Krivoski v. United States

*240 JONES, Chief Judge. Plaintiff, a veteran of World War II, was in December 1945 released to inactive service. He remained an officer in the Reserve Corps until February 9,1948, when he reenlisted in the grade of technical sergeant. On August 10, 1948, he was recalled to active duty as a first lieutenant, Finance Department, Army of the United States, and in 1949 was sent overseas. Plaintiff was convicted in a court-martial proceeding and given a sentence of confinement at hard labor for 2 years (later reduced to 1 year) and dismissed from the service. He alleges that the court-martial proceeding was void on the ground that he was deprived of the right to be represented by disinterested counsel in violation of the Sixth Amendment to the Constitution, and that he was denied due process of law in violation of the Fifth Amendment. The facts are clearly stated in the findings filed with this opinion. In August 1950 plaintiff was on duty at the Army Finance Center at Friedberg, Germany. The commanding officer and central disbursing officer was Col. Samuel J. Taggart. Subordinate to him were Capt. Willard E. Finley who commanded the finance detachment of about 35 enlisted men, and the plaintiff who was deputy disbursing officer. As such deputy plaintiff had access to the vault, including keys to all parts of it, as well as to safes in the finance center. The vault had a corridor and four rooms, three of which had doors into the corridor; the fourth was an annex room and could be reached only through one of the corridor rooms. Both military and civilian personnel stationed in Germany at that time were paid in military certificates. It was necessary from time to time to withdraw these certificates for destruction. On the particular occasion involved herein about $478,000 of such certificates were to be destroyed. Three officers were designated as a committee to supervise the destruction of the certificates. Captain Finley was one of this committee. The committee met with plaintiff on August 3, 1950, and went with him to the vault to count the certificates which were in the annex room. After counting, the certificates were placed in foot lockers in the annex room. The committee and plaintiff then went to lunch, the plan being to complete the destruction during the afternoon. Prior to this particular time Captain Finley had on several occasions suggested to the plaintiff that the latter should purloin a bundle of the currency for their own use from the supply that was periodically withdrawn and destroyed. Just before the committee went to lunch on August 3, 1950, Captain Finley telephoned the plaintiff to come to his office and there repeated the suggestion and said this would be a good opportunity to take a package of currency to be divided between them. Before the committee reconvened plaintiff returned to the annex room, took a bundle of certificates with a face value of $9,900 out of the foot locker and placed it in a metal cashier's box that was in the corridor room of the vault. He then went out to witness the burning. Later that afternoon Colonel Taggart had occasion to go into the corridor room of the vault, noticed the cashier’s box therein, brought it upstairs and found the certificates inside. Meanwhile, plaintiff had become disturbed and when he heard that Colonel Taggart had brought the box upstairs, sought him out and told him everything he had done. This was the first intimation Colonel Taggart had of the facts. Plaintiff also told Colonel Taggart that Captain Finley had originally suggested some 8 months previously that some of the certificates be withheld from these periodical destruc-tions, the proceeds to be divided between them, and that Captain Finley had repeated this suggestion on numerous occasions. Captain Finley denied the charges. Both Captain Finley and plaintiff were placed under arrest and were subjected to court-martial procedure. Two charges *241 were made against plaintiff and four against Captain Finley, two of which are not relevant here. These are set out in finding 9. Prior to the trial the case against Captain Finley set out in Charge II was dismissed, but he was tried on the other three charges. The remaining charges included conspiracy to commit larceny and the commission of theft in conjunction with the plaintiff. Plaintiff was the principal witness against Captain Finley. Plaintiff did not claim his privilege against incrimination, although he was reminded of his rights. The appointed military defense counsel at the general court-martial proceeding was Capt. Roy H. Adams, Infantry, a member of the bar of the Supreme Court of Texas. Captain Finley, however, was principally defended by Milton J. Teiger, an American lawyer practicing in Germany, who was selected by the accused. Mr. Teiger and Captain Adams worked together at the trial of Captain Finley. At the close of the prosecution’s evidence Mr. Teiger moved for a finding of not guilty with respect to Charge IV, the theft charge, on the ground that the plaintiff herein, Krivoski, “is confessing to a crime he never committed.” After argument the motion was denied. Captain Finley did not testify. He was found guilty and sentenced “to be dismissed the service, to forfeit all pay and allowances * * * and to be confined at hard labor * * * for five years.” Later the same day the charges against plaintiff were