Petition for Writ of Certiorari — Achtenberg v. United States

Supreme Court brief1972

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IN THE MICHAEL RODAK, JR.,CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

JOEL ACHTENBERG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

IRVING ACHTENBERG

531 Walnut

Kansas City, Missouri 64106

Attorney for Petitioner

E. L. MENDENBALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

INDEX

RE IID ccc ncecisciersineninndiinnnbnanauasiiinesn

ET COON a I LE

Questions Presented for Review

Statutes and Constitutional Provisions Involved ........

Statement of the Case

Reasons for Granting the Writ. ..............-...ccessscsesscsserssesees

I. Statute under Which Petitioner Was Indicted

Is Unconstitutionally Vague and Overbroad ......

The Evidence Failed to Make a Case under

18 U.S.C. § 2153(a) As a Matter of Law ............

II.

The Premises and Material in Evidence

Were Not “War Material” or ‘“‘War Premises”

18 U.S.C. §§ 2153(a) and 2155 Involve Dif-

ferent Premises and Materials -..0.......0000000000.....

18 U.S.C. §§ 2153 and 2155 Are Both in Effect

in Times of National Emergency .......................-

No Substantial Evidence of “Reason to Be-

III. Importance of Questions Presented and Conflict

with Other Federal Decisions

Conclusion

Appendix—Opinion, United States Court of Appeals,

Table of Authorities

CASES

Allison v. U. S., 426 F.2d 1324 (6th Cir. 1970) ............

American Construction Co. v. Jacksonville T. & K. R.

ne ecausieniitimauadiouae

“Wg DIAL KER DA AR ei II eee

eR as

Biv sesraces,

lan Ue igk ean See aoe ae

Bell v. U. S., 349 U.S. 81 ........--sscesesceeeeeeeeeeceeeenereneceeenens 18

Connally v. General Construction Co., 269 U.S. 385

(1926) .. w= ©

Gorin v. U. S., 111 F.2d 712 (9th Cir. 1940) .........-....-- 15

Ladner v. U. S., 358 U.S. 169 (1958) ........-----------se-eseses000- 12

Land v. Dollar, 330 U.S. 731 .. a

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .........--.-.------ 10

Larson v. Domestic & Foreign Commerce Corp., 337

U. S. 682 21

Moore & Tierney v. Roxford Knitting Co., 250 Fed

278 (1918) . 14

Palmer v. City of Euclid, 402 U.S. 544 (1971) ............ 8

Roedel v. U. S., 145 F.2d 819 (1944) . 14

» Schmeller v. U. S., 143 F.2d 544 (6th Cir. 1944) -...... 14, 20

Toussie v. U. S., 397 U.S. 112 (1970) -....--------------eeeeeeeeees 10

U. S. v. Antonelli Fireworks Co., 155 F.2d 631 (2d

Cir, 1946) u.n......-.n.ceccsccscsnsesesseenensessescaneneessssssncesensaneresesenseas 13

2% Bland, No. 70 CR. 168(1) (D.CED Mo. E.

Div.) 11

U. S. v. Drummond, 354 F.2d 132 (1965) -....--.------------- 19

U. S. v. Eisenberg, No. 70 CR. 233 (D.C.S.D.Mo.

TE, DAV.) -.ncenececsscoservsosesnssecsessnssennenoggesecsenssncseuconsonasensnnssancenese 11

