Augenblick v. United States

509 F.2d 1157, 206 Ct. Cl. 74, 1975 U.S. Ct. Cl. LEXIS 4

• Court: United States Court of Claims
• Decided: January 22, 1975
• Docket: No. 357-64
• Status: Published

Opinions

Davis, Judge,

delivered the opinion of the court:

Our decision in 180 Ct. Cl. 131, 377 F. 2d 586 (1967), invalidating plaintiff’s court-martial conviction and dismissal from the Navy, was reversed by the Supreme Court, 393 U.S. 348 (January 14, 1969). On the coming down of that Court’s mandate, plaintiff immediately filed here a motion for leave to file a first amended petition. Believing that this proposed amendment raised issues, which, if open to judicial scrutiny should have been presented earlier, or merely stated or restated positions which had been rejected by the high court or were required by its decision to be refused, we denied (on April 4, 1969), 187 Ct. Cl. 727, the motion for leave to file the first amended petition, and ordered that our previous judgment be vacated and withdrawn and that the petition be dismissed.¹

On July 14,1969, plaintiff moved for leave to file a second amended petition and also to set aside our order of April 4, 1969. That motion and the proffered amendment invoked the Supreme Court’s intervening ruling in O’Callahan v. Parker, 395 U.S. 258 (decided June 2, 1969); claiming that Augen-blick’s offense was not service-connected, plaintiff now asserted that the court-martial was without jurisdiction on that ground. The motion and the amendment also alleged, as a separate basis, that the general article, Article 134, 10 U.S.C. § 934, of the Uniform Code of Military Justice— under which Augenbliok was convicted by the court-martial — was invalidly applied to his case. On August 20, 1969, plaintiff also moved for a stay of our order of April 4, 1969. Defendant opposed both applications.

At that time, there were pending before the Supreme Court, or about to be filed, certiorari petitions presenting the issue of the retroactivity of O'Callahan. On October 31, 1969, this court ordered that plaintiff’s motion for leave to file his second amended petition be held in abeyance pending the Supreme Court’s action on those certiorari petitions.² That Court did not reach and determine the retroactivity question until it decided Gosa v. Mayden, 413 U.S. 665, on June 25, 1973, and we suspended ruling in the present case during that period, although we received some further briefing and argument.³

Even after Gosa v. Mayden, the constitutionality of Article 134 still remained an open question, and since that issue was then before the Supreme Court we held this case still further, awaiting an authoritative ruling on that point. The Supreme Court sustained the validity of Article 134 in Parker v. Levy, 417 U.S. 733 (1974) and Secretary of the Navy v. Avrech, 418 U.S. 676 (1974).

It is now at last appropriate and necessary to act on plaintiff’s request to add to his petition the two new issues of the retroactivity of O'Callahan and of the validity of the application to his case of Article 134.⁴ Defendant urges that, in any event, plaintiff’s efforts to raise those questions came too late, but we need not and do not reach that argument since we are persuaded that, on their merits, the two points are foreclosed by the Supreme Court’s recent rulings.

I

We think it clear that Gosa v. Mayden, 413 U.S. 665 (1973), determines authoritatively that the Constitution does not require that the O'Callahan rule be applied to court-martial convictions occurring prior to June 2,1969 (the date O'Callahan was decided). Though there was no opinion for the Court, the Court’s judgment, taken together with the opinions of Mr. Justice Blackmun (for himself and three other Justices)⁵ and Mr. Justice Eehnquist,⁶ necessarily add up to that result. The decision was not ad hoc to the Gosa case alone. Five justices having voted on general grounds that the O^OallaTum rule should not be applied to pre- O'Callahan cases, the Court was able to render a decision which, unlike a four-to-four affirmance, creates a binding precedent controlling the lower courts in comparable cases. It is immaterial that less than a majority of the Court upheld the legal proposition that O'Callahan should not be applied retroactively; the important thing is that a majority voted that O'Callahan should not control cases like the present one. Cf. Glidden Co. v. Zdanok, 370 U.S. 530 (1962); National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).

Plaintiff urges that Mr. Justice Blackmun’s opinion would allow retroactivity if it could be shown that the fact-finding in a specific case was particularly unreliable “in direct consequence of a generic disability within military justice” (plaintiff’s words) ,⁷ but we do not read the opinion that way. It ends its discussion of the point by saying flatly and without qualification (413 U.S. at 685: “We conclude that the purpose to be served by O’Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O'Callahan be accorded prospective application only. We so hold [footnote omitted].” The ruling was across the board.

Gosa v. Mayden is sufficient to dispose of plaintiff’s claim that he is entitled to the coverage of O'Callahan v. Parker. The majority of this court, through Judges Laramore and Nichols, holds, in addition, that Augenblick’s offense, involving two servicemen in a deviant sexual act, was “service-connected,” and therefore that O'Callahan would be inapplicable even if it were to be applied retroactively. Judge Davis would not consider this point, since it is unnecessary to do so, and expresses no opinion on the issue of service-connection.

