United States v. Isbell

3 C.M.A. 782, 3 USCMA 782, 14 C.M.R. 200, 1954 CMA LEXIS 652, 1954 WL 2111

• Court: United States Court of Military Appeals
• Decided: February 19, 1954
• Docket: No. 3319
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A general court-martial convened by the Commanding General, First Infantry Division, in Bamberg, Germany, convicted the accused of housebreaking and larceny, violations of Articles 130 and 121, respectively, of the Uniform Code of Military Justice, 50 USC §§ 724, 715. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The findings and sentence were approved by the convening authority, but execution of the punitive discharge was ordered suspended until the accused’s release from confinement or completion of appellate review, whichever is the later date. Following affirmance of this action by an Army board of review, we granted the accused’s petition for review to consider his contention that improper command influence deprived him of a fair trial.

In view of the nature of the single issue, a review of the incident giving rise to the charges is unnecessary. We go directly to the facts upon which the question turns, and set them forth in the order of their occurrence.

On September 9, 1952, the Commanding General, United States Army, Europe, directed a communication entitled “Retention of Thieves in the Army,” to the Commanding General, First Infantry Division. The latter, in turn, distributed this communication throughout the division through normal command channels. The portions of this document material to the present case are as follows:

“l.-In certain recent General Courts Martial cases courts have properly found the accused guilty of larceny of substantial sums of money and property and then after establishing that the accused was a thief, have given sentences which improperly retain him in the Service. In view of this it appears absolutely necessary that your attention be invited to the following provisions of the Manual so that you may take the necessary action to prevent other such error's from occurring.

“2. First, the greatest care should be exercised in the selection of officers who are to be appointed as members of all courts martial. They must be the best qualified by reason of age, education, training, experience, length of service, and judicial temperament. Moreover, when the individual members have verified by their performance that they have those qualities, it is proper that you recognize that fact by appropriate notation on their efficiency report or by other written communication.”

After suggesting that instructions be given to court members in accordance with paragraph 38, Manual for Courts-Martial, United States, 1951, the letter described the seriousness of larceny and the adverse effects of inadequate sentences as set out in paragraph 33h, 1285, and 76a (5) of the Manual, supra. In conclusion, it said:

“5. From these quotations it is obvious that duly constituted authority considers that the Army is no place for thieves. Those who have been acquainted with the Service for many years know most well that the Military Service depends upon the -honesty and integrity of the individual as much or more than any other walk of life. Failure to recognize this fact is a most serious deficiency and must be corrected.”

Evidently the suggestion concerning instructions was adopted, for on December 4, 1952, Headquarters, First Infantry Division, circulated a “Staff Judge Advocate Bulletin” to all officers and warrant officers of the command. This bulletin, published for the stated purpose of providing future guidance, reviewed various errors and irregularities in the conduct of courts-martial occurring during the preceding three months. The principal errors referred to were ■inadequate sentences and improper acquittals. As illustrations of the former, several sentences were described, and a provision of the Manual for Courts-Martial, supra, was quoted as applicable under the circumstances. Typical of these illustrations is the following:

“b. In September we had four general court-martial cases where accused were each tried and convicted of larceny of Government or private property with a value in each case exceeding $50.00. All four of these cases resulted in the accused receiving only a bad conduct discharge, six months confinement and a partial forfeiture of pay per month. The Federal Criminal Code of the United States and most of the criminal codes of the various states define grand larceny as being the unlawful taking of property exceeding $50.00 in value and further classify that offense as a felony. A conviction for grand larceny in a civil criminal court will warrant a penitentiary sentence and in military law warrants a dishonorable discharge. In connection with the utilization of bad conduct discharges the following language from paragraph 76a (7), MCM, 1951, is pertinent:

‘A bad conduct discharge may be imposed in any case in which a dishonorable discharge may be imposed as well as in certain other cases. It is a less severe punishment than dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment for serious offenses of either a civil or military nature. It is appropriate as-punishment for an accused who has-been convicted repeatedly of minor-offenses and whose punitive separation, from the service appears to be necessary.’

“c. Normally, when an accused receives a punitive discharge, either a dishonorable discharge or a bad conduct discharge, as an incident thereto,. total forfeiture of pay is appropriate and is authorized (see par. 126h(2),. MCM, 1951.”

Upon the subject of acquittals, the-following was said:

“a. There were seven cases tried by special court-martial in 'September which resulted in acquittals and ten such cases tried in October which resulted in acquittals. This is a sharp increase over previous months in 1952. Of the aggregate it is considered the evidence of record would have warranted findings of guilty in twelve of these cases. A discussion of some of the cases follows.

“b. The accused here was charged with the operation of a motor vehicle while drunk. Two military policemen, who had arrived at the scene of the accident involving the accused’s automobile, testified he was under the influence of alcohol. A doctor who examined the accused shortly after his arrest testified he was ‘greatly under the influence of alcohol.’ The court had before it not only the non-expert testimony of the military policemen, which was competent opinion evidence- (par. 138e, MCM, 1951), but-also the testimony of an expert witness. The Manual for Courts-Martial defines drunkenness as an intoxication which is sufficient to impair the rational and full exercise of the mental and physical faculties of the person involved (see par. 191, MCM, 1951).

“c. Another case involved the offense of alleged possession of false passes by two soldiers. The evidence before the court established both soldiers were found in possession of the passes by a gate guard when they attempted to leave the military kaserne. The passes were not executed by the company commander and at the trial both accused testified they purchased the passes from another soldier. Such uncontroverted evidence leaves little doubt that the court erred in finding these soldiers not guilty.”

