
    LESLIE F. NARUM v. THE UNITED STATES
    [No. 350-54.
    Decided November 2, 1960.
    Plaintiff’s motion for rehearing denied January 18, 1961] 
    
    
      
      Robert H. Reiter for the plaintiff. Spaulding, Reiter <& Rose were on the briefs.
    
      John R. Franklin, with whom was Assistant Attorney General George Cochran Doub, for the defendant. Francis X. Daly was on the brief.
    
      
      Plaintiff’s petition for writ of certiorari denied by the Supreme Court, 368 Ü.S. 848.
    
   MaddeN, Judge,

announced the judgment of the court, and delivered the following opinion;

The plaintiff was, on September 23, 1948, dismissed from the United States Marine Corps pursuant to his conviction and sentence, on March 12,1948, by a general court-martial. He was, before his dismissal, a colonel, and had had almost 25 years of active service.

The plaintiff was stationed in China during the last period of his service. On January 15, 1948, he was brought to trial before a properly convened and constituted general court-martial. Sessions of the trial were held in three different cities in China. The trial ended on March 12, 1948, with the conviction of the plaintiff.

The charges on which the plaintiff was tried are quoted in our findings. The charges had to do with false statements made by the plaintiff as to the ownership of goods which he shipped through the facilities of the Marine Corps, and as to the payment for such goods; illegal use of the Marine Corps mail facilities; illegal importation of drugs; and, violation of naval regulations.

The court-martial found the plaintiff guilty on most of the charges, and sentenced him to dismissal from the United States Marine Corps and from the United States naval service. The court-martial proceedings, conviction and sentence were approved by the convening authority, and by the Acting Secretary of the Navy except that the latter official set aside the convictions on certain of the charges, but approved the convictions on the other charges, and the sentence, and ordered the plaintiff to be dismissed from the service. As we have seen, he was dismissed on September 28, 1948.

The plaintiff requested the United States Court of Military Appeals to review his conviction and sentence. That court dismissed the plaintiff’s petition for review for lack of jurisdiction, apparently because the proceedings in the plaintiff’s case had occurred before the establishment of the Court of Military Appeals.

The plaintiff contends that, although the court-martial which tried and sentenced him had jurisdiction at the beginning of the proceeding, it lost jurisdiction by its failure and refusal to accord to the plaintiff, during the course of the trial, various constitutional rights. He says that the court’s refusal of his request that the trial be a closed trial instead of a public trial had the effect of preventing him from obtaining the testimony of witnesses, which testimony would have been favorable to him. The court-martial deliberated over the plaintiff’s request and concluded that the plaintiff had not shown that a public trial would be prejudicial to his defense. When the witness Boellhoff who, the plaintiff says, would have given testimony favorable to him in a closed trial, was later called as a witness, he refused to testify, and, he being a foreigner and the court being held in a foreign country, he could not be compelled to testify. In his full unsworn statement refusing to testify, he did not say that he would testify if the trial were closed, and the plaintiff’s counsel did not ask him if he would. He did not say that his testimony would be favorable to the plaintiff, except as that might be inferred from the following part of his unsworn statement:

I am sorry that I cannot be able to clarify questions which might also clear the defendant in some charges which he probably has against him. They are not exactly known to me * * *.

The action of the court-martial in denying the plaintiff’s request for a closed trial lay well within the discretion which must be accorded to a trial court, either civil or military.

The plaintiff contends that the admission in evidence, in the court-martial, of the testimony of Boellhoff and of another person, Krinkevitch, given before a Navy Court of Inquiry, was a violation of the plaintiff’s constitutional right to be confronted by witnesses who gave testimony unfavorable to him.

Before the plaintiff was charged with the offenses for which he was tried and sentenced, a Court of Inquiry had heard evidence relating to transactions in which the plaintiff was involved. The plaintiff had been named as a defendant in the Court of Inquiry proceedings, had been present in person and by counsel, had cross-examined Boellhoff, and had declined the tendered opportunity to cross-examine Krinkevitch.

The statutory provisions relating to Navy Courts of Inquiry, applicable at the time of the proceedings here involved, are in 34 U.S.C. (1946 ed.) § 1200, Articles 55 to 60. Article 60 provides:

Proceedings ; authentication; use in evidence.
The proceedings of courts of inquiry shall be authenticated by the signature of the president of the court and of the judge advocate and shall, in all cases not capital, nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court martial, provided oral testimony cannot be obtained.

The comparable provision under the Uniform Code of Military Justice, enacted May 5, 1950, 64 Stat. 108, is in 50 U.S.C. (1952 ed.) § 625. The provisions concerning the setting up of and the procedure in Courts of Inquiry under the Uniform Code are in 50 U.S.C. (1952 ed.) § 731.

Since the plaintiff was a commissioned officer and his sentence was dismissal from the service, the court-martial committed an error of law in the reception of the Court of Inquiry evidence. As this court explained, with citation of authority, in Graham v. United States, 136 Ct. Cl. 324, neither this court nor any other court sits as a court of appeals to correct errors of law which may be made by courts-martial and the military hierarchy which reviews the decisions of such courts. We will not go over that well-ploughed ground again.

The plaintiff contends that the error committed by the court-martial was not a mere error of law. It was, he contends, a violation of a constitutional right. The plaintiff is mistaken. As this court decided in the Qrahann case, supra, we could not possibly hold that the Constitution forbids the use of Court of Inquiry evidence in court-martial proceedings unless we are ready to hold that the statute quoted above, which has been in the statute books for almost 100 years, is unconstitutional. There could be no constitutional difference between the admissibility of evidence in a trial in which an officer is sentenced to dismissal, and nothing more, and a trial in which he is sentenced to a heavy fine, or to a period of imprisonment at hard labor, or both. In the latter case Congress has expressly authorized the admission of the Court of Inquiry evidence.

The Constitution does not forbid the use of evidence which has been taken in earlier proceedings, if the witness has become unavailable at the time of the subsequent trial. The reception of such evidence is, in a sense, a departure from the hearsay rule. As such, it is in the company of many other time-honored exceptions to the hearsay rule. Most of the other exceptions have been made by courts, in judicial decisions. They have been based upon the philosophy that it is a serious thing to permit justice to miscarry, or to be frustrated, when there is trustworthy evidence available, and the exceptions are instances in which, for one reason or another, the courts have thought that evidence of the type presented was trustworthy.

If the courts have been able, without violating the Constitution, to create numerous exceptions to the hearsay rale, is there any imaginable reason why Congress cannot, in one instance, do likewise ?

The extensive discussion by Dean Wigmore in his treatise on evidence, beginning in volume V, section 1395, shows that there is no constitutional inhibition of the reception of evidence of the kind here involved. His discussion shows, of course, that if this kind of evidence is rejected, the result may be a complete failure of justice. He says, at page 147 of volume V:

(b) There is on principle no distinction, as to the conditions of necessity for using depositions and former testimony, between civil and criminal cases. If absence from the jurisdiction (for example) is a necessity in the one class of cases, it is equally a necessity in the other. The needs of public justice are as strenuous as those of private litigation. It is even more necessary that an offender against the community be duly punished than that a debtor discharge his private obligation.

In the case of West v. Louisiana, 194 U.S. 258, the Supreme Court affirmed a conviction of larceny in a case in which a deposition, taken before a committing magistrate in the presence of the accused, of a witness who had been cross-examined by counsel for the accused, the witness being permanently absent from the state at the time of the trial, was read in evidence at the trial. Mr. Justice Peckham, for the Court, said:

_ At common law, the right existed to read a deposition upon the trial of the defendant, if such deposition had been taken when the defendant was present and when the defendant’s counsel had had an opportunity to cross-examine, upon proof being made to the satisfaction of the court that the witness was at the time of the trial dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant. This much is conceded by counsel for plaintiffs in error, but they deny that the common law extended the right to so read a deposition upon proof merely of non-residence, permanent absence and inability to procure the evidence of the witness upon the trial, (p. 262)
❖ ❖ * * *
Coming to a decision of the question before us, we are of opinion that no Federal right of the plaintiffs in error was violated by admitting this deposition in evidence. Its admission was but a slight extension of the rule of the common law, even as contended for by counsel. The extension is not of such a fundamental character as to deprive the accused of due process of law. It is neither so unreasonable nor improper as to substantially affect the rights of an accused party or to fundamentally impair those general rights which are secured to him by the Fourteenth Amendment. The accused has, as held by the state court in such case, been once confronted with the witness and has had opportunity to cross-examine him, and it seems reasonable that when the State cannot procure the attendance of the witness at the trial, and he is a non-resident and is permanently beyond the jurisdiction of the State, that his deposition might be read equally as well as when his attendance could not be enforced because of death or of illness, or his evidence given by reason of insanity, (pp. 263-264)

In Christoffel v. United States, 200 F. 2d 734, the Court of Appeals of the District of Columbia, in its opinion delivered by Judge Fahy, held that the testimony given on a former trial by a witness since deceased, could be read in evidence in a subsequent trial. Judge Fahy said [200 F. 2d at 741-742]:

The admission of the duly authenticated transcript of this testimony was permissible as an exception to the hearsay rule. Mattom v. United States, 1895, 156 U.S. 237 at page 240 et seq„ 15 S. Ct. 337, 338, 39 L. Ed. 409. In the case cited the claim was made that in a criminal trial the introduction of such previous testimony violated the constitutional right of the accused, protected by the Sixth Amendment, to “be confronted with the witnesses against him.” The Court held:
“The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross examination. * * *” 156 U.S. at page 244,15 S. Ct. at page 340.

I think there is no evidence at all that the authors of the Constitution intended to abolish the, even at that time, numerous sensible exceptions to the hearsay rule, nor to forbid the creation of additional exceptions which fell within the same reason and purpose as the existing exceptions. In Snyder v. Massachusetts, 291 U.S. 97, at p. 107, Mr. Justice Cardozo, speaking for the Court, said:

Nor has the privilege of confrontation at any time been without recognized exceptions, as for instance dying declarations or documentary evidence. * * * The exceptions are not even static but may be enlarged from time to time if there is no material departure from the reason of the general rule. * * * cf. West v. Louisiana, 194 U.S. 258.

