Brief for Respondents in Opposition — Epton v. Nenna

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SUPREjA- cou IN‘THE

—_ A

Supreme Court of the Anited States

October Term, 1971

No. 71-358

UNITED STATES OF AMERICA

ex rel. WILLIAM EPTON,

Petitioner,

against

ALBERT NENNA, Warden, Manhattan House of

Detention for Men,

Respondent.

On Petition for a Writ of Cextiorari to the

United States Court of Appeals for the Second Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

Frank S. Hocan

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) RE 2-7300

MioHakEL R. JUVILER

Davip Ot1s FuuLER, JR.

Assistant District ciate

Of Counsel

Pepe tneneY

TABLE OF CONTENTS

Petitioner’s Previous Applications to This Court

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The Evidence at Epton’s Trial

The People’s Case oo

Petitioner Epton’s activities prior to July,

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Thursday, July 16, 1964—the death of James

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Saturday, July 25—the petitioner’s arrest _.

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18

19

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Subsequent Proceedings

Summary of Argument

Argument

Point I—The grand jury that indicted the petitioner

was lawfully impaneled without purposeful or

intentional exclusion of any element of the com-

munity entitled to representation

Point II—The verdict was fully supported by evi-

dence, petitioner’s guilt having been proved be-

yond a reasonable doubt

Point I1I—The validity of the state anarchy stat-

utes need not be reviewed; and in any event,

these statutes are constitutional

Point IV—The conviction for conspiracy to com-

mit the crime of riot did not violate the First

Amendment

Point V—The petitioner was not denied duc process

by the court’s amendment of the count charg-

ing conspiracy to riot

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Conclusion

31

31

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III

TABLE OF AUTHORITIES

PAGE

Cases:

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ... 44

Benton v. Maryland, 395 U.S. 784 NE ists cassis 36 —

Brandenberg v. Ohio, 595 U.S. 444 ( i isipcctanicncss 40

Bryson v. United States, 396 U.S. 64 ( a 29, 40

Burton v. New York, 402 U.S. 991 i: | 29, 37

Dennis v. United States, 341 U.S. 494 (1951) ....27, 29, 37,

39-46, 41, 42, 45, 46

Dombrowski vy. Pfister, 380 U.S. 479 (1964) ................ 43, 45

Epton v. New York, 390 U.S. 29, rehearing denied, 390

I 36, 48

Gaines v. Rugg, 148 U.S. 228 (1893) 00. 36

Ginzburg v. United States, 383 U.S. 463 ( | 42

Hirabayashi v. United States, 320 U.S. 81 (1943) ........ 36

Keyishian v. Board of Regents of the State of New

York, 385 U.S. 589 (1967) ooo coccccccccccssccecescesecceee. 44, 46

Lanza v. New York, 370 U.S. 139 ( ae 36

People v. Chestnut, 26 N Y 2d 481 (1970) 000000... oo... 27

People v. Gitlow, 234 N.Y. 132 (1922), aff’d, 268 U.S.

aR Sineicw ge aineanienoras 29, 37, 38, 39, 41-2, 46

People v. Tavormina, 257 N.Y. 84 (1931) ................... 50

Pinkerton v. United States, 328 U.S. 640 (1946) ....... 50

Samuels v. Mackell, 288 F. Supp. 348 (S.D.N.Y. 1968)

(FRienviy, J., for 3-judge court), aff’d on other

grounds, 401 U.S. 66 (1971) oo. 36, 38, 43, 44

Scales v. United States, 367 U.S. 203 (1961) ................ 43, 44

Schenk v. United States, 249 U.S. 47 (1919) ................ 41

1V

PAGE

Thomas v. United States, 398 F.2d 531 (5th Cir. 1967) 51

United States ex rel. Chestnut et al. v. Criminal Court

~ et al., No. 71-156, October Term, 1971 .................... 27, 31

Williams v. United States, 341 U.S. 97 (1951) ............ 30, 44

Yates v. United States, 354 U.S. 298 (1957) ....27, 29, 37, 38,

39, 40, 42, 46

Statutes:

N.Y. Civil Service Law

a omen eeeeuiainaoens 44

N.Y. Code Crim. Proc.

SEE A ORAS eC EE PORTE CR 51

EA ERT SI OnE on ee DE RY SRR 51

AEN Selo STAND. eRe oe PIE ea RE 40

N.Y. Education Law

nt en ath to ee ea 44

N.Y. Penal Law, former

ee oa iisea alone ech exacsin estboonebtanatesel 3, 35, 45

Ye Es cut ER T ASA Ne rat Oe HERO 3, 35, 44, 45

ote a Sa EI Ln A eee oe Cave A Renae. 4, 32, 35

ELT EEN hee eh Oho AUN mite nh cb mB rs 5, 32

gph RE eS ee let artes MPA RE aI ret ost retar eB eo 32

N.Y. Penal Law

EN til ash assridinchinns dade saivansnsveonetalaed ad uenavietiserlinc eo 43

IN THE

Supreme Court of the United States

October Term, 1971

No. 71-358

——— > ee

Unirep States or America ex rel. WruuIAM Epron,

Petitioner,

against

Apert Nenna, Warden, Manhattan House of

Detention for Men,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

—— >i

BRIEF FOR RESPONDENT IN OPPOSITION

Petitioner’s Previous Application to This Court

William Epton’s petition for a writ of certiorari to re-

view the affirmance of his judgment of conviction by the

New York Court of Appeals was denied, and his appeal

was dismissed for want of a substantial federal question.

390 U.S. 29 (Doveuas, J., dissenting), rehearing denied, 390

U.S. 976 (1968). His motion for leave to file a petition

for rehearing out of time was denied. 398 U.S. 944 (1970).

bo

Opinions Below

The opinion of the district court (Petition, pp. 18a-37a)

is reported at 318 F.Supp. 899. The opinion of the court

of appeals (Petition, pp. la-12°) has not yet been rcported.

Jurisdiction

The order of the court of appeals was entered on June

30, 1971. The petition for a writ of certiorari was filed

on August 26, 1971. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

Questions Presented

1. Was the grand jury that indicted the petitioner un-

constitutionaily impaneled?

2. Was the petitioner’s conviction totally unsupported

by evidence, thereby depriving him of due process?

3. Since this Court, in dismissing petitioner’s appeal

in 1968 on the same record as here, has already either up-

held the New York anarchy statutes or determined that

their validity should not be reviewed because of the con-

current sentence doctrine, should it now pass upon them

in the absenge of new facts or law?

4, Are New York’s criminal anarchy statutes violative

of freedom of speech or unduly vague?

5. Are New York’s statutes prohibiting conspiracy to

commit the crime of riot constitutionally inapplicable to

speech, in circumstances of clear and present danger of

violence?

6. Was the petitioner unconstitutionally prejudiced by

the trial court’s amendment of the count charging con-

spiracy to riot?

Statutes Involved

Former N. Y. Penal Law, 8160.

Criminal anarchy defined.

Criminal anarchy is the doctrine that organized govern-

ment should be overthrown by force or violence, or by

assassination of the executive head or of any of the execu-

tive officials of government, or by any unlawful means.

The advocacy of such doctrine either by word of mouth or

writing is a felony. .

Former N. Y. Penal Law, §161.

Advocacy of criminal anarchy.

Any person who:

1. By word of mouth or writing advocates, advises or

teaches the duty, necessity or propriety of overthrowing

or overturning organized government by force or violence,

or by assassination of the executive head or of any of the

executive officials of government, or by any unlawful

means; or,

2. Prints, publishes, edits, issues or knowingly cireu-

lates, sells, distributes or publicly displays any book, pa-

per, document, or written or printed matter in any form,

4

containing or advocating, advising or teaching the doctrine

that organized government should be overthrown by force,

violence or any unlawful means; or,

3. Openly, wilfully and deliberately justifies by word

of mouth or writing the assassination or unlawful killing

or assaulting of any executive or other officer of the United

States or any state or of any civilized nation having an

organized government because of his official character or

any other crime, with intent to teach, spread or advocate

the vropriety of the doctrines of criminal anarchy; or,

4. Organizes or helps to organize or becomes a member

of or voluntarily assembles with any society, group or

assembly of persons formed to teach or advocate such

doctrine.

Is guilty of a felony and punishabie by imprisonment

for not more than ten years, or by a fine of not more than

five thousand dollars, or both.

Former N. Y. Penal Law, §580.

Definition of conspiracy as a misdemeanor.

If two or more persons conspire: -

1. To commit a crime * * *

Each of them is guilty of a disdemeanor.

4)

Former N. Y. Penal Law, §2090.

Riot defined.

Whenever three or more persons, having assembled for

any purpose, disturb the public peace, by using force or

violence to any other person, or to property, or threaten

or attempt to commit such disturbance, or to do an unlaw-

ful act by the use of force or violence, accompanied with the

power of immediate execution of such threat or attempt,

they are guilty of riot.

Statement

This is the fifth opportunity that this Court has had

to review the judgment in this case. The petitioner’s first

petition for certiorari was denied, his appeal was dis-

missed, rehearing was denied and his motion to file a

petition for rehearing out of time was denied. The facts

supporting his conviction, by now familiar to this Court,

are as follows:

On Saturday night, July 18, 1964, the anger of thou-

sands of residents of Harlem in New York City, intensified

beyond the breaking point by recent news of the shooting

of a youth by a police officer, broke out in riot. For months

previously, the petitioner, a leader of a ‘*clandestine’’

group advocating and preparing for violence against exist-

ing government authority, had sought ways to arm and

‘organize the people of Harlem. The issue he had settled on

to inflame.the people was ‘‘police brutality,’’ his proclaimed

enemy being the ‘‘cops.’’

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6

When riot erupted, while responsible community leaders

ardently strove to restore people to calm and reason,

Epton deliberately sought to organize and continue the

riots. Busily working with other members of the group,

delivering belligerent public speeches and issuing a stream

of inflammatory leaflets directed primarily against the po-

lice, ne openly urged that the police be fought and killed,

and suggested methods for doing so. Meanwhile, conniving

with others, he planned to distribute Molotov cocktails, to

spread the riots, and to keep the rioters inflamed. The riot-

ing ended in mid-week. But the following weekend, peti-

tioner sought to lead a demonstration through tke streets

of Harlem, with the avowed intent of provoking further

violence and renewing the outbreaks, and he was arrested.

