The opinion of the court was delivered by: FOLLMER
This habeas corpus proceeding was instituted by Edward H. Richardson, a military prisoner at United States Disciplinary Barracks, New Cumberland, Pennsylvania, who was convicted by a General Court-Martial on two charges involving violations of the 95th and 96th Articles of War, 10 U.S.C.A. §§ 1567 and 1568. The first charge involves an alleged conspiracy with one Angelo Ricci, between December 1, 1945, and March 15, 1946, to accept contributions of money and gifts of property from persons and firms with whom petitioner, as Chief Public Works Officer, Allied Military Government, Venezia-Giulia, Trieste, Italy, personally and through his subordinate officers and employees, was to carry on negotiations as an agent of said Allied Military Government. The second charge involved the acceptance by said petitioner at various times in 1947 through his agent, one Angelo Ricci, and others, of money, checks, and personal property from construction firms with whom petitioner, as Chief Public Works Officer, Allied Military Government, Venezia-Giulia, had negotiated for said Allied Military Government; and also with having wrongfully in his possession on or about July 7, 1947, American currency in the sum of about $ 27,259.00 in violation of War Department Circular No. 256, 1946, paragraph 8e. On the conviction, as aforesaid, petitioner was sentenced to be dismissed from the service, to forfeit all pay and allowances due or to become due, to be confined at hard labor for five years, and to pay to the United States a fine of $ 3,000. Petitioner appealed to the Army reviewing authorities and after a thorough, exhaustive and painstaking review his conviction and sentence were affirmed.
Petitioner claims he was denied due process substantially for the following reasons:
1. That the pre-trial investigation under Article of War 70, 10 U.S.C.A. 1542, was conducted in such a manner as to deprive the General Court-Martial of jurisdiction of the petitioner.
2. An unlawful search and seizure which provided evidence upon which he was convicted.
3. Admission in evidence of a confession obtained from petitioner while he was under an unlawful arrest and unlawfully confined.
4. Trial not fair and impartial, as evidenced by prejudicial remarks of the Trial Judge Advocate in his closing argument.
The parties are in substantial agreement on the facts, though there is serious disagreement as to the legal effect of such facts.
The Court-Martial record is in evidence and oral testimony was presented upon the hearing in this Court. The facts as developed from the testimony before the Court-Martial and this Court are briefly as follows:
In June, 1945, the armed forces of the United States and Great Britain jointly occupied Venezia-Giulia, a province in Northeastern Italy, and the occupying forces established what was designated as the Allied Military Government over the area. The seaport city of Trieste, Italy, which later became the Free Territory of Trieste, was located within the geographical boundaries of Venezia-Giulia.
An investigation of the Public Works Division had been in progress for nearly a month when on August 7, 1947, formal charges were preferred against petitioner and on the same day Major Kenneth E. Peel was designated as the impartial investigator under Article of War 70 to investigate the same and return his report within forty-eight hours.
It appears that a preliminary overall investigation had been in charge of one Leo J. Pagnotta, Chief of Criminal Investigation Division (C.I.D.) in Italy. Statements of eight witnesses interviewed by Pagnotta, together with three statements of petitioner taken by Pagnotta and a memorandum inventory of strong box taken from petitioner's office were delivered to Major Peel. The report of the pre-trial investigator indicated that the substance of the expected testimony of the said eight witnesses were made known to the petitioner, who thereupon indicated he did not desire to cross-examine such witnesses. Petitioner was also shown his own three statements given to Pagnotta and the memorandum inventory of the strong box.
It further appears from the testimony that during the course of the preliminary investigation conducted by Pagnotta a search of petitioner's office 'on the American second floor,' Public Works Building in Trieste, was had. The office had been completely frozen and as an incident of the search a footlocker bearing the name of a Major Freese, but the property of petitioner, was located in a bathroom adjoining petitioner's office. The footlocker contained sundry items of clothing and a metal box. The metal box was opened and found to contain a large amount of American and Swiss currency, and various articles of jewelry, etc. The subsequent admission in evidence of the result of this search and seizure petitioner strongly urges to have been unlawful and a violation of his rights under the Fourth Amendment of the Constitution.
By an order of the Commanding General dated July 8, 1947, petitioner was advised that an investigation was being made in connection with certain irregularities in the administration of the Office of Public Works, A.M.G., Venezia-Giulia; that he had been temporarily relieved from assignment as Chief Public Works Officer thereof, and ordered to report to the Commanding Officer at the Lido of Venice without delay. He was forbidden to return to his office or communicate with any of its personnel, or any person or persons with whom the office had done business; was not to discuss any matter relating thereto with any person or persons other than the authorized investigators; was not to leave the Island of ...