U. S. v. Meeker, NCM 63-00102 (NBR April 19, 1963) -

dea achalasia 16, 17, 20

U. S. v. Melville, 309 F. Supp. 774 (D.C. N.Y. 1970) ....16, 17

U. S. v. Reyes, 30 CMR 776 (A F B R 1960) ........--- 16, 17, 21

U. S. v. Rudofker, No. 70 CR. 233 (D.C.E.D.Mo.

E. Div.) - 11

U.S. v. Siskind, No. 68 CR. 283(1) (D.C.E.D.Mo. 1970) 17

U. S. v. Stewart, 19 U.S.C.M.A. 417, 42 CMR 19

(1970) 16, 17, 20

U. S. v. Williams, 341 U.S. 70 (1951) 8

CONSTITUTIONAL PROVISIONS

AND STATUTES

Fifth Amendment, Constitution of the United States... 5

66 Stat. 330 (Emergency Powers Continuation Act) .... 13

BE eS | a naneee Seances 15

ais 5 ae E | en 2, 3, 8, 10, 11, 12, 14, 16, 17, 18

a See 2, 4, 8, 11, 12, 16, 18, 20, 21, 22

Bie | oe & :. | nee 2,5, 11, 12, 16, 17, 18, 20, 21, 22

22 U.S.C. § 2403 15

OTHER AUTHORITIES

Committee Hearings on H.J. Res. 386 Before Subcom-

mittee No. 4 of the House Comm. on the Judiciary,

82d Cong., 2d Sess. (1952), pp. 577-78 on... eeeeeceeeeee 13

Committee Report on H.J. Res. 477, 82d Cong., 2d Sess. 13

Cong. Record-House June 11, 1952, pp. 7062-3 _............... 13

Cong. Record-House, July 8, 1954, p. 10110 20... 18

56 Cong. Rec. 3114 14

Executive Order No. 8972 (Dec. 11, 1941) oo... 17

—_

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

JOEL ACHTENBERG,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner Joel Achtenberg respectfully prays that a

Writ of Certiorari be issued to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit in the above-styled cause, rendered April

3, 1972, and the denial of Petitioner’s Petition for Rehear-

ing or for Transfer and Rehearing by the Court En Banc.

entered on May 23, 1972.

OPINION BELOW

The District Court did not write a formal opinion.

The opinion of the Court of Appeals is not yet officially

reported and is set out in the Appendix hereto.

Se -

aS i A es

Fk DORR BIRT

JURISDICTION

The opinion and judgment of the Court of Appeals

was entered on April 3, 1972. Appellants’ Petition for Re-

hearing and for a Rehearing by the Court En Banc was

timely filed and was denied on May 23, 1972, and this

Petition for Certiorari was filed within 30 days of that

date. This court’s jurisdiction is invoked under 28 U.S.C.

Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether 18 U.S.C. § 2153(a) is void for vague-

ness and overbreadth, in violation of the Fifth Amend-

ment to the Constitution of the United States, as construed

in connection with 18 U.S.C. §§ 2151 and 2155?

2. Whether the government failed to prove its case

under 18 U.S.C. § 2153(a), as a matter of law because:

(a) ROTC training is not “defense activities” as

narrowly defined under 18 U.S.C. § 2151?

(b) Articles intended for training ROTC cadets are

not “war materials” as defined under 18 U.S.C. § 2151?

used for ROTC courses are not “war premises” as defined

under 18 U.S.C. § 2151?

(d) Objection to ROTC on campus and knowledge

that a campus building may be connected with ROTC is

not substantial evidence on which to find that an attempt

to injure an ROTC building or articles therein is “with

reason to believe that his act might injure, interfere with

or obstruct the United States in preparing for and carry-

ing on defense activities”, as required by 18 U.S.C. § 2153

(a)?

TOP PNR 7

—_—

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

18 U.S.C. § 2151. Definitions

As used in this chapter:

The words “war material” include arms, armament,

ammunition, livestock, forage, forest products and stand-

ing timber, stores of clothing, air, water, food, foodstuffs,

fuel, supplies, munitions, and all articles, parts or ingre-

dients, intended for, adapted to, or suitable for the use of

the United States or any associate nation, in connection

with the conduct of war or defense activities.

