Petition for Writ of Certiorari — Rutherford v. United States

af =e Office Spreme Court. U.S.

e i" TARY FILED

JOHN F. DAVIS, CLERK

Supreme Court of he Rie ies

October Term, 1963

«Tl Tis7

GEORGE ALBERT RUTHERFORD,

Petitioner,

against

UNITED STATES OF AMERICA,

~~

-Responde nt.

——— —— vena

ee or canes eee ~-

—

" PETITION FOR A WRIT OF CERTIORARI TO THE z

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCU IT :

oe ae y

L

ee? Frank Serr,

Attorney far Pétitioner, |

Office dnd P. O2 Address,

‘66 Court Street,

Brooklyn, New York,

. 6. ~

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= Dy aa

: '. INDEX

rs et ; PAGE

Opinion Below pete wt ay beeen: yeeros ar See |

Sttaement of Grounds of Jurisdiction ...... sWidemes 1

Constitutional Amendments —— Were ere re ee

_ Statutes Inqplved . higehees peda ak sie oe 6TES ae kes i ae

Indictment ........ SS Rep y ivetarebe EET HR 2.

Questions Presented for Review ... es ec etaie err a

MUPONIS OE CAD in cok ca sevice bdeccesees jean 28

Reasons. for Granting the Writ d chess , ek hee es 1

: Conclusion ren es ae a, ae wae Sais Sk a

» APPENDIX. A—Opinion of U. S. Court of Appeals for. «,

the Seeond Cireuit Tree ‘vitae Vicaue a): ae 13

Table of ‘Authorities Cited ,

C ASESS . i

Carlson v. U. S., 296 F. (2). § 909 ° Serer sere 10, 11 :

~ Hyde v. U.S., 225 U.S. 347, 391 ere rer ey ae * ©

“ Petersen v. Greenville, 373. US. 244, 265-.. .::: , 8,9 a9

—— Reat v. U. S, 209 F. (2) 893, 900°........ ans ~

_ Schenck v. U. S., 249 U. 1 Serge seceegce DD

Thomas v. Collins, 323 U.S. 516, 536 ..... Se Soap \ €

Thompson v. Louisville, 362 U.S. 199 ...... aien ae 9

U. 8. v.-Allemp317 F.-(2) 777 ..5.2..0. 0.00005... 101

| Srarvres: _ st ee

Tite 8 E870. See ae ee 2,3,4,9, 10

Title 18 U.'S. C. See. 35(a)(b) wiih aha

Mrscetarous: e ee. <

- The Common Law’’ by 0. W. tfolmes see sseae'es : 3

‘*The Least Dangerous: Branch”’ by Prof. —_ |

ander M. Bickel .......... eaten seereean ¥en 11

: | Supreme Court af the Waite States

October Term, 1963

"No. a > ° “a °

-"

4h

Vv

Grorce Arsert RuTHERFORD, -

7" % ; soc a Petitioner,

« against are rh

* -, Usirep States or AMERICA, ae on

| . ; Re puree

¢ ‘ a ,, <a é

____. . PETITION FOR A A WRIT OF CERTIORARI TO THE.

a : — ITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT -

gr

- | a 7 Opinion Below ae :

There was an opinion by ag United States Court of

Appeals for the Steond Ciretit, Appendix <A.’

,* 2

ion of Grounds of Juriediction:

Na “The judgmenf’ ‘of affirmance of ‘the Unite: States ©

Court of Appeals f6r r the Second Circuit was enter May"

+27, 1964. - : : —

. 2. The juri beiitin of this Court is invoked pursuant

to the provisiogs of 28 U.S. C. Section 1254. --_

Constitutional “Amendments Involved

.First Amendment—U nited States C onstitution

2. Fifth AmeBament—U nited States Constitution —

rod 3. Sixth Amendment—United States Constitution

?