The petitioner was indicted for conspiracy to commit

riot, riot, conspiracy to commit criminal anarchy and crim-

inal anarchy. The count charging the substantive crime

of riot was dismissed by the trial court at the close of the

People’s case, and the defendant was found guilty on all

other charges.

THE EVIDENCE AT EPTON’S TRIAL

The People’s Case

Petitioner Epton’s activities prior to July, 1964

Detective Adolph W. Hart, a member of the Police

Department ’s Bureau of Special Services, testified that he

was assigned to join the Harlem branch of the Progressive

Labor Movement [P.L.M.] in November, 1963 (328-9, 612-

21).* At the P. L. M. offices, 336 Lenox Avenue, he met

* References, unless otherwise indicated, are to the typewritten

pages of the trial minutes, the state appeal having been heard on the

original tynewritten record.

7

William Epton, president of the Harlem branch of P. L. M.,

and told him that he wished to join a militant organization

(329-30, 621-5). The petitioner told the witness he had

*‘come to the right place, that his organization was militant,

unlike CORE or the N. A. A. C. P.; he stated that they will

fight and that they carry arms * * *.’? Tue P. L. M., the

petitioner told Hart, believes in the ‘‘Chinese version’’ of

Communism—that social revolution could be accomplished

not by a peaceful transformation of government, but only

through violence (331-9, 810-23).

In ensuing months, Epton had several conversations

with Hart, telling him that ‘‘the organization was more

or less clandestine and * * * party business could not be

discussed with anyone outside the party,’’ and that ‘‘they

carried firearms * * * [H]e had weapons and * * * would

supply the ammunition’? (339-40, 642-3, 808-12, 823).

Methods of defeating the police during demonstrations

were also discussed, as was a proposal to train a cadre

of leaders ‘‘in military and intellectual ways and means’’

(337-43, 638-42, 666-8, 736).

At a meeting of New York City members in March 1964,

petitioner was elected a vice-chairman of the national

P. L. M. (348-7, 633-6). A national program and party

constitution was distributed that day; this document noted

that ‘‘the over-riding historical task for us during the im-

mediate period ahead is to build a Marxist-Leninist. Party

in this country * * * [i]n its policies dedicated clearly to

isolating the ruling class and to expose and undermine the

role of the state in our country and the world”’ (347-8, 352,

355-71, 625-33; Exh. 13). In discussing tactics to be em-

ployed in large cities, the documénts stated that ‘‘neighbor-

Diuinihe fGen oe ae nee ee

8

hood defense organizations’’ should be estuvlished ‘‘to pro-

tect the people in the neighborhood from the cops * * *

This movement must be aimed at the control of the streets

by the people’’ (368; Exh. 13). Quoting Lenin in a ‘‘final

note on why we must have a clear program of strategy

and tactics,’’ the document stated:

‘‘Never play with insurrection, but when beginning

it firmly realize that you must go to the end. You must

concentrate a great superiority of forces at the decisive

movement, otherwise the enemy, who has the advantage

of better preparation and organization will destroy the

insurgents. Once the insurrection has begun, you must

act with the greatest determination and by all means

without fail, take the offensive * * * and at all costs

retain ‘moral ascendency’ ’’ (371; Exh. 13).

Aside from Hart, the Harlem branch of the Progressive

Labor Movement had five members, including Epton and

his wife (373, 848-52). In April one of these members,

David Dovgias [named as a co-conspirator], petitioner’s

‘*second-in-command”’ (373-4), told Hart that Epton had

decided to try to organize the Harlem area block by block,

starting especially with the teen-agers, with whom he wouid

build up ‘‘terrorist bands’’ eventually powerful enough to

‘‘confront the police’’ (374-5, 379-80, 643-4). A month later,

in May, petitioner told Hart that ‘‘police brutality would

be the hot issue during the coming summer,’’ and in June,

Hart discussed the formation of a ‘‘Harlem Defense Coun-

cil’’ witn petitioner, Douglas, and five other persons, peti-

tioner proclaiming that he wished to ‘‘mobilize the Harlem

area, block by block, with a captain or lieutenant in charge

of each block * * * [H]e would begin with simple picket

lines procedure to arouse interest in the organization and

9

gradually work the people up into more militant actions

* * * [E]ventually it was his wish to work the people up

into a state that they would arm themselves, armed self-

defense * * * [against] * * * the police’’ (382-3, 387-8, 644-9,

654-5, 661-3, 823-4).

Thursday, July 16, 1964—the death of James Powell

It was stipulated ‘‘that on July 16, 1964, in the daytime,

in the E st 70’s, in the Borough of Manhattan, one James

Powell, a fifteen-year-old Negro boy was shot and killed by

Thomas Gilligan, a New Yo: City Lieutenant of Police,

who was then off duty and in civilian clothes * * * [T]here

were several versions of this incident * * * in violent dis-

agreement with each other, which were disseminated short-

ly after the time of the incident in newspapers and by

means of radio and television in New York City, inclusive

of the Harlem area of New York City’’ (883).

On that day, Detective Hart testified, letters were sent

to prospective members of the Havlem Defense Council

asking them to attend a street rally on Saturday afternoon,

July 18, and a meeting at the Harlem P. L. M. headquarters

on the evening of July 22nd (388-91; Exh, 14). Among

‘‘recent eveuis’’ noted in the letters was one in which:

‘‘A young (15 year old) Negro youth was shot to

death by an off-duty cop this afternoon on East 76th

Street. The cop shot the kid once. He fell to the

ground. The cop then stood over him and fired two

more shots into him and then he kicked the kid after

he was dead’’ (390-1; Exh. 14).

On the next day, at Epton’s direction, a leaflet advertising

the street meeting was distributed; its headline—‘‘Stop the

cops’’—was suggested by Hart. The leaflet began:

10

: ‘‘Once again the cops have murdered one of our

children. They have been killing about one black per-

son a day in New York City’’ (391-5, 650-4; Exh. 15).

Saturday, July 18—the eve of the riot

Detectives John Rivera and Francis Koopman testified

that. using a hidden transmitter and receiver they re-

corded a public speech made by the petitioner at the corner

of 115th Street and Lenox Avenue, beginning at about

5 p.m. on the afternoon of July 18, 1964 (Rivera: 207-31;

Koopman: 231-72, 277-316; Exh. 6). They identified in

court typewritten transcripts of the recording (Exhs. 2, 3).

Addressing an audience numbering about fifty listen-

ers, Epton spoke of the need for violent action:

‘“‘[W]le’ll begin a campaign to organize a: mass

demonstration against the cops somewhere in this city.

As it stands now, many organizations are talking and

planning of where this demonstration is going to take

place and we’re not saying it’s going to be a peace-

ful demonstration * * * They [the cops] declared

war on us and we should declare war on them and

every time they kill one of us damn it, we’ll kill one

of them aud we should start thinking that way right

now * * * because we had better stop talking about

violence as a dirty word * * *.

‘c* * * Tf we’re going to be free, and we wili not

be fully free until w* smash this state completely and

totally. Destroy and set up a new state of our own

choosing and of our own liking. And in that process

of making this state, we’re going to have to kill a lot

of these cops, a lot of these judges, and we’ll have

to go up against their army. We’ll organize our own

militia and our own army * * *. Think about it be-

* cause no people in this world have ever achieved in-

11

dependence and freedom through the ballot or having

it legislated to them. All people in this world who are

free got their freedom through struggle and through

revolution. That’s the way to gain freedom”? (Exhs.

2, 6).

After introducing another speaker, petitioner spoke again,

telling his listeners:

“<* * * We will take our freedom. We will take it

by any means necessary and any Means necessary as

we know the beast that we are dealing with is thet

we have to create a revolution in this country and we

will create a new government that is run by the peo-

ple * * *. Those who are ready to come with us and

stand with us and join the Harlem Defense Council

* * * will go back into their blocks and organize their

blocks into defense committees so when the deal oes

through they will be able to be in the street tens of

thousands strong ready to face that man. And we

know how to use weapons just like they know how to |

use weapons. And when the deal goes down we have

to be ready to confront them and beat them * * *”

(Exhs. 3, 6). a

Before the rally, Epton had informed Detective Hart

that if between two hundred and three hundred people at-

tended, he would organize a march to the 32nd Police Pre-

einct on Lenox Avenue to demonstrate against police bru-

tality (395-6). As it turned out, however, no more than a

huncred or a hundred and fifty persons gathered at that

rally at any one time, and the meeting dispersed without

any demonstration or disturbance (Rivera: 225, 227-8;

Koopman: 296; Hart: 396-9, 824-7, 852-4). But afterwards

petitioner promised future ‘‘non-non-violent demonstra-

tions and actions by him in that area’’ (Hart: 397-9, 852-3,

869-73).

12

The fiot

That evening, July 18, rioting broke out in Harlem;

Detective Hart saw thousands of persons ‘‘milling arcund’’

in the area from 110th Street to 135th Street between

Lenox and Eighth Avenues (399-403, 827-9). Rocks were

thrown at the police, stores were looted, Molotov cock-

tails hurled from roofs, while the police, trying to dis-

perse the crowds, would charge in, sometimes hurting non-

rioters (399-403).

Marc Crawford reported the Harlem riots for Life

magazine (578-81). He came to Harlem on Sunday, July

19, the day after the rioting began, accompanied by a pho-

tographer, and observed events during the following week

(581-3, 588-90). On Sunday, this witness saw a meeting in

a church, addressed by civil rights leaders, break up ‘‘ when

a bunch of young people ran out of the church * * * head-

ing toward the funeral home where the Powell boy’s body

was’’ (585). Thereafter followed ‘‘a complete breakdown

of law and order’’ (585). ‘‘[A]s the night wore on and

the darkness came, people began to jeer, * * * the whole

traffic was disrupted’’ (586). There was shooting; a group

of officers would fire in unison over building tops; ‘‘ [o]ften-

times a bottle would fly from some place and the police

would enter a building ana clean the building out’’ (587).

