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January 23, 1970

The UNITED STATES of America ex rel. Terrence STONE
William B. ROBINSON, Warden of the Allegheny County Jail, Charles S. Greenhill, Sergeant in charge of the Pittsburgh Office of the United States Air Force Military Police, Robert C. Seamans, Jr., Secretary of the Air Force of the United States and Melvin Laird, Secretary of Defense of the United States

Rosenberg, District Judge.

The opinion of the court was delivered by: ROSENBERG

This matter is here on petition of Terrence Stone for a writ of habeas corpus to procure his release from the custody of the United States Air Force. Named as respondents in the petition are the Warden of the Allegheny County Jail, where he is presently incarcerated; a Sergeant in charge of the Pittsburgh Office of the United States Air Force Military Police, and the Secretaries of the Air Force and the Department of Defense.

 The petitioner here complains that his position with the Armed Services lacks contractual validity and he is being retained or restrained against his will by compelled custody in the Armed Services. He argues that certain extensions of his service in the Air Force were neither consented to by him nor validated by the administering to him of oaths as required by law.

 It is conceded by the parties that the petitioner of his own volition left Japan on September 12, 1969, and returned to the United States and to his home in Ellwood City, Pennsylvania, and was there arrested by the Military Police on a warrant and committed to the Allegheny County Jail. The petition for a writ of habeas corpus was thereafter filed, whereupon I ordered his retention in the Allegheny County Jail until after a hearing could be made on the merits of the case.

 The intervening circumstances here seem to have produced certain questions of fact which must here be determined. The petitioner was convicted by a Japanese Judicial Tribunal of charges of robbery and attempted rape. The appellate procedure was exhausted and the ultimate appeals tribunal in Japan affirmed the decision and sentence as it was imposed by the trial tribunal. The judgment of the tribunal was a finding of guilty on both charges and the imposition of a sentence of six years at hard labor.

 While I recite the circumstances of the criminal processing of the prisoner in Japan by its Judicial Tribunal, I do so because the petitioner's counsel argues that the Japanese trial procedure was not valid and that I am not bound thereby. Accordingly he argues that the Government of Japan has no right to the custody of the petitioner and the Government of the United States has no right to his custody and, therefore, the petitioner is entitled to a habeas corpus writ as of now.

 After hearings were held and based upon the testimony, exhibits and records introduced into evidence I find: that the petitioner enlisted in the Air Force on September 17, 1964, for a period of four years, which would have ended on September 17, 1968; that in July of 1966 he was ordered to report to the Vietnam combat arena for a period of nine months; that during his combat tour of duty, the petitioner received several citations for valor and was permitted to travel to Japan for a period of rest and recuperation (R & R) from March 5, 1968 through March 12, 1968; that at the expiration of this period of R & R the petitioner failed to return to the Air Force and was declared to be absent without leave; that after being absent for several days, he returned to the military on March 29, 1968; that while on R & R petitioner Stone was in the company of another member of the Air Force, one Peter Batinic; that on March 27, 1968, he went to the Hotel New Otani and waited in the lobby for about one hour; that a woman came into the lobby and went over to the elevator; that the petitioner followed her and boarded the same elevator car; that the woman pushed the button for the seventh floor; that the elevator stopped at the seventh floor and he left with her following her to her room; that she opened the door to her room and the petitioner asked her where Room 750 was located, and she responded by pointing in the direction and stating "that way"; that when she turned to enter her room, Stone forced her into the room and told her that he needed money; that he removed his raincoat, and an open knife which was in the pocket fell onto the floor; that the petitioner picked up the knife and laid it on the table by the window; that he informed the woman that he was not going to hurt her but that he just needed money; that thereupon she went to her purse and took out 20,000 yen and handed it to Stone; that he then told her that he would have to tie her up; that thereupon he went to his raincoat and removed two green ropes from a pocket; that he tied the woman's hands in front of her, but afterwards decided to tie them behind her, and placed her on the bed; that during this activity a shoulder strap on her dress broke; that Stone then put on his raincoat, picked up the knife and put it back into his pocket; that he then sat the woman on the edge of the bed and tied her feet together with a scarf; that when the telephone started to ring, he left the room; that he then returned to the lobby and eventually to the Yamato Hotel where his companion Peter Batinic waited for him; that at that time he turned over 10,000 yen to Batinic and told him how he had obtained the money; that on April 26, 1968, the Japanese Government filed a formal request with the United States military authorities that the petitioner Stone be retained in custody for the purpose of trial as the same related to the charges made by the Japanese woman; that commencing with June 26, 1968, a series of trials began in the Tokyo District Court, 9th Criminal Division, at which time Stone pleaded guilty to the robbery charge of 20,000 yen, but not guilty to the charge of attempted rape; that the Japanese Tribunal received evidence from the woman and from Stone's companion, Peter Batinic, to the effect that he had received 10,000 yen from Stone and that Stone told him how he got it from the woman; that the woman testified that in the course of his tying her up, her clothes had become disarrayed; that Stone thereupon commenced what seemed to be a sexual attack; that when the telephone rang he abandoned the attack and left; that the Tokyo District Court found him guilty of both charges and sentenced him to six years in prison at hard labor; that thereafter a series of proceedings continued until eventually on August 29, 1969, the appellate tribunal affirmed the Tokyo District Court; that throughout these proceedings the Armed Services furnished Stone with counsel *fn1" for his defense and provided a military observer at all of the proceedings; that the case was delayed because of the fact that the law of Japan permits settlements in such cases and afforded Stone the requested time on more than one occasion to attempt a settlement; that such attempts were unsuccessful; that the military observer found the proceedings fair and that the petitioner had been accorded the due process of law as provided by the Government of Japan; that the petitioner's term of service in the interim was extended on September 17, 1968 to November 17, 1968, from November 17, 1968 to May 17, 1968 and from then on to August 17, 1969, and finally until January 26, 1970, for the purpose of enabling the military authorities to furnish legal and protective aid to the petitioner while undergoing criminal prosecution; and, that such legal and protective aid was accepted willingly by the petitioner.

