WINTER, Circuit Judge:
These appeals both present the threshold question of whether the federal civilian courts should pass on the appropriateness of the exercise of court martial jurisdiction over certain narcotic offenses of military personnel allegedly lacking "service-connection" prior to the time that there are findings of fact and conclusions of law by the military courts on the jurisdictional issue of service-connection. These appeals also present the ultimate question of whether certain narcotic offenses of military personnel which were allegedly committed — and at least consummated — off-base, off-duty, and out-of-uniform, are "service-connected" within the purview of O'Callahan v. Parker,
In Dooley v. Ploger (No. 73-1900), we hold that Sergeant Thomas R. Dooley's application for a writ of habeas corpus was premature. In his habeas petition, Sergeant Dooley sought pretrial release and freedom from military trial of the questions of his guilt and the service-connection of the alleged offenses (possession and sale of cocaine).
In Gnip v. McCaughan (No. 73-2207), we hold that the district court was correct in refusing to enjoin Corporal Gnip's court-martial while it determined whether Gnip's alleged possession and sale of marijuana were service-connected. Before resorting to the federal civilian courts, Corporal Gnip, too, must litigate in the military court system the legal and factual questions of service-connection on which court-martial authority turns.
We affirm in both appeals.
Army Sergeant Dooley's application for a writ of habeas corpus alleged that he was in military custody charged with violating Article 92 of the Uniform Code of Military Justice. Article 92 is a "catch all' provision which makes disobedience of a lawful general order or regulation criminal. In this case, Dooley was charged with violating Army Regulation 600-50, ¶ 4-2(7)(a) 1, Change 1 (September 20, 1972), by possessing, selling, distributing or delivering a "controlled substance," i. e., 3.18 grams of cocaine.
Dooley's habeas petition stated that he was on active duty at Fort Belvoir, Virginia, but that the alleged possession and sale of cocaine occurred at an apartment complex parking area outside any military or other governmental enclave and not under military control. Dooley also alleged that the offense did not involve "a violation of military property," that he was properly absent from the Army base, that the alleged crime was committed during peacetime, that there was no connection between Dooley's military duties and the crime, that the alleged crime did not pose a threat to a military post, and that it was one traditionally prosecuted in a civilian court. Overall, the application concluded with the legal assertion that due to a lack of sufficient service-connection, the United States Army and the Department of Defense lacked jurisdiction to try Dooley by court-martial, thereby circumventing his right in an Article III court to indictment by a grand jury, trial by a petit jury, and release on bail.
The district court ordered Dooley's commanding general to answer, and attached to the answer were copies of the investigative reports and other documents which gave rise to the formal charges against Dooley. From them, it appeared that the Army was prepared to prove that on March 6, 1973, Private Lee Walter Coffey, a confidential informer and military police investigator assigned to Fort Meyers, Virginia, met Dooley at a gymnasium located on North Post, Fort Belvoir, for the purpose of purchasing a quantity of cocaine. Prior to the meeting, Coffey had met Dooley at the post gymnasium on several occasions, discussed narcotics with him, and had undertaken to "set up a buy" of three grams of cocaine for $50 per gram. At the March 6 meeting, Dooley asked Coffey if the latter had the money and was ready to deal. Coffey stated
Gnip's case was instituted by a complaint for a preliminary and permanent injunction in which it was alleged that Gnip was a member of the Marine Corps who would have completed his four-year tour of duty on July 13, 1973, but that on June 29, 1973, he was charged with unlawful possession of marijuana, unlawful transfer of marijuana, and unlawful sale of marijuana, all at Apartment No. 3, 239 Fourth Avenue, Quantico Town, Virginia. As a result of the pendency of the charge, Gnip was not discharged as scheduled. Gnip alleged that his possession, transfer and sale of marijuana occurred when he was legally away from the base (Quantico), was not in uniform, was not in the presence of anyone in uniform, was not on any military installation, was off-duty, and was not engaged in the performance of any duty relating to the military. The complaint averred that although the sale was made to another Marine, at the time of the sale he was not in uniform and was not on a military installation or any other property subject to military jurisdiction. Further, it was alleged that under the holding in O'Callahan v. Parker, supra, the crimes charged were not service-connected and, hence, that Gnip was not subject to court-martial proceedings in which he would be deprived of the right available in an Article III court to indictment by a grand jury and trial by a petit jury.