Boellhoff and Krinkevitch were just as unavailable as witnesses as if they had been dead, had become insane, or had left the country where the court was sitting. There is no possible reason why their kind of unavailability should be treated differently from the kinds which occur more frequently.

"What we have, then, is evidence which, because of the circumstances under which it had been given in the Court of Inquiry, was trustworthy, and was received by the court-martial. To receive it was an error of law on the part of the court-martial, because of the provision of article 60 that such evidence should be received in “cases not capital, nor extending to the dismissal of a commissioned or warrant officer.” But Congress has expressly authorized its admission in all other court-martial cases.

Proper self-restraint on the part of a court, and proper respect for a law enacted by Congress and used for so long in the administration of military justice, persuade us that there has not been revealed to us something which has not been discovered by the Congress, the executive, or the judiciary in the 100 years since the enactment of the questioned statute.

As the Chief Judge shows in his opinion concurring in the dismissal of the plaintiff’s petition, the plaintiff failed to assert, in the review of his case by the military authorities, the constitutional grounds which he here relies on. It may be that this failure would be a sufficient reason for the dismissal, by this court, of the plaintiff’s petition, regardless of the merits of the constitutional issue. The parties, however, have not adequately briefed the question of the effect of the plaintiff’s failure to raise the issue and we are not willing to base the decision upon that ground. Our conclusion is that no violation of the plaintiff’s constitutional rights occurred in the court-martial proceedings.

The plaintiff’s petition will be dismissed.

It is so ordered.

Laramoee, Judge, concurs.

JoNes, Chief Judge,

concurring:

I concur in the result. Plaintiff contends that his constitutional right to be confronted by the witnesses against him was violated. I believe that because of plaintiff’s repeated failure to raise this issue on previous occasions, we should not grant a money judgment in the light of the facts disclosed by this record. Let us examine plaintiff’s own performance with respect to securing that right which he urges in this court.

The plaintiff was convicted by a general court-martial in 1948. Plaintiff never raised the point that he had been denied the right to confront the witnesses against him in the first instance, the general court-martial itself. That conviction was successively reviewed by the Judge Advocate General of the Navy and by the Commandant of the Marine Corps. Plaintiff failed to participate in these reviews of his conviction within the Department of the Navy. Plaintiff did not assert any constitutional defect in his court-martial trial in the immediate review of his case by the Navy.

Some five years later, plaintiff bestirred himself for the first time. In a petition to the Judge Advocate General of the Navy on July 24, 1953, plaintiff raised, among other grounds, the issue of whether he had been denied the right of confrontation. The Judge Advocate General refused to consider the petition because the plaintiff had

* * * neither petitioned for relief within one year after final disposition upon initial appellate review nor within one year after termination of the war.

Plaintiff then on November 12, 1953, petitioned the United States Court of Military Appeals to review his conviction and sentence. Plaintiff’s petition was dismissed by that court for lack of jurisdiction. In retrospect, the curious aspect of plaintiff’s petition to the United States Court of Military Appeals was that he nowhere complained of deprivation of his constitutional right of confrontation. On September 3, 1954, plaintiff brought his action in this court.

We have before us then a plaintiff who did not stir at all in his own behalf when his case was first reviewed. For five years he was apparently indifferent to whether or not his court-martial was affected with a constitutional defect. By the time he finally did get around to asking the Judge Advocate General to review his case, the Judge Advocate General had no authority to act. Then plaintiff petitioned the United States Court of Military Appeals. Similarly, that body declared it had no jurisdiction to review plaintiff’s case.

Unquestionably courts-martial must afford an accused his constitutional rights. But constitutional rights like all legal rights must be seasonably presented. Here the plaintiff has blown alternately hot and cold on the issue of whether or not he has been denied a constitutional right. Sometimes he has alleged denial. At other times he has made no such allegation. Bepeatedly, plaintiff has failed to avail himself at the proper time of the appellate process within the military. In the light of all this, there is hardly sufficient background to permit plaintiff to succeed in his petition to this court for a money judgment.

Plaintiff claims that he was deprived of his constitutional right of confrontation in the general court-martial. I do not think that issue is the decisive one here. I am of the view that the right of the accused to confront the witnesses against him is one of the most fundamental of our freedoms. These freedoms were too dearly bought to be casually exploited. I do not think, however, plaintiff should be permitted to sleep on his rights indefinitely and then, when all else has failed, to invoke the Bill of Bights as an afterthought. See Paraiso v. United States, 207 U.S. 368, 370.

As a civilian court, we must be constantly mindful that we should give due respect to the integrity of the court-martial process. I would underscore the observation of Mr. Justice Jackson in Orlof v. Willoughby, 345 U.S. 83 at 94, in connection with the proper relationship of civil courts to military matters:

The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.

There are, of course, occasions where it is proper for us to grant recovery, a court-martial notwithstanding. Our jurisdiction arises where a court-martial has acted with such complete disregard of the constitutional rights of an accused that the court-martial is said to have lost its jurisdiction. Shapiro v. United States, 107 Ct. Cl. 650. It would stretch the doctrine set forth in Shapiro far beyond its original and proper bounds to permit all those convicted by courts-martial to secure review in this court merely by uttering a belated claim that the accused has been deprived of a constitutional right at his court-martial.

It would be a disservice to the original purposes of the Shapiro doctrine to permit plaintiff to invoke it here. Particularly is this so where it is by no means clear that in substance plaintiff was actually denied the right of confrontation. It is true that the testimony of Mr. Boellhoff and Mr. Krinkevitch at the Court of Inquiry was admitted in the court-martial although neither of these gentlemen testified in person at the actual court-martial trial. Their stated reasons for declining to testify are set out in finding 15. Our findings show that the plaintiff had the right of confrontation at the Court of Inquiry where Mr. Boellhoff and Mr. Krinkevitch were both present. It is most significant in determining whether or not plaintiff was in fact denied the benefit of the right of confrontation to his prejudice that he declined to cross-examine Mr. Krinkevitch at the Court of Inquiry.

In summary, after the plaintiff has ignored a possible constitutional point at almost every step of the way through the appellate process of the military justice system, we should not permit him to raise it in this court many years later. Our power to disregard the proceedings of courts-martial must rest on sterner stuff than the mere recitation of a formula.

It is unnecessary to comment on the merits of plaintiff’s constitutional argument since he should not be allowed at this late date to raise that argument here.

Whitaker, Judge,

dissenting:

Plaintiff, a colonel in the United States Marine Corps, stationed in China, was convicted by a United States Marine Corps court-martial and, as a part of the sentence was dismissed from the service. He says the court-martial was without jurisdiction to pass this sentence, because it had forfeited its jurisdiction to do so by depriving plaintiff of his constitutional right to be confronted by the witnesses against him. Hence, he says he was unlawfully dismissed and, therefore, is entitled to the pay for which he sues.

Plaintiff asserts grounds other than the denial of the right to be confronted by the witnesses against him, to show the court-martial did not have jurisdiction to pass the sentence, but this is the only one that, in my opinion, has substance.

The question presented to us is whether the alleged violation of plaintiff’s constitutional right to be confronted by the witnesses against him deprived the court-martial of jurisdiction to pass sentence on the accused. If it did, plaintiff was unlawfully dismissed, and we have jurisdiction to render judgment for the pay of which he has been unlawfully deprived. On the other hand, if the court-martial had jurisdiction to pass the sentence, we have no jurisdiction to entertain his petition, for we are foreclosed by the judgment of the court-martial, which we have no jurisdiction to review.

The gravamen of the charges against plaintiff was that he got the United States Navy mail service to send to the United States for sale certain merchandise belonging to one Boellhoff, on the pretense that it was plaintiff’s personal property, and that he had received through the same channels merchandise shipped from the United States for the said Boellhoff, on the same false representation. Violations of certain Chinese custom regulations were also alleged.

The principal witness against plaintiff was Boellhoff. I think I am warranted in saying that plaintiff could not have been convicted without his testimony. The trial was held in China; Boellhoff was a citizen, subject, a comrade, by whatever name they are called, of the Union of Soviet Socialist Republics; he refused to testify at the court-martial proceedings, and conld not be compelled to do so. However, when wind of plaintiff’s alleged activities came to the attention of plaintiff’s superiors, a court of inquiry was appointed to investigate the matter. It was apparent that Boellhoff’s testimony was of paramount importance. So, the Marine Corps requested the assistance of the Chinese police in securing his testimony. The Chinese police arrested Boellhoff, put him in jail and held him incommunicado for some eight or nine days, and then brought him before a United States court of inquiry, which proceeded to interrogate him about the matter. His testimony was taken down and transcribed. When Boellhoff refused to testify in the court-martial proceedings, the transcript of his testimony before the court of inquiry was offered by the prosecution and was received in evidence, over plaintiff’s objection.

Plaintiff objected on the ground that Article 60, Articles for the Government of the Navy, were not satisfied in this case, and that Boellhoff’s testimony before the court of inquiry was not voluntary. Plaintiff filed a brief in support of his position, to which the judge advocate replied, and plaintiff filed a reply brief.

Plainly the testimony was not admissible under Article 60, supra. That article permits the introduction in evidence before a court-martial of testimony taken in court-of-inquiry proceedings only in cases not capital and not involving the dismissal from the service of a commissioned or warrant officer; plaintiff was dismissed from the service. But this is not determinative of the question presented. The admission of incompetent evidence does not deprive the court-martial of jurisdiction to pass sentence unless the admission of it deprives the accused of a constitutional right.

Plaintiff says its admission in evidence violated the constitutional right of an accused to be confronted by the witnesses against him; and, when the court-martial deprived him of this constitutional right, it then and there lost jurisdiction to proceed further.