The reporter saw men beaten; one man he saw had been

shot (587-8). One night during the height of the riots, the

"photographer accompanying the witness took a picture

(Exh. 28) showing a group of youths holding posters ex-

horting ‘‘Wanted for murder—Gilligan the Cop,’’ issued

by the Harlem Defense Council (578-80, 1656-7).

13

Sunday, July 19

On thst Sunday, the Harlem headquarters of P. L. M.

was busy—Detective Hart saw ‘‘leaflets of all kinds * * *

being run off the mimeograph machine. There were dozens

of people in the office in and out, and everyone had sug-

gestions as to how to combat the police in the Harlem

area’’ (403-4). One of the leaflets, produced while the

petitioner was present, and headlined ‘‘Stop the cops,’

began ‘‘Last night police from all over the city declared

war on Harlem’’; it invited the public to a meeting at the

Harlem P. L. M. Club that night, ending ‘‘Those of you

who protest the war of genocide being waged on black

people should attend this meeting’? (404-6; Exh. 16).

About two thousand of these leaflets were distributed that

day (421-2). Petitioner was at the P. L. M. office, but

then left, and when he returned he said ‘‘he had been

downtown to discuss the strategy that the Harlem Club

would utilize during the present crisis’’ (408). After work-

ing in a back room, petitioner joined a group—consisting

of William McAdoo, Harold Young [named as co-conspira-

tors], Pernella Wattley and the witness Hart—and the

discussion turned to whether a leaflet on Molotov cocktails

should be prepared (408, 413-17, 449-53, 674-6, 682-7, 1659-

61, 1663-6). Epton said it was ‘‘a good idea’’ but that

‘‘wheever printed the leaflet couldn’t put their name on

it’’ (408, 413-17). He added, ‘‘We couldn’t print it here

because the bond of paper could easily be traced and our

mimeograph machine could also be traced back’? (408,

413). That night Hart also walked in on a conversation in

the »ack room between Epton and a person known as

‘‘Brother Lewis.’’

‘‘Brother Lewis stated that he had twenty to forty

Molotov cocktails in the area of 128th Street and

14

Lenox Avenue, but that he was having difficulty in

moving them around in the area. At this time, Wil-

liam Epton stated that ‘We have to get them out of the

area’; that it was his wish to start something on the

Lower East Side or some other area * * * in Harlem,

to spread the police forces out, because they were too

well concentrated in Harlem’’ (417-18).

Then, Hart in the room, Epton and Brother Lewis stopped

talking about the Molotov cocktails (418).

Rioting broke out again that evening while the peti-

tioner wa: holding his public meeting of the Harlem De-

fense Council at P. L. M. headquarters (407). The rioting

outside could be heard and seen while ithe meeting was

conducted (407-8, 422-3). Hart was ‘‘injand out’’ of the

meeting room and did not hear the whof speech, but did

hear petitioner, while he was addressing about thirty-five

or forty people:

‘‘(He] stated that the people in the area would

definitely have to organize to combat the police * * *

He stated that there were various means of defeating

the police, and one of them was suckering a cop off the

main avenue away from the rest of the police, getting

him in a side street, killing him and then going home

for the night’’ (406-7, 663-5, 855-6, 873-81).

Patrolman Frank Johnson went to the offices of the

Progressive Labor Movement at about 9 p.m. on the night

of July 19, 1964, while rioting was taking place (884-5).

Outside the premises, three or four people were handing

out leaflets to passers-by, inviting them to a meeting being

held on the second floor (885). The officer, wearing plain

clothes, went upstairs, where he saw Epton speaking to a

15

group of about twenty or twenty-five people (884-5). Epton

said:

‘*T want to organize the people of Harlem, but not

like CORE is organized. I want to organize them in

a military manner, each block would have a captain, a

block captain, and he would appoint lieutenants, house

lieutenants, and so forth * * *

‘We already have the block captains * * *. N ow,

these block captains are being charged with the defense .-

of the block and the instruction of the people’’ (886).

Asked by one woman in the audience, ‘‘How can we fight

the cops? We don’t have any weapons,’’ petitioner an-

swered:

‘*Your block captain can instruct you how to make

things, how to make the weapons out of the things on

the street * * * You people have been throwing bottles,

but once they strike the ground they are useless, but

if these bottles are filled with a certain substance they

become very effective’’ (868-7).

Asked to identify the ‘‘substance,’’ petitioner said, ‘‘You

know, if you don’t know * * * your block captain can tcl

you and show you’’ (887, 889). He refused to go into fur-

ther detail, saying ‘‘You can’t tell who is here’’ (887).

Speaking of a rally he scheduled for the following Satur-

day, Epton said that they would march to the ‘‘32nd Pre-

cinct, because that precinct has killed more of our brothers

than any other.’’

‘*As we march up Lenox Avenue, if the cops try

and stop us, we won’t fight on the avenues, because

they will kill us on the avenues; we will fight in the

side streets, the blocks * * *. We will create a dis-

turbance in the side s.reets and draw the cops off the

16

avenues, and thea cut them off and then take care of

them * * *, We want the State Militia called up’’

(887-8).

Thereafter, ‘‘a large group of people came into the room,’’

and the officer left the meeting (888).

When Epton and Detective Hart left the office together

that night, Hart ‘‘asked [Epton] again about the Molotov

cocktails leaflet and he stated that it was one good way of

keeping things going until Saturaay’’ (420-1, 688-92).

Monday, July 20

On Monday, Detective Hart testified, the P. L. M. office

was again ‘‘filled with people’’ asking for various leaflets

that were being printed (423). A leaflet entitled ‘‘Organ-

ize Your Blocks’’ was prepared, in the petitioner’s pres-

ence, and this leaflet called for a ‘‘mass demonstration’’

on Saturday, July 25th, with the 32nd Police Precinct to

be the objective of the march (423-8, 678-9; Exh. 18). Dis-

tributed that day were about 20,000 copies of a poster

which Epton had ordered, headlined ‘‘Wanted for Mur-

der,’’ picturing and naming the officer whose shooting of

a youth had precipitated the riots (439-42; Exh. 19). In

a discussion with Hart, Epton stated that ‘‘it was his wish

to start something over in Brooklyn in an attempt to

spread the police forces’’ (442-4).

Tuesday, July 21

When Detective Hart appeared at P. L. M. headquar-

ters on Tuesday, he was wearing a ‘‘minifon,’’ a hidden

recording device (445-8, 453-5, 521-70, 669-70, 679-81, 747-

65). He was, in part, seeking information about Molotov

17

cocktails leaflets (1661-2). A typewritten transcript of tue

conversation was identified by the detective at the trial

(521-53; Exh. 25). In the recorded conversation, Epton

said that the riot ‘‘is the greatest thing that’s happened in

years.’’ Referring to Officer Gilligan, who had shot the

youth, Epton noted ‘‘They may have to throw him to the

wolves. Gilligan was a good man, but—’’; with respect to

his planned demenstration, he said:

‘Well we’ve had a lot of opposition from some of

the so-called respectable groups. Oh, it’s going to lead

to nothing but a slaughter, a massacre * * * a mas-

sacre. And I called the cops today. I called the Sixth

Division that’s in charge of it and the Precinct cops

and told them that we’re having a peaceful demon-

stration that day’’ (Exhs. 25, 27, 27A).

Talking again of the scheduled Saturday rally, petitioner

said, ‘‘Everybody knows what to do in the event the police

show up.’’ When someone asked ‘‘ What about the guns?”’

petitioner replied ‘‘What guns? * * * Oh, I don’t know any-

thing about any guns * * * I told you before this is a public

office’’ (Exhs. 25, 27, 27A).

The remainder of the week

Preparations for the Saturday rally intensified. A leaf-

let was issued depicting a policeman firing a pistol at a

boy lying on the ground with his schoolbooks, near a sign

reading ‘‘School Zone. Quiet.’’ The leaflet was inscribed

‘*Stop the killer cops now’’ and urged the reader to ‘‘join

the mass demonstration, Saturday, July 25th, starting at

4 p.m., at 116th Street and Lenox Avenue’? (455-7; Exh.

20). On Thursday, July 23rd, petitioner told Detective

Hart that at a meeting the previous day he had picked be-

18

tween thirty and forty ‘‘block captains and lieutenants’’;

the people would join the march and the march would

‘‘build up momentum’’ as it moved up Lenox Avenue

toward the 32nd Police Precinct. Epton expected to be

arrested, and he hoped the crowd would react violently

to his arrest (458-62). ‘‘[W]hen they confronted the police

they would melt the people into the blocks and get them

off the main avenues so that they could do whatever they

were going to do within their own blocks’’ (460-1). When

Hart observed that the situation had, by Thursday,

‘‘quieted down,’’ Epton ‘‘stated that it was all right, just

as long as they were preparing for Saturday’’ (461). On

Friday, preparation of signs and leaflets continued (423).

After a police officer came to the office to inform petitioner

that a permit for the street rally had been denied, peti-

tioner told Hart that ‘‘the demonstration would go on

regardless’’ (463-8, 868-9, 875-6).

Saturday, July 25—the petitioner’s arrest

Deputy Inspector Eldridge Waith held the rank of Cap-

tain in July 1964, and during the riots was assigned to

supervise detectives and patrolmen in Harlem (835-6). On

July 25th, at about 4 p.m., Captain Waith, acting on infor-

mation received from his superiors and aware of the tension

in the community, waited for the petitioner to appear on

the corner of Lenox Avenue and 116th Street (836-7, 843-6).

There was, at that time, no rioting (842-3). As Epton ar-

rived, accompanied by four or five other men, the Captain

approached him, identified himself, and ‘‘told him that he

wasn’t allowed to march; if he persisted in marching, I

would have to arrest him’’ (837). The police officer in-

formed Epton that ‘‘his actions had caused a crowd to

19

collect, would block the walk, and disturb the peace.”’

A large crowd was collecting. There were about twenty

policemen in the area (841). But Epton continued on,

forming a line of persons six or seven abreast, ‘‘and be-

hind them were another file of persons, at least one more

file * * * marching, arms locked together’? (837-40, 842,

$45; Exhs. 39-39C). Warned twice more not to march,

petitioner continued leading the crowd, and was arrested

for disorderly conduct (837, S46).