: Lae .

cl as

oes: >

ve

Statutes Involved

ets

“Title 18, U. S, C. See, 32: , a

ep eresans wintaily sets fire to; Ralncene, ‘datsiogs,

- disables or wrecks any civil aircraft, used, operated

or émpleyed in interstate, overseas,, or foreign air

commerce ; or

Whoever willfully Sets fire to, damages, ieaieni.

disables or wrecks any aircraft engine, propéller,

appliance, or spare part. with fittent to damage, :

ee disable or wreck any such aircraft; or-

* Whoever, with like intent,. willfully places ‘or

causes to be placed any destructive substance. in,

upon or in proximity to any such aircraft,or any

aircraft engine, propeller, appliance, spare. part,

fuel, lubriéant, hydraulic fluid, or other material used

_ or intended to be used in connection with the opera-

tion of any such aircraft, or any cargo carried on

any such aircraft, or otherwise makes or ‘causes

to be made.any such ajreraft, aircraft .engine,

- prapeller, appliance, spare part, fuel, lubricant,

hydraulic fluid, or other material . unworkable or

unusable or hazardous to.work or @se; or

Whoever, with*like intent, willfully sets fire to,

ae destroys, disables, or’ wrecks, or places or

~ecauses to be placedoany, destructive substance. in,.

upon 6r in proximity to-aliy shop, supply structure, -

station, depot, termimal, hangar, ramp, landing area,

' air navigation facility or other facility, warehouse,

<property, machine, or apparatus used or intended to

i ion with the operation, loading or

such aireraft or making any ‘such

-@ aireraft ready fof fizht, or otherwise makes or causes

to be.made akysugh shop, supply structure, station,

- depot, terminal, hangar, ramp, landing area, dixnavi-

gation facility, or other facility, warehouse, property,

machine, or apparatus unworkable or unusable or

hazardous to work or use; ‘or foes

4

a

Whoever, with like intent, ilfully aiaaetl

any member of the crew‘of any Yuch aircraft ; or

Whoever willfully attempts to do any of the afore-

said acts or things— ;

oe)

+ shall be fined not mere’ than $10,000. omimprisoned -

“not more than twenty years or both.’’ ,

18 U.S. C. See. 35. (Amended i in 1961) ; 5 e

' .“*Imparting or Conveying False Information

“(a) Whoever imparts or conveys or causes to. be

imparted or conveyed false information, knowing the

information. to alse, concern: ing. an attempt or

- alleged attempt being made or to be made, to do any

act which ‘would be ‘a crime prohibited by this chap-

ter or chapter 97 or chapter 111 of this Title shall be ~

fined not more than $1,000. or imprisoned not 1 more

than one year or both.

(b) Whoever willfully and. maliciously. ‘or with

_ reckless disregard f6r the safety-of human fife, im:

parts or conveys or caused to be imparted or con-

veyed false information, knowing the information to”

be false, concerning an. attempt or alleged attempt

being made. or to be made, to do any act which would

be a erime prohibited by this chapter or chapter 97 :

or chapter. 111 of this Title—shall be fined not more

than $5,000. or imprisoned not more than five years,

or both.’’<" -

: sadietikens

Petitioner was “indicted for-a violation of 18 U. S. C.

- Section 35(a). It charged that the petitioner imparted and

conveyed the false information that he then and. there had

a bomb “which information concerned an attempt to do an

t which would be a crime prohibited by Title 18 U.S. C.

Sec. 32, and Which information the. defendant knew to be

false.”’ ry

Cao —— or Review. ss

1, Whether /the Statute\Section 35(a), as amended in

1961, and as applied to the facts in this ease, abridged ap- -

pellant’s right of “free .speech oer by the vos

Amendment? =

2. Whether ection 35(a) as s amended ‘in 1961, ‘is un-

constitutionally ° vague? y

3. Whether the! indictment is not fatally defective be-

‘cause it charges conveying false information about pos-

sessing ‘a bomb—but omits essential allegation as to intent .

to damage, destroy the plane,—required to constitute a .-

erime under 18 U.S. C. See. 327

_ 4. Whether the. évidence , as insufficient @ as a matter of

law to sustain the conviction? £

*

‘Statement of Case

©

Petitioner, a deck officer for many years in the Merchant

Marine of the United States; was a passenger on board:

‘airplane which had not.yet taken offyat Idlewild Airport,

* on August 13, 1962. ; c

‘ 1. Petitioner incorporates in.this petition the. argument,

analysis and authorities contdined on pages 4. to 11 in the

‘similar petition for certiorari of John Humphrey Sullivan

v. U. S., No. 1401 Misc., now pending in this Court.