The words “war premises” include all buildings,

grounds, mines, or other places wherein such war material

is being produced, manufactured, repaired, stored, mined,

extracted, distributed, loaded, unloaded, or transpcrted,

together with all machinery and appliances therein con-

tained; and all forts, arsenals, navy yards, camps, prisons,

or other installations of the Armed Forces of the United

States, or any associate nation,

The words “war utilities” include .. . (balance of

paragraph omitted as irrelevant).

The words “associate nation” mean any nation at war

with any nation with which the United States is at war.

The words “national-defense material” include arms,

armament, ammunition, livestock, forage, forest products

and standing timber, stores of clothing, air, water, food,

foodstuffs, fuel, supplies, munitions, and all other articles

of whatever description and any part or ingredient thereof,

intended for, adapted to, or suitable for the use of the

United States in connection with the national defense or

for use in or in connection with the producing, manu-

facturing, repairing, storing, mining, extracting, distrib-

wey

uting, loading, unloading, or transporting of any of the

materials or other articles hereinbefore mentioned or any

part or ingredient thereof.

The words “national-defense premises” include all

buildings, grounds, mines, or other places wherein such )

national-defense material is being produced, manufactured.

repaired, stored, mined, extracted, distributed, loaded, un-

loaded, or transported, together with all machinery and ap-

pliances therein contained; and all forts, arsenals, navy j

: yards, camps, prisons, or other installations of the Armed

Forces of the United States.

The words “national-defense utilities” include . .

(balance of paragraph omitted).

As amended June 30, 1953, c. 175, §§ 2, 7, 67 Stat. 133,

134; Sept. 3, 1954, c. 1261, Title I, § 101, 68 Stat. 1216.

eto

18 U.S.C. § 2153. Destruction of war material, war prem-

ises, or war utilities

(a) Whoever, when the United States is at war, or

in times of national emergency as declared by the Presi- |

dent or by the Congress, with intent to injure, interfere

with, or obstruct the United States or any associate nation

in preparing for or carrying on the war or defense ac-

tivities, or, with reason to believe that his act may injure,

interfere with, or obstruct the Pnited States or any asso-

ciate nation in preparing for or carrying on the war or

defense activities, willfully injures, destroys, contaminates

or infects, or attempts to so injure, destroy, contaminate

or infect any war material, war premises, or war utilities,

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

more than thirty years, or both.

(b) (Not relevant).

As amended June 30, 1953, c. 175, §§ 2, 7, 67 Stat. 133,

134; Sept. 3, 1954, c. 1261, Title I, § 102, 68 Stat. 1217.

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—

18 U.S.C. § 2155. Destruction of national-defense mater-

ials, national-defense premises or na-

tional-defense utilities

(a) Whoever, with intent to injure, interfere with, or

obstruct the national defense of the United States, will-

fully injures, destroys, contaminates or infects, or attempts

to so injure, destroy, contaminate or infect any national-

defense material, national-defense premises, or national-

defense utilities, shall be fined not more than $10,000 or

imprisoned not more than ten years, or both.

(b) (Not relevant).

As amended Sept. 3, 1954, c. 1261, Title I, § 104, 68

Stat. 1218.

The Fifth Amendment to the United States Constitu-

tion provides in pertinent part:

“No persor shall . . . be deprived of life, liberty, or

property, without due process of law . . .”.

STATEMENT OF THE CASE

Petitioner was convicted by a jury on an indictment

charging violation of 18 U.S.C. § 2153(a) and sentenced to

“imprisonment, straight sentence, for a period of 15 years”

(69)*. The indictment charges (13):

“That on or about May 4-5, 1970, at which time

there was in force and effect at all times a state of

national emergency proclaimed by the President of

the United States, at St. Louis County, in the State of

Missouri, and within the Eastern District of Missouri,

4 References to pages in appendix on appeal are designated

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JOEL ACHTENBERG

with reason to believe that his act might injure, in-

terfere with and obstruct the United States in pre-

paring for and carrying on defense activities, did will-

fully attempt to injure and destroy, by fire, war prem-

ises and war material as defined by Section 2151, Title

i8, United States Code, to wit: the United States

Army Reserve Officers Training Corps facility at

Washington University, St. Louis County, Missouri,

and articles contained therein, intended for the use

of the United States in connection with defense ac-

tivities.