The right of an accused to be confronted by the witnesses against him is one of the most sacred of the cherished rights of free men. It is imbedded in the Bill of Bights. It has been jealously guarded by the bench and bar for centuries of Anglo-Saxon jurisprudence. However heinous the crime of the accused, however much the finger of suspicion points toward him, no affidavit, no deposition of a missing witness is admitted in evidence against him; the witness must be there in person, to look the accused in the eye and, under his scrutiny, to make his accusations against him; and to subject himself to cross-examination by the accused and his counsel.

There is no substitute for this opportunity to cross-examine a witness. It is the best of all ways to test a witness’ credibility, and this cross-examination must be conducted in the presence of those who are trying the accused, so they can observe the witness and make up their own minds what manner of man he is, whether he is evasive or straight-forward, whether his manner and demeanor inspires confidence in what he says, whether it shows him to be a man of passion or prejudice, or one speaking without bias, a man honestly and sincerely trying to tell the truth, the whole truth, and nothing but the truth. The writer of this dissenting opinion will never forget the sound philosophy of the remark of one negro to another, in the course of their argument many years ago, “Boy, what you are speaks so loud, I can’t hear what you say.” A witness’ manner and demeanor on the stand is as important as what he says. No court-martial, nor any other court, can know whether or not to give full credit to a witness unless it sees him when he is testifying. This is the reason the prosecution is not permitted to introduce depositions, although the accused cross-examined the deponent.

The testimony before the court of inquiry was subject to the vice that the judges on the court trying the accused did not see this witness against him when he was testifying.

The court of inquiry was sort of a “shotgun” proceeding. There had been rumors, whisperings, tales going around, some accusations, perhaps, but no one knew whether they had any basis in fact. So a court of inquiry was appointed to look into the matter to see whether any charges should be preferred. It was much in the nature of a grand jury proceeding — with this exception, however, that the person under suspicion had the right to be present and hear what the witnesses had to say and to interrogate them himself.

The proceedings were exploratory; they were not aimed in any particular direction; they ranged a wide field; some things said were relevant to charges that might later be preferred; others not. No one was on trial; the court had no power to punish and the proceedings were loose and informal, with little observance of the rules governing the admissibility of evidence on a formal trial before a court with the power of imposing sentence. The witnesses had their say and those implicated had the right to ask them questions, in the hope that they might be exonerated. But these questions could not be aimed at specific charges; none had been preferred. The accused was not advised in advance of what might be brought out against him and had had no opportunity to prepare himself to ask the questions that might bring out facts that would explain, modify or contradict statements the witness had made. He was not prepared to adequately cross-examine the witness.

Later, six or seven definite charges were preferred, supported by one or more specifications. Plaintiff has never been accorded the right to interrogate these two witnesses with respect to these specific charges and specifications. That right has been denied him. That right was guaranteed to him by the Constitution. Those who tried him had no opportunity of hearing what these witnesses had to say about these charges and specifications, nor of seeing them on the stand, of observing their manner and demeanor. The Constitution guaranteed to an accused that the judges who tried him should have the opportunity of hearing what the witnesses had to say about the charges preferred and of seeing them when they were testifying, to judge for themselves whether they were telling the truth, and whether their testimony supported the charges preferred.

We are living in a changing world, in a day of revolution, but there are certain principles that are immutable (see Greene v. McElroy, 860 U. S. 474, 496-497), that cannot be surrendered or impaired, if we wish to maintain our tradition of justice under law. The right of an accused to be confronted, in the court that is trying him, by the witnesses against him is not the least of them.

There can be no doubt that plaintiff has been deprived of this constitutional right. It is a right contained in the same sentence of the Sixth Amendment in which an accused is also guaranteed the right of counsel, and the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, said that a court which denied the accused the right of counsel lost its jurisdiction to sentence him. On the authority of this case I would hold that by the admission in evidence in the court-martial proceedings of this testimony before the court of inquiry, in violation of the right of the accused to be confronted by the witnesses against him, the court-martial lost jurisdiction to proceed further.

I do not think Graham v. United States, 136 Ct. Cl. 324, is controlling in this case, because Graham did not object to the introduction of the testimony before the court of inquiry; plaintiff in this case did object. When, in the Graham case, the judge advocate offered only the evidence taken after Graham became a party to the proceedings, Graham insisted that all of it be put in evidence. He thereby waived his constitutional rights. Plaintiff in this case never waived his rights, but objected throughout to the admission of this testimony.

In Mullan v. United States, 212 U.S. 516, it was held that an accused might waive this constitutional right and might validly consent that testimony received before a board of inquiry should be received in evidence in subsequent court-martial proceedings.

The clear intimation from the opinion in the Mullan case is that, in the absence of consent or waiver, the introduction of the evidence taken at the board-of-inquiry proceedings would violate the accused’s constitutional right to be confronted by the witnesses against him and that this would oust the court of jurisdiction to pass sentence. This was an appeal from the judgment of this court dismissing petitioner’s suit for pay.

In the Graham case the court considered the question as if it were nothing more than an error in the admission of evidence and said that we had no jurisdiction to review matters of that sort. This is quite true, unless the admission of evidence deprives the accused of a constitutional right. The Court did not deal with this question. It is squarely presented in the case at bar.

I am not unaware that the Supreme Court in Mattox v. United States, 156 U.S. 237, held that the testimony of a witness in a former trial of the accused might be introduced in evidence in a subsequent trial, where the witness had died before the subsequent trial. But this is not controlling here. In the first place, the charge against the accused was the same in both trials. Therefore, the cross-examination in the former trial was directed to the same issue being tried in the second. On the other hand, in the court-of-inquiry proceedings in the case at bar no charges had been preferred and, hence, there could have been no cross-examination with respect to the specific charges upon which the accused was tried later on. The accused, therefore, did not have an opportunity to adequately cross-examine the witnesses. Not having been apprised of what might be brought out in the court-of-inquiry proceedings, the accused had had no opportunity to prepare his cross-examination.

The Court of Appeals for the District of Columbia Circuit in Christoffel v. United States, 200 F. 2d 734, at pages 741 and 742, recognizes that the rule laid down in Mattox v. United Stales, supra, assumes that the charges against the accused in the two trials are the same. After quoting from the Mattox opinion, the Court of Appeals said:

The rule thus approved assmnes that the issue on the first trial is the same as on the later, otherwise the right of cross-examination has not been fully available. In the case at bar the second trial was upon the same indictment as the first. In a very literal sense, therefore, the ultimate issue was the same.

Mattox v. United States, supra, is not controlling here for another reason: The testimony received in evidence in that case had been given before a judge and jury which had the power to try, convict, and punish the accused, and they had convicted him. Those who had the power of punishment, therefore, had the opportunity of observing the maimer and

demeanor of the witness while he was under cross-examination. Here the court-martial which convicted the accused had no opportunity to observe these witnesses while testifying. This, in my opinion, is a fatal objection to the admissibility of the testimony. It is true that in some of the States this is not considered necessary, but it is to be observed that the provision for confrontation in the Federal Constitution is not applicable to trials in a State court under State law. West v. Louisiana, 194 U.S. 258.

The Mattox decision is not controlling here for still another reason: In that case the witness was dead; whereas in this case the witnesses were present in the court room, but refused to testify for fear of possible prosecution of them for acts disclosed by their testimony. A refusal to testify presents a very different situation from an inability to testify. Why did they refuse to testify? Surely not because they were unwilling to reiterate what they had said before the court of inquiry. That testimony was already available for use against them and they could not have been harmed by a reiteration of it. Was it because something new might be elicited from them, something that had not come out in the court-of-inquiry proceedings? Would this testimony have explained or modified their former testimony? Would it have been helpful to the accused ? There is some indication that it might have been. Boellhoff said at the court-martial proceedings.

I am sorry that I cannot be able to clarify questions which might clear also the defendant in some charges which he probably has against him.

How can we know, in the face of their refusal to testify further, that their testimony before the court of inquiry was the whole truth ?

Boellhoff’s testimony before the court of inquiry had been obtained under duress. He had been kept in jail for eight or nine days without having been permitted to see anyone, and brought from the j ail before the court of inquiry. When, at the time of the court-martial no charges were pending against him and he was no longer in custody, would he reaffirm that testimony? We do not know what he would say. Wien called in the court-martial trial, he would neither affirm nor deny his former testimony.

Such testimony cannot be given full credence. If ever there was a case where the witnesses should be subjected to rigid cross-examination, this is it. If there ever was a case where the judges should observe their manner and demeanor when testifying, this is it. Boellhoff was evidently holding something back. Whatever it is, it should be brought to light before credence is given to anything he says.

If under such circumstances their piecemeal testimony before this inquisitorial body is admitted, I cannot escape the conclusion that plaintiff has been deprived of his constitutional right to be confronted by the witnesses against him, before the judges who try him and pass sentence upon him.

In Begalke v. United States, 148 Ct. Cl. 397, cert. denied 364 U.S. 865, we held that, if the court-martial and the reviewing authorities had given full and fair consideration to the claim of the accused that he was being deprived of his constitutional rights, it was not incumbent on a civil court to go over the same ground again. We said we understood this to be the holding of the Supreme Court in Burns v. Wilson, 346 U.S. 137. That, at least, was the view of the Chief Justice and three other Justices who concurred in his opinion. A Justice who concurred in the judgment of the Court thought there was no right of review of the court-martial by civil tribunals. The two Justices who dissented thought that it was incumbent on civil courts to take cognizance of a habeas corpus application to determine for themselves whether there had been a violation of constitutional rights, where the military tribunal had not “fairly and conscientiously” given consideration to the question.

In that case it appeared that the court-martial itself had considered the constitutional question and that it had been extensively discussed in an opinion by the Board of Review. Plaintiff’s petition for modification of the sentence was denied by the Court of Military Appeals. Under such circumstances we said the civil courts would not again consider the question.