The same statutes and, the sam indictment: raise iden- -

tical questions of the validity of: the amended Sec. 35(a),

and also the adequacy of the indictment which charged false

information as to possession of bomb, but omitted essential Le

allegation of intent to age and destroy the plane so as

‘.to constitute a crime under 18 U. S. C. Sec. 32. Such omis-

sion a, both indictments. defective.

t

.

, Behn of Holmes ‘event ‘Sileiie shouting fire in a.

tiebs docs not support validity ol Title 18, U. S.C. Sec, ,

35(a) as amended tn 1961. oe

“To sustain the validity of this conviction, { trial judge

# relied in part and quoted the famous dictum: if Holmes in

Schenck v. U. S., 249 U.S. 47, 522 _

1 166 © ® the character of every act. depends upon

the circumstances in which it is done. The most

stringent protection of /free speech would not pro-

tect a man falsely shouting fire in.a theatre and caus-

ing a panic. a

f

Ntelehes himself, in his diésent in H yde- v..U. 8. 229 u. S.

347, 391, warned of the danger of repeating phrases: ©

‘‘It is one of the misfortunes of the‘law that ideas

become encysted in phrases and thereafter for a long

_ time cease to provoke further ‘analysis.’

It is now time to apply the appropriate analysis to the

-—-- fire-in-theatre phrase. That illustration is not a sample of

free speech. It is the negation, the stoppage of all speech.

Free speech implies time for questions, for answers, for .

inquiry and the weighing of the evidence. That is the

reality of free speech, that is s Government by discussion as

protected by the First Amendment.

The shouting frre- -panic-in- theatre is not free speech at.

all. It is an explosi¥ e, deadly action: It is immaterial that

it consists of one shouted Word only, Its: character of havoc

producer. is revealed by its consequences. It obliterates all

thought, all. speech, all appeal to reason, all possibility of

balancing the evidence. It creates instantaneous pande-

, Monium, An uncontrollable flood of human beings,’ ren-

; dered mad by terror, swirls, surges, tramples and destroys.

’ Aetion with such frightful, concentrated power whose: re-

. sults are immedMte and beyond hunian regulation, ant

- protected by the Constitution. .

" $ ; . : . : ‘

-

Now consider the completely different situation in the

‘instant case. There is no- shouting, there is no crowded.

theatre. (while; Holmes did not use the word ‘‘crowded”’,

that is clearly implied, and is so construed in. Thomas v.

Collins, 323 U. S. 516, 536), and there is no panic. ‘The

plane, has not yet taken off. It is still on the ground. The -

passenger quietly tells the stewardess that ‘‘me amd my

bomb ‘are going to sit here’’, or words to_ that effect - ‘in

answer to her question (15a). , She reports ‘to the Captain *

and’ the Captain promptly comes back and inyeStigates, and-

is told the simple éxplanation, and shown the*sextant in the

box. Except for a few minutes delay in’the takeoff, noth- -

ing happens (7a; loa; 16a). - .

3. As this is a unique, ex reeptional case, the evukence

. creates a reasonable doubt as a matter of law.

a) While petitioner used the word ‘‘bomb”’, he testified

that he used it to describe the sextant which he carried im

box and uséd on his ship. — a ;

The petitioner, 44 years old, married and with no prior

criminal record, is a deck officer in the Merchant Marine

6f the United States. He possessed and used this particular

sextant for about eight years. And during the course of his

‘service at sea, he applied a hickname. to the sextant. He

. called it a*tbomb*’, and so did other navigators and seamen

‘been in Navy ovér eighteen years. And. prior to that, he -

(Ida). He explained the nickname and usage to the Captain

of airplane on day of the incident, and also to the F.B.1.

agent who fRterrogated him (16a). “NGither testified to

| 2

contradict his testimony.: x

SOne Government w itness, Saptain Stanley Ohlin. had

had been in the Merchant “Marine. He had never heard-a

sextant referred to as a bomb in either serviee. But he had

heard the sextant called a very revealing nickname. It

WAS % lied “a ‘thambone** (20a). Afid then a_ trifle, but

a tremendous trifle, occurred in court. The Assistant Dis- .