The Defense

William Epton, vice president of the Progressive Labor

Party—a ‘*Marxist-Leninist organization’’—testified that

he was born and raised in Harlem (1069-70 ). The prti-

tioner joined the Communist Party in 1958, as a result of

the poor living conditions he had seen in Harlem, but he left

_ the organization in 1962, because ‘‘it na longer had a pro-

gram to resolve those problems’’ ( 1075-6, 1186-9, 1201-4).

Then he became active in the PJ Af, which ‘‘had a program

that revolved around the basic issues confronting the Amer-

ican people, as we saw them’’—housing, schools, voting,

jobs, and police brutality (1070, 1076-7, 1204-6). A local

office of P.L.M. was opened at 336 Lenox Arenue, in Harlem

(1212-17). Petitioher generally agreed with the theoretical

doctrines and philosophy expressed in a prospective draft

of the movement's program (Exh. 13) [see pp. 69, su-

pra], but he did not think that P.I..M. was a revolutionary

organization (1182, 1207-12, 1410-24, 1461-8, 1473-4).

The Progressive Labor Movement, petitioner testified,

was aN open organization, not a clandestine one ( 11134).

Petitioner first met Adolph Hart in N ovember, 1963, when

20

Hart walked into the offices of P.L.M. and asked to join the

organization (1112). Epton did not recall whether he spoke

to Hart of ‘‘bloody revolution”’ in the United States. He

did not, however, speak to Hart of tactics to defeat the

police, or of supplying and carrying firearms (1113-18).

He spoke to Hart about forming a ‘‘cadre school’’ for

future P.L.M. leaders, and also about organizing the Har-

lem Defense Council, a ‘‘block by block’’ organization, but

mentioned no plans to organize it along military lines or

use teen-agers as terrorists (1134-6, 12548).

In about May, 1964, beeause of police brutality, Epton

wished to ‘‘organize the people of our community * * *,

organize our protests and take [them] to the proper au-

thorities * * *”’ (1085-93, 1288-9, 1354-5, 1477-8). The main

purpose of the street meeting of July 18, 1964, first planned

a week previously, was ‘‘to organize the people around the

issue of police brutality’’ (1098-1100, 1268-73). However,

in applying for a permit to use sound devices at the street

meeting, the group stated that the purpose of the meeting

was ‘‘to discuss the civil rights bill’’ (1459-61, 1476-7; Exh.

51). Then, two days prior to the already scheduled meet-

ing, the shooting of James Powell occurred (1100, 1136-7).

Petitioner’s angry feelings, he testified, were reflected

in the remarks he made at his July 18th meeting; he at-

tempted, in the six times he spoke that day, to ‘‘put into

historical perspective what was happening to the black

people [and the white workers] i. this country today.’’ He

said not only the remarks recorded by the police (Exhs. 2,

3), but also that ‘‘in history when people attempted to

better their conditions, to better that government that they

21

felt was oppressive, that in the course of changing that gov-

ernment violence occurred and in the course of that vio-

lence people were hurt and injured’’ (1101-2).

He then told his audience that his proposed demonstra-

tion—a march to the 32nd Police Precinct—would not be

peaceful, because the police would commit violence against

them (1102-3, 1445-52). When he said “‘every time they kill

one of us, damn it, we’ll kill one of them,’’ ‘‘* * * it wasn’t

the idea that I was telling the people to go out and kill a

cop or to kill anyone. * * * [ was saying that we have

reached a point where we have to begin * * * rethinking our

whole existence in this society and that is why I raised the

question that people must begin to think about these things

in the future’’ (1103-4). He did not use the word **kill’’ to

signify the taking of a life (1452-8). When he talked that

day of ‘‘smashing the state’? and killing ‘‘a lot of these

cops, a lot of these judges,’’ he did not mean to refer to

New York State, but to the entire ‘capitalistic system.’’

But he was not then advocating that anyone ‘‘smash’’ any-

thing—‘‘[W]e have never at any time told people to go

out and hurt anyone’’ (1105-8). Indeed, he claimed, he

charged his mind about leading a march to the 32nd Police

Precinct on that day because he recognized that

‘‘Harlem was seething * * * it was a hot Satur-

day * * * People were indignant, they were mad * * *

[Wile would have been creating a dis-service to our

community by having that demonstration * * *—the

mood of the community was such that it was like a

tinderbox ready to explode because of the killing of

Powell by Gilligan; so as a result of that we decided

not to have that demonstration on the 18th”? (1108-10,

1398-9).

22

The next day, Sunday, July 19, the meeting at P.L.M.

headquarters was starting when petitioner arrived, at about

8:45 p.m. (1143-4, 1370-6; Exh. 16).

‘‘# * * The meeting was an open public meeting;

* * * there were some police officers that we knew, that

we had seen around the community in civilian clothes,

and there were of course those what we didn’t know.

We had constantly admonished the people that they

should be very careful as io what they were saying

because this was a public meeting; not only that, be-

cause they themselves could ea*‘ly get into a lot of

trouble because they were very warm, they were very

mad, incensed, and they would “ump up—and many

people did during the course of the meeting—made

many wild statements about how to kill cops, about

how to get Molotov cocktails, how to go get guns * * *

All of these suggestions during the course of the meet-

ing that I was chairman, I had pooh-poohed. I told

them no, that this was not our program—what we were

trying to organize was a peaceful demonstration’’

(1144-5).

Petitioner testified that someone that night suggested

that the police be ‘‘:uckered’’ off the avenue and killed, but

he neither said it himself nor agreed with it; there were

some ‘‘drunks’’ at the meeting who were making these

points (1144-5, 1148). He did not recall whether he said,

that night, that ‘‘block captains’’ could instruct the people

on how to make weapons, or that bottles ‘‘filled with a cer-

tain substance’’ are very effective, or that the police should

be drawn into side streets (1468-70). He recalled no con-

versation with ‘‘Brother Lewis’’ concerning Molotov cock-

tails (1148).

23

Most of the petitioner’s time from Monday, July 20th,

was spent “‘organizing for the demonstration, for the march

of July 25’’ (1148-9). Informed of the police ‘‘kar.”’ of

his demonstration, he decided to continue preparations any-

way; ‘we were going to have a peaceful demonstration,

we would control the demonstrators, and there would be

no trouble at all’? (1151-2).

At noon on July 25th, a committee representing seventy-

six Harlem organizations asked petitioner to call off the

rally, but after petitioner’s proposals for a joint rally with

these other organizations were rejected, he decided to go

on with the demonstration ( 1156-9). About twenty-five

yeople attempted to march that afternoon (1160-1, 1396-8).

1s they tried to cross Lenox Avenue at 116th Street, he

was arrested (1161-2).

Summing up his alleged attitude towards the riots, peti-

tioner testified that, as a Marxist, when he spoke of ‘‘revo-

lutionary change,’’ he understood a chang of governmental

system which would be successful only if the majority of

people in a country decided that they cannot live under the

present system (1182-3). Such revolution, he believed, is

not imminent in this country ‘“‘by a long shot’’ (1183). He

had uo intention of turning the ‘senseless destruction”’ of

the Harlem riots of July, 1964 into a revolution, and war.ted

but to organize the Harlem community so that the people

“‘could best present their grievances to the power struc-

ture’’ (1183-4). Petitioner did not believe or advocate that

the State of New York should be brought down by the as-

sassination of public officials (1184-5).

24

Vivian Anderson, convicted of contempt ia a grand

jury proceeding concerning this case, was a member of the

Progressive Labor Movement, which she joined in Septem-

ter, 1963 (1594-5, 1635-7). She testified that she had never

discussed the use of violence, terrorist gangs, or guns wiit

petitioner (1596), had never heard him advocate the assas-

sination of New York State officials or overthrow of the

state government, and had never heard him discuss Molotov

cocktails (1598-9, 1643-4). This witness was present at the

street meeting on tk2 afternoon of July 18th, when Epton

spoke, but was ‘‘busy”’ and did not recall much of what he

said (1602-3, 1608-22). She was ‘‘around the area of the

Progressive Labor office’’ on Sunday evening, July 19th,

when Epton held a meeting in the office, but did not go into

the meeting to hear him speak (1597-8).

When appearing before the grand jury, she told the

truth, but refus 1 to answer questions (1635-7), although

petitioner had told her to tell the truth before the grand

jury (1635-6).

Pernella Wattley had known William Epton since the

spring of 1961, and had occasionally been in the office of the

Progressive Labor movement, but was not a member of the

urganization (1534-5). She contradicted Detective Hart’s

testimony that she was present at P.L.M. headquarters on

July 18 and 19 (1535-7, 1544-5).

Walter Flesh, Bennie Brazier and Mrs. Phenicia Craig

described instances of police brutality and their discussions

of police brutality with petitioner (1479-1507, 1547-72, 1508-

12).

25

Alexander J. Allen, executive director of the New York

Urban League, was a member of the committee which argel

petitioner to call off the march planned for J uly 25th (1578-

9, 1582). ‘*We were fearful that tiris might be the kind of

spark which would set off additional violence, not that we

thought that the march itself was designed for that pur-

pose, but we knew the ‘cmper of the community and the

temper of the police ana we knew that there were a number

of signs which indicated that there could be «dditional con-

flict’’ (1582). But Epton told Allen that the march would

be peaceful (1586).

Petitioner also produced several character witnesses

(1586-93, 1657-8).

Subsequent Proceedings

The jury convicied the petitioner of conspiracy to com-

mit the crime of riot [former New York Penal Law §§580,

2090], conspiracy to commit the crime of advocacy of

criminal anarchy [former New York Penal Law $§160,

161, 580] and advocacy of criminal anarchy [former New

York Penal Law §§160, 161]. The tria! court sentenced

him on each count to serve a term of one year in the peni-

tentiary of the City of New York, the sentences to be served

concurrentiy. The judgmeat was affirmed by the Supreme

Court of the State of New York, Appellate Division, First

Department, on December 8, 1966 (27 A D 2d 645) and by

the Court of Appeals of the State of New York on May

16, 1967. 19 N Y 2d 496. This Court denied certiorari and ;

dismissed the appeal. 390 U.S. 29 (Douglas, J., dissent-

ing), rehearing denied, 390 U.S. 976 (1968), motion for

leave to file a petition for rehearing out of time deniez,

398 U.S. 944 (1970).

26

- The petitioner was subsequently released on bail by

Judge Marvin E. Franke of the district court. 281 F.