However, there is no such showing in this case. We only know that plaintiff filed with the court-martial a brief on the question, to which the judge advocate replied. The accused then filed a reply brief. We are told that the court-martial cleared the court room in order to consider the question ; but to what extent they considered it is not disclosed. We are not told whether the matter was considered by the reviewing authority, or by the Board of Beview, or by the Judge Advocate General. The Court of Military Appeals refused to entertain plaintiff’s appeal, for lack of jurisdiction. I think that where the accused asserts that his constitutional rights are being, violated, the requirement of Burns v. Wilson, supra, that the military authorities must give “fair and conscientious” consideration to the question is not satisfied unless the question is considered, not only by the court-martial itself, but also by the reviewing authorities. The court-martial itself is composed of laymen naval officers; not lawyers. They are not familiar with the constitutional guaranties of the Bill of Eights, nor alert to prevent a violation of them. There is no one in the military hierarchy competent to judge whether the constitutional rights of an accused have been violated other than the reviewing authorities.

Now, I think, where an appeal is made to a civil court for protection of the constitutional rights of an accused, and it appears to that court that those rights have probably been violated, and where the record does not show that the military courts and reviewing authorities have given full and adequate consideration to the matter, it is incumbent on the civil court to afford the accused the protection guaranteed him by the Constitution, insofar as it has power to do so, or to give him such relief as it may for the deprivation of his constitutional rights.

There is no such showing in this case, and it appears to me that there has been a gross violation of plaintiff’s constitutional right to be confronted, in the court that tried him and passed sentence on him, by the witnesses against him. Under the holding of Johnson v. Zebst, supra, this denial of plaintiff’s constitutional right ousted the court of jurisdiction to pass sentence upon him.

The Chief Judge says plaintiff did not raise in the court-martial proceedings the objection that he had been denied the right to be confronted by the witnesses against him. I think he is mistaken in this. He objected to the admission of this evidence on the ground that it violated article 60 of the Articles of War. This article limits the right of an accused to be confronted by the witnesses against him. It permits the introduction into evidence in the court-martial proceedings of testimony given before a court of inquiry in cases of minor importance. To this extent it is in derogation of the constitutional rights of an accused. But it preserves this constitutional right in the graver offenses, capital offenses, or offenses involving the dismissal of an officer. When, therefore, plaintiff objected to the admission of this evidence against him because it was in violation of article 60 of the Articles of War, this was tantamount to objecting because it violated his constitutional right to be confronted by the witnesses against him.

In my opinion plaintiff did not waive his constitutional right, but insisted upon it.

The Chief Judge seems to think that he waived it by not insisting upon it in a brief filed with the reviewing authorities. Plaintiff filed nothing with the reviewing authorities. Indeed, so far as I am aware, the Manual for Courts-Martial makes no provision for the filing of briefs with the reviewing authorities, although briefs are accepted when filed. Since plaintiff made his objection before the court-martial and filed briefs in support thereof, I do not think his omission to reiterate the objection in a brief filed with the reviewing authorities can be considered to be a waiver of the objection. When he did file a petition for relief from the judgment on July 24,1953, he did insist that his constitutional rights had been violated because he had been denied the right to be confronted by the witnesses against him.

After mature reflection, I have come to the conclusion that plaintiff did not waive his constitutional rights; I think they have been denied him, and that the denial of them deprived the court-martial of jurisdiction to pass sentence on plaintiff. If so, he has been illegally dismissed from the service, and I think he is entitled to recover the pay of which he has been wrongfully deprived.

I am authorized to say that Judge Durfee joins me in this opinion.

FINDINGS OF FACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Trial Commissioner Eoald A. Hogenson, makes the following findings of fact:

1. Plaintiff, a citizen of the United States and a resident of San Francisco, California, seeks to recover pay and allowances as a colonel in the United States Marine Corps for the period subsequent to his dismissal from the service on September 23, 1948, pursuant to his conviction and sentence on March 12,1948, by a General Court-Martial.

The parties have agreed, with the approval of the Commissioner, that the trial of this case be limited pursuant to Rule 38 (c) to the issues of fact and law relating to the right of the plaintiff to recover, reserving the determination of the amount of recovery and the amount of offsets, if any, for further proceedings.

2. Plaintiff had served on active duty in the United States Marine Corps for almost 25 years prior to his dismissal from the service on September 23,1948. At and prior to the time of the offenses charged and thereafter until his dismissal, plaintiff was a colonel, United States Marine Corps, on active duty assignment in China under the command of the convening authority of the General Court-Martial which tried his case.

3. On January 15, 1948, plaintiff was brought to trial before a General Court-Martial convened by order of the commanding general, Fleet Marine Force, Western Pacific, at Tsingtao, China. The trial of plaintiff opened on January 15, 1948, and closed with his conviction on March 12, 1948. Sessions of the trial were held in China at Tsingtao, Tientsin and Peiping.

4. Throughout the trial, plaintiff at his own request was represented by counsel of his own choosing, namely Lieutenant Colonel Thomas J. Colley, U.S. Marine Corps, and First Lieutenant Sberwood A. Brunnenmeyer, U.S. Marine Corps.

5. At the trial, plaintiff stated that he did not object to any members of the Court.

6. After the original Charges and Specifications and the Additional Charges and Specifications had been corrected, plaintiff stated to the General Court-Martial before pleading to them, that he had no objection to the charges and specifications as corrected. The corrections resulted in the main from extensive objections made by the plaintiff and considered by the General Court-Martial.

7. Plaintiff was tried on original Charges I, II, IV, VI and the Specifications under them, and on Additional Charges I and II and the Specifications under them, as corrected. Plaintiff pleaded not guilty to all these Charges and Specifications, as corrected. Plaintiff was not tried on Charges III and V, and the Specifications under them, on which a nolle prosequi was entered pursuant to the direction of the convening authority. Plaintiff was found not guilty of Charge I and the Specification under it.

8. The original Charges and Specifications and the Additional Charges and Specifications, as corrected, on which plaintiff was tried and found guilty (with exceptions later noted) are as follows:

