U.S. Supreme Court UNITED STATES v. AUGENBLICK, 393 U.S. 348 (1969) 393 U.S. 348

[Page 393 U.S. 348, 349]

the remedies available to him[Footnote 1] and, not having obtained relief, brought suit in the Court of Claims to recover back pay,[Footnote 2] on the ground that the court-martial infringed on his constitutional rights. The Court of Claims undertook to review the judgments of the courts-martial for constitutional defects and rendered judgments for respondents. 180 Ct. Cl. 131, 377 F.2d 586; 181 Ct. Cl. 210, 383 F.2d 1009. The case is here on petition for writs of certiorari which we granted because of the importance of the question concerning the jurisdiction of the Court of Claims to review judgments of courts-martial. 390 U.S. 1038.

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relief by way of habeas corpus[Footnote 3] was an implied exception to that finality clause (S. Rep. No. 486, 81st Cong., 1st Sess., 32; H. R. Rep. No. 491, 81st Cong., 1st Sess., 35) - an exception not available to respondent Augenblick because he was discharged from the service, not imprisoned, and a remedy apparently not invoked by respondent Juhl during his short period of detention.

An additional remedy, apparently now available but not clearly known at the time of these court-martial convictions, is review by the Court of Military Appeals. In United States v. Bevilacqua, 18 U.S.C. M. A. 10, 11-12, 39 C. M. R. 10, 11-12, decided November 8, 1968, that court held that it has jurisdiction "to accord relief to an accused who has palpably been denied constitutional rights in any court-martial; and that an accused who has been deprived of his rights need not go outside the military justice system to find relief in the civilian courts of the Federal judiciary."[Footnote 4]

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the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed." Keyes v. United States, supra, at 340. From this premise it is urged that when, in review of state convictions by way of federal habeas corpus, the concept of "jurisdiction" was broadened to include deprivation by the trial tribunal of the constitutional rights of a defendant (Moore v. Dempsey, 261 U.S. 86; Johnson v. Zerbst, 304 U.S. 458), the scope of collateral review of court-martial convictions was also broadened. That is the position of the Court of Claims which rejected the view that the adoption of Article 76 introduced a new regime and that 10 U.S.C. 1552 which provides a remedy to correct a military record in order to "remove an injustice,"[Footnote 5] see Ashe v. McNamara, 355 F.2d 277, is, apart from habeas corpus, the exclusive remedy.[Footnote 6]

On that issue there have been a variety of views expressed in this Court. See Burns v. Wilson, 346 U.S. 137, 149, 152-153. There is likewise unresolved the question whether, if the view of the Court of Claims is correct, the District Courts might have a like jurisdiction over suits not exceeding $10,000 under the Tucker Act, 28 U.S.C. 1346 (a) (2).[Footnote 7] After hearing argument and studying the record of these cases we do not reach those questions. For we conclude that, even if we assume, arguendo, that a collateral attack on a court-martial judgment may be made in the Court of Claims

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through a backpay suit alleging a "constitutional" defect in the military decision, these present cases on their facts do not rise to that level.

The Court of Claims gave relief to Juhl because of the provision in paragraph 153 (a) of the Manual for Courts-Martial which states that the court-martial "cannot" base a conviction "upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable."

We do not stop to review the evidence which bears on this issue and which the Court of Claims sets forth in detail. See 181 Ct. Cl., at 215-225, 383 F.2d, at 1012-1017.

The Manual was prescribed by the President pursuant to Article 36 of the Uniform Code, 10 U.S.C. 836. It is a guidebook that summarizes the rules of evidence applied by court-martial review boards. See Levy v. Resor, 17 U.S.C. M. A. 135, 37 C. M. R. 399. The paragraph regarding accomplice testimony is a statutory rule of evidence. Such rules do not customarily involve constitutional questions. See Humphrey v. Smith, ; Whelchel v. McDonald, 340 U.S. 122. The Whelchel case involved various paragraphs of the Manual dealing with the defense of insanity. We did not sanction review of those paragraphs in a collateral remedy but held that only a denial of the opportunity for the military to consider the defense of insanity "goes to the question of jurisdiction"; and we added that, "[a]ny error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts." 340 U.S., at 124.

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the burden of producing them or explaining why it could not do so.

The record is devoid of credible evidence that they were suppressed. Whether Mendelson should have been recalled is a matter of debate and perhaps doubt. But questions of that character do not rise to a constitutional level. Indeed our Jencks decision and the Jencks Act were not cast in constitutional terms. Palermo v. United States, supra, at 345, 362. They state rules of evidence governing trials before federal tribunals; and we have never extended their principles to state criminal trials. It may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right. There is, for example, the command of the Sixth Amendment that criminal defendants have compulsory process to obtain witnesses for their defense. Palermo v. United States, supra, at 362 (BRENNAN, J., concurring in result). But certain it is that this case is not a worthy candidate for consideration at the constitutional level.

The Court of Claims, in a conscientious effort to undo an injustice, elevated to a constitutional level what it deemed to be an infraction of the Jencks Act and made a denial of discovery which "seriously impeded his right to a fair trial" a violation "of the Due Process Clause of the Constitution." 180 Ct. Cl., at 166, 377 F.2d, at 606-607. But apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten, as in Moore v. Dempsey, supra, that the proceeding is more a spectacle (Rideau v. Louisiana, 373 U.S. 723, 726) or trial by ordeal (Brown v. Mississippi, 297 U.S. 278, 285) than a disciplined contest.

Reversed.

FootnotesFootnote 1 Augenblick's conviction was reviewed by a Navy Board of Review and affirmed, one member dissenting. The Court of Military Appeals denied a petition for review without opinion January 11, 1963. The Secretary of the Navy declined review on January 30, 1963. See 10 U.S.C. 871.

Augenblick was dismissed February 5, 1963. On November 14, 1964, the Board for Correction of Records denied relief.

His suit in the Court of Claims was filed October 22, 1964.

Juhl's conviction was reviewed by the Staff Judge Advocate. The Air Force Board for Correction of Military Records also denied relief. His suit in the Court of Claims was filed October 12, 1965.

Footnote 2 Backpay suits are brought under 28 U.S.C. 1491 which provides that the Court of Claims has jurisdiction to render judgment against the United States on any claim "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States . . . ." See Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 606, 372 F.2d 1002, 1008. See Brenner, Judicial Review by Money Judgment in the Court of Claims, 21 Fed. B. J. 179, 190-191 (1961).

Footnote 3 Habeas corpus has been the conventional way of obtaining here collateral review of conviction by military tribunals. See Reid v. Covert, ; Burns v. Wilson, 346 U.S. 137; Whelchel v. McDonald, 340 U.S. 122; Gusik v. Schilder, 340 U.S. 128.

Footnote 4 As we have noted, n. 1, supra, Augenblick sought and was denied review by the Court of Military Appeals; and Juhl in his petition to the Court of Claims alleged that "[n]o appeal was possible under law to the United States Court of Military Appeals," an allegation admitted by the Government in its answer.

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