referred for pretrial investigation pursuant to Article of War 46(b). * The investigation took place on October 6, 1950. Captain Adams, who had previously represented Captain Finley, appeared at the pretrial investigation at the direction of the staff judge advocate and offered his services to plaintiff as defense counsel, offering in the alternative to secure other services for plaintiff if the latter preferred. Plaintiff stated that he had no objection to being represented by Captain Adams in the pretrial investigation. At the conclusion of the pretrial investigation plaintiff gave Captain Adams several names including that of Major Shelton Gaddis, whom he wanted to appear at the trial as character witnesses in his behalf. No definite appointment of defense counsel was made at this time, and it was tacitly understood that Captain Adams would protect the plaintiff’s interests until the question of defense counsel could be resolved. Plaintiff understood that he had the option of being represented by Adams or some other person. He expressed no preference, apparently gave no serious thought to the matter, did not dissent to being represented by Adams and expected him to represent him. At the trial Charge I was stricken and Charge II was the basis of the trial. At the trial Captain Adams was named as defense counsel to defend the plaintiff. Lt. Col. Julian E. Weisler, the staff judge advocate, recommended that the general court-martial be composed of others than those who heard the case of Captain Finley. He was familiar with the facts involved in the action against plaintiff, but he did not consider that Captain Adams was disqualified by any conflict of interest from representing the plaintiff. Captain Adams had been a regularly appointed defense counsel in many cases at this particular post. During the period from August 7 until October 6, 1950, the plaintiff made no effort to obtain counsel, civil or military, and prior to the date of the trial had neither requested nor been refused counsel. Plaintiff had three conferences with Captain Adams after the pretrial investigation and before the trial. At one of these conferences there was a discussion covering the elements of the offense charged and whether the prosecution could prove them, and also a discussion as to how to plead. Decision on the latter point was left open. Although Captain Adams explained to the plaintiff that the ultimate decision as to how to plead would be *242 made by plaintiff, he replied that he would be bound by Captain Adams’ advice. Plaintiff evidently thought he had committed an offense of some description, was reconciled to a dismissal from the service, and was primarily concerned with avoiding imprisonment. Captain Adams finally advised that plaintiff plead guilty. The plaintiff acquiesced, the thought being that such a plea might induce clemency from the reviewing authorities. The prosecution called four witnesses, including Colonel Taggart, and introduced the statement that plaintiff had made on August 7, 1950, and which is referred to in finding 8. The defense called Colonel Taggart, Maj. Shelton Gad-dis, Lieutenant Hays and two enlisted men as character witnesses. Plaintiff also testified. He was not asked any questions to elicit what he had told Colonel Taggart and the Finley court-martial to the effect that Captain Finley had repeatedly importuned him to take the certificates, although these facts were recited in plaintiff’s written statements of August 7, 1950, which statement was a part of the record before the court-martial. Plaintiff was found guilty and was sentenced to be dismissed, to forfeit all pay and allowances, and to be confined at hard labor for two years. Lieutenant Colonel Weisler, the staff judge advocate, recommended in writing on October 24, 1950, approval of the findings and sentence, but stated in that connection that without the testimony and cooperation of the accused a conviction could not have been obtained in the case of Captain Finley. On October 25, 1950, Captain Adams submitted to the commanding officer of the military post a clemency letter on plaintiff’s behalf, recommending that the portion of the sentence extending to confinement be suspended. He gave several reasons as set out in finding 23. The facts set forth in this letter were not presented to the court-martial before plaintiff was sentenced and the letter itself was not submitted by Captain Adams until the day after the action of the reviewing authority set out in finding 22. The respective records of the trials in the two court-martial cases were presented to the office of the Judge Advocate General of the United States Army. Captain Finley retained as appeal counsel Thomas H; King of Washington, D. C. Plaintiff also sought to retain Mr. King and sent him a copy of his record of trial and also a retainer. Mr. King declined to represent plaintiff because of his apprehension of a possible conflict of interest in plaintiff’s case and that of Captain Finley, essentially because plaintiff implicated Captain Finley and the latter denied having importuned plaintiff to take the bundle of military certificates. Mr. King transmitted plaintiff’s record of trial and the full remittance to plaintiff’s present counsel. The plaintiff earnestly insists that at and before the trial by court-martial he was denied the effective assistance of counsel in violation of