Supp. 388 (S.D.N.Y. 1968). Counsel for both respondent

and petitioner agreed that the merits of one of petitioner’s

claims, that the grand jury which indicted him was uncon-

stitutionally impanelled, would be determined substantially

upon the hearing on a similar issue accorded the defendants

in the case of People v. Chestnut, et al. After the decision

by the New York Court of Appeals in that case, petitioner’s

coram nobis claim before the Supreme Court of New York

* County attacking the composition of the grand jury was

denied [Cutkrn, J. (June 18, 1970)]. On October 5, 1970,

Judge Frankeu denied the petitioner’s petition for a writ

of habeas corpus, issued a certificate of probable cause

and continued him on bail pending appeal. The court of

appeals unanimously affirmed the district court’s order on

June 30, 1971. By an order entered July 19, 1971, it con-

tinued the petitioner on bail pending the determination of

his petition to this Court for a writ of certiorari.

Summary of Argument

In a week when violence exploded on the streets of

Harlem, petitioner William Epton, culminating months of

effort to provoke the people of his community to violent

action, sought to spur the rioters to continued fighting and

destruction, hoping thereby to render powerless existing

authority and to gain leadership in the community for him-

self and his revolutionary organization, the Progressive

Labor Movement. For this inflammatory conduct, he was

convicted of conspiracy to commit the crime of riot, con-

spiracy to commit criminal anarchy, and criminal anarchy.

27

Petitioner argues that the panel of the New York

County Grand Jury which indicted him was impaneled by

systematic exclusion of members of the community who

were entitled to representation. In so urging, he repeats

arguments which were recently rejected in another case

by the New York Court of Appeals, after a complete evi-

dentiary hearing in the trial court, in an attack brought

by witnesses before the grand jury that was investigating

the Harlem riots, petitioner Epton having agreed to rely

upon the record of that hearing. People v. Chestnut, 26

N Y 2d 481 (1970).

The respondent has filed a brief in this Court in opposi-

tion to a petition for a writ of certiorari in United States

ex rel. Chestnut et al. v. Criminal Court et al., No. 71-156,

October Term, 1971, discussing identical contentions. We

respectfully refer the Court to that brief, three copies of

which have been served on petitioner Epton.

Petitioner asserts that there was no evidence whatever

of a clear and present danger that his conduct would cause

violence or intensify existing vivlence. Since substantial

evidence of petitioner’s guilt on all counts consisted of

proof of petitioner’s conduct classified as ‘‘speech,’’ the

People were required to prove a clear and present danger:

that petitioner’s conduct would lead to violence or inten-

sify the riots. Dennis v. United States, 341 U.S. 494

(1951) ; Yates v. United States, 354 U.S. 298 (1957). Such

evidence was abundant, however.

At a time when tempers in the Harlem community were

inflamed by the killing of a Negro youth by a policeman,

Oe ee Ar Re tear SO oR RR AR aR PY

28

Epton urged a street-corner crowd to ‘‘stop talking about

violence as a dirty word * * *.’’ In ‘‘smashing this state,’’

he urged, ‘‘we’re going to have to kill a lot of cops, a lot

of the judges, and we’ll have to go up against their army

***.? Tn his owu testimony at trial, he admitted that at

this time ‘‘Harlem was seething,’’ ‘‘a tinderbox ready to

explode.’’ After rioting indeed broke out that night, peti-

tioner deliberately sought to increase the violence, plan-

ning for distribution of Molotov cocktails, instructions to

other in their manufacture and use, and rioting in other

parts of the city. In a nocturnal speech at his headquarters,

while the sounds of rioting were audible in the background,

he called to the angry audience to organize ‘‘in a military

manner * * *, We already have the block captains,’’ who

could ‘‘instruct’’ the citizens ‘‘how to make weapons out of

the things on the street * * *. You people have been throw-

ing bottles, but once they strike the ground they are use-

less, but if those bottles are filled with a certain substance

they become very effective * * *.’? While the police were

engaged in trying to control rampaging mobs, he counseled

‘‘suckering a cop off the main avenue away from the rest

of the police, getting him in a side street, killing him and

then going home for the night.’’ In the ensuing days of

tension, he prepared for a ‘‘mass demonstration,’’ ignor-

ing warnings of possible outbreaks, with the purpose of

provoking further violence by his own arrest. In sum,

this was a classic case of clear and present danger; peti-

tioner shouted for more fire in a ‘‘tinderbox’’ that had al-

ready burst into flames.

Petitioner also claims that the New York criminal

anarchy statutes violate the First Amendment protection

of freedom of speech. This Court, in dismissing the peti-

aD ea WA FDR

29

tioner’s appeal in 1968, on the same record as here, decided

either that the statutes were valid or else that their validity

should not be reviewed under the concurrent sentence doc-

trine, the petitioner having been convicted of conspiracy

to riot in addition to the anarchy convictions and received

concurrent sentences on all three convictions. There are

no new facis or new law that should move this Court to

change its 1968 ruling. Moreover, the concurrent sentence

doctrine has recently been followed by this Court. Burton

v. New York, 402 U.S. 991 (1971).

In any event, the anarchy statutes are valid. They

have long been construed to cover only intentional, not

abstract advocacy. People v. Gitlow, 234 N.Y. 132 (1922),

affirmed, 268 U.S. 652 (1925) ; see Dennis v. United States,

supra; Yates v. United States, supra. The trial court

charged the jury accordingly. Further, the case was sub-

mitted to the jury under the clear-and-present-danger test,

the Court of Appeals likewise applied that test, and the

proof in fulfillment of that standard was clear. Bryson v.

United States, 396 U.S. 64, 69 (1969),

Although, as the dissenting Judge in the New York

Court of Appeals pointed out, the New York Court of Ap- |

peals formerly had rejected the clear and present danger

_ test [People v. Gitlow, supra], and then adopted it here,

petitioner received adequate notice that his conduct’ was

covered by the anarchy law. The clear and present danger

standard had been announced by the United States Sn-

preme Court in the Dennis case, which involved a statute

patterned after the New York law, and thereafter the New

York anarchy statute remained on the books unaltered.

30

The elements of the crime remained the same, the only

change being the new limitation on the conditions under

which the statute could constitutionaliy be applied. Peti-

tioner was surely on notice that the Dennis test, applied to

a statute indistinguish»ble from New York’s, would have to

be adopted by the New York courts. Moreover, petitioner’s

conduct was of the ‘‘hard core’’ type to which any reason-

able construction of the statute would apply. Walliams v.

United States, 3‘1 U.S. 97, 104 (1931).

Petitioner, turning to his conviction for conspiracy to

commit riot, claims that this conviction was based entirely

on evidence of speech, and therefore deprived hir of free-

dom of speech. As pointed out by the district court, how-

ever, this was a misstatement of the facts because the peti-

tioner also engaged in ‘‘unprotected acts,’’ acts upon which

the prosecution’s case heavily relied. Moreover, the trial

jury and the New York Court of Appeals found the evi-

dence, including words, to establish a ‘‘clear and present

danger’’ of riot.

Finally, the petitioner discerns a denial of due process

in the court’s amendment of the count charging conspiracy

to riot. The change, after all the evidence had been pre-

sented, from ‘‘which disturbed’’ to ‘‘which would disturb’’

the public peace was a mere semantic one to clarify the

charge for the jury, and in no way affected the proof of

the crime or prejudiced the defense.

ARGUMENT

POINT I

The grand jury that indicted the petitioner was law-

fully impaneled without purposeful or intentional ex-

clusion of any element of the community entitled to

representation.

Petitioner attempted io challenge the grand jury stat-

utes in his prior petition, although the validity of the

statutes had not been raised in the New York Court of

Appeals or passed or by that Court. For the reasons stated

in respondent's brief filed in opposition to a petition for

a writ of certiorari in United States er rel, Chestnut et al.

v. Criminal Court et al.. No. 71-156. October Term, 1971, it

is clear that the grand jury that indicted the petitioner was

not impaneled in violation of the Constitution. We respect-

fully refer the Court to that brief, and have served three

copies of it upon petitioner. .

POINT II

The verdict was fuily supported by evidence, peti-

tioner’s guilt having been proved beyond a reasonable

doubt.

The charges against petitioner were submitted to the

jury on the theory that evidence of a clear and present

danger of violence was required to support a verdict of

guilty. Petitioner contends, as he did in his first petition

for certiorari, that there was no evidence whatever of a

clear and present danger of the overthrow or attempted

overthrow of the government of the State of New York.

Such evidence was abundant, however.

32

The evidence clearly established, first, petitioner’s direc-

tion of a conspiracy to promote and continue the existing

riots [former N.Y. Penal Law, §4§580, 2090, 2091]—a con-

spiracy directed principally against the police—under cir-

cumstances of a clear and present danger that his utter-

ances would contribute to and intensify existing violence.

Before the riots broke out, Epton predicted that ‘‘police

brutality would be the hot issue during the coming sum-

mer’’ (388). To exploit this controversy, he organized a

group entitled the ‘‘Harlem Defense Council’’ which he

hoped to ‘‘mobilize’’ against the police (374-88). So, when

a youth, James Powell, was shot by police officer Gilligan on

July 16, 1964 (883), Epton prepared for general violence.

