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OWENS v. UNITED STATES

October 15, 1974

Paul Braxton OWENS, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: SHERIDAN

 Petitioner, then an inmate at the United States Penitentiary at Marion, Illinois, brought this proceeding under 28 U.S.C.A. § 2255, attacking a sentence imposed by this court. Petitioner was permitted to proceed in forma pauperis. Respondent filed a motion to dismiss the petition as moot, since the petitioner had completed the sentence he was attacking and was incarcerated on other unrelated charges. This court denied the motion and ordered the petition construed as an application for a writ of error coram nobis. 28 U.S.C.A. § 1651; United States v. Morgan, 1953, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248; Azzone v. United States, 8 Cir. 1965, 341 F.2d 417, cert. denied, 1968, 390 U.S. 970, 88 S. Ct. 1090, 19 L. Ed. 2d 1180; Rini v. Katzenbach, 7 Cir. 1967, 374 F.2d 836; United States v. Garguilo, 2 Cir. 1963, 324 F.2d 795; United States v. Malinsky, S.D.N.Y.1970, 310 F. Supp. 523.

 For the reasons stated infra, the petitioner's application will be denied.

 Petitioner's first contention is that trial in a United States District Court denied him the due process right to a military court-martial. We are urged to hold that if conduct violates both military and civilian laws and is service-related, it must be tried in a military court. See O'Callahan v. Parker, 1969, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291. The only possible authority for this proposition is a footnote in Gosa v. Mayden, 1973, 413 U.S. 665, 681 n. 6, 93 S. Ct. 2926, 2936, 37 L. Ed. 2d 873:

 
"There are some protections in the military system not afforded the accused in the civilian counterpart. For example, Art. 32 of the Code, 10 U.S.C. § 832, requires 'thorough and impartial investigation' prior to trial, and prescribes for the accused the rights to be advised of the charge, to have counsel present at the investigation, to cross-examine adverse witnesses there, and to present exonerating evidence. It is not difficult to imagine, also, the situation where a defendant, who is in service, may well receive a more objective hearing in a court-martial than from a local jury of a community that resents the military presence."

 Petitioner was advised of the charges against him and represented by counsel at the arraignment. There, he waived both the "thorough and impartial investigation" and the rights "to cross-examine adverse witnesses . . . and to present exonerating evidence" which would have been afforded him at a civilian trial by pleading guilty to the charges against him.

 Without question, the crimes to which petitioner pleaded guilty are cognizable in a court-martial. Petitioner was a member of the Armed Forces at the time of the issuance of the bad checks, and they were cashed on a United States Army Post. "When a serviceman is charged with an offense committed within or at the geographical boundary of a military post and violative of the security of a person or property there, that offense may be tried by a court-martial." Relford v. Commandant, 1971, 401 U.S. 355, 369, 91 S. Ct. 649, 657, 28 L. Ed. 2d 102. The vesting of jurisdiction in one court does not automatically divest another court of jurisdiction over the same subject matter, however; concurrent jurisdiction is a well-settled doctrine in our jurisprudence. Petitioner has cited no authority which supports the proposition that the civilian prosecution of a soldier for conduct amounting to a civilian, albeit service-related, offense denies the latter the due process of law.

 In Caldwell v. Parker, 1920, 252 U.S. 376, 40 S. Ct. 388, 64 L. Ed. 621, the Court held that the jurisdiction to try and punish for a crime is not vested exclusively in a military court but is concurrent with the civilian tribunal having jurisdiction over the locus criminis. O'Callahan, supra, does not disturb this rule of law, and it is certainly of continuing validity. United States v. Guido, 3 Cir. 1947, 161 F.2d 492; United States v. Hodge, 5 Cir. 1973, 487 F.2d 945; Schmitt v. United States, 5 Cir., 413 F.2d 219, cert. denied, 1969, 396 U.S. 959, 90 S. Ct. 432, 24 L. Ed. 2d 423; Kennedy v. Sanford, 5 Cir., 166 F.2d 568, cert. denied, 1948, 333 U.S. 864, 68 S. Ct. 737, 92 L. Ed. 1143; Lucas v. Sanford, 5 Cir. 1944, 145 F.2d 229; Robinson v. United States, 9 Cir. 1949, 175 F.2d 4; cf. Simmons v. United States, M.D.Pa.1954, 120 F. Supp. 641, 648 n. 12; see also Madsen v. Kinsella, 1952, 343 U.S. 341, 349-350 n. 16, 72 S. Ct. 699, 96 L. Ed. 988.

 Accordingly, jurisdiction was properly exercised by this court.

 Petitioner's second contention is that the judgment against him should be vacated due to irregularities in the procedure used by this court in sentencing petitioner at the time of his plea of guilty.

 Under the Youth Corrections Act, 18 U.S.C. § 5005 et seq., an alternate system of corrections is provided for younger offenders. The statute, passed in 1950, Act Sept. 30, 1950, c. 1115, § 2, 64 Stat. 1086, is a recognition on the part of Congress that young persons who find themselves at odds with the law may well be best served by a sentence outside the corrections structure applicable to adults. It has been found that socio-psychological factors operate on individuals between their sixteenth and twenty-second years to produce habitual criminals, that these factors are present in an adult prison environment and that a specialized program for young offenders can be more successful in avoiding recidivism in selected cases. Dorszynski v. United States, 1974, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855; H.R.Rep. No. 2979, 1949, 81st Cong., 2d Sess., at 2-3.

 Following the entry of a judgment of guilty, in lieu of imposing an adult sentence such as incarceration in a prison, the sentencing court has the power, under the Youth Corrections Act, to order that youths normally between eighteen and twenty-two years of age be placed on probation in lieu of any commitment. 18 U.S.C. § 5010(a). The court is also authorized to order commitment for treatment under the Act. 18 U.S.C. § 5010(b). For the latter event, ...


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