H

In Parker v. Levy, supra, and Secretary of the Navy v. Avrech, supra, the Supreme Court held that Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934 (the so-called “General Article”), is not unconstitutionally vague under the Due Process Clause of the Fifth Amendment where the accused has fair notice that his conduct is punishable under that provision, nor is the article facially invalid because of overbreadth. 417 U.S. at 757-758; 418 U.S. at 676-678.

Plaintiff denies that these rulings control his case since, unlike Levy and Avrech, he was not initially charged with a violation of Article 134, but that section of the Code came into his trial only after all the evidence had been submitted. The original charge against Augenblick was solely sodomy under Article 125; at the close of the testimony the law officer instructed the court-martial that commission of an “indecent, lewd and lascivious” act in violation of Article 134 was a lesser-included offense which they could also find under the testimony.⁸ The court then found Augenblick not guilty of sodomy (under Article 125) but guilty (under Article 134) of committing an indecent, lewd and lascivious act by wil-fully and knowingly placing his head in the enlisted man’s lap with his face in close proximity to the latter’s exposed privates. See 180 Ct. Cl. at 139, 377 F. 2d at 590-91. The question before us is whether this posture of the case compels or permits a disposition other than those in Levy and Avrech.

At the very least, those decisions of the high court demonstrate that plaintiff could not have complained of vagueness if he had been initially charged with an indecent, lewd and lascivious act under Article 134, and the proof had been the same as here in the actual trial. Augenblick could not reasonably have had any doubt that (a) the acts found by the court-martial were indecent, lewd, and lascivious, and (b) indecent, lewd and lascivious acts fell within Article 134. The former goes without saying and needs no elaboration. As for the latter, Appendix 6 of the 1951 Manual for Courts-Martial set forth (at p. 492) under Article 134 a form specification for an indecent, lewd and lascivious act with another (as well as related offenses such, as indecent acts with a child, and indecent exposure, at p. 491).

The problem thus narrows to the invocation of Article 134 at the close of the case as a lesser-included offense. Plaintiff says he was deprived of due process because he was not on notice that Article 134 might be invoked in that fashion after all the evidence was in, and therefore had no opportunity to present evidence on, or mold his case as to, the elements of the Article 134 offense. This claim of lack of due notice evaporates when one considers the facts of Augenblick’s trial. Of the elements of the crime of sodomy the one as to which the proof was weakest was actual penetration. We cannot believe that an officer accused of this type of sodomy would or could think he would go scot-free if actual penetration were not proved beyond a reasonable doubt, but the facts of the occurrence were as found here by the court-martial. Par-ticuarly in view of Article 134’s specific coverage of indecent and lewd acts, the accused must have known that in those circumstances he could be found guilty of the related, lesser offense of lewd and lascivious conduct. That would be the reasonable expectation, borne out by prior holdings of the military tribunals that lewd acts under Article 134 could be lesser offenses included in an offense such as sodomy under Article 125 or rape under Article 120. United States v. Jones, 13 C.M.R. 420, 422 (Army Bd. Rev., 1953); United States v. Headspeth, 2 U.S.C.M.A. 635, 10 C.M.R. 133 (1953). If plaintiff wished to proffer evidence relating to the lesser crime, he should have known that he had that opportunity. In the constitutional sense — that a defendant must not be convicted of a charge of which he has inadequate notice (Rabe v. Washington, 405 U.S. 313 (1972); Cole v. Arkansas, 333 U.S. 196 (1948))—there was here sufficient notice that the offense of indecent, lewd and lascivious conduct under Article 134 could and might well be implicated.

We have discussed the question in terms of fair notice, rather than of the concept of “lesser-included offense,” because the former raises a constitutional issue while the latter is, in itself, merely a matter of the proper interpretation of military law. Once it is decided that the constitutionally required due notice has been given, the problem of whether lewd conduct under Article 134 is technically a lesser-included offense under Article 125 no longer rises to the constitutional plane but is, rather, a non-constitutional issue of military law with which the civilian courts cannot normally deal if the military tribunals have fairly considered the problem. United States v. Augenblick, 393 U.S. 348 (1969); McDonald v. United States, 205 Ct. Cl. 780, 507 F. 2d 1271 (1974); Artis v. United States, 205 Ct. Cl. 732, 506 F. 2d 1387 (1974). In this instance the Court of Military Appeals has expressly held that the offense for which plaintiff was convicted was properly found a lesser-included crime under Article 125 (sodomy).⁹

We have no reason to think that this view of the Court of Military Appeals is unreasonable or resulted from a lack of due and fair consideration. Before plaintiff committed his offense, that tribunal had already held, as we have pointed out, that lewd and lascivious conduct under Article 134 could be found as a lesser-included offense of sodomy or rape. As we have also suggested, it seems entirely reasonable and expectable that an incompleted act of sodomy should be treated and punished as a lewd act.

