McLaughlin, Freedman and Gibbons, Circuit Judges. On Rehearing: Hastie, Chief Judge, McLaughlin, Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges.
GERALD McLAUGHLIN, Circuit Judge.
Appellant, an alleged deserter from the United States Air Force, appeals from an order of the United States District Court for the Western District of Pennsylvania denying his petition for a writ of habeas corpus.
Terrence Stone was arrested on September 27, 1969, on desertion charges and was incarcerated. On appeal he attacks the legality of his detention by Air Force authorities basically on the ground that his original four-year term of enlistment has long expired, and that the purported extensions of his enlistment were invalid. Appellant claims that if this writ does not issue to secure his release from military custody, the Air Force authorities will transport him to Japan, and turn him over to civilian Japanese authorities to serve a six-year sentence imposed by the Japanese judicial system.
It is undisputed that appellant enlisted in the United States Air Force on September 17, 1964, and that under ordinary circumstances, this term of enlistment would have expired on September 17, 1968. After certain assignments in the United States following his enlistment, on July 5, 1967 appellant was assigned to duty in Vietnam. After serving there approximately nine months, he was allowed a six day Rest and Recouperation Leave (R & R), commencing on March, 5, 1968. Stone, voluntarily, used his R & R in Japan, and was scheduled to report back to the military upon the completion of his leave at 2400 hours, March 11, 1968. He was to board a flight departing from Japan at 0200 hours, March 12, 1968. Stone failed to report back, and his duty status then changed to Absent Without Leave (AWOL) for 19 days until March 29, 1968, when he was returned to military control at Tachikawa Air Force Base, Japan. He was charged with various offenses related to his AWOL time, and was convicted by a General Court-Martial and sentenced to confinement at hard labor for 60 days. He was actually confined for a period of 50 days from October 19, 1968 to December 7, 1968.
On March 30, 1968, the Government of Japan notified the United States Air Force that Stone was alleged to have robbed and attempted to rape a Japanese woman on March 27, 1968 in Tokyo; this was during the time period when appellant was AWOL. On April 26, 1968, the Japanese Ministry of Justice notified the Government of the United States that Japan would exercise its criminal jurisdiction over Stone's case.*fn1 Airman Stone, though remaining in military control, was made available to the Japanese Government pursuant to Article XVII 5(c) and the Agreed Minute thereto of the Status of Forces Agreement between the United States and the Government of Japan.*fn2
Appellant was subsequently tried on a robbery-attempted rape indictment in accordance with Japanese procedure by a three-judge judicial panel at seven sessions of the Tokyo District Court on June 26, July 10, July 12, July 17, July 23, September 11 and September 18, 1968.*fn3 At that trial, petitioner was represented by counsel, members of the Tokyo Bar, paid by the United States Government. Interpreters also were present.
Appellant Stone was advised of his right to remain silent as to the charges against him, but waived this right and testified in his own behalf. Stone admitted the robbery, but denied the attempted rape charge. The victim testified in detail about the incidents of the charges against Stone. Another Airman, Stone's companion on the day of the offense, who was likewise AWOL, also testified. On September 18, 1968 the Court found Stone guilty of both robbery and attempted rape. Stone was sentenced to six years imprisonment, and forfeiture of the knife which Stone had used to intimidate the victim.*fn4 Although there is no verbatim transcript of the trial, the United States Ambassador had trial observers present, and their report is part of this record.
On April 14, 1969, the Tokyo High Court affirmed the conviction and sentence, and on August 29, 1969 the Supreme Court of Japan, that nation's highest and final judicial tribunal, also affirmed. Throughout that period appellant remained in military control, though his only confinement was for 50 days on the AWOL charge. On September 12, 1969, subsequent to the Supreme Court of Japan's affirmance of his conviction, Stone again went AWOL, and via commercial airline transportation left Japan and went to his home in Pennsylvania at his own expense. On September 19, 1969, desertion charges -- on which his last arrest and present confinement is based -- were brought against him pursuant to Article 85, Uniform Code of Military Justice, 10 U.S.C.A. §§ 802 and 885.
The sole question for decision is whether or not appellant's enlistment extensions were valid. If they were not, Stone was not a member of the Armed Forces when he left Japan, the desertion charges against him must fall, his detention is illegal and the writ of habeas corpus should have been issued. Appellant's attack upon his enlistment extensions in this Court is two-pronged. First, he alleges that he was coerced into extending his enlistment. Second, he asserts that his enlistment extension papers were not properly verified.
His contention that he was coerced into extending his enlistment is a factual problem, involving credibility, and was examined by the district court. The court below heard appellant's testimony on October 3, 1969, and on October 29, 1969. Stone testified, in effect, that he was forced to sign the enlistment extension papers by threats that if he did not, he would be immediately discharged and turned over to the Japanese Government as a civilian to face the robbery and attempted rape charges. Tr. 9-14, October 3, 1969. This is the essence of Stone's coercion claim. In addition to his testimony on this issue, the court below had before it the affidavits of: (1) Technical Sergeant Bernard Marvel, dated October 6, 1969; (2) Major A. G. MacKeen, dated October 8, 1969; and (3) former Captain D. J. Cooke, dated October 8, 1969. These affiants denied that any force or threats were used to cause Stone to extend his enlistment. From the evidence the trial judge was convinced that Stone elected to extend his enlistment in order to gain the benefits afforded to a member of the Armed Forces charged with crime by Japanese civil authorities; e.g. counsel provided by the military, and detention by the Armed Forces versus pre-trial confinement in a Japanese jail. The court specifically found:
"I * * * give no credibility to the petitioner in his statements that he was coerced into the signing of these extensions for his original term of enlistment." United States ex rel. Stone v. Robinson et al., 309 F. Supp. 1261, 1265 (W.D.Penn., 1970).
"* * * I conclude that his choice of custody with the Armed Forces as against commitment to a jail in Japan was a voluntary act willingly ...