At the trial, before the pleas were entered, the defense introduced both documents in evidence. The Staff Judge Advocate Bulletin was designated Defense Exhibit A, and the letter relating to “Retention of Thieves in the Army” was marked Defense Exhibit B. The members of the court were then examined on voir dire relative to their familiarity with the contents of these exhibits. During the course of this examination, the president testified that in the four months preceding the trial of this case he attended numerous command conferences in his capacity as Division Finance Officer. At these conferences the subject of military justice, among others, was discussed. Particular reference was made to the subjects of reasonable doubt, the exercise of clemency, and the imposition of appropriate sentences. Mention was also made of several instances in which courts had acquitted individuals whose guilt was clearly indicated by the evidence. While he had read both Exhibits, he asserted that their contents would not influence his deliberations upon the findings or the sentence in the instant case. All but one of the other members of the court acknowledged familiarity with one or both of the exhibits, and all denied that they would be influenced by this information in the particular case. At the conclusion of this examination, the defense counsel unsuccessfully challenged the court members, assigning the same cause now urged before this Court. In substance, the contention is that the command conferences attended by the president of the court, and Defense Exhibits A and B, constitute violations of Article 37, of the Code, supra, 50 USC § 612. These violations, it is argued, precluded the possibility of the court members exercising their free and independent judgment in the case, and, thus, the accused was deprived of due process of law.

There can be no doubt that every person tried by court-martial is entitled to have his guilt or innocence determined by the court solely upon the evidence presented at the trial, free from all unlawful influence exerted either by military superiors or others. On the other hand, the responsibility of a commanding officer for the maintenance of discipline within his command and the proper conduct of courts-martial cannot be questioned. In matters of discipline, failure to curb the unlawful tendencies of subordinates may demonstrate a lack of capacity to command. His responsibility in the field of military justice is equally clear. Members of courts-martial are selected from his command. While functioning as summary or special courts-martial they are required to conduct the proceedings without the guidance of a law officer or others skilled in military law. The sentence procedures of general courts-martial involve the application of the complicated provisions of the Manual for Courts-Martial, United States, 1951, normally without special instructions from a law officer. The successful performance of these duties demands thorough training in the provisions of the Uniform Code of Military Justice and of the Manual for Courts-Martial. Moreover, when members of courts-martial demonstrate their’ unfamiliarity with the requirements of the Code or the Manual, the necessity for additional instructions, especially on the matters relating to their deficiencies, is mandatory, if courts-martial are to serve a useful purpose.

The steps taken by a commanding officer to correct deficiencies, however, must be limited to instruc- tions, and should not extend to any action amounting to censure, reprimand, or admonition of' the court. In this particular, Article 37, supra, provides:

“No authority convening a general, special, or summary court-martial, nor any other commanding officer, shall censure, reprimand, or admonish such court or any member, law officer, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding.”

In the case at bar, the Staff Judge Advocate, in his- bulletin published openly to the command, cit- ed several errors observed in records of trial. Although these errors were characterized as deficiencies, neither the courts responsible for their commission, nor the accused involved, were identified by name or description. Each specification of improper action was followed immediately by instructions in the language of the Manual for Courts-Martial. There can be no doubt, from the illustrations used, that the actions described were improper, and that the condition was generally prevalent throughout the division. Under these circumstances, corrective action in the form of further instructions to the personnel of the command was required. Taken singly, or read as a whole, it cannot be said that the matters covered by Exhibit A constituted a censure, reprimand, or admonition to any court member. Rather, it is quite clear that the Bulletin is simply what it purports to be, namely, a discussion of errors, designed as instructions for future guidance.

Since the subjects discussed at the command conferences described by the president of the court were the same as those referred to in Exhibit A, there was no violation of Article 37, supra.

We turn finally to a consideration of Defense Exhibit B, “Retention of Thieves in the Army.” The same letter was considered by this Court in United States v. Littrice, 3 USCMA 487, 13 CMR 43. In that case, we reviewed the conflicting positions relating to command control which were presented to Congress while the Uniform Code was under consideration. We concluded that Congress had recognized the problem of maintaining the delicate balance between justice and discipline, and had drafted the Code so as to prevent one from overwhelming the other. Rather than completely divorce military justice from command, safeguards were erected to free court-martial members from any improper or undue influence by commanders which could conceivably affect an honest and conscientious consideration of the guilt or innocence of an accused. In this particular Article 37, supra, further provides:

“. . . No person subject to this code shall attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”

In the Littrice case, supra, the convening authority appeared before a court-martial convened for the trial of an accused charged with larceny. Immediately before trial began, he read them several instructions, including the letter designated in this case as Defense Exhibit B. As an abstract proposition, and when used solely as a precept to subordinate commanders, the letter was not objectionable, but we condemned its use in that case. There we held that when read to the members of a court-martial immediately before trial, and in connection with instructions upon retaining thieves in the Army, the reference to efficiency reports amounted to a veiled threat.

The circumstances of the instant case are entirely different. Here the letter was disseminated to the command as a part of a general program of indoctrination and instruction. When this document was distributed, the offenses of which the accused was convicted had not been committed, nor had the court-martial before which he was tried been appointed. Therefore, references to efficiency reports can hardly be said to contain any threat to the members of a court, without distorting the plain language of the letter beyond its usual and intended meaning. As used in this case, the letter of the Commanding General, United States Army, Europe, was an appropriate directive to a subordinate commander. Such use was a legal one. There is neither error nor prejudice to the rights of the accused.

We conclude that neither the questioned exhibits nor the command conferences deprived the accused of his right to a fair trial.

The decision of the board of review is affirmed.