UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: January 26, 1973.
FRANK D. WIMBERLEY, PETITIONER-APPELLANT,
MELVIN LAIRD, SECRETARY OF DEFENSE, ET AL., RESPONDENTS-APPELLEES
Fairchild, Pell and Stevens, Circuit Judges.
STEVENS, Circuit Judge.
On February 27, 1963, an Army general court-martial found petitioner guilty of the premeditated murder of a German civilian woman in violation of 10 U.S.C. § 918(1), and sentenced him to death. On review, the sentence was reduced to life imprisonment; he is now confined in the Federal Penitentiary at Marion, Illinois. After exhausting his military appeals, petitioner attacked the military judgment collaterally. He now appeals from the district court's denial of a writ of habeas corpus contending (1) that the military tribunal had no jurisdiction to try him for murder because his offense was not "service connected," cf. O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291; and (2) that his appointed counsel, who failed to raise his sole meritorious defense, was so ineffective that he did not receive a fair trial.
The basic facts are not in dispute. On November 17, 1962, petitioner killed the proprietress of the Gasthaus Sonne in Ludwigsburg, Germany, by stabbing her with a knife. Petitioner was then a sergeant in the United States Army on active duty in the Federal Republic of Germany. At the time of the offense he was not performing any military assignment, was not on a military post, and was not in uniform. His victim was a German civilian who had no connection with the United States Army or any agency of the United States Government. Insofar as the jurisdictional issue is concerned, the only relevant difference between petitioner's offense and the crime involved in O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291, is that it transgressed the laws of a foreign sovereign, whereas O'Callahan's violated the law of an American Territory.*fn1
O'Callahan seems to hold that the power delegated to Congress by Article I, § 8, clause 14 of the Constitution to "makes Rules for the Government and Regulation of the land and naval Forces" does not encompass any power to authorize punishment of soldiers for misconduct which is not "service connected."*fn2 Logically, that holding would seem to apply here. The court construed the exemption from the Fifth Amendment for "cases arising in the land or naval forces" as though it were a limitation on the congressional rulemaking power for the Armed Forces. It reasoned that a case does not arise in the Armed Forces merely by reason of the defendant's status as a soldier; the conduct itself must also be "service connected." Petitioner forcefully contends that his misconduct had no more connection to his duties as a serviceman than did O'Callahan's.
Respondent argues, however, that the O'Callahan holding should not be followed here because its underlying rationale is inapplicable. The "constitutional stakes" in O'Callahan were the claimed right to indictment by a grand jury and trial by a petit jury in a civilian court. 395 U.S. at 296, 89 S. Ct. 1683.*fn3 Those constitutional protections are not in any event available in cases involving the violation of foreign law; and, therefore, O'Callahan's purpose to provide greater protection to members of the Armed Forces would not be served, and might well be defeated, if the holding were extended to such cases. Although respondent's argument is by no means compelling,*fn4 we think he fairly reads the O'Callahan opinion as being limited to offenses "committed within our territorial limits," and "not in the occupied zone of a foreign country." 395 U.S. at 273-274, 89 S. Ct. at 1691.*fn5 Moreover, in Relford v. United States Disciplinary Commandant, the Supreme Court repeatedly stressed the fact that O'Callahan's offense had been committed on "American Territory," see 401 U.S. at 356, 364, 365, 91 S. Ct. 649, and unanimously construed O'Callahan as requiring an "ad hoc," rather than a logical, approach to the jurisdictional issue. See 401 U.S. at 365-366, 91 S. Ct. 649, We therefore hold that the fact that petitioner was present in Germany as a result of his status as a member of the United States Army provided a sufficient "connection" between his offense and his service status to characterize his crime as "arising in the land or naval forces" within the meaning of the Fifth Amendment.
Petitioner contends that the incompetence of his trial counsel is demonstrated by the failure to assert a defense of insanity or to offer any evidence in mitigation before the death sentence was imposed. The record discloses, however, that counsel did seriously investigate the insanity issue;*fn6 the extensive psychiatric evidence that he assembled in advance of trial persuasively indicates that such a defense would not have been successful.*fn7
It is true that two qualified civilian psychiatrists subsequently evaluated the medical history assembled by the army psychiatrists and expressed opinions indicating that petitioner was not legally sane at the time of the offense.*fn8 These opinions tend to prove that the defense would have been meritorious, but they do not establish trial counsel's incompetence. Even if those opinions had been in the trial record, it is not unlikely that the military tribunal would have attached greater weight to the consistent conclusions of the five army psychiatrists, three of whom personally examined petitioner, than to the two later opinions based only on the medical history.
On the basis of the record then available, counsel's decision to use testimony of a psychiatrist in support of a claim that petitioner was incapable of premeditated murder, rather than insane in the legal sense, cannot fairly be criticized. We recognize, as petitioner argues, that an even more detailed investigation might have turned up additional evidence; but even taking into consideration the fact that a capital offense was involved, our review of the record persuades us that counsel's trial preparation was both diligent and professional.
The factors which actually motivated counsel's decision to offer no evidence in mitigation are not available to us. There was no affirmative evidence that this was the result of incompetence; indeed, counsel for respondent suggests several reasonable explanations for it.*fn9 It is sufficient for our purposes, however, simply to observe that, in light of defense counsel's ardent advocacy at earlier stages, it is reasonable to infer that silence at this point was a competent, tactical decision. The wisdom of any tactical decision cannot be judged simply by its actual consequences. In any event, petitioner was not harmed by that determination since the Board of Review reduced his sentence to the minimum allowable under the statute.*fn10 We are not persuaded that counsel's decision, which may or may not have been wise, establishes that petitioner's representation was constitutionally defective.
Based on a review of the record as a whole, including the lawyer's experience, general qualifications, his preparation for trial, and his vigorous conduct of the trial itself, we conclude that petitioner did receive the effective assistance of counsel mandated by the Sixth Amendment.
The judgment is