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LEBRON v. UNITED STATES SECY. OF THE AIR FORCE

April 14, 1975

Luis A. LEBRON, Jr., Plaintiff,
v.
The UNITED STATES SECRETARY OF the AIR FORCE, Defendant


Milton Pollack, District Judge.


The opinion of the court was delivered by: POLLACK

MILTON POLLACK, District Judge.

Cross-motions for judgment are before the Court. No factual issues are presented.

 Plaintiff, an Air Force serviceman, seeks relief from two separate convictions by military courts martial. In one case, on January 12, 1971, he was found guilty of possession and use of a narcotic drug. In the other case, on December 17, 1971, he was found guilty of assault. Both complaints assert jurisdiction under 28 U.S.C. §§ 2251-54, the habeas corpus provisions, and 28 U.S.C. § 1346, which authorizes suits against the United States in federal courts. Both suits were transferred to this District from the District of Columbia pursuant to 28 U.S.C. § 1404(a) because the petitioner was found to be "in custody" in this District since he was paroled in the Bronx on probation. *fn1"

 The authority of this Court to hear petitions for habeas corpus supports this proceeding in respect to the assault case since the complaint was filed while the plaintiff was either in prison or on probation. See 28 U.S.C. § 2241(c). However, he was not in such "custody" when the complaint was filed pertaining to the narcotics case. Under certain circumstances where merits have been established, jurisdiction of the Courts to review a court martial decision has been found proper, even though habeas corpus jurisdiction would not lie because the plaintiff was not in custody. United States ex rel. Flemings v. Chafee, 458 F.2d 544 (2d Cir. 1972), rev'd on other grounds sub nom. Warner v. Flemings, 413 U.S. 665, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973). *fn2"

 I. Narcotics Case

 A court martial convicted plaintiff of violation of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to 6 months incarceration, forfeiture of part of his pay, and reduction in rank. Plaintiff contends that so far as concerns the narcotics case asserted against him the Article is unconstitutionally vague.

 Article 134 authorizes court martial for "all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to [the military code] may be guilty", which are not specifically mentioned in the Code of Military Justice.

 In Parker v. Levy, 417 U.S. 733, 763, 94 S. Ct. 2547, 2565, 41 L. Ed. 2d 439 (1974) (Blackmun, J., concurring), it is expressly stated that drug offenses are "of a sort which ordinary soldiers know, or should know, to be punishable" albeit not set out in the words in the statute. *fn3" Parker holds that Article 134 is not so vague on its face as to allow it to be overturned at the instance of one whose offense was clearly within its reach.

 Plaintiff further contends that the search warrant pursuant to which the contraband drugs were found in his possession was invalid, because it was issued on unsworn statements of a narcotics agent and because those statements were based on false statements of a fellow airman. Neither objection is meritorious. Authority to search may be granted upon oral and unsworn statements of a special agent under military law. *fn4" As to the allegations that the agent's representations were predicated upon false statements of another airman, it need only be noted that a warrant is properly granted if it is found that "the affiant-agent has reasonable grounds for believing in the truth of" the allegedly false statement. United States v. Perry, 380 F.2d 356, 358 (2d Cir. 1967). Plaintiff does not allege that such reasonable grounds did not exist, and it appears from the trial record that the trial court sufficiently dealt with the question of the validity of the search warrant.

 There are no grounds established to sustain the relief plaintiff seeks in respect to the narcotics case. The military courts have dealt fully and fairly with the allegations raised by this petition and non-habeas relief is foreclosed. 10 U.S.C. § 876; United States v. Carney, 406 F.2d 1328 (2d Cir. 1969).

 II. Assault Case

 Plaintiff seeks relief from a conviction of assault by an Air Force court martial under Military Law. Code of Military Justice, Art. 128, 10 U.S.C. § 928. Subsequent to his conviction by the trial court and before its affirmance by the commanding officer of the post, *fn5" plaintiff came forward with new evidence, a confession of a third party of commission of the crime for which plaintiff was convicted. Plaintiff's attorney informed the post's commanding officer of the confession, and the latter ordered an ex parte investigation into plaintiff's allegations. After considering the record and the results of the investigation, the commanding officer approved the findings of the court martial.

 Plaintiff then applied to the Judge Advocate General for a new trial, and he, pursuant to 10 U.S.C. § 873, referred the application to the Air Force Court of Military Review, before which plaintiff's appeal was pending. Under Military Law, 10 U.S.C. § 873, consideration of newly discovered evidence for purposes of deciding whether a new trial should be granted is given to the Judge Advocate General; if the party seeking a new trial has an appeal pending before either the Court of Military Review or the Court of Military Appeals, the motion for a new trial is referred for decision to the Court considering the appeal. Here the Air Force Court of Military Review, after considering the trial record and the ex parte investigative report prepared for the commandant, denied the motion for a new trial.

 The plaintiff contends that due process was violated because the application for a new trial was not referred to the court martial trial judge for his consideration. Alternatively, it is contended that the statutes which fail to require the reference to the trial judge of a motion for a new trial are ...


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