United States Court of Appeals Tenth Circuit
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Scribd Government DocsUnited States Court of Appeals Tenth Circuit
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Scribd Government Docs314 F.
2d 858
Daniel M. GORKO, Appellant,
v.
COMMANDING OFFICER, SECOND AIR FORCE,
SHREVEPORT, LOUISIANA,
Commanding Officer, Forbes Air Force Base, Topeka,
Kansas, and Provost Marshal, Forbes Air
Force Base, Topeka, Kansas, Appellees.
No. 7105.
United States Court of Appeals Tenth Circuit.
Feb. 8, 1963.
Wayne E. Hundley and Sam A. Crow, Topeka, Kan., for appellant.
Frank O. House and Roy D. Adcock, Office of the Judge Advocate
General, and Gerald P. Choppin, Atty., Dept. of Justice (Burke Marshall,
Asst. Atty. Gen., Newell A. George, U.S. Atty., and Harold H. Greene,
Atty., Dept. of Justice, were on the brief), for appellees.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Appellant-petitioner Gorko sought habeas corpus on the grounds that a military
court-martial had no jurisdiction over him because of the termination of his
period of enlistment, that he had been denied a speedy trial as guaranteed by the
Sixth Amendment, and that he was subjected to double jeopardy in violation of
the Fifth Amendment. The trial court denied relief and this appeal followed.
Gorko, an enlisted man in the United States Air Force, was charged with
murder in violation of Art. 118, Uniform Code of Military Justice (UCMJ).1
The offense occurred on May 27, 1960, and the charge was filed on June 2,
1960. Trial before a general court-martial began on October 11, 1960, and on
October 14, 1960, a finding of guilty of unpremeditated murder was returned.
Gorko was sentenced to dishonorable discharge, total forfeiture, and
imprisonment for 25 years. The convening authority, acting pursuant to Arts.
60-64, USMJ,2 approved the sentence on February 17, 1961. The record of the
trial then went automatically to a board of review under the provisions of Art.
66(b), UCMJ.3 That board, on May 17, 1961, set aside the findings and
sentence because of an instructional error by the Law Officer of the courtmartial and ordered a rehearing. Under the authority of Art. 67(b)(2), UCMJ,4
the Judge Advocate General, on June 9, 1961, certified the case to the United
States Court of Military Appeals which, on February 2, 1962, affirmed the
board of review.5 The order carrying out this mandate was published on
February 27, 1962, and the court-martial rehearing was scheduled for April 3,
1962. The petition for habeas corpus with which we are concerned was filed
with the United States District Court for the District of Kansas on March 22,
1962, and dismissed on April 18, 1962. The second court-martial resulted in a
finding of guilty on April 25, 1962, and a reduced sentence.
3
The scope of judicial review of military habeas corpus cases is well
established. Court inquiry is limited to whether the court-martial had
jurisdiction of the person and the offense charged, whether the accused was
accorded due process of law as contemplated and assured by the Uniform Code
of Military Justice, and whether competent military tribunals gave fair and full
consideration to all the procedural safeguards deemed essential to a fair trial
under military law.6
Gorko contends that as his term of enlistment has expired the military
authorities had no jurisdiction to subject him to a second court-martial. We
disagree. At the time of the offense Gorko was an enlisted member of the Air
Force and subject to the Uniform Code of Military Justice.7 Jurisdiction was
then present and it was not lost by the subsequent change in the accused's
status.8
The government urges that the question of right to speedy trial is not before us
because that question must be first raised in and determined by the military
tribunals. Cases may arise in which resort to habeas corpus may be proper
because of the denial of speedy trial, but this is not one of them. The right to a
speedy trial is relative and must be determined in the light of all the
circumstances of each case.9 From the inception of the prosecution the
proceedings were carried out in conformity with the Uniform Code of Military
Justice and without any purposeful or oppressive delay.10 The time reasonably
consumed in the use of the procedures which are designed to protect the rights
of the accused and to which no objection is raised forms no basis for a claim of
undue delay.
Turning to the claim of double jeopardy, we are concerned with the facts as
they were when the trial court acted.11 At that time the second court-martial had
not been convened. Exhaustion of all available military remedies is required
before reliance may be had on habeas corpus.12 The Uniform Code of Military
Justice provides that no person, without his consent, may be tried a second time
for the same offense.13 The adequacy and availability of the military remedy is
not questioned. Consideration of the question by the courts is, accordingly,
premature.
Affirmed.
10 U.S.C. 918
10 U.S.C. 860-864
10 U.S.C. 866(b)
10 U.S.C. 867(b)(2)
United States v. Gorko, 12 USCMA 624, 31 CMR 210
Bennett v. Davis, 10 Cir., 267 F.2d 15, 17. See also Burns v. Wilson, 346 U.S.
137, 140-142, 73 S.Ct. 1045, 97 L.Ed. 1508; Hiatt v. Brown, 339 U.S. 103,
110-111, 70 S.Ct. 495, 94 L.Ed. 691
See Art. 2(a), UCMJ, 10 U.S.C. 802(1)
Carter v. McClaughry, 183 U.S. 365, 383, 22 S.Ct. 181, 46 L.Ed. 236. Cf. Lee
v. Madigan, 358 U.S. 228, 231, 79 S.Ct. 276, 3 L.Ed.2d 260
Day v. Davis, 10 Cir., 235 F.2d 379, 385, certiorari denied, 352 U.S. 881, 77
S.Ct. 104, 1 L.Ed.2d 81
10
See Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393
11
Dean v. United States, 8 Cir., 30 F.2d 523. Cf. Tilghman v. Hunter, 10 Cir., 168
F.2d 946
12
Gusik v. Schilder, 340 U.S. 128, 131, 71 S.Ct. 149, 95 L.Ed. 146
13