the Sixth Amendment because he was furnished with counsel who had previously represented a conflicting interest, and that as a consequence the defense of the plaintiff was perfunctory and inadequate. The plaintiff relies upon this court’s decision in the case of Shapiro v. United States, 69 F.Supp. 205,107 Ct.Cl. 650. However, in that case the plaintiff was being tried by court-martial on the charge that he had delayed the orderly progress of a general court-martial when he was acting as attorney for the defense in another court-martial trial. It seems that in the previous trial he was representing an American soldier of Mexican descent who was charged with assault with attempt to rape. The defendant in that case vigorously maintained that it was not he who committed the assault. Shapiro, who was counsel for the defendant in the assault case, in order to demonstrate a mistake in identity, had substituted for the accused another American soldier of Mexican descent. The substitute soldier was convicted, whereupon Shapiro informed the court of the deception he had prae- *243 ticed. Shapiro then in turn was tried by general court-martial because of such deception. Shapiro was notified at 12:40 p. m. September 3, 1943, that he would be tried at 2:00 p. m. on that same day at Kearney, Nebraska, 35 to 40 miles from the place where the charges had been served on him. Plaintiff had selected Capt. James J. Mayfield to represent him but this officer was named in the order preferring the charges as the Trial Judge Advocate. Plaintiff therefore at 12:40 was put to the necessity of procuring other counsel to represent him. He selected two lieutenants, neither of them being a lawyer. When the court convened he moved for a continuance of 7 days on the ground that his counsel had not had sufficient time to prepare a defense. The motion was denied and he was put to trial. At 5:30 that afternoon he was convicted and sentenced to be dismissed from the service. The court held in that ease that it was a flagrant case of military despotism against a defend-ánt who at most had merely demonstrated the fallibility of the judgment of his superior officers and made them look ridiculous, and that it was a complete denial of plaintiff’s constitutional rights; that his rights had been denied when counsel had been refused an opportunity to prepare his defense, and that the entire procedure showed denial of plaintiff’s rights under the Fifth and Sixth Amendments. The facts in that case were completely different from and far stronger than in the case at bar. The plaintiff also cites the case of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. In that case counsel was appointed to represent plaintiff along with the co-defendant over the objection of plaintiff. It was a case in which notice was given to the judge that the interests might be inconsistent and where the counsel for defense of one defendant might be less effective than if he had represented the defendant alone. In the case at bar the plaintiff accepted the appointment of counsel without protest, the cases were tried separately, the plaintiff’s counsel did not represent Captain Finley on appeal, and full time was given for the preparation of the case. The court-martial was duly constituted, had jurisdiction of the person accused and of the offense charged, and we do not think it was subject to collateral attack or judicial review. Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691. Plaintiff's case was briefed and argued by plaintiff’s counsel in the present case befoi-e the Judicial Council which, on March 12, 1951, recommended that plaintiff’s confinement be reduced to one year. The Judge Advocate General concurred and the sentence was accordingly reduced to one year; otherwise plaintiff’s conviction and sentence were approved. No doubt the present counsel, who is skilled in such matters, fully presented all the facts of the case before the Judicial Council. We quote from the case of Burns v. Wilson, supra [346 U.S. 137, 73 S.Ct. 1047], as follows: “Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it; the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers [of the Constitution] expressly entrusted that task to Congress.” We think that in all the circumstances the' plaintiff’s sentence might well have been further reduced. However, the fact remains that he took the $9,900 with the-intent of appropriating it to his own use and that of Captain Finley, and while-there are some mitigating circumstances,, he, by his own confession, which was voluntarily made, admitted that this was. his purpose. He decided to make a full-. *244 disclosure only after he found that Colonel Taggart, the commanding officer, had discovered the military certificates which had been taken by him and placed in a cashier’s box to which he had the key. Since we are not a reviewing court, we are not permitted to pass upon errors or mistakes in judgment unless they are so flagrant as to make the action of a regularly formulated military tribunal null and void, or to deprive it of jurisdiction once it has- been regularly constituted. We do not think the facts of this case justify such action on the part of this court as would result in a judgment for the full pay and allowances from the time of the court-martial proceedings as a continuing claim. The petition is dismissed. Footnotes [*] Now 50 U.S.C.A. § 603.