Addressing a crowd on a street corner two days later, know-

ing that tempers had been inflamed by the recent shooting,

he urged his audience to ‘‘* * * stop talking about violence

as a dirty word. * * * [I]n that process of smashing this

state, we’re going to have to kill a lot of these cops, and

of these judges, and we’ll have to go up against their army

—We’ll organize our own militia and our own army * * *”’

(388-99; Exhs. 2, 3, 6). Though the people he addressed

that afternoon dispersed peacefully, petitioner’s wish to see

violence in the streets came true that night when full-scale

rioting erupted over a large area of Harlem (225, 227-8, 296,

399-403, 578-88; Exh. 28). While looters smashed inte

stores, other rioters disrupted traffic, threw rocks at the

police, and hurled ‘‘Molotov cocktails’’—home-made in-

cendiary bombs—from roofs (399-403, 585-7); there was

‘‘a complete breakdown of law and order’’ (585). At the

height of the riots, posters proclaiming ‘‘Gilligan—wanted

for murder,’’ distributed by the petitioner’s organization,

were displayed as a symbol! of defiance (578-80, 1145-7;

Exh. 28).

and weaken the police forces by provoking riots in other

areas of the city and by distributing Molotov cocktails (417-

18, 442-4), Publicly, he and his organization continuously

audience he wanted “to organize the people of Harlem * * *

in a military manner, each block would have a captain, * * *

but if those bottles are filled with a certain substance they

become very effective, * * * (I]f you don’t know [what to

fill them with] * * * your block captain can tell you and

show you’? ( 886-7, 889). That night he also instructed his

side street, killing him and then going home for the night’?

(406-8, 422-3 663.5, 855-6, 873-8, 884-8). He wanted the

fighting so intensified that the state milita would be called

34

police station (420-1, 455-69). Cynically, he told those

respected persons who asked him to call off the march that

his demonstration would be a peaceful one, but privately he

assured his followers that he sought and expected to cause

the outbreak of more street violence (458-68; Exhs. 25, 27,

27A).

Testifying in his own defense, Epton conceded having

engaged in most of the described activities during the week

of riot—denying only that he made plans to arm the rioters,

distribute Molotov cocktails, or publicize the way to make

the bombs (1141-56, 1162-85). But he absurdly insisted that

he did not always mean what he said. For instance, when

he mentioned, in his talk, suggestions on the use of violence,

he was just ‘‘fluffing them off’’; when he used the word

‘‘kill,’’ he did not mean to signify the taking of a life (1101-

10, 1141-8, 1162-85, 1452-8, 14t °-70).

The evii of petitioner’s intent, and the error of his pres-

ent claim of utter lack of evidence of clear and present

danger, are further demonstrated by his admission on the

stand that on July 18, the eve of the riots, he knew that

‘‘Harlem was seething,’’ that it was ‘‘a tinderbox ready to

explode,’’ and that because of this any plan to lead a pro-

test march to a police station would have been a ‘‘disservice

to the community’’ (1108-10, 1398-9). Yet, after the riots

erupted, Epton devoted his energies to leading another

protest march, the next week, under even more provocative

circumstances (1148-62). The widespread hysteria in the

community, and the potential for more conflict were cor-

roborated by another defense witness, Mr. Allen (1582-6).

Having missed the first opportunity to take command of a

riot, Epton wanted to try again. Fortunately, however,

Pe Viel PGi

35

calm had returned and Epton and his followers could stim-

ulate no further disorder. If, as petitioner claims, there

was no p*vof that his conduct caused violence, this should

not be confused with ihe absence of a danger.

Thus, the proof of petitiouer’s leadership of a conspir-

acy to promote further rioting in an already violent situa-

tion was overwhelming. These same facts, coupled with

the evidence that petitioner, long advocating the necessity

of the overthrow of government by force (382-469), called

for violence during these riots for the purpose of destroy-

ing the authority of the existing government in the locality,

proved as well the crimes of criminal anarchy and con-

spiracy to commit criminal anarchy. Former N.Y. Penal

Law §§160, 161, 580.

POINT III

The validity of the state anarchy statutes need not

be reviewed; and in any event, these statutes are con-

stitutional.

Appellant was convicted of conspiracy to commit the

crime of riot [former N.Y. Penal Law §$§580, 2090], con-

spiracy to commit the crime of advocacy of criminal an-

archy [former N.Y. Penal Law §9160, 161, 580], and ad-

vocacy of criminal anarchy [former N.Y. Penal Law §$§160,

161]. He was sentenced on each count to serve a term of

one year in the penitentiary of the City of New York, the

sentences to be served concurrently.

Although the New York Court of Appeals held the an-

archy statutes constitutional (19 NY2d 496 (1967)), this

an: ae

36

Court dismissed the appeal when petitioner previously at-

tacked them before this Court and the lower federal courts

therefore considered themselves foreclosed from review-

ing them. As District Judge Franxen soundly reasoned,

when this Court dismissed the appeal, it had either held

the anarchy statutes to ve constitutional or held that the

issue should not be reached because the sentences for an-

archy were concurrent with the sentence for violation of

the riot statute, which was not challenged by petitioner

(Fetition, pp. 28a-32a). See Samuels v. Mackell, 288 F.

Supp. 348, 354 n. 6 (S.D.N.Y. 1968) (FRrenpty, J., for 3-

judge court), aff’d on other grounds, 401 U.S. 66 (1971);

Epton v. New York, 390 U.S. 29 (1968), concurring opinion,

Stewart, J.; Lanza v. New York, 370 U.S. 139 (1962);

Hirabayashi v. United States, 320 U.S. 81, 85 (19438).

Petitioner argues, however, that after the dismissal of

his appeal, this Court later overruled the concurrent sen-

tence doctrine in Benton v. Maryland, 395 U.S. 784 (1969).

The district court correctly held that even assuming that

to be the case, Epton could not retroactively benefit from

it, citing Gaines v. Rugg, 148 U.S. 228, 244 (1893). The

district court further stated that the doctrine had not been

eliminated by this Cot as a rule of convenience and that,

indeed, the circuit court below and other circuit courts,

have on a number of occasions subsequent to Benton, used

the doctrine of concurrent sentences in deciding not to

reach an issue. As the district court wisely concluded,

‘‘Tf it is discretionary whether the concurrent sentence

doctrine will apply despite the disposition by the Supreme

Court almost three years ago, the appeal must lie to the

discretion of that Court, not this one’’ (Petition, p. 32a).

37

The court of appeals adopted the. same position (Petition,

p. 7a). A recent decision by this Court dismissing an ap-

peal because concurrent sentences had been imposed vin-

dicates the courts below and shows that the doctrine of

concurrent sentences has continuing validity. Burton v.

New York, 402 U.S. 991 (1971). Since petitioner has shown

no ground for altering this Court’s disposition of his case

in 1968, certiorari should again be denied.

In any event, the anarchy statutes are constitutional.

Section 160 of the former New York Penal Law defines

‘‘criminal anarchy”’’ as ‘‘the doctrine that organized gov-

ernment should be overthrown by force or violence, or by

assassination of the executive head or of any of the execu-

tive officials of government, or by any uniawful means.’’

Section 161 of the former New York Penal Law proscribes

the advocacy of criminal anarchy by speech or writing, or

by organizing any group or assembly of persons formed

to teach or advocate such doctrine. These statutes were

upheld as constitutional in Gitlow v. New York, 268 U.S.

652 (1925), affrming 234 N.Y. 132 (1922). Petitioner con-

tends that they are void for vagueness, and violate free-

dom of speech.

The reasonable construction of a statute so as to con-

form it to the Constitution and preserve its validity is a

basic principle of statutory interpretation. Indeed, this

Court has followed the principle in construing a federal

enactment virtually identical to New York’s criminal an-

archy statute. Dennis v. United States, 341 U.S. 494

(1951) ; Yates v. United States, 354 U.S. 298 (1957). Thus,

the trial court in the instant case properly instructed the

jury that Sections 160 and 161 of the Penal Law outlaw

CE SE LIL LLLLLS ELE ELL LILLIE LE LOE LLL

38

only an intentional call to action under ciresmstances of

clear and present danger, excluding mere advocacy of doc-

trine from the scope of the statute (1915-18, 1921-7, 1959-72,

1982-90, 1998). The New York Court of Appeals reaffirmed

this interpretation in its opinion. So defined, these statutes

are unquestionably valid. See Samuels v. Mackell, supra,

288 F.Supp. at 352-3.

The distinction between advocacy of doctrine and in-

tentional advocacy of action has been recognized as part

of the New York statutes since the Gitlow case itself. In

Gitlow v. New York, supra, this Court noted with ap-

proval that the trial court had charged the jury to ‘‘de-

termine what was the intent, purpose and fair meaning’’ of

the defendant’s writing. 268 U.S. at 661. Construing the

statute, the majority opinion stated:

‘‘The statute does not penalize the utterance or

publication of abstract ‘doctrine’ or academic discus-

sion having no quality of incitement to any concrete

action. * * * It is not the abstract ‘doctrine’ of over-

throwing organized government by unlawful means

which is denounced by the statute, but the advocacy

of action for the accomplishment of that purpose.’’

Id. at 664-5.

Similarly, in Yates v. United States, supra, this Court

construed the Smith Act—a federal enactment ‘‘nearly

identical’? to the New York criminal anarchy stat-

utes—to contain implicitly the distinction between advocacy

of doctrine and of action; the Court noted that ‘‘This dis-

tinction was heavily underscored in Gitlow v. New York.

* * *? And this Court was able to read the distinction

into the Smith Act, in good part, because New York’s

TA PO DART IS

Meets eA) 8 OC Per

AWW oP e.4 DED Ly OBIE SRE

CE RR ORS. Rt Gl

39

criminal anarchy law was ‘‘the prototype”’’ for the federal

statute. Yates v. United States, supra at 318-320.

The majority in Gitlow, however, upheld the constitu-

tionality of the New York statutes without limiting their

applicability to instances of clear and present danger,

thereby taking ‘‘a narrow view * * * of the First Amend-

ment.’’ Yates v. United States, supra. The views of Mr.

Justice Holmes, dissenting in Gitlow, are now generally ac-

cepted. Dennis v. United States, 341 U.S. 494, 507 (1951).

But by no means may this development of constitutional

rights be taken to mean that the statutes upheld in Gitlow

are now unconstitutional. Rather, Mr. Justice Holmes’s

dissent itself indicated that the statutes are constitutionally

valid, if their applicability is limited to instances of ‘‘clear

and present danger,’’ as was done in this case:

‘*Tke question in every case is whether the words

used are used in such circumstances and are of such

a nature as to create a clear and present danger that

they will bring about the substantive evils that [the

state] has a right to prevent.’’ Guitlow v. New York,

supra at 672-673 (dissent).