CHARGE H FALSEHOOD SPECIFICATION
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, during the period from July 15, 1947, to July 30, 1947, exact date to the relator unknown, deliver and cause to be delivered to the Shipping and Receiving Section, Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, a written request for shipment of personal effects, in part, in tenor, as follows:
“From: col. f. l. naeum usmc BL-534243
To: The Shipping and Receiving Section, Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific.
Subj: Shipment of Personal effects, request for.
Eef.: (a) Letter of instruction 1313 dtd 13Jul46. (b) ALNAV 423.
1. As authorized in reference (a), it is requested that shipment of my personal effects be made to the following address [sic].
FOR: COL F. L. NARUM USMC DEPOT OF SUPPLIES 100 HARRISON STREET SAN FRANCISCO, CAIIF
2. This Shipment marked in compliance with reference (b), strapped with metal strap on each face of the box consist of,
§
TOTAL CUB 9B.0 TOTAL WEIGHT 2,872 CO-qOOtfk.OOC5t50aOCnOQOG> W a KGOOOCOMQOOOCOOOrf^tf^rf^^ bcncnoiocrcfrcncKÓibicttfc1 © © o o © © © Qoooooooooooo COfr-OOCi©rH<NCOrfll©COfc-050505©©©©©©©©© rHrHrHr-fT*Hr*irHrH
3. In compliance with reference (a), I hereby certify that the effects covered by this request for shipment contains no live ammunition, hand grenades, explosives of any kind, or other articles dangerous to life.
(SIGNED) LESLIE E. NARUM: F. L. NARUM [SIC] COL USMC”.
he, the said Narum, well knowing that the aforesaid request contained a false representation, namely, the representation: “my personal effects”, whereas in truth and in fact, he, the said Narum, well knew that the said effects were furs, said furs not being the personal property of the said Narum, and in which he, the said Narum, had no legal or equitable interest, and he, the said Narum, did, at about the time of submitting the said request, deliver and cause to be delivered to the said shipping and receiving section, twelve cases containing the furs aforesaid, which said furs belonged to a certain civilian, exact identity to the relator unknown, from whom he, the said Narum, had received the said furs; which said representation was knowingly false and intended to deceive, as he, the said Narum, well knew.
CHARGE IV
CONDUCT UNBECOMING AN OEEICER AND A GENTLEMAN
SPECIFICATION 1
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, on or about August 2, 1947, cause to be presented to the Consulate of the United States of America, Peiping, China, a written request for consular invoice covering the shipment of certain cases of furs, in part, in tenor, as follows:
“* * * Consular Invoice of Merchandise * * * invoice No. 161 * * * certified August 2, 1947 * * * Foreign Service of the United States at Peiping, China, * * * Seller Consignor, Leslie F. Narum, Peiping, China * * * Purchaser Consignee, Leslie F. Narum, New York, N.Y. * * * amount of invoice, US.$11,900.00 * * * Kind of goods, 3570 pcs Raw Kolinsky Skins Large, 2380 pcs Raw Kolinsky Skins Small * * * I further declare that the currency in which the price of the merchandise was fixed to be paid is a USA Currency * * * Dated at Peiping, China, this 2nd day of August, 1947, Leslie F. Narum * * *”
he, the said Narum, well knowing that the aforesaid request contained false representations, namely the representations “Leslie F. Narum, Peiping, China”, “Purchaser Consignee, Leslie F. Narum, New York, N.Y.”, “amount of invoice, US. $11,900.00”, “I further declare that the currency in which the price of the merchandise was fixed to be paid is a USA Currency”, whereas in truth and in fact, he, the said Narum, well knew that his residence was Tientsin, China, that he, the said Narum, was not the purchaser-consignee, and that no consideration had been paid by him, the said Narum, or on his behalf, in any lawful currency or other medium of exchange to cover the selling or cost price of the subject furs; which said representations were knowingly false and intended to deceive, as he, the said Narum, well knew, and he, the said Narum, did therein and thereby exhibit a disregard of his obligations as an officer and a gentleman.
SPECIFICATION 2
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, on or about August 26, 1947, cause to be presented to the Consulate of the United States of America, Peiping, China, a written request for consular invoice covering the shipment of certain cases of Dressed Badger Hair and Kidskin plates, in part, in tenor, as follows:
“* * * Consular Invoice of Merchandise * * * invoice No. 175 * * * certified September 2, 1947 * * * Foreign Service of the United States at Peiping, China * * * Consignor Leslie F. Narum, Peiping, China * * * amount of invoices US.$20,902.27 * * * Kind of goods, Dressed Badger Hair, Black, Grey, & White Kidskin plates * * * I further declare that the currency in which the price paid or to be paid for the merchandise was fixed in a US Currency * * * Bought from: Messrs. Manchu American Corporation, 133 Taku Road * * * Date of purchase: 5th April 1947 * * * Dated at Peiping, China, this 26th day of August 1947, Leslie F. Narum * * *”
he, the said Narum, well knowing that the aforesaid request contained false representations, namely the representations “Consignor Leslie F. Narum, Peiping, China”, “amount of invoice US.$20,902.27”, “I further declare that the currency in which the price paid or to be paid for the merchandise was fixed in a US Currency”, “Bought from: Messrs. Manchu American Corporation, 133 Taku Road”, “Date of purchase: 5th April 1947”, whereas in truth and in fact, he the said Narum, well knew that his residence was Tientsin, China, that there had been no exchange of United States currency to cover the selling or cost price of the subject Badger Hair or Kidskin plates, and that the said Badger Hair and Kidskin plates had not been bought from the Manchu American Corporation; which said representations were knowingly false and intended to deceive, as he, the said Narum, well knew, and he, the said Narum, did therein and thereby exhibit a disregard of his obligations as an officer and a gentleman.
CHARGE VI
CONDUCT TO THE PREJUDICE OE GOOD ORDER AND DISCIPLINE
SPECIFICATION 1
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving with the First Marine Division (Keinforced), Fleet Marine Force, Tientsin, China, did, during the period from May 1, 1947, to June 18, 1947, exact dates to the relator unknown, in violation of a lawful division general order duly promulgated by the commanding general thereof on or about 6 September, 1946, providing in part, in tenor, as follows:
“2. The naval mail system operated by this command will handle mail matter of the following categories and no other:
(a) Official U.S. Government matter.
(b) Personal mail matter dispatched by or to members of the armed forces.
(c) Personal mail matter for civilians having an official status when specifically authorized by the Commanding General.”
willfully, knowingly and without proper authority, permit a civilian, Hugo Boellhoff, said Boellhoff having no official status, as he, the said Narum, well knew, to use his, the said Narum’s, Fleet Post Office address, to receive his, the said Boellhoff’s, personal mail in that he, the said Narum, did deliver and cause to be delivered to the said Boellhoff at his, the said Narum’s home, approximately two parcel post packages, addressed to the Fleet Post Office address of Colonel Leslie F. Narum, U.S. Marine Corps, and transmitted to Tientsin, China, by fleet postal facilities, which packages contained merchandise intended for the said Boellhoff.
SPECIFICATION 2
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving with the First Marine Division (Keinforced), Fleet Marine Force, Tientsin, China, until June 18, 1947, and further while so serving on temporary duty with the Seventh Service Kegiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, from June 18, 1947, to September 1, 1947, did, during the period from April 1, 1947, to September 1, 1947, exact dates to the relator unknown, knowingly and willfully procure the use of, and did so use the United States Navy Mail Service to receive from the United States and introduce into tlie city of Tientsin, China, without a license to import, merchandise, to wit, drugs and pharmaceuticals, which merchandise was not a personal gift and not a sample of no commercial value and which, said merchandise, did exceed in value fifty dollars, United States currency, and which said merchandise was intended for resale, in violation of regulations of the Board for the Temporary Regulation of Imports of the Republic of China, then and there in force and effect, which provide in part, in tenor, as follows:
“Art. 2. * * * * the importation of all goods except those contained in Schedule IV (Prohibited List) and those provided for under Article 14 hereof shall be subject to license and only permitted in accordance with the provisions of these Regulations.
“Art. 14. Goods for which no foreign exchange is required, such as personal gifts, and samples of no commercial value, may be imported into China without an Import License: Provided that the value of such goods does not exceed U.S.$50.00 or equivalent value, and that they are not intended for sale. The exemption does not apply to goods in Schedule IV.
BOARD EOR THE TEMPORARY REGULATION OE IMPORTS
EXECUTIVE COMMITTEE
PRESS NOTIFICATION NO. 1
LICENSING OE IMPORTS
The attention of the public is hereby drawn to the Revised Temporary Foreign Trade Regulations which have been issued with effect as from this date.
Supplementary to these Regulations the following Rules of Procedure are hereby issued:
1. REGISTRATION OE IMPORTERS
The attention of importers is drawn to Article 11 of the Revised Regulations which provides for Registration of Importers.
and he, the said Narum, did therein and thereby, compromise and jeopardize the privileged status of the United States Navy Mail Service in the said Republic of China, whereby packages conveyed by the said United States Navy Mail Service for the personal use of United States naval personnel are exempt from inspection by customs authorities of the Chinese Republic and are exempt from payment of duty.
SPECIFICATION 3
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving as division supply officer, First Marine Division (Reinforced), Fleet Marine Force, Tientsin, China, until June 18, 1947, and further while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, from June 18, 1947, to September 1, 1947, did, during the period from March 1, 1947, to July 30,1947, exact dates to the relator unknown, in the said city of Tientsin, China, import certain drugs and pharmaceuticals, in violation of the regulations of the Board for the Temporary Regulation of Imports of the Republic of China, providing in part, in tenor, as follows:
“Procedure for the Importation of Goods.
Art. 12. (b) Schedule II.
Goods in this Schedule shall be imported under quotas, which shall be fixed by the Board and allocated by the Allocation Department.
The Allocation Department shall submit the quotas to the respective Trades with the direction that each Trade apportion its quota among those importers who are registered with the Board in respect of that Trade: Provided that such apportionment shall be subject to approval by the Allocation Department. In the event of the importers in any Trade failing to agree upon apportionment among themselves, such apportionment shall be determined by the Allocation Department.
Import Licenses shall be issued, prior to the beginning of each quarter, or at other convenient time, in respect of goods to be imported during the ensuing quarter or such other period as may be determined by the Board.”
“Schedule II (Con.)
Tariff No.
461,464 & 481 Pharmaceuticals”
by confederating with and making an agreement with, one Hugo Boellhoff, a civilian, whereby it was agreed that the said Narum would, from various commercial firms in the United States, via United States Navy Mail Service, receive at the First Marine Division (Reinforced) Post Office, certain drugs which he, the said Narum, would deliver and cause to be delivered to the said Boellhoff, and he, the said Narum, did, then and there, pursuant to and in accordance with said agreement, deliver to the said Boellhoff, on divers dates during the period from May 1,1947, to September 1,1947, various and sundry packages, containing drugs which the said Boellhoff had ordered from commercial firms in the United States, and which had been shipped to him, the said Narum, by United States Navy Mail Service, and delivered to him, the said Narum, by the First Marine Division (Beinforced) Post Office; and he, the said Narum, well knowing that the said drugs were not being imported under a quota, and that no import license for the said drugs had been issued to him, the said Narum, and that he, the said Narum, was not a registered importer, by the commission of the acts aforesaid, did, then and there, unlawfully and wrongfully import drugs in violation of the regulations of the Board for the Temporary [Regulation of Imports of the Republic of China.
SPECIFICATION 4
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving with the First Marine Division (Remiorced), Fleet Marine Force, Tientsin, China, until June 18, 1947, and further while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, from June 18, 1947, to September 1, 1947, did, during the period from April 1, 1947, to July 31, 1947, exact dates to the relator unknown, in violation of the foreign exchange regulations of the Republic of China, providing in part, in tenor, as follows:
“II. Appointed Banks, Licensed Dealers and Brokers.
2. Only appointed banks may deal in foreign exchange and the public may buy and sell foreign exchange only through them, except for the limited authorization specifically granted under these regulations to licensed dealers and brokers in foreign exchange.”
by confederating with and making an agreement with, one Hugo Boellhoff, a civilian, whereby it was agreed that the said Boellhoff would pay to the said Narum, certain sums of money, in United States currency, for transmittal to the United States, that the said Narum would then transmit the said currency, by check, to the United States by using the United States Navy Mail Service, and his position and status as an officer in the United States Marine Corps, and that the said Narum would have the said check or checks deposited in his personal account at the First National Bank of Quan-tico, Virginia, from where the said Boellhoff could, from time to time, draw upon this account for his, Boellhoff’s personal business ventures, then and there, pursuant to and in accordance with said agreement, accept from the said Boellhoff, sums of money in excess of thirty five thousand dollars ($35,000.00), exact sums to the relator unknown, and did, by means of United States government checks and the United States Navy Mail Service, transmit to the United States the said sums of money; and he, the said Narum, not being the agent of an appointed bank, nor a licensed dealer, nor a broker, by the commission of the acts aforesaid, did, and then and there, unlawfully and wrongfully violate and circumvent the foreign exchange regulations of the Republic of China.
ADDITIONAL CHARGES AND SPECIFICATIONS
CHARGE I
VIOLATION OP A LAWFUL REGULATION ISSUED BT THE SECRETARY OP THE NAVT
SPECIFICATION
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving on temporary duty with the Seventh Service Regiment, Service Command, Fleet Marine Force, Pacific, Tientsin, China, did, during the period from July 19, 1947, to July 30, 1947, exact date to the relator unknown, willfully, knowingly, and without proper authority, introduce and cause to be introduced at the duty station to which he, the said Narum, was then and there attached, twelve cases containing merchandise, to wit, approximately two thousand three hundred kidskin plates and one hundred and seventeen pounds of badger hair, for the purpose of shipping said merchandise, via U.S. naval transport, from Tientsin, China, to the United States, for his, the said Narum’s own account and benefit, and he, the said Narum, did, therein and thereby engage in trade.
CHARGE H
CONDUCT TO THE PREJUDICE OP GOOD ORDER AND DISCIPLINE SPECIFICATION 1
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving as division supply officer, First Marine Division (Reinforced), Fleet Marine Force, Tientsin, China, did, on or about April 22, 1947, knowingly, unlawfully, and without competent authority, procure the issuance of a United States government check, in the amount of ten thousand dollars ($10,000.00), from one Edward W. Bryan, major, U.S. Marine Corps, then disbursing officer, First Marine Division (Reinforced), Fleet Marine Force, Tientsin, China, in exchange for ten thousand dollars ($10,000.00), in cash, there then being postal money order service available within the First Marine Division (Reinforced) , Fleet Marine Force, Tientsin, China.
SPECIFICATION 2
In that Leslie F. Narum, 03988, colonel, U.S. Marine Corps, while so serving as division supply officer, First Marme Division (Reinforced), Fleet Marine Force, Tientsin, China, did, on or about May 2, 1947, knowingly, unlawfully, and without competent authority, procure the issuance of a United States government check, in the amount of twelve thousand five hundred dollars ($12,500.00), from one Edward W. Bryan, major, U.S. Marine Corps, then disbursing officer, First Marine Division (Reinforced), Fleet Marine Force, Tientsin, China, in exchange for twelve thousand five hundred dollars ($12,500.00), in cash, there then being postal money order service available within the First Marine Division (Reinforced), Fleet Marine Force, Tientsin, China.