 The petitioner contends initially that he was coerced into the extensions of his military service and that they were forced upon him in Japan. He testified that he was told that if he did not extend his service, the Military would be required to turn him over to the Government of Japan. He testified further that the United States Government was obligated not to turn him over to Japan at the expiration of his term of service, but to return him to the United States for discharge.

 There is no testimony by the petitioner that he protested the contended coercive extensions of service imposed upon him. Nor is there any testimony on his part that he did not desire the aid of counsel and the protective aid of the military observer for the purpose of affording him due process and adequate defense to the charges against him by the Government of Japan. He says nothing of what seems obvious - that he wanted the Government's protective aid and counsel. He does not deny that he could not have gotten these unless he continued to be classified as a member of the Armed Service.

 The petitioner relies here on United States ex rel. Norris v. Norman, 296 F. Supp. 1270 (N.D. Ill. 1969), where a petition for a writ of habeas corpus was granted to the plaintiff Norris for his release from the custody of the Navy on the basis that his enlistment was invalid as lacking a voluntary oath because it had been obtained by duress. There the petitioner had previously been a member of the Air Force and was issued a hardship discharge. Subsequently Norris visited both the Army and Navy recruiters in Annapolis, Maryland with the intent of re-entering the military service for the purpose of making it a career. He was assured that he could enlist as a Petty Officer third class and possibly might qualify for the higher Petty Officer second class rating. When he presented himself for enlistment, he was tendered the contract for signature of enlistment and oath. Norris refused to sign because the contract did not indicate his rating as a Petty Officer second class. For reasons which were unexplained a United States Army officer erroneously confirmed that Norris subscribed to the oath and had already been issued a naval uniform, although he repeatedly protested that he had not taken the enlistment oath and would not do so until the rating was changed to Petty Officer second class. Several months later when the enlistment contract arrived he was told to sign the oath of enlistment and he refused to do so, again stating that until his real rating had been corrected he would not do so. He made appropriate protests to the legal officer who advised him nothing could be done about it. When subsequently he was again called to headquarters to sign the enlistment oath, he was told that unless he signed he would be prosecuted for various offenses, including fraudulent enlistment and unauthorized wearing of the uniform. Norris signed while protesting that he did not do so voluntarily and was doing so only because of the court martial threats.

 The factual circumstances in Norris are not at all related to the instant case, except only insofar as they relate to the required oath of enlistment. In Norris, it was held that the original enlistment was not voluntary and therefore void. There is no doubt in our case that Stone's original enlistment was entirely valid and proper and continued to be so until September 17, 1968.

 It is provided in 10 U.S.C. § 502 that each person enlisting in an armed force shall take a specific oath. Enlistment means the original enlistment or re-enlistment. 10 U.S.C. § 501. In the present case we are concerned, not with an enlistment or a re-enlistment, but rather with an extension of an enlistment. Section 509 of Title 10 U.S.C. provides in part that "Under such regulations as the Secretary concerned may prescribe, the term of enlistment of a member of an armed force may be extended or re-extended with his written consent for any period." Section 509 provides, only, that the term of enlistment may be extended or re-extended with his written consent for any period, while § 502 requires "a specific oath".

 The petitioner contends, however, that because under AFM35-16(13-1), Chapter 13, Special Instructions (Extensions of Enlistments), approved requests are to be executed by the "airman" and sworn to by a person authorized to administer oaths, and that the extensions signed by the applicant were invalid because no oath was administered to him on these. While this proviso requires an oath, in the face of the statute itself which does not require an oath but only that it be in writing, this becomes unimportant in view of the fact that it was the petitioner himself who sought the protective shelter of the Armed Forces against the charges levelled against him by the Government of Japan. Otherwise, as we shall see, the Armed Forces would have been required to turn over his custody to the Government of Japan, as of such time when its own right to his custody and sheltering protective obligations ceased.

 In the case of Norris, supra, there was never an enlistment contract between him and the Armed Forces, while in the present case there definitely was an enlistment contract entered into on a particular date which was to have expired on a particular date, had not the petitioner become entangled in criminal offenses before the expiration date by charges of the Government of Japan.

 I consider the serious predicament in which the petitioner found himself and for his eager desire to get help from the one source where he knew he could get it, that is, the Armed Forces. I therefore give no credibility to the petitioner in his statements that he was coerced into the signing of these extensions for his original term of enlistment. Factually these extensions were not extensions at all, but devices by which the petitioner was enabled to stay in Japan and out of jail in the custody of ...

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