Accordingly, a generation later, with reference to the

Smith Act, which in its language makes no mention of

‘‘clear and present danger,’’ this Court stated:

‘*The question in this case is whether the statute

which the legislature has enacted may be constitu-

tionally applied. In other words, the Court must ex-

amine judicially the application of the statute to the

particular situation, to ascertain if the Constitution

prohibits the conviction. We hold that the statute may

be applied where there is a ‘clear and present danger’

of the substantive evil which the legislature had the

40

right to prevent * * * We see no difference from the

standpoint of vagueness, whether the standard of ‘clear

and present danger’ is one contained in haec verba

within the statute, or whether it is the judicial measure

of constitutional applicability.’’ Dennis v. United

States, 341 U.S. 494, 514-515 (1951).

By ‘‘clear and present danger,’’ this Court did not indicate

that the government must actually face overthrow, but that

the proscribed advocacy takes place under circumstances

‘‘such as reasonably to justify apprehension that action

will oceur.’’ Yates v. United States, supra at 321; Dennis

v. United States, supra ‘at 509-511.

The petitioner, however, citing Brandenberg v. Ohio,

395 U.S. 444 (1969), complains that the trial court failed,

in its charge to the jury on anarchy, to include ‘‘incite-

ment to imminent lawless action”’’ (id., at 449). That the

proscribed advocacy constitute a call to acticn is, of course,

an element in the crime of criminal anarchy. The trial

court here properly instructed the jury that Sections 160

and 161 of the Penal Law outlaw only an intentional call

to action under circumstances of clear and present danger,

excluding mere advocacy of doctrine from the scope of the

statute (1915-18, 1921-7, 1959-72, 1982-90, 1998). The New

York Court of Appeals reaffirmed this interpretation in its

opinion. Bryson v. United States, 396 U.S. 64, 69 (1969).

Petitioner contends, however, that the trial court’s

charge to the jury on the question whether a clear and

present danger of violence existed was inadequate. But

petitioner took no exception to the charge on clear and

present danger at any time before the jury reached its

verdict (1972-3) [see N.Y. Code Crim. Proc. §420-a]; his

objection to the charge was first heard a month later, at

41

the time of sentencing (2072-4). Rather, at the time the

court charged the jury, petitioner requested that the jury

be instructed to consider whether he had agreed with others

that his advocacy of overthrow of government would take

place ‘‘under circumstances such as to lead to a probability

that it would inspire persons to take action toward the

overthrow of the government of the State of New York by

using force and violence * * *’’ (2017-18; see also 2028);

the court so charged (1963-4).

The petitioner, then, may claim no privileged advocacy

of political ‘‘ideas’’ that are, in fact, a call to violent ac-

tion pe and in a place where violence is already

present. Worse than falsely shouting fire in a theatre [cf.

Schenk v. United States, 249 U.S. 47 (1919)], petitioner

called for more explosions from a ‘‘tinderbox’’ already

aflame (1109). As Mr. Justice Doucuas stated in a hypoth-

esis now tragically come true:

**Tf this were a case where those who claimed pro-

tection under the First Amendment were teaching * * *

the planting of bombs, the art of street warfare, and

the like, I would have no doubts. The freedom to

speak is not absolute; the teaching of methods of terror

and other seditious conduct should be beyond the pale

along with obscenity and immoraiity.’’ Dennis v.

Umted States, supra at 581 (dissent).

Petitioner further contends that the adoption of a

‘‘new’’ construction of the state anarchy statute by the

New York Court of Appeals in this case deprived him of

due process. In People v. Gitlow, supra, the state court had

already construed the statute to apply only to deliberate,

intentional advocacy, not to theoretical, abstract advocacy ;

the decision in the instant case added nothing new in this

42

respect. But the clear-and-present-danger test was rejected

by the Court of Appeals and this Court in Gitlow,

and was not expressly announced as applicable to the New

York statute until the trial court’s charge to the jury in

the case at bar, which was reaffirmed in the appellate opin-

ion. Petitioner urges, as did Judge Burke in dissent in

the New York Court of Appeals, that he was not given

adequate notice of the statute’s meaning. That Court

properly rejected this argument.

While it is true, as petitioner urges, that a penal statute

must give adequate notice of the conduct proscribed—of

the elements of the crime—the clear-and-present-danger

test is not an element of the crime, but a ‘‘judicial measure

of constitutional applicability,’’ a standard as to when cer-

tain conduct set forth in a statute may constitutionally

be punished. See Dennis v. United States, supra, 341 U.S.

at 514-515. Indeed, at a jury trial for criminal anarchy the

trial court alone may rule on the issue of clear and present

danger. Jd. at 513. Thus, the Dennis and Yates decisions,

while limiting the circumstances under which advocacy of

anarchy could be prohibited, did not re-define the conduct

itself. Analogously, in Ginzburg v. United States, 383 U.S.

463 (1966), this Court applied to federal obscenity

statutes a new test of evidence, looking to the circumstances

under which publications were advertised and distributed,

to determine whether they were obscene. While broadening

previously announced rules as to the applicability of the

obscenity test, the change did not, in the view of the major-

ity of the Court, deprive the defendant of the adequate

notice.

Moreover, as the Court of Appeals pointed out in this

ease, Sections 160 and 161 of the New York Penal Law

eo ue RRR te eer Re! AC PETE C

43

have remained on the books since the Demmis decision, and

no change has occurred in the statute on its face.* The

Court of Appeals has consistently applied the presumption

that the legislature intends to enact statutes which are in

harmony with the Constitution: therefore, petitioner was

on notice of the clear obligation of New York courts to

construe the anarchy statute in accordance with sound con-

my eoag principles. See Samuels v. Mackell, supra at

5.°* Il had no right to rely on an assamption

chat the courts would mar _ statutes unconstitutional

Scales v. United States, 367 U.S. 203, 224 (1961). In

short, the conduct char on in the indictment was

‘“‘within the reach of an your limiting construc-

tion readily to be antigen as the result of a single crim-

inal prosecution.*’ See Dombrowski v. Pfister, 350 U.S.

479, 491 (1964). Hierete thet is athe warning, ‘‘once an

acceptable limiting construction is obtained, it may be ap-

plied to conduct occurring prior to the construction.”’ Id.

at 491n.7. Moreover, petitioner's deliberate lighting of a

spark in a ‘‘tinderbox ready to explode’’ (as he later de-

scribed the neighborhood at trial) was *‘the sort of ‘hard-

*In 1965 the state legislature enacted e Revised Penal Law. ef-

fective September 1, 1967, which carried over the former anarchy

statute as icllows:

R ‘ | ame aneenrk<

$240 le Cr mMna: anaere >

= -or- eites £4 Dene) eens. eh { A

A DETSON 1s gait GI CTYisTwT a anercn wnen (aj he ac

vocates the overthrew of the existing form of government of

this state by viclence. or (b, with knowledge c of Its c ontents. he

publishes. sells or distributes any document which advocates

such violent overthrow. or (c. with knowledge of its purpose.

E pury

he becomes a member of any organization which advocates such

229 a Lome & S&S *

violent overthrow

ee oO a a - - - = So - +.

** As Judge FRigNbiy there state< where the deiencants challenged

° 3: e a9 ’ ee ae CEE rane <a :

the vali age ot the anarchy statutes, “No ccnrt o: New York had ever

told the defendants they could engage in the type of activity charged

oer - =e es a a & TT's. _

in the indictment with impumitn [ here wes no evidence tha

- -

the seeidacts ] entertained the beliezs their lawyers now ingeniously

impute to them * * *.

44

core’ conduct that would obviously be prohibited under any

construction of the statute.’’ Id. at 491-492; see Samuels v.

Mackell, supra at 354. Hence, the claim of vagueness is

without merit. Walliams v. United States, 341 U.S. 97, 104

(1951); Scales v. United States, supra at 223.

Petitioner argues, however, that the criminal anarchy

statutes have effectively been declared unconstitutional in

the case of Keyishian v. Board of Regents of the State of

New York, 385 U.S. 589 (1967). Keyishian dealt with Sec-

tion 3021 of New York’s Education Law and Section 105

of the New York Civil Service Law. These two statutes

disqualified from civil service any teaching persons who

uttered ‘‘seditious’’ words or did ‘‘seditious’”’ acts. The

term ‘‘seditious’’ was equated with criminal anarchy 2s

defined by the Penal Law. Jd. at 598-3. In analyzing the

civil service statutes, this Court feund that the reference

to the Penal Law definition was uncertain, and therefore

held the civil service statutes to be unconstitutionally

vague. This pronouncement has no effect, however, on the

instant prosecution, where the petitioner was tried for his

acts under the safeguards and standards of the criminal

law. Cf. Bantam Pooks, Inc. v. Sullivan, 372 U.S. 58, 69-

70 (1963).

In Keyishian, a declaratory judgment action, this Court

had before it an entire statutory scheme of administrative

reguiation without benefit of specific application, or of in-

terpretatien by the courts of this State. Thus, this Court

dealt with all possible ramifications of the civil service

statutes, noting the uncertainty as to whether all the provi-

sions of Section 161 of the Penal Law were incorporated

into the civil service laws at issue. ‘‘If so,’’ this Court

noted, ‘‘the possible scope of ‘seditious’ utterance or acts

45

has virtually no limit.’? For example, citing the least de-

fensible subdivision of Section 161, one not involved in the

instant case, this Court referred to the possibility that ‘‘the

teacher who carries a copy of the Communist Manifesto on

a public street’’ could be affected by the wording of sub-

division 2 of Section 161 of the Penal Law, as incorporated

into the Civil Service Law. This Court concluded that this

language had the effect of stiffling the ability of teachers

and others to speak freely. Jd. at 601. This consideration

does not apply to the instant case, where a conviction has

been obtained under a specific indictment, charging acts

which, under: any view of the applicable law, could not be

constitutionally privileged, and after a trial in which the

specific criminal provision under which defendant was in-

dicted [former N.Y. Penal Law, §161(1)] was clearly and

narrowly construed by appellate courts previously and by

the trial judge in the case at bar. Here, ‘‘the Court must

examine judicially the application of the statute to the par-

ticular situation, to ascertain if the Constitution prohibits

the conviction.’’ Dennis v. United States, supra; cf. Dom-

browski v. Pfister, supra at 490-492.