9. On March 12,1948, the fortieth day of trial, the General Court-Martial which tried plaintiff made the following findings:

The specification of the first charge not proved.
And that the accused, Leslie F. Narum, colonel, U.S. Marine Corps, is of the first charge, not guilty; and the court does therefore acquit the said Leslie F. Narum, colonel, U.S. Marine Corps, of the first charge.
The specification of the second charge proved in part, proved except the words “a certain civilian”, which words are not proved, and for which the court substitutes the words “one other than the said Narum”, which words are proved; and except the words “from whom he, the said Narum, had received the said furs;”, which words are not proved.
Amd that the accused, Leslie F. Narum, colonel, U.S. Marine Corps, is of the second charge guilty.
The first specification of the fourth charge proved.
The second specification of the fourth charge proved.
Anri that the accused, Leslie F. Narum, colonel, TJ.S. Marine Corps, is of the fourth charge guilty.
The first specification of the sixth charge proved in part, proved except the words “parcel post”, which words are not proved.
The second specification of the sixth charge proved.
The third specification of the sixth charge proved in part, proved except the words “First Marine Division (Reinforced) Post Office”, which words are not proved, and for which the court substitutes the words “TJ.S. Navy Post Office at Tientsin, China”, which words are proved.
The fourth specification of the sixth charge proved in part, proved except the words “currency, by check,” which words are not proved, and for which the court substitutes the word “sums”, which word is proved; and except the word “Navy” where appearing in lines twenty-one and thirty, which word is not proved; and except the words “check or checks”, which words are not proved and for which the court substitutes the word “sums”, which word is proved; and except the words and figures “thirty-five thousand dollars ($35,000.00) ”, which words and figures are not proved, and for which the court substitutes the words and figures “thirty thousand dollars ($30,000.00)”, which words and figures are proved; and except the words “United States government checks”, which words are not proved, and for which the court substitutes the words “a bank draft and United States government checks”, which words are proved.
And that the accused, Leslie F. Narum, colonel, U.S. Marine Corps, is of the sixth charge guilty.
The specification of the first additional charge proved in part, proved except the words “one hundred and seventeen”, which words are not proved, and for which the court substitutes the words “one hundred and seventy-seven”, which words are proved.
And that the accused, Leslie F. Narum, colonel, U.S. Marine Corps, is of the first additional charge guilty.
The first specification of the second additional charge proved in part, proved except the date “April 22,1947”, which date is not proved, and for which the court substitutes the date “April 21,1947”, which date is proved.
The second specification of the second additional charge proved in part, proved except the date “May 2, 1947”, which date is not proved, and for which the court substitutes the date “May 1,1947”, which date is proved; and except the words and figures “twelve thousand five hundred dollars ($12,500.00)”, in lines six and seven, and in lines nine and ten, which, words and figures are not proved, and for which the court substitutes, in lines six and seven, and in lines nine and ten, the words and figures “twelve thousand seven hundred dollars ($12,700.00) ”, which words and figures are proved.
And that the accused, Leslie F. Narum, colonel, U.S. Marine Corps, is of the second additional charge guilty.

10. After finding plaintiff guilty as set forth in finding 9 above, the General Court-Martial which tried plaintiff sentenced him as follows:

The court, therefore, sentences him, Leslie F. Narum, colonel, U.S. Marine Corps, to be dismissed from the United States Marine Corps and from the United States naval service.

11. The proceedings, conviction and sentence of plaintiff were approved by the convening authority on March 15, 1948. On September 3,1948, the proceedings, conviction and sentence of plaintiff were approved by the Acting Secretary of the Navy, except that the findings, and the action of the convening authority, were set aside on the First Specification of Charge VI and on Additional Charge I and on the Specification thereunder, leaving plaintiff convicted on the other charges and specifications as set forth in finding 9. On September 23,1948, plaintiff was dismissed from the United States Marine Corps and from the United States Navy by order of the Acting Secretary of the Navy.

12. Plaintiff petitioned the United States Court of Military Appeals for a grant of review. Plaintiff’s petition for a grant of review was dismissed on November 12, 1953, on the ground that the petition was not one coming within the jurisdiction of the Court under Article 67 of the Uniform Code of Military Justice.

13. The General Court-Martial which tried plaintiff was properly constituted and had jurisdiction over the person of plaintiff and over the offenses with which he was charged.

14. The sentence imposed on plaintiff after his conviction was within the jurisdiction of the General Court-Martial to impose, upon finding plaintiff guilty, as set forth in finding 9.

15. Portions of the General Court-Martial record of the trial of plaintiff are in evidence in this case. The first five days of trial concerned correction of the charges and specifications. On the sixth day of trial, before entry of pleas to the charges and specifications and before any evidence or testimony had been adduced, plaintiff and his counsel stated to the General Court-Martial that he desired to waive his constitutional right to a public trial and requested that the trial be held behind closed doors. At the request of the plaintiff, all persons not parties to the trial (the only such persons being two unidentified Chinese nationals) were then excluded from the courtroom for the purpose of allowing plaintiff to state his reasons in support of his request for a closed trial. The proceedings were then as follows:

The court announced that it was ready to receive the reasons of the accused in support of his waiver and request.
The accused made the following statement:
The accused respectfully offers to the court the following reasons:
(1) The accused believes that the Chinese and other non-American witnesses who will be called in this case will be reluctant to testify and fearful of later action against them by the Chinese authorities if they testify truthfully in regard to certain material matters before this court.
(2) The accused has no reason to fear the truth, and strongly desires that all witnesses be able to testify without fear or favor in the case now defending.
(3) The accused further believes that, in the interest of the prestige of the United States naval forces in China, it would be preferable to hold the court behind closed doors.
The accused offers as a basis for his request the provisions of section 368, Naval Courts and Boards, and Court-Martial Order 48-1920, page 19, line 36, and page 21, lines 7 and 39.
The judge advocate made the following reply:
This is not to be construed as an objection to the granting of the request of the accused. The judge advocate is of the opinion that the holding of the court behind closed doors in this case is not in the interest of the prestige of the United States naval forces in China. The judge advocate is further of the opinion that there is existent a Chinese law that prohibits “Star Chamber” courts. In order to make certain of that fact, the judge advocate would require time for research.
The court directed the judge advocate to elucidate on his idea of the effect of a Chinese law which “pro-bibits Star Chamber courts”. The court stated that it was not convened under Chinese law, nor were its proceedings conducted in accordance with the Chinese law.
The judge advocate made the following reply:
The judge advocate, in making a point regarding Chinese law, had no intention of implying that the law of the Republic of China directly affects naval courts-martial in any way. The judge advocate believes that naval forces present in China are bound by treaty to at least respect the laws of the Republic of China, and the idea behmd the remarks of the judge advocate was that the holding of a closed trial might result in adversely affecting the prestige of the United States naval forces in China.
The accused made the following statement:
The accused desires to make three points in connection with his reason for request and waiver of his constitutional right to a public trial.
First, the present situation in China, resulting from the so-called Kowloon affair, has brought about an unfavorable attitude towards American and British nationals in this country today.
Second, the accused has knowledge of the considerable preparations by the United Press and the Associated Press to cover in detail the progress of this trial, particularly in Peiping. These daily coverages can be expected to appear in print in all the Chinese newspapers. It is felt that the detailed recitation of events before this court cannot help but prejudice the prestige of our forces in China.
Next, and hinged upon the latter, it is the accused’s interest in not having witnesses before this court under any undue pressure of any kind. The accused, as a defendant before a court of inquiry, believes that the testimony of certain non-American witnesses varied from the truth in certain instances because of the fear of later action by Chinese authorities upon those witnesses. In fact, one witness before the court of inquiry specifically asked the court before testifying, if the record of proceedings would be delivered to the Chinese authorities in any form. Upon being told that the court could not assure him of such immunity, he then testified. The accused has nothing further to state.
The judge advocate moved to strike out the remarks of the accused concerning his belief rising from the proceedings of the court of inquiry on the ground that the proceedings of the court of inquiry was an improper vehicle for argument by the accused.
The court warned the reporters not to talk about the proceedings of the court behind closed doors with anyone not concerned with the trial.
The court was cleared. The court was opened and all parties to the trial entered.
The court made the following announcement:
The fact of a trial being conducted behind closed doors in a case in Washington, D.C., within a relatively short period in the past, is common knowledge. _ No court-martial order covering this case has as yet, within the knowledge of this court, been issued. It is possible that opinions or decisions relative to a court being held behind closed doors may have been announced in that case. There is a publication of the Judge Advocate General’s office in the nature of a bulletin which publishes advance information on matters to be included in forthcoming court-martial orders. The judge advocate is directed to make a search within the command where this court is sitting, to determine whether such bulletins of the Judge Advocate General’s office are available, and particularly a bulletin covering the case to which reference has been made above.
The judge advocate provided the court with a file of all available copies of “JAG Journals”.
The court made the following announcement:
The court also requests the opinion of the judge advocate as to whether a public trial or one with closed doors in this case will have any effect on the attendance of witnesses both for the prosecution and the defense.
ijs iji ‡
The question, as amended by the court, was repeated as follows:
The court also requests the opinion of the judge advocate as to whether a public trial or one with closed doors in this case will have any effect on obtaining the attendance of witnesses both for the prosecution and the defense.
The court was cleared. The court was opened and all parties to the trial entered.
The court announced that it withdrew the previous question and asked the judge advocate the following question:
What, in your opinion, would be the effect on obtaining the attendance of witnesses both for the prosecution and defense if this case were heard behind closed doors ? ❖ # * #
The judge advocate made the following reply:
The judge advocate is of the opinion that if the court is held behind closed doors, the unfavorable reaction of Chinese government officials will adversely affect the ability of the judge advocate to produce witnesses both for the prosecution and the defense. This opinion is based on the following considerations: (1) The Chinese government, through local representatives, has expressed an interest in this case; (2) The Chinese government has requested that its representatives be present during the trial.
The accused made the following statement:
(1) In reference to the judge advocate’s remarks that the Chinese government had expressed an interest in this case, it is not believed that this means the Central Government in Nanking, but rather the local government headed by Mayor Li of Tsingtao.
(2) The accused wishes to point out that he is being tried on purely military charges, not necessarily of any direct interest to Chinese functionaries or government agencies.
(3) The accused wishes to state that he had knowledge, both from the public newsprints in this city and from personal communications from Peiping, that non-American witnesses have been extremely reluctant to appear and to testify before another general court-martial of this command which last week held an open trial in Peiping upon a similar case.
(4) Finally, it is not believed by the accused that foreign considerations in any way enter into his constitutional right to waive public trial.
The judge advocate made the following reply:
The contention of the accused appears to be that the government of the Republic of China can have no interest in this trial. The accused is charged with having violated certain of the regulations of the Republic of China. The previous opinion of the judge advocate was centered around the obtaining of witnesses and there was no intention to imply that the feelings of any official or officials were being considered.
The court was cleared. The court was opened and all parties to the trial entered.
The court announced that it was in public session.
The court made the following announcement:
The motion of the judge advocate to strike certain remarks of the accused concerning his beliefs, based on the proceedings of the court of inquiry, is not granted.
_ It appears to the court that the gist of the representations joy the accused, and on which he waives his constitutional rights to a public trial and requests that this case be heard behind closed doors, is that all witnesses be able to testify without fear or favor. The court likewise desires that effect to be achieved. However, it is the opinion of the court that there has not been sufficient cause advanced to indicate that a closed trial is necessary in order to ensure witnesses testifying without fear or favor. Attention is directed to section 282, Naval Courts and Boards, as follows: “The power of cross-examination is the most efficacious test which the law has devised for the discovery of truth”. The request of the accused that this trial be held behind closed doors is therefore denied.
The accused stated that he was ready for trial.
No witnesses not otherwise connected with the trial were present.

