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January 13, 1958

UNITED STATES of America ex rel. Dominic GUAGLIARDO, Petitioner,
Neil H. McELROY, Secretary of Defense, et al., Respondents

The opinion of the court was delivered by: HOLTZOFF

The question presented in this habeas corpus proceeding is whether a civilian employee attached to the armed forces of the United States stationed in a foreign country is subject to trial by court-martial for an offense connected with his activities.

The issue arises on a return to an order to show cause granted in response to a petition for a writ of habeas corpus filed by a prisoner confined at an Air Depot in Morocco, against the Secretary of Defense, the Secretary of the Air Force, and the Chief of Staff of the United States Air Force. The petitioner, Dominic Guagliardo, was employed by the Department of the Air Force as an electrical lineman at Nouasseur Air Depot, Morocco. On July 18, 1957, he was charged with larceny of Government property consisting of leatherette goods and olive drab fabric material, valued at about $ 4,690. In addition, he and two other persons were charged with conspiracy to commit larceny. He was tried and convicted by a general court-martial convened at the Air Depot and was sentenced to confinement at hard labor for three years and a fine of $ 1,000. The convening authority disapproved the finding of guilty on the first of the two charges, but approved the sentence as to the second charge. The petitioner is now a prisoner at the Base Stockade, at the above mentioned Air Depot in Morocco. The matter still remains to be considered by the Board of Review of the Office of the Judge Advocate General, as well as by the Judge Advocate General. If after going through these channels the sentence is approved, the petitioner will still have the right to petition the United States Court of Military Appeals for a review of any alleged error of law.

 The petitioner has applied to this court for a writ of habeas corpus on the ground that he had been deprived of his constitutional rights to indictment by a grand jury and trial by jury. The respondents filed a return and answer setting forth the prior proceedings in detail and asserting that civilian employees who accompany or serve with the armed forces of the United States in the field are subject to trial by court-martial. A traverse to the return has been filed by counsel for the petitioner. The matter was heard on the petition, the return and the traverse.

 In limine the respondents interposed the objection that the petitioner had not exhausted all the remedies available to him before military tribunals and that, therefore, this proceeding has been brought prematurely. This contention would be completely sustained by Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146, if that case stood alone. Subsequent decisions of the Supreme Court, however, throw a different light on this question.

 The case of Toth is illuminating in this connection. Toth had served in the Air Force in Korea. After he was discharged from the service, he returned to his home in Pittsburgh, and resumed his civilian occupation. He was later arrested by the Air Force police and transported to Korea for trial by court-martial on a charge of murder alleged to have been committed while he was in the service. The District Court for the District of Columbia issued and sustained a writ of habeas corpus, and discharged Toth on the ground that the Uniform Code of Military Justice did not authorize the removal of a civilian to a distant point for trial by court-martial. *fn1" The court expressly stated that the objection to the jurisdiction of the court-martial to try Toth, based on constitutional grounds, was premature. The Court of Appeals for the District of Columbia Circuit reversed the order of the District Court. *fn2" On certiorari the Supreme Court reversed the decision of the Court of Appeals and reinstated the action of the District Court. *fn3" The Supreme Court, however, did not confine itself to passing on the narrow point on which the District Court predicated its decision, but held broadly that Congress lacked power to authorize trial by court-martial of a person in the position of Toth. This conclusion was reached in spite of the fact that Toth had made no effort to exhaust his remedies within the military system.

 In Reid v. Covert, 354 U.S. 1, 4, 77 S. Ct. 1222, 1 L. Ed. 2d 1148, the Supreme Court held that there was no constitutional authority to try the respondent by court-martial and directed that she be released from custody, in spite of the fact that she had not exhausted her remedies in the military system. As appears from the opinion of the court, a re-trial by court-martial as a result of a reversal of the conviction by the Court of Military Appeals was pending when the case was argued and decided by the Supreme Court. To be sure, it does not appear that the objection that there was a failure to exhaust prior remedies was urged by the Government in either of these cases. Nevertheless, it could have been raised by the Court sua sponte. It would not be appropriate for this court to assume that in spite of its decision in the Gusik case, supra, the Supreme Court overlooked the point in the Toth and Reid cases. That this matter was not mentioned in either opinion may be due merely to the fact that the Court did not consider it worthy of discussion. This court cannot reasonably reach any conclusion other than that the Gusik case has been overruled sub silentio by the Toth and Reid cases, insofar as it applies to the necessity of exhausting other available remedies in a case in which the jurisdiction of a court-martial is challenged on constitutional grounds. Consequently, the objection that the petitioner has failed to exhaust all of his remedies within the military system is overruled.

 This brings us to a consideration of the merits. Jurisdiction of courts-martial over the person of the petitioner in this proceeding is predicated on Article 2 of the Uniform Code of Military Justice (formerly 50 U.S.C.A. § 552; now 10 U.S.C. § 802), the pertinent provisions of which are as follows:

 'The following persons are subject to this chapter:

 '(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the following: that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.'(Emphasis supplied.)

 It is contended by the petitioner that subsection (11), insofar as it is applicable to civilians, is unconstitutional in that it deprives them of the right not be prosecuted for a criminal offense except by indictment by a grand jury, and of the right to trial by jury.

 The pertinent constitutional provisions are the following:

 Article I, Section 8, Clause 14:

 'The Congress shall have Power * * * To make Rules for the Government and Regulation of the land and naval Forces.'

 Article III, Section 2, Clause 3:

 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such ...

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