=>

“+

trict Attorney did not understand the term. The witness

repeated it by emphasizing and dividing the word into two

parts—‘‘Ham Bone’’. The very flifficulty of the Assistant

; Bone’’—suggests the inevitable eVolution. Possibly, after

District: Attétney in inital ey the nickname—‘‘Ham .

Captain Ohlin left the Merchant Marine about 25 years ago,

other seamen had the same trouble with this oddishi and

too long a nio§name. Some practical sailor cut the Gor-

_ dian Knot, and it became the shorter and more easily pro-

ba)

. pouneable ‘‘bomb’’. In conelusion, Captain Ohlin’s own

testimony, in ask strongly supports the ee

“version. . ; °

b) Was thers any conversatign about tail blowing off.

©

and that petitioner did not care, he had plenty of insurance?. ,

"Tite stewardess was the, only witness, out of seven em-

ployees on the. plane, who claimed she heard somebddy say

something “about ‘a tail blowing off’’. And afterwards,

shv remembered that the. petitioner said ‘“‘he didn’t care,

he had plenty-of insurgnee"’. But not a word as.to how the

conversation started, who started it, or its contexttyins

given by the. witness. * Clearly, such testirhony—without

specific beginning and connection, was inadmissible, mis-

leading and prejudicial.

The defendant positively denied any @onversation about

‘the tail blow ing off, and that he ‘did not care: because he

ad plenty of insurance (16a)...

It is significant that the satin testuymon: on behalf of

the prosecution as to th@aords used by the petitioner,

was that of the 25 vear old stewardess. The very absence.

of all other possibte witnesses,—Captain, co- pilot and four -

other stewardesses, the F.B.I. agent to whom the petitioner

told his story, and other passengérs—is strong proof that

the petitioner’s explanation was substantially true. -

e) This, we repeat, is'a unique and exceptional case:

the sextant in bor of petitioner with the other evidence,

.) ; f : , v

. 3 ‘ ‘9 : 8

constitutes an exceptional case and creates a reasonable

doubt as a matter of law.

If the petitioner had been an ordinary passenger, and

had never been to sea, it might be argued that his explana--

tion created an ordinary conflict. But the very presence

of the sextant in his box, his record in the Merchant Marine,

and above all, the partial corroboration by the Govern-

ment’s sole witness, Captain Ohlin—when added together,

constitute a unique, exceptional case. Clearly, this: is not

. the average case where an ordinary conflict is settled by

the trier of the facts. Here, the unusual facts sproduce

an entirely different, ‘indeed, an extraordinary situation.

Under such unique circumstances, it is the appellate fune-

tion of review. that becomes paramount. Of what meaning _

are the ancient and still valid principles of Presumption

of Tnnocence and Reasonable Doubt if they donot tilt the

seales in petitioner’s favor as a matter of law?

O& course, it is impossible to compare the peculiar facts

in various cases. However, the ‘total «absence of any

criminal intent, any criminal, conduct—a scientific instru-

ment is referred to by its vernacular Trade name and a

defendant is convicted—brings us within the ruling of?

Rent v. U: S., 209 F (2) 893 involving the possession of

marijuana.- In reversing, the Court wrote, page 900;

‘‘There was no substantial evidence against ‘the

defendant of a criminal intent. . The ‘evidence was .

. consistent with innocence. It is too much for a man,

to be imprisoned for two years for merely\picking

. up and throwing away a cigarette.’’ ite?

Instead of a cigarette, the petitioner picked up and

used a word, a trade rfckname for a scientific instrument.

& Insufficiency of: evidence cannot be more graphically por-_

trayed. ‘It comes within Harlan’s concurring opinion in

Petersen v. Greenville, 373 U. S. 244, 265:

‘*A conviction so lacking in evidence to support °

the offense must fall under the 14th.Amendment.’’

‘ —_~,

* .

°

e

on

“we

And practically, it parellels the ‘‘totally devoid of

“evidence”? condemned in. Thompson v. Louisville, 362 U.S.

. 199. . . a

"4. Analysis of opinion of Circuit Court of Appeals.

