of this ease”? (al- though his name was not signed te the Charge Sheet) and-stated that *‘we stand realy to. prove . that plea.” -‘The prosecution argued that “this ease has been referred to this court for trial’and that the court has no ot her choice than to pro-— ceed with the trial.”” The law member then‘ ruled _ gn the’ plea as follows: . “Subject to objection “ by Any member. of the court, the plea to the jurisdiction is denied.”’ . There was no objection court (R. 20)% The foregoing fr nspired after the accused liad patial ‘‘plea in bar”’ that the in- entered another s to any member of the. ¢ vestigating officer had not made the jnvestigation required by Article of War 70 and that the case -was referred to trial without previously having been thoroughly and impartially investigated, — which plea was denied without the opportunity afforded. accused to introduce evidence in, support thereof, although, “an offer of proof’? was specif- ically made (R. 17-19). © After the prosecution had rested its case on the ~ general issue, cot sel for defense stated that cer- tain “svitnesses” whose attendance had been wi quested by a letter before trial to the trial judge ~ advocate including “Cok ferred the charges, and mel Stewart’? who -pre- “General Hunter,” the convening authority, would not be necded for the defensd® because of the denial of the special pleas of aeeused (R. 218). Prosecution stated that all of-the witnesses requested were available (R. 219). Before defense introduced any witnesses whatever, - . 114 oh % ‘the law: member stated that “the court would pérmit evidence in support: of those proffers of . proof at the time the defense puts in its case.”’ Defense Counsel stated that he had not ‘‘contem- plated’’ the introduction of proof: because. he as- | sumed that the overruling of his special pleas had been final. The case was’ then adjourned % - the following day. No evidence was adduced re-- lating to the special pleas. _(R. 223-225. ) Considering only the plea ‘that: the convening authority wa actually the accuser, a plea in“bar to the jurisdiction of the court (see AW 8), the question preseirted is whether or not ‘the ruling ‘of the Jaw member in overruling the plea with- out permitting accused the right to adduce prof- ferred evidence, in substantiation of the plea vitiates the record of tri [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0231%3A04. Public record. Not legal advice.