Further pertinent proceedings before the General Court-Martial occurred later in the trial, as follows:

No witnesses not otherwise connected with the trial were present.
Mr. Hugo Boellhoff, a witness for the prosecution, entered, and made the following statement:
I would like to make a statement before the proceedings. I would like to state that in connection with this case now in discussion with this court, I have been arrested in September 9, 1947, and kept nine days in involuntary detention by Chinese authorities in connection with the representation of the USMC, Tsingtao, Major Vogel. I have no lawyer with me and I have no connection with outside and I believe that these actions were not in conformity either with federal law of U.S.A. or with the laws and regulations of the Navy or Army of the U.S.A. Later on it has been proved that I did not violate any law either of the U.S.A. or of the Republic of China, but I offend only the code of the Chinese Maritime Customs. I have been called before as a witness of another court martial and a few hours later newspaper reporters all over China bringing my name in papers, San Francisco and Los Angeles radio broadcasting my name in connection with this case, and as you might know in China, businessmen can only exist if he has reputation and he has prestige, what the Chinese call “face”, and therefore any statement which I might make here is violating a vital interest of mine as a businessman in China. I am sorry that I cannot be able to clarify questions which might clear also the defendant in some charges which he probably has against him. They are not exactly known to me but in connection wbat I am stating before, that I cannot afford to be an object of such an advertising and propaganda which has already done with me, without having violated the laws of China or the U.S.A. I must refuse to give testimony before this court.
Questioned by the court:
1. Q. Mr. Boellhoff, is there any reason why, if you took the oath as a witness, you could not give truthfully answers to the questions that we ask you ?
A. No, there are no reasons.
2. You understand that as a witness before this court you are not under any charges whatsoever ?
A. I do know that I am not under any charge either from Chinese authorities or from American authorities.
3. Q. You stated that you testified before a previous court martial.
A. I have been called witness in a court martial which has been held here against Warrant Officer Burton E. Graham.
4. Q. Was that the first time that you were called to testify before an American judicial body ?
A. I was testifying in September 1947 before a court of inquiry.

Further pertinent proceedings before the General Court-Martial occurred later in the trial, as follows:

Present: All the members, the judge advocate and his counsel, the reporter, the accused and his counsel.
No witnesses not otherwise connected with the trial were present.
Mr. I. Krinkevitch, a witness for the prosecution, entered and stated as follows:
I want to make a statement.
Questioned by the court:
1. Q. Are you willing to swear that the statement is true?
A. I want to make a statement.
2. Q. Will you take an oath that this statement is true?
A. I want to say that I don’t know Colonel Narum, I never dealt with him, and I don’t want to testify. I have had nothing to do with Colonel Narum.
3. Q. We have two kinds of oaths. One is taken when a statement has nothing to do with the material facts of the case. If a witness wants to impress the court that the statement is true, which has nothing to do with the case, he takes the oath . . .
A. But I want you to understand one thing. I don’t know Colonel Narum, I have never dealt with Colonel Narum, nor anyone else in the Marine Corps, and I do not wish to testify.
4. Q. You have been called here as a witness by the prosecution for reasons best known to them and not known to this court. The only thing this court takes into consideration is what is stated under oath. In the interest of the United States government, the prosecution requires your testimony. Are you willing to take an oath and answer questions that are put to you by the prosecution and the accused?
A. I have given my testimony at the court of inquiry. I took the oath and I have given my testimony and consider that I have fulfilled my duty towards the United States government.
5. Q. Unfortunately, the duly authorized representatives of the United States government are better qualified to form such an opinion than you are. You are not an American citizen, are you ?
A. No, sir.
6. Q. We are a duly constituted court-martial convened, that is ordered, under the law of the United States5 and it is the desire of this court that you qualify as a witness. Do you so desire to do?
A. I can only repeat once more that I have given my testimony to the court of inquiry. I was trying to help the only way I could. And once more I repeat, I was trying to help the way I could although I had nothing to do with it. I fulfilled my obligations. I did whatever I could. I don’t want to testify. As I have said before, I have never dealt with Colonel Narum or any person in the Marine Corps.
7. Q. Are you willing to take the oath to testify, or do you refuse?
A. I don’t want to testify. I consider that I did my duty. I gave my testimony in the board of inquiry. I am not refusing as I have already given my evidence, but today I don’t want to testify. I don’t want to be mixed up. I have nothing to do with it.
8. Q. Do you refuse to take the oath?
A. I don’t want to testify.
9. Q. Do you refuse to take the oath?
A. I said I don’t want to testify. I told you before I don’t know Colonel Narum, I never dealt with Colonel Narum, and I never dealt with any person in the Marine Corps.
10. Q. You have testified before a court of inquiry?
A. Correct.
11. Q. Could you tell us if anything has happened between the time you testified before the court of inquiry and today that makes you unwilling to testify now ?
A. I don’t want to be in a court. I don’t want to be mixed up in this.
12. Q. Do you feel that answers you might give here might incriminate you ?
A. No. If I did, I would not have given any statement to the court of inquiry.
13. Q. Do you have any fear of physical injuries or bodily harm if you testify here ?
A. No.
14. Q. But you still refuse to take the oath?
A. I don’t want to because I have had nothing to do with Colonel Narum or any person in the Marine Corps, because I never dealt with these people.
15. Q. Unfortunately you are not in a position to judge in this matter. You are placing your personal opinion and conclusion as being higher and more important to you than what I represent to you as being in the interest of the United States.
A. Maybe you misunderstand me. I never wanted to insult you but I think by what I said here I never put myself higher than the representation of the court.

Further pertinent proceedings before the General Court-Martial occurred later in the trial, as follows:

The judge advocate resumed his status as a witness.
The accused made the following statement:
The accused objects to the admission of that portion of the record of proceedings of the court of inquiry as relates to testimony of Mr. Hugo Boellhoff into evidence for the following basic reasons: (1) The requirements of Article 60, Articles for the Government of the Navy, are not satisfied in this case; and (2) The testimony of Mr. Boellhoff before the court of inquiry was not given voluntarily, and therefore lacks credibility and is incompetent.
In support of these contentions, the accused read a brief, hereto appended marked “V”.
The judge advocate replied.
The accused replied and submitted a brief, hereto appended marked “W”.
The court was cleared. The court was opened. All parties to the trial entered, and the court announced that the objection was not sustained and directed the testimony of the witness, Hugo Boellhoff, as contained in the record of proceedings of the court of inquiry be received in evidence in connection with Charges IY and YI only as proffered by the judge advocate.