Although Gnip's brief on appeal sets forth detailed statements of the circumstances under which the crimes were committed, his statements lack record support, and they are not admitted by the government. Suffice it to say that, unlike Dooley's case, there is nothing in the record to indicate where the alleged sale of marijuana to the undercover military agent was negotiated or arranged, or whether there were other negotiations between the parties prior to the alleged sale and, if any, where they were conducted. Because the government filed no response to Gnip's motion for a preliminary injunction and a hearing thereon was held before an answer to the complaint was due, Gnip's allegations have not been answered or amplified by the government. At the hearing on the motion for preliminary injunction, the district court denied the motion and concluded to dismiss the complaint.
Dooley sought habeas corpus before his military trial was held; not after his military conviction was final. His petition thus presents the question of whether the long established exhaustion requirement articulated in Gusik v.
Gusik and Noyd held that before members of the armed services could obtain federal habeas corpus they generally had to exhaust remedies available in the military courts affording equivalent relief. Those cases' restatement of the general rule requiring exhaustion of military remedies
After Gusik, and contemporaneously with Noyd, the Supreme Court decided O'Callahan v. Parker,
Dooley argues that the exhaustion requirement does not apply to cases challenging a military court's jurisdiction. For this proposition, he relies on the Supreme Court decisions denying court-martial jurisdiction over civilian dependents,
Dooley thus argues that exhaustion of military remedies is excused regardless of which jurisdictional prerequisite of the military courts is attacked, the military status of the defendant or the "service-connection" of the offense.
If the correctness of Dooley's characterization of his claim as "jurisdictional" were determinative of whether the exhaustion doctrine applied, a closer examination of O'Callahan and the debate between the plurality
The opinions in the civilian cases did not explain their excusal of exhaustion.
Dooley is a serviceman and there is at least a claim that the negotiations allegedly resulting in an illegal sale of cocaine occurred on a military reservation and that the sale was made to other military personnel. There are, therefore, possible service-connections which may appear upon development of the facts. Dooley's tendered stipulation falls short of providing the certainty that is necessary in order to arrive at an informed judgment as to the effect that O'Callahan has on his case. The proper tribunal to determine the operative facts is a military tribunal which also has the expertise to express a view, once the operative facts are developed, of the effect of the commission of the crime, if guilt is found, on the morale and efficiency of future operations of the military. We hold, therefore, that the district court properly declined to issue the writ and that Dooley must exhaust available military remedies, especially fact-finding remedies, before he may properly resort to a district court.
We find unpersuasive the contrary decision in Moylan v. Laird,
In arriving at this holding, we are fully mindful of a limitation on the doctrine of exhaustion. While exhaustion applies as long as there is an available, unused remedy which may result in relief. Gusik, supra, we have never required
Most of what we have said with respect to Dooley is applicable to Gnip.
The district court's dismissal was strictly in accord with the decision in Sedivy v. Richardson,
It is for these reasons that Congress, in the exercise of its power to "make Rules for the Government and Regulation of the land and naval Forces," has never given this Court appellate jurisdiction to supervise the administration of criminal justice in the military. When, after the Second World War, Congress became convinced of the need to assure direct civilian review over military justice, it deliberately chose to confide this power to a specialized Court of Military Appeals, so that disinterested civilian judges could gain over time a fully developed understanding of the distinctive problems and legal traditions of the Armed Forces. 395 U. S. at 694, 89 S.Ct. at 1883.