Plaintiff insists, however, that the Article 134 offense, as found here, embodies elements absent in the crime of sodomy, i.e. the finding that the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit on the armed forces (see footnote 8, supra).10 Those elements, he says, were not proved or canvassed at the trial which concentrated solely on sodomy. The answer is that the 'Court of Military Appeals was certainly not out of bounds when in effect it held that (a) as charged here, the crime of sodomy, in and of itself, necessarily embodied those same elements, and (b) that in this case the court-martial could find those same elements, with respect to the lewd and lascivious conduct, from the nature of the acts and circumstances themselves, it being unnecessary to have extraneous or independent proof of those factors. Cf. United States v. Sanchez, 11 U.S.C.M.A. 216, 217-18, 29 C.M.R. 32 (1960).¹¹ We repeat that if defense counsel thought he could persuade the court-martial that the conduct here did not embody either of those elements, he was free to introduce evidence to that effect (if he could).¹²

The result is that the second ground of the second amended petition which plaintiff proffers — that Article 134 was unconstitutionally applied to his case — is without merit, along with his claim that O’Callahan governs his case.

We hold, for these reasons, that plaintiff’s motion for leave to file a second amended petition and for relief from judgment should be denied; that defendant’s motion to lift the stay of proceedings and to deny further relief should be granted; and that the order of April 4, 1969, dismissing the petition should go into effect in thirty days.¹³

1 Plaintiff sought certiorari from this decision; that petition is still pending in the Supreme Court since the parties agreed that it should await our decision on the second amended petition. 43 U.S.L.W. 3037 (U.S. Aug. 13, 1974).

2 In the same order we granted a stay of our order of April 4, 1969 (denying the motion for leave to file the first amended petition) until thirty days after our action on the motion for leave to file the second amended petition.

3 After Relford v. Commandant, 401 U.S. 355 (1971), was decided without reaching O’Callahan’s retroactivity, defendant moved here to lift the stay order of October 81, 1969 (see note 2, supra). That motion has not been acted upon and is still pending.

4 We Rad already received briefs on the bearing of Gosa v. Mayden, and the Article 134 Issue. We have also Rad tRe benefit of oral argument and some furtRer briefing after Levy and Avrech.

5 Holding that O’Callahan should not be applied retroactively. 413 U.S. at 685.

6 Holding that O’Callahan, even if required to be applied retroactively if valid, should not be followed but should be overruled because wrongly decided. 413 U.S. at 692.

7 Plaintiff asserts that is true in this ease and in other military eases of sexual deviation. Brief of Plaintiff at 8-12 (filed Sept. 18, 1973).

8 The law officer Instructed as follows :

“If you are satisfied by legal and competent evidence before you beyond a reasonable doubt only, one, that at the time and place alleged and In the manner Indicated by the evidence the accused wrongfully committed an indecent, lewd and lascivious act with James O. Hodges, Jr., airman third class, united States Air Force but which act fell short of sodomy; and, two, that under the circumstances, the conduct of the accused was to the pi-ejudice of good order and discipline in the Armed Forces or was of the nature to bring discredit upon the Armed Forces, then you may, by exceptions and substitutions to the charge and specification, find the accused guilty of an indecent, lewd and lascivious act as violation of Article 134 of the Code. You will notice that he is charged with a violation of 125 of the Code.”

Military law recognizes the notion of lesser-included offenses, and the right of the law officer to instruct on them (even over defense counsel’s objection). See Art. 79, U.C.M.J., 10 U.S.C. § 879 ; Manual for Courts-Martial (1951 ed.), pp. 303-04; United States v. Floyd, 2 U.S.C.M.A. 183, 188, 7 C.M.R. 59, (1953); United States v. Wilson, 7 U.S.C.M.A., 713, 715, 716-17, 23 C.M.R. 177 (1957); United States v. Bairos, 18 U.S.C.M.A. 15, 17, 39 C.M.R. 15 (1968).

9 After tlie Supreme Court’s reversal of our original ruling, plaintiff applied to tlie Court of Military Appeals to reconsider its refusal to Rear his ease. He raised both the Article 134 point and tRe contention tRat O’Callahan governed and should be retroactively applied. TRe Court of Military Appeals rejected both arguments on their merits. 19 U.S.C.M.A. 638 (1970).

10 This case does not involve the part of Article 134 which refers to ‘‘crimes and offenses not capital.”

11 Plaintiff says that this is tantamount to -a directed verdict of guilty, but this position is obviously Incorrect. The court-martial was permitted, but not required, to find these elements from the proven circumstances. The law officer’s charge was to this effect. See footnote 8, supra.

12 He was free, of course, to inquire from the law officer, before the evidence closed, whether the latter intended to charge the lesser-included offense.

13 Our order of October 31, 1969, stayed our order of April 4, 1969, until thirty days after action on the motion for leave to file the second amended petition (see footnote 2, supra).