Further pertinent proceedings before the General Court-Martial occurred later in the trial, as follows:

(Examination by the judge advocate continued) :
21. Q. What other part of the record of proceedings of a court of inquiry, convened by order of the Commanding General, Fleet Marine Force, Western Pacific, to inquire into the circumstances surrounding the shipment of biological and chemical products to Colonel Leslie F. Narum for Mr. Boellhoff or another person or persons, do you desire to introduce into evidence ?
A. So much thereof as contains the testimony of I. Krinkevitch, civilian, resident of Tientsin, China, and as relates to specification one under Charge IV.
22. Q. Can not the testimony of this witness be obtained ?
A. It can not. The court is referred to the record of proceedings of the sixteenth day of this trial during which time I. Krinkevitch appeared before this court and refused to take an oath and qualify as a witness or to testify in any manner. At that time Mr. Krinkevitch stated that he was a Soviet citizen, resident of China. As a Soviet citizen, resident in China, this court and the United States, is without power to compel Mr. Krinke-vitch’s presence in court and possesses no legal means of obtaining testimony from Mr. Krinkevitch in the absence of cooperation on his, Krinkevitch’s, part. Mr. Krinkevitch’s one appearance before this court was obtained as a result of cooperative measures taken by the Tientsin Municipal Police Bureau and the Tientsin Police Court in due process of Chinese law. While these measures could and did assure Mr. Krinkevitch’s presence before this court, no legal procedure was available to the court whereby he, Krinkevitch, could be compelled to testify or punished for his refusal to testify.
The proceedings of the court of inquiry were submitted to the accused and to the court, and by the judge advocate so much thereof as contains the testimony and the before-named witness was offered in evidence only as it relates to specification one under Charge IY.
$ * £ $ $
The judge advocate resumed his status as a witness, was warned that the oath previously taken by him was still binding, and continued his testimony.
The accused objected to the entry of the proffered document into evidence on the grounds that the requirements of Article 60, Articles for the Government of the Navy, had not been satisfied in that the witness had actually appeared before this court, and further that the testimony was considered irrelevant and immaterial as indicated by the witness’ answers to questions of this court on the sixteenth day of the trial, and, finally, the testimony had an aspect of hearsay attached to it.
* * * ❖ ❖
The court was cleared. The court was opened. All parties to the trial entered, and the court announced that the objection was not sustained and directed that the court would receive the testimony of I. Krinkevitch as recorded in the record of proceedings of the court of inquiry, only as it relates to specification one under charge IY.

16. Another part of the proceedings used by plaintiff to support his claim in this case was part of the testimony of one C. C. Hsiao. The judge advocate asked this witness if there was an address on certain packages, which were then the subject matter of the examination. The witness said he could only remember Colonel Narum’s name. To a question as to ownership of the packages and contents, the accused (plaintiff herein) objected as to the competency of the witness, which objection was sustained by the court. The judge advocate then asked the witness if any person had alleged himself to be the owner of the packages and their contents. No objection was interposed by the accused, and the witness replied that Boellhoff had said he was the owner. The judge advocate then showed the witness some unidentified document, and asked him if he was familiar with the signature thereon, and the reply was in the affirmative and that it was the signature of Mr. Hugo Boellhoff. The witness then upon inquiry by the judge advocate described the document as a letter written by Mr. Hugo Boellhoff to a colonel regarding some parcels sent. The document was offered in evidence by the judge advocate and objected to by the accused on the ground that it was irrelevant, and the court announced that the objection was not sustained and the document was received in evidence. The accused was then granted permission and stated a further objection that he believed that the document had been illegally taken from the custody of its owner, that the accused hoped to be able to bring that matter before the court at a later time, and that the accused would presently abide by the decision of the court and later enter an appropriate motion when circumstances permitted. The court then announced that the objection was not sustained. The judge advocate then directed the attention of the witness to another document, and the witness stated that he was familiar with the signature thereon and that the document was written by Mr. Hugo Boellhoff to a certain colonel. The judge advocate offered this document in evidence, and the accused then made the following statement:

This document is considered objectionable by the accused on the same grounds as was the document just previously received into evidence, to wit, it is addressed to an unspecific person. It is signed incompletely and it is an original letter apparently and unexplainedly never sent to its addressee. Inasmuch as the court has seen fit, however, to admit the previous document over these objections, and not wishing to delay the proceedings further, the accused registers no further objection to the admission of this document into evidence.

The court announced that the objection was not sustained and that the document was received in evidence.

17. By order entered January 20,1960, the court remanded this case to the trial commissioner for further proceedings to determine:

1. Whether the court-martial or the military reviewing authorities considered whether plaintiff had been denied his constitutional right to be confronted by the witnesses against him and, if so, the nature and extent of this consideration.
2. Whether the plaintiff was assisted by counsel before the board of inquiry and whether plaintiff or his counsel was given an opportunity to cross-examine the witnesses presented therein, and, if so, to what extent was such right exercised as to witnesses Boellhoff and Krinkevitch.

18. The General Court-Martial did not consider the question as to whether plaintiff was denied the constitutional right to be confronted by the witnesses Hugo Boellhoff and I. Krinkevitch in the court-martial proceedings. Plaintiff as the accused, either by himself or by his counsel, did not raise this constitutional issue. The admission in evidence of tlie court of inquiry transcript of the testimony of Boell-hoff was objected to by plaintiff’s counsel only on the general grounds stated in the transcript of proceedings of the court-martial, as reported in finding 15 at page 21 of the commissioner’s report, filed January 21, 1959. The briefs “V” and “W” of the accused, which are in evidence in this case as Commissioner’s Exhibits Nos. 2 and 3, were read to the court-martial at that time but contain no reference to the constitutional right of confrontation. It was argued in these briefs that since Boellhoff and Krinkevitch had actually appeared before the General Court-Martial, the transcript of their testimony before the court of inquiry was not admissible under Article 60, Articles for the Government of the Navy, in the trial before the General Court-Martial. With respect to Boellhoff, plaintiff further argued in these briefs that Boellhoff’s testimony was not given voluntarily before the court of inquiry, and was therefore lacking in credibility and was incompetent. The only objections interposed by plaintiff and his counsel to the admission in evidence of the court of inquiry transcript of the testimony of I. Krinkevitch were those set forth at pages 22 and 23 in finding 15 of the commissioner’s report, filed January 21, 1959.

19. The reviewing authorities of the Navy Department, charged with review of General Court-Martial proceedings, have never considered whether or not plaintiff was denied the constitutional right to be confronted by the witnesses Boellhoff and Krinkevitch in his General Court-Martial trial. Plaintiff failed to participate in the successive reviews of his conviction by the convening authority of the General Court-Martial, by the Judge Advocate General of the Navy, and by the Commandant of the Marine Corps, which reviews led to the ultimate approval of plaintiff’s conviction and sentence by the Acting Secretary of the Navy on September 3, 1948, as related in finding 11.

By petition dated July 24, 1953, addressed to the Judge Advocate General of the Navy, plaintiff made his first effort to have his conviction and sentence vacated and set aside. Among many other grounds asserted by him, plaintiff alleged in his petition that 'he was denied confrontation by witnesses, as follows:

the Petitioner was denied due process of law in violation of his rights under the Constitution of the United States and the laws thereof, in that he was denied the right of confrontation especially as regards one Boell-hoff whose testimony before a Court of Inquiry was read into the record by the Judge Advocate.

This petition was received by the Judge Advocate General of the Navy on July 27, 1953. By letter to plaintiff dated August 3,1953, this officer advised that he could not accept or consider the petition because plaintiff had “neither petitioned for relief within one year after final disposition upon initial appellate review nor within one year after termination of the war.” Plaintiff requested reconsideration of this ruling by his petition filed October 19, 1958, but the Judge Advocate General of the Navy by letter to plaintiff, dated October 22, 1953, adhered to his previous position that he was without authority to act upon plaintiff’s petition because it had not been submitted within the time allowed by law. He stated, however, that his office would accept the petition for filing. Upon plaintiff’s resubmission of the petition, the Judge Advocate General of the Navy again ruled on October 30, 1953, that he was without authority to act upon the petition.

20. In plaintiff’s petition for grant of review, filed in the United States Court of Military Appeals, as related in finding 12, plaintiff among other grounds alleged that he had been denied due process of law because the refusal of the General Court-Martial to order a closed trial had deprived him of compulsory process guaranteed by Article VI of the Constitution of the United States. Plaintiff, however, did not allege violation of his constitutional right to be confronted by witnesses against him. On November 12, 1953, the United States Court of Military Appeals dismissed plaintiff’s petition for lack of jurisdiction, without consideration of any points raised by plaintiff. Plaintiff’s petition for reconsideration by that court was denied on November 20, 1953.

21. Plaintiff was represented by counsel of his own choice at the pertinent court of inquiry proceedings, was named as a defendant therein, and was present in person and by counsel throughout such proceedings, and was accorded full opportunity to cross-examine all of the witnesses, including Boellhoff and Krinkevitch. His counsel was Major John L. Donnell, U.S. Marine Corps. Plaintiff by his counsel did cross-examine Boellhoff without limitation, but stated he did not desire to cross-examine Krinkevitch when afforded an opportunity to do so.

On September 15,1947, the first day of the court of inquiry proceedings, plaintiff requested that either Colonel John E. Curry or Colonel Homer L. Litzenberg, or Lieutenant Colonel Paul A. Fitzgerald, named in order of preference, be assigned as his counsel. The court of inquiry then adjourned to permit assignment of counsel. Since none of the three officers was available, plaintiff requested that Major Donnell be assigned, and plaintiff introduced him to the court of inquiry as his counsel at the commencement of the second day of proceedings on September 18, 1947. Major Donnell thereafter capably represented plaintiff throughout the court of inquiry proceedings.

On September 16, 1947, during the two-day recess of the court of inquiry proceedings, plaintiff addressed a formal memorandum to the commanding general, Fleet Marine Force, Western Pacific, advising that none of the three officers first requested by him for assignment as his counsel was available, that he had requested and had been assigned Major Donnell as his counsel, but that after discussing the case with his counsel, it was found that Major Donnell lacked sufficient background of civil law and that additional assistance was required as the points of law would be largely civil, involving Chinese law, customs regulations, and commercial law. Plaintiff requested that he be allowed civilian counsel to assist Major Donnell, and that such counsel be granted the privilege of traveling by Government air transportation to places where the court of inquiry might meet.

By memorandum dated September 16, 1947, plaintiff’s request for civilian legal assistance was disapproved by the commanding general.

The record of proceedings of the court of inquiry demonstrates that plaintiff was adequately and reasonably represented by counsel before the court of inquiry.

CONCLUSION OB’ LAW

Upon, tbe foregoing findings of fact, which, are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover and his petition is dismissed. 
      
       The testimony of another witness before the court of Inquiry was also read In the court-martial proceedings.
     