Further, and most significantly, the civil service statutes

at issue in Keyishian did not simply render removal from

public employment contingent on the actual commission of

the crime of criminal anarchy ; one was subject to discharge

merely on ‘‘utterance’’ of seditious words or the ‘‘doing’”’

of seditious acts. This Court was, therefure, concerned

with the ‘‘indefinite’’ scope of the Penal Law’s definition

of criminal anarchy [former N.Y. Penal Law §160], when

applied to the civil service laws there at issue. ‘‘The

_ teacher,’’ this Court stated, ‘‘cannot know the extent, if

any, to which a ‘seditious’ utterance must transcend mere

46

statement about abstract doctrine, the extent to which it

must be intended to and tend to indoctrinate or incite to

action in furtherance of the defined doctrine. The crucial

consideration is that no teacher can know just where the

line is drawn between ‘seditious’ and nonseditious utter-

ances and acis.’’ Jd. at 599. But a defendant’s seditious

intent is a basic element of the crime of criminal anarchy,

as is the requirement that the proscribed language consti-

tute a call to illegal action. GSitlow v. New York, supra;

Yates v. United States, supra. Thus, in discussing this fa-

tal weakness of the civil service statutes, the Keyitshian

opinion by no mean: invalidated this State’s criminal pro-

visions on sedition.

e

POINT IV

The conviction for conspiracy to commit the crime

of riot did not violate the First Amendment.

Petitioner, turning to the conviction for conspiracy to

commit the crime of riot, asserts, as he did in his

first petition for certiorari,, that this conviction was

based entirely on evidence of speech and expression of

ideas, and tkerefore deprived him of freedom of speech.

Although considerable conspiratorial conduct proved at

trial, such as petitioner’s planning to prepare and distrib-

ute instructions for making Molotov cocktails, and to in-

tensify the rioting, were not protected speech, substantial

proof against the petit‘oner on this count consisted of his

harangues, or of other utterances to which the First Amend-

ment might well apply. However, as the New York Court

of Appeals. pointed out, the clear-and-present-danger test

was satisfied (19 NY2d 496 (1967)); therefore, the First

Amendment was not violated. Yates v. United States, 354

U.S. 298 (1957); Dennis v. United States, 341 U.S. 494

47

(1951). The courts below also found that the test had

been met.

Furthermore, as was found by the district court,

‘** * *(PJ)etitioner misstates the facts. As was noted

when the case was in the Supreme Court, the evidence

in question included evidence of conduct outside the

sphere of the First Amendment. See 390 U.S. at 29-30

fn. (Stewart, J., concurring) ; id. at 33 n. 2 (Douglas,

J., dissenting). Not only was there such ‘unprotected’

evidence; it-was evidently central to the prosecution’s

case in terms of emphasis and potential impact on the

jury. It included, for example, evidence of Epton’s

guidance to an assemblage on ‘suckerirg’ policemen

onto side streets to kill them; his instructions on rianu-

facture and use of weapons for street warfar:; his

planning of demonstrations and other events, not to

convey ideas; but as occasions and techniques for the

fomenting of physical violence. These were the kinds

of things—evidence of efforts to promote ‘guerilla

warfare,’ ‘terrorism,’ ‘killing’—that were relied upon

in page after page of the prosecution’s summation,

the whole thrust of which was to dispel the claim that

Epton had been engaged in peaceful persuasion and to

show instead that ‘the important evidence’ (Tr. 1803)

demonstrated Epton’s purpose directly and imme-

diately to get people in Harlem to ‘start rioting, con-

tinue to riot, and * * * keep the situation fired up.’

(Tr. 1813). These are the realistically major and crit-

ical materials on which the New York Court of Ap-

peals, unanimous in this respect, found the’ evidence,

including words, to establish a ‘ ‘‘clear and present

danger’’ of rict.? 19 N.Y. 2d at 507°’? (Petition, -p.

34a).

“9. In his brief to the New York Court of Appeals (p. 69),

petitioner insisted that the question of clear and present danger

is one ‘for the court alone,’ and that the trial judge had erred in

giving it to the jury.”

48

The court of appeals, after quoting from one of peti-

tioner’s speeches about killing and violence, remarked,

‘*We have great diiliculty with the view that it is

improper to use this language as a proof of an overt

act in furtherance of a conspiracy to riot’’ (Petition,

p. 9a).

Moreover, Mr. Justice Stewart, itn his opinion con-

eurring in the dismissal of Epton’s appeal to this Court,

and the denial of certiorari, felt that the riot conviction

presented no substantial federal question. He found that:

‘** * * the State in these cases presented proof

that Epton had actively participated in the formation

of a group dedicated to armed revolt against the po-

lice under the direction of ‘block captains’ and with

the assistance of ‘terrorist bands,’ equipped with Mo-

lotov cocktails that Epton himself had explained how

to use. In the context of this record, activities such

as these can make no serious claim to constitutional

protection.’? Epton v. New York, 390 U.S. 29, 29-20

n. ¢ (1968).

Finally, petitioner adds to his argument in the first

petition the claim that the jury had not been warned against

convicting him solely on protected speech (Petition, p. 16).

This is a point raised by Mr. Justice Dovetas in his dissent

in Epton v. New York, supra at 34n. 2. The district court,

however, disposed of Epton’s claim by noting that:

‘*(1) there is no claim that any such limiting in-

struction was ever requested;

(2) petitioner never claimed error in the failure

to give such an instruction in his brief to the New

York Court of Appeals, his petition for certiorari or

his jurisdictional statement;

PBR 2 <5

a

49

(3) the absence of a request or argument on di-

rect appeal is perfectly understandable since it seems

plain that the jury, as a matter of fact, would not have

convicted unless it had focussed precisely on the stead-

ily emphasized evidence of unprotected overt acts.’?

(Petition, p. 35a).

The court of appeals ugreed ‘‘with the district court’s ulti-

mate conclusions on these issues’’ (Petition, p. 8a).

And, as pointed out under Point III, supra, the trial

court specifically instructed the jury that the peti-

tioner’s acts, to be unlawful, had to constitute a clear-and-

present danger. Thus, it is inconceivable that the jury,

with such instructions, would have convicted the petitioner

for his acts, however they are denominated, absent a clear-

and-present danger.

POINT V

The petitioner was not denied due process by the

court’s amendment of the count charging conspiracy

to riot. —

As originally written, the first count of the indictment,

charging the petitioner with conspiracy to riot, alleged that

he and others agreed to participate in a riot by promoting

and counseling an assembly of more than three persons

‘‘which disturbed the public peace by using force and vio-

lence to police officers of the City of New York.’’ After

all the evidence had been presented and before the sum-

mations, the defense argued that the count was fatally de-

fective in that it charged not conspiracy but a completed

riot, since it alleged an agreement to instigate riot which

actually had ‘‘disturbed the public peace * * *’* (1675-9).

The argument was a semantic one. The court noted, ‘‘I am

50

going to read that language as if it said ‘which would dis-

turb’ because that’s the only way it makes sense’’ (1679).

Then, over defense counsel’s frivolous objection that the

change was substantial, the court granted the People’s mo-

tion to amend the count of the indictment reading ‘‘ which

disturbed’’ to ‘‘which would disturb’’ (1679-80). The pe-

titioner, at the time, made no claim that this change in any

way affected the presentation of his case (1679-80, 2048-

51), nor does he do so in his present brief.

The petitioner apparently asserts, as he did in his first

certiorari petition, that the change harmed him because, as

written, the indictment required the People to prove that his

acts had actually caused a riot. The authorities he cites in

support of his position are not in point. The first count

of the indictment, with its specification of fifteen overt

acts, clearly charged conspiracy and no other crime. As

is well known and well established, the crime of conspiracy

connotes conspiratorial acts for future criminal purposes,

and phraseology in a conspiracy indictment that indicates

that the planned crime has been committed is superfluous.

‘‘The overt acts, alleged in an indictment, which constitute

a felony may, upon the trial, become immaterial, or “the

prosecution may be unable to establish them * * * Never-

theless, there may be a conviction if some overt act charged

is established. In such a case the offender can be punished

for the crime of conspiracy.’’ People v. Tavormina, 257

N.Y. 84, 93 (1931). ‘‘A conviction for the conspiracy may

be had though the substantive offense was completed.’’

Pinkerton v. United States, 328 U.S. 640, 643 (1946). As

was stated by the district court, the trial judge’s verbal

change merely made ‘‘somewhat clearer this elementary

distinction’’ (Petition, p. 33a). The court of appeals found

FREI DPR CONE SA EME OPE LO LEGS TOS Se IB 2 OOH 4 peo ™

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51

that it was ‘‘a minor change of grammatical tense and

clarified the issue for the jury’’ (Petition, p. lla). The

amendment of the indictment to specify that the object of

the conspiracy lay in the future constituted, therefore,

merely a minor change of grammatical tense, in no way

affecting the proof of the crime or otherwise prejudicing

the defense. N.Y. Code Crim. Proc. §§285, 293. It was

wholly permissible by federal standards because it nar-

rowed the issue that the petitioner was called on to meet.

Thomas v. United States, 398 F.2d 531, 539 (5th Cir. 1967).

As found by the court below, ‘‘[e]ven if the indictment

had not been clarified, Epton could properly have been

convicted of conspiracy’*’’ (Petition, pp. 11la-12a).

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Frank S. Hocan

District Attorney

New York County

MIcHAEL R J UVILER

Davip Ot1s Futter, Jr.

Assistant District Attorneys

Of Counsel

September, 1971 —

“14. Of course, well before this ruling was made, the substantive

charge of riot against Epton had already been dis:nissed by the trial

judge. thereby eliminating any confusion of the issue submitted to the

jury on the conspiracy to riot count.”

a a a ote tan tn ee et eT