; -

a). In it, reference is made to the parts of Sec. 32 making

the damaging, destroying. a plane,.or attempt to do so, a

erime with no mention of intent. That is true. Implicit

in such acts or attempts is the intent. Ditferent, however,

is possession of a bomb or destructive substance. Such

possession may be’ innocent or equivocal. Therefore, See.

32 expressly provides that possession becomes a crime only

when there is the intent to damage and destroy the plane.

And, consequently, a charge of false information about

possession must include the intent definitely set forth in

See.: :32. '

b) The Cireuit Court relies on the classic dictum of

Holmes about shouting fire in theatre, Schenck vy. U. 8,

249 U.S. 47, 52. The error stems from failure to recognize

the pivotal difference between Sec. 35(a) and’ Sec, 35( b)

-as amended in.1961, (In the later, See. 35(b), was placed

the genuine ‘criminal activity : “Whoever willfully and

“malic tously or with reckless disregard ‘for the safety of

“human life, imparts,’’ ete. Since Section 35(b) prohibits

bad, dangérous conduct, it might be sustairfable on -the

analogy’ of the shouting fite-in-theatre dictum.

On the other hand,. tested by the same analogy, Sec.

35(a) is invalid. When an act is not willful, not malicious,

> not in reckless disregard for the safety of human life, it is

not criminal. It is inadvertent, accidental, innocuous and’

.innocent activity. It is not blameworthy And as Holmes

wrote, although, with some waverings : |

‘criminal liability ** * is founded on blameworthi-

ness’’ The Common Law, p. 50.

ec) The conventional phrase of the Cireuit Court,. that

the findings are based on ‘*contlicting but suflicient evi-.

eee - 10

dence’’, reveals a a per of appreciation. of the unique. and

exceptional charac of -the instant case. As we have

pointed out, if this were the case.of an ordinary ‘passenger |

who had never served at sea, the finding by the trial judge

as to the petitioner’s explanation would. be final. Not so

in’a unique and exceptional.case. Once the sextant was

found in the box of petitioner, plus his U. S. Merchant

Marine service, and his: testimony ‘as to the nickname, and

especially because of the partial corroboration by the

government witness, Captain Ohlin, the character of the

case changed: It was no longer an ordinary conflict; settled

by“the trier of the facts. ‘It became a unique, exceptional

case, and by ifs extraordinary nature, creates a reasonable.

doubt as a matter of law.

» .

d) ‘*An information in this form was -webieta by this

Court in U.S, v. Allen, 2nd Cireuit, 317 F (2) 777.’’ That

is. incorrect. It- overlooks the undisputed fact that the

supplemental! information, at issue in Allen; was not similar

to the Rutherford indictment. Allen differed in one vital

item: It set forth that dn attempt was being: made ‘to

damage and destroy the plane. Consequently, tlie supple-

mental information in. Allen was both different anf valid.

Therefore, the ‘Allen comment as to inten t was dictum, and,

we submit,.erronéous dietum.e The ‘eontrary ruling in

Carlson, 9th Cireuit, 296 F (2) 909, should he preferred..

The Cireuit Court, bas misunderstood the petitioner’

position as to the inadequacy of the indictment.’ The

amendment of Section 35(a) in 1961, has an important

bearing only on the validity of that section.. It has none

whatever on the adequacy 6f the indictment. Both* before

and after the amendment, if the indictment omits an

essential of*the crime, it is inadequate. |

Besides, there was no amendment of Section 32. ‘Tts

provision’ that possession of a bomb or destructive: sub.

stance constitutes a erime only w ith intent to daniage and

destroy plane, remains unaltered.

3g

— : ? ¢ ‘

eck ae

Reasons for Granting Writ

(The first three are similar to those in Sulliv an v¥.U.8;

, Petition for Certiorari, No- 1401 Mise:)

-

_ 1. Conflict in decisions between 9th Circuit, in Carlson -

.v. U.S., 296 F. (2) 909, and the 2nd Cireuit, in U.S. vy. Allen,

317 F. (3) 777, now followed by two ether cases in 2nd

' Cireuit, Sullivan vy. U.S. (No. 1401. Mise. in U.S. Supreme

Court), and Rutherford y. U.S. (the present petition)

should be resolved. .