“In violation of Section 2153(a), Title 18 United

States Code.”

This case arose out of a series of incidents occurring

on the Washington University campus in St. Louis during

the late evening of May 4, 1970, and the early morning of

May 5, 1970. A confrontation of students by troops at

Kent University on May 4, 1970, had resulted in the death

of four students. Students assembled at the quadrangle

on the Washington University campus to protest the Kent

incident, the presence of ROTC on the campus and the con-

flict in Vietnam. Shortly before midnight the assembled

crowd, including the defendant, proceeded to the area on

the campus where the Air Forée and Army ROTC build-

ings are located. Various destructive activities occurred,

including setting fire to the Air Force ROTC building and

the Army ROTC building. The charges against the de-

fendant relate only to the Army ROTC building.

Defendant appeared as a witness and admitted par-

ticipating in the march and demonstration but denied that

he carried fire to the building or that he commenced any

fire in the building, or that he had entered the building.

PE EEL, IE

_—_

Evidence was received that an atterot had been made to

burn part of the gun cage in the ROC building and that

a two-by-four partition board was aarred, and that two

fatigue uniforms were burned.

The Army ROTC building belong to Washington Uni-

versity. It is not a government bulding. It was used

principally for ROTC training. Cetain supplies in the

building were property of the Unite States. An inven-

tory of such property received in evdence discloses that

the building contained 47 M-1 and M14 rifles, office sup-

plies, equipment, helmets, tents, unifcms and other equip-

ment.*

Petitioner “felt ROTC was not. activity that de-

served academic credit or any plac aS a part of the

University community” (194). Heknew the building

was a storage shed and thought it migtt be connected with

ROTC (190). He testified he had never been in the

building (186).

Om appeal the case was reversedand remanded for a

new trial.

REASONS FOR GRANTING(HE WRIT

The trial court and the appellatecourt have decided

two important questions of federal lav, as set out in the

Questions Presented For Review. Nither of them have

been passed upon by this court and should be, for the

reasons stated herein.

2. The above portion of the statemert of the case is taken

verbatim from the opinion of the Court of Appeals.

et aa Pies

Statute under Which Petitioner Was Indicted Is Uncon-

stitutionally Vague and Overbroad.

18 U.S.C. § 2153(a), is void for vagueness and over-

breadth in violation of the Fifth Amendment to the Con-

stitution of the United States because it fails to give a

person of ordinary intelligence fair notice that his con-

templated conduct is forbidden by the statute. Palmer

v. City of Euclid, 402 U.S. 544 (1971). A criminal statute

must be strictly construed. U. S. v. Williams, 341 U.S. 70

(1951). The constitutional prohibitions strike down a

statute which forbids the doing of an act in terms so

vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application. Con-

nally v. General Construction Co., 269 U.S. 385, 391-2

(1926). Connally recognizes that certainty may be pro-

vided by phrases having a technical or special meaning

well enough known to enable those within their reach to

correctly apply them, or a well settled common law mean-

ing, but that some standard of conduct must be afforded

from the text of the statute or the subjects dealt with.

The vague terms are “defense activities”, “reason to

believe”, “national emergency”, “preparing for”, “war ma-

terial” and “war premises”. Both the terms themselves,

and the manner in which they &re interlinked or applied

in the statute, create the constitutional infirmity.

The exact meaning of the term “defense activities”

as statutorily applied is critical. One essential element

of the offense under § 2153(a) is that the act be with

intent or reason to believe that it would interfere with

“defense activities’. The phrase is again used in § 2151

in defining war material as articles “intended for use in

connection with defense activities”, injury to “war ma-

—

terial” being a second essential element of the offense.