2. The Carlson decision that intent element should be

set forth i in.the indietment—whaén false possession of bomly ,

is charged—is the correct ruling. It keeps the issues in’.

focus, and promotes the fair administration of. justice. It

should be adopted.

2 Since Title 18 U. S. C. See. 35(a) applies to air

traffic im interstate commer%e all over the United States.

and since this traffie i is constantly inereasing, public policy

‘requires that the issue of the validity or invalidity of this

Sec. 3o(a) and the inadequacy of the indietment be decide d

promptly. In such a sityation, ‘*the passive virtues“, over!

extolled by Prof. Alexander M. Biekel-in “The Test Dan

gerous Braich’ pp. “113-198, and sometimes . justifiably

A practiced, should not be follow _ inpthe instant case.

4. In addition té the three reasons ubove—identical to

- those in Sullivan vy. U.S, _ No. 1401 Mise. — there isa fourth

reason: ordinary conflicts can be setthed by the trier of

facts, whether judge or jury. A different principle must

be applied whén the situation is’ unique, exceptional an id

extraordinary. In. suéh a setup, a reasonable doubt?

created as a matter of law. If this principle is sdigkad § int

unique eases, the administration of-justiee will be promoted,

fabr trials better: seeured, and due process .of law strength.

ened. Particularly Should ‘this be done when there is in

volved a new statute, never before interpreted by the

U nited States — Court.

Sa

CONCLUSION

tevin eben eit 3 Wee ot Con

tiorari should be’ granted to review the judgment of -

ee a, ee my

Circuit.

Respectfr'ly submitted,

Frank ‘Sern,

Attorney for ‘Petitioner,

Office and P. O. Address, :

’ 66 Court Street, .

Brooklyn, New York.

- %

6

13°

APPENDIX A

Opinion of United States Court of Appeals

for the Second Circuit

U sie raed STATES COURT OF APPEA LS

For THE Seconp Cirévit

No. 330_September. Term, 1963.

i

(Argued March 6, 1964 Decided’ May 27, 1964.)

7 Docket No.. 28584 eee nt

a .

eet |

. en Sarl

Unirep States of AMERICA,

oe 4s Appellee,

“against °

GEORGE ALBERT ‘Rutnerrorp,

Defendant-Appellani.

a

Before: . : F

Waterman and Kavrmays, Circ wat Judges anid

Dimeck, District Judae.

fa

a j é

Appeal by Pe ae from a judgment of conviction in-

the United States District Court for the Eastern District

of New York. Jacob Mishler, District Judav.

Affirmed.

»

Frank Serni,. Brooklyn, New tot for Appel-

lant. => oar

?

Jerome C. Dirore, Assistant United States At-

torney for the Eastern District of New York

(Joseph P. Hoey, United States Attorney

for the Eastern District of Now York), for

Appellee.

44

Dimock, District Judge: :

This is an. a from a judgment of conviction under

section 35(a).of title 18 of the United States Code, the first

part of the so-called ‘bomb hoax’’ ap ‘‘false tip’’ séction.

_ A one-count indictment charged that appellant, while on

board a United States airplane at the New York Interna-

tional Airport, ‘‘imparted and conveyed the false inferma-

tion’that he then and there had a bomb, “which. information

_ eoncerned an attempt to do an act which would be a crime.

-. prehibited by Title 18, U. 8. C. Section 32, and which

information ‘the defendant knew to be false.”’ Appellant

testified that he had used the word ‘‘bomb” as a colloquial |

endian for a marine sextant that he was carrying in a

case. |

Appellant was senten d to serve tes days with service

of the remainder ‘of a year sentence suspended.

On a trial without-a jury before District Judge Mishler,

the court, on conflicting baat ‘sufficient evidence, made the

‘following findings :

‘*2) While walking near the rear of the said plane

defendant said to Ruth Raelo [the airline steward

oss],.or within her hearing, ‘I have to sit rear the

back because I have a bomb.*

eae), After soméone (unidentified) made a state-

ment containing the phrase or expressed the thought

of the ‘tal blowing off,’ defendant stated that he

didn’t care sinee“he had plenty of insurance. *’

5) The navigatioral sextant .is not commonly re-

ferred to by seamen or anyone else as a ‘bomb.* *’

‘*6) The reference in finding No. 3, concerning —

insurance, was knowingly and intentionally made to

impart and convey the false information that. the

destravtive foree of the bomb would destroy the

plane and end: his life.” as

-

la

sae

s oe

‘*7) Defendant iiiaaniie and intentionally im-

parted the false information that he was carrying a

destructive and explosive substance referring to the

wooden case holding the navigational sextant.’’ —

_ Appellant’s contention that the evidence Was insufficient

“to sustain a conviction is without substance.

It is contended that the statute abridges freedom of

speech in violation of the First Amendment: -

Both scction 32 and an earlier’ form of section 35(a)

Were parts of Public Law 709 adopted July 14, 1936, entitled

‘An act to punish the willful damaging or destroying’ of-

aircraft .or motot vehicles, and their facilities, and for

other purposes."" In amended fori it constitutes Chapter.

2 of Title 18 of the v nited States Code. Sections 32 and °

35(a) are quoted in ‘the margin.*

*§ 32. Destruction of aircraft or aircraft facilities

“Whoever williully sets fire to. gamages. destroys, disables, or

wrecks any civil aircraft used, operated, or employed in interstate,

overseas, OF foreign air commerce ; or

“Whoever willfully sets fire ‘to, damages, destroys. disables, or

wrechS any aircratt engine. propeller, apphance, or spare part with

intent to damage. destroy, disable, or wreck’ any such aircraft ; or,

“Whoever, with like intent, willfully places or causes’ to ‘be plae ed

any “destructive Substance i, UpeNn, OF In proximity to amy such air

craft, oF any aircraft’ érgine, propeller, appliance, spary part. fuel,

lubricant. hydraulic fluid, or other ‘material used or: intended to be

used in connection ‘with the operation of any such aircraft, or any

cargo carried or intended to be carried’ on any such aircraft, or other

wise makes or causes to be made any such aircraft, aircraft engine,»

propeller, appliance, spare part. fuel. lubricant, hydraulic fluid, or

other material unworkable or en or hazardous to- work or

use; or , r "

“Whoever, with like intent, willfully sets firé to, duinage’, destroys,

disables, or wrecks, or places or cayses to be placed any destructive

substance in, upon. or. In proximity to ‘atiy shoy, supply, structure,

station, depot, terminal. diangar, ramp. landing” area, air-navigation

facility or other’ facility. warehouse, property. ‘maghine, or apparatus

_ used or intended to be used in connegtion with pie operation, loading,

or unloading of any such aircraft or making any such aircraft ready

16 :,

‘Section 32 deals with damaging or déstroying aircraft,

damaging or destroying aircraft;parts with intent to dam-

age.or destroy the aircraft, placing destructive substances

on aircraft or parts with like intent, and damaging or plac-

ing destructive substances on aircraft facilities with like

intent. Section 33 deals similarly with motor vehicles ex- _ -

cept that no act is made criminal unless.done with intent

‘to endanger, of with reckless regard f6r, human life.

Section 35(a), under consideration in this case, makes

‘eriminal the’ imparting of information, jgowing the in-

formation to be false, concerning an attempt or an alleged

attempt being made or to be made to do any act which

would be a crime prohibited by the chapter. Thus the

statute would be violated by the imparting of knowingly |

“false information with respect to an attempt about to -be

made to damage an aircraft; in. any way irrespective of

for flight, or.otherwise makes or causes to be made any such shop,

supply, structure, station, depot, terminal, hangar, ramp, landing area,

air-navigation facility: or other facility, warehouse, property, machine,

or apparatus unworkable or unusable or hazardous to work or-use ; or

“Whoever, with like intent, willfully —_— me member. of

the crew of any sych aircraft ; or

“Whoever willfully attempts to do any of the perry acts or

. dine

“shall be fined not more than $10,000 or imprisoned not more —

chan twenty years, of both.” &; aes

§ 35. Imparting or conveying false information -

~ (a) Whoever imparts or conveys or causes to be imparted or con-

- veyed false information, knowing the information to be false, concern- -

- ing an attempt or alleged attempt being made or to be made, to do

any act which would be a grime prohibited by this chapter or chapter

97 or chapter 111 of this title shall be fined not more than $1 - or

imprisoned not more than one year, or both.

(b) Whoever willfully’and maliciously, or with reckless’ ingirt

for the safety of human life, imparts or conveys or causes to be im-

parted or conveyed false information, knowing the information to be

” false, concerning an attempt or alleged attempt being made or to be

‘made, to dd any act which would be a crime prohibited by this chapter

or chapter 97 or chapter 111 of this titlke—shall be fined not more

than $5,000, or imprisoned not more than five years, or. both.

~

-

<

*

‘

17 |

the saboteur’s intent, Bina’ damage a* eleee vehicle in any,

way, with intent to effdangér the safety of any’ person on

board. ~~

If the statute so far as it apblied to aircraft were

limited to making criminaltie imp. :ting of false informa-

tion with respect to the existence of a bonib on a loaded air-

| craft, there could be little doubt that th iving of the false

information would be beyond the protection of\the First —

Amendment. It would fall within the principle of the false

_ ery of fire in‘a crowded theatre, the classic illustration of

unprotected speech given by Mr. Justice. Hglmes in

Schenck y United States, 249 U.S. 47, 52.. Such speech is

characterized as a ‘‘verbal act’’ by Mr. Justice Lamat in

CGiompers v. Bucks Stove Range Co., 221, U. S. 415, 439,

cited in fhe Schenck opinion.

As above indicated, however, the statute goes much

farther and, on its face, would make criminal the impart-

bi ing .or information known to be. false that someone was

about to destroy the motion picture screen on an out-of-

service aircraft undergoing repairs in its hanger. Never-

theless we need not consider_the question whether a pro-

vision of a statute denouncing that act in those terms would

offend the First Amendment. As applied to the act of which

appellant was found guilty, the act is clearly constitutional.

The decision of the question whether the act is unconstitu-

tional as applied to some other set of circumstances must

_be. left for a‘case which raises that question. United

States v.,.Raines, 362 U. S. 17.

Appellant’s contention that the statute is unconstitu-

tionally vague in that its words permit conviction for

innocent acts is answered in the same way. There is noth-

ing vague about its application to the’ ‘facts found by the

edurt below.

Finally. we are told that the. indictment is defective as

it omits: an essential element of the crime. It will be

remembered, that section 35(a) makes criminal the impart-

ing of false information concerning an attempt ‘‘to do aay

act which would be a crime. prohibited by this chapter.”’

Beds neh ma a oe

-The‘indiefment charges that the defendant, while on board -

ai} aircraft, ‘‘imparted and conveyed the false information

that he‘then and there had a bomb, which information con-

cerned an-attempt to do an act which would be a crime pro-

~ hibited by, Vitle18, U.S. C. section 32, and which informa-

tion the defendant knew to be false.’’ Section 32, therein

referred to, is part of the same chapter as section 35(a) -

.. and penalizes, among others, whoever willfully places any

destructive substane an aircraft ‘‘with intent to damage,

“Aestroy, djsable, orwreck any such aircraft. 5

The alleged. defect in the indictment is that, while it’

stated that the imparted information concerned the placing .

‘of a destructive substance on an aircraft, it failed to state -

‘that it was a placing ‘with intent to damage, destroy, dis-

able or wreck”? the aircraft that the information concerned.

An information in this for m was upheld by this court in

United States vy. Allen, 2.Cir., 317 F.2d 777. Counsel seeks

_ to distinguish that case on the ground that seetion old 35,

_which was there concerned, differed from the present sec-

tion 35(a) in that. section old 35 penalized whoey er, “will

fully’ imparted the false informatiin, while section 35(a),

“which —— identical, omits that word.

~~ We fail to understand why there is. mor® need for alleg- |

ing intent of the saboteur in a case where willfulness of the

informer is no part of thé crime than where the informer’s

willfulness is necessary element. We held that this

court's decision in the Allen case is applicable. here and we

_ adhere to it. =i :

The judgment. of conv iction is affirmed.

2