Thirdly “war premises” includes buildings in which war

material is stored. The scope of “war premises” thus de-

pends on the definition of “war material” which, in turn,

depends on the meaning of “defense activities”. Although

the meaning of “defense activities” is thus critical, the

Statute contains no definition. Today, when the amount

allocated for defense consists of a major portion of the

nation’s economy, there is little, if any, activity which

has no connection with defense activities. The term is

so vague and broad as to include almost any act. It has

no well known special or technical meaning nor any well

settled common law meaning. It is capable of dragging

almost anything within its confines. It gives no notice

of the conduct it forbids and furnishes no standards of

conduct forbidden.

What is “reason to believe”? Without statutory defi-

nition, does it mean “knowledge”, “reasonable suspicion”,

“practically certain” or what? Does it mean defendant

must have reason to believe that his act would cause sub-

stantial injury or minor damage? None of these questions

are answered by the statute. Some state of mind or in-

formation is apparently required, but how much? And

as to what? What was the mens rea required? No

cases define the term.

“National emergency” is also vague. True, it is lim-

ited by the terms “as declared by the president”. We are

usually in a “national emergency” of some sort, but what

type is contemplated and when does it end? To lend

clarity to the term must not the declaration specify an

ending event or date?

“Preparing for” is likewise vague. One knows when

the nation is “carrying on” a war, but when does it begin

preparing for war? That point is impossible of determi-

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nation without statutory declaration. Where the statute

says “preparing for . . . defense activities” the term be-

comes even less subject to any standard. If “defense”

means “war” it is vague. If “defense” means “prepara-

tion for war”, when does one prepare to prepare?

§ 2151 attempts to define “war material” and “war

premises” but they remain vague and overbroad. The

definition of “war material” includes “all articles ...

adapted to or suitable for the use of the United States

_ in connection with the conduct of . . . defense ac-

tivities”. This has two infirmities. First, it is dependent

on the term “defense activities”. Second, it depends on

the meaning of “adapted to or suitable for’, which would

include almost anything and gives no standard. It in-

cludes articles also adapted or suitable for non “defense”

uses. “War premises” even as defined remains uncertain

because it may depend on the vague terms “defense ac-

tivities” and “war materials.” Neither “war material”

nor “war premises” has any well known technical or spe-

cial meaning or any well settled common law meaning.

They are so broad and vague as to include almost any

structure, place or article.

A statutory definition does not remove the constitu-

tional infirmity if the definition also is subject to the in-

firmity. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

The statute fails to define with sufficient precision

exactly what is proscribed. It leaves to the court and

jury a wide discretion in determining, not only whether

the accused did, or did not do, a particular act, but whether

the act done is encompassed by the statute. “We should

not derive criminal outlawry from some ambiguous im-

plication.” Toussie v. U. S., 397 US. 112, 122 (1970).

The vagueness of this statute is dramatically demon-

strated by the wide range of sentences (90 days to 15

| apr sername enemas

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years) imposed by different federal judges in the four

cases arising out of the same events in which each de-

fendant was indicted for violation of § 2153. Four judges

of more than common intelligence, viewed this statute

with widely different meanings and application.

The Evidence Failed to Make a Case under 18 U.S.C.

§ 2153(a) As a Matter of Law.

18 U.S.C. § 2151 separately defines and differentiates

between “war premises and war materials” (required un-

der 18 U.S.C. § 2153 under which petitioner was tried)

and “national-defense premises and national-defense ma-

terials’ (under § 2155); and fails to define “defense

activities”, an essential element under § 2153(a). Peti-

tioner’s position is that the ROTC buiiding and contents

were at most “national-defense premises and national-de-

3. U. S. v. Rudofker, No. 70 CR. 170(3) (D.C.E.D.Mo. E.

Div.) had one count of destruction by fire of the Air Force ROTC

building and articles therein under § 2153 and a second count of

destruction of government property under § 1361. After four days

of evidence by the government Rudofker pleaded guilty to the

second count and was placed on three years probation by District

Judge Regan, after serving a 90 day evaluation period.

U. S. v. Eisenberg, No. 70 CR. 233 (D.C.E.D.Mo. E. Div.)

(tried in Sept. 1971) had two counts under § 2153 charging at-

tempted burning of both ROTC buildings. Found guilty of at-

tempted burning of the Air Force building, he was sentenced by

District Judge Webster to one year, six months of the sentence

was suspended and he was placed on three years probation.

U. S. v. Bland, No. 70 CR. 168(1) (U.S.D.C.E.D. Mo. E. Div.),

charged two counts under § 2153(a) of destruction of the Air

Force ROTC building, and attempted destruction of the Army

ROTC building and a third count under § 1361, of destruction of

government property. On May 20, 1971 after four days of trial

he pleaded guilty to the second count, under § 2153(a) of attempt

on the Army ROTC building and was sentenced to 10 years by

District Judge Meredith.

Defendant here received 15 years for only one offense, “at-

tempt” on the Army ROTC building with minor damage (probably

under $100), as opposed to the others charged with the Air Force

ROTC building, in which the south end and its contents were

totally destroyed, and who received the smallest sentences, 90 days

and 6 months.

—

fense materials” which would support only a conviction

under § 2155 and not “war materials and war premises”,

essential elements under the more serious statute, § 2153 (a).

The Appellate Court’s opinion (Appendix) finds that:

oleae eas

“National defense materials are defined in § 2151.

The definition clearly includes much of the govern-

: ment property such as guns and clothing stored in

‘ the ROTC building. National defense premises as

defined in § 2151 include places where national de-

fense material is stored.”

The Court thus found that the evidence only sup-

: ported a charge under § 2155, i.e. an attempt to injure

- “national-defense material” and “national-defense prem-

: ises”, and did not support the element of “war material

and war premises” necessary under § 2153 (a).

5 A. The Premises and Material in Evidence Were Not

3 “War Material” or “War Premises”.

4 In interpreting a criminal statute the Court must ap-

| ply the most lenient interpretation. Ladner v. U. S., 358

' —- US. 169, 178 (1958).

The meaning of “defense activities” interlinks with

that of “war material” and “war premises”. As prop-

erly defined the term means activities directly related to

war activities. The legislative history shows that the

term did not enlarge the meaning of “war activities” ex-

cept to cover undeclared wars. On July 3, 1952, Con-

gress first amended § 2153(a) to add the words “‘or defense

activities” following “carrying on the war’. Also § 2151

was amended so that “or defense activities” would follow

“carrying on the war”, in the definition of “war material”.

Emergency Powers Continuation Act, 66 Stat. 330 (H.J.

Res. 477, 82d Cong., 2d Sess.). Since the Korean con-

flict was regarded as an undeclared war, the phrase

“defense activities” was added as a euphemism for “un-

declared war”. This is made clear by the committee re-

port on H.J. Res. 477:

“The committee recommends the continuation of

these provisions, with amendments to clarify the ap-

plication of certain phrases to a period in which there

is no formally declared state of war.”

The earlier Committee Hearings on H.J. Res. 386 Before

Subcommittee No. 4 of the House Comm. on the Judici-

ary, 82d Cong., 2d Sess. [1952] indicate the same con-

cern. Remarks of Congressman Kneip (pp. 577-78). Mr.

Feighan said:

“We are not in a declared state of war, consequently

we have changed the verbiage in this resolution to

make it appropriate to a period where there is no

declared state of war.” Cong. Record-House June 11,

1952, pp. 7062-3.

Applying this meaning of “defense activities” there

was no substantial evidence that the articles in the Army

ROTC building were “war material” or that the building

was “war premises”. The alleged “war material” were

articles in the Army ROTC facility intended for train-

ing ROTC cadets. These articles were not “war ma-

terial” which must be defined to be articles intended for

use directly connected with declared or undeclared war

activities.

Four decided cases dealing with “war material”, un-

der other statutes, all relate to articles directly intended

for use by the active armed forces in the conduct of a

war. U.S. v. Antonelli Fireworks Co., 155 F.2d 631 (2d

Cir. 1946) (bombs and grenades, during World War II

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intended for Army use); Moore & Tierney v. Roxford

Knitting Co., 250 Fed. 278, 287 (1918) (in World War I,

underwear for Navy men); Schmeller v. U. S., 143 F.2d

544 (6th Cir. 1944) (castings for military aircraft engines

in World War II); Roedel v. U. S., 145 F.2d 819 (1944)

(destruction by a Nazi Storm Trooper of war material

stored in a shipyard warehouse, during World War II).

The act was intended to apply only to material

directly related to actual military activities. In the legis-

lative discussion of the Act of 1918 (56 Cong. Rec. 3114)

Representative Volstead in support of the Act said:

“The original bill was much more comprehensive

In some respects, in fact it seemed to be broad

enough to cover anything in the United States. The

Committee has modified it by limiting the scope

of the bill to those things which are being used

more directly by the Government in carrying on

the war.” (Emphasis added).

Under the narrow construction applied by the courts

and indicated by the legislative intent, articles in a uni-

versity-owned ROTC building were not directly con-

nected with ‘defense activities”. So defined, the evi-

dence failed to establish that “war materials” were in-

volved. There was no evidence that anything in the

building was of the type, style, design, model or condi-

tion intended for use in offensive or defensive combat

activities. The only evidence was that the articles were

for “training ROTC cadets”.

The statutory definition of “war premises” is in

§ 2151. The premises here could not possibly come

within the premises there specified. There was no sub-

stantial evidence that it was a “building wherein war

material is stored” or “an installation of the Armed

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Forces”. The buildings and land were owned by the

university and used for accredited ROTC courses and

other university courses. The building was not an in-

stallation of the “Armed Forces” because ROTC is not

a part of the Armed Forces. As defined by 10 U.S.C.

§ 101(4) and again in 22 U.S.C. 2403 “Armed Forces

means the Army, Navy, Air Force, Marine Corps and

Coast Guard”. ROTC is not included. In Allison v.

U. S., 426 F.2d 1324, 1326 (6th Cir. 1970), the court said:

“this section [10 U.S.C. § 1475(a) (4)] distinguishes

between members of the armed forces and reserves

and members of ROTC. ... The legislative history

of the Act indicates a belief on the part of members

of Congress that ROTC students are not members

of the armed forces.”

Nor was the Army ROTC building a building in which

“war material” was stored, because there was no sub-

stantial evidence that the articles in the building were

“war material”.

In Gorin v. U. S., 111 F.2d 712, 717 (9th Cir. 1940),

involving an earlier Espionage Act, the court approved

a lower court instruction which read:

“You are instructed that the term ‘national de-

fense’ includes all matters directly and reasonably

connected with the defense of our nation against its

enemies.” (Emphasis added).

Applying the narrow meaning of “defense activities”

there was no substantial evidence that the articles in

the Army ROTC building were “war material” or that

the building was “war premises”. Gorin points out that

things once “connected with the national defense may

have lost such connection”, using a flintlock as an example.

While not so extreme an example, M-1 and M-14 rifles

and other obsolete equipment, here used to train ROTC

cadets, had lost any direct connection with ‘‘defense ac-

tivities”.

B. 18 U.S.C. §§ 2153(a) and 2155 Involve Different

Premises and Materials.

A statutory distinction is made between “war ma-

terial and premises” and ‘“national-defense material and

premises”. § 2151 defines both. “War material and

premises” relate to use “in connection with the conduct

of war or defense activities”, and “‘national-defense ma-

_ terial and premises” relate to use “in connection with the

- national defense”. Since the statute uses two categories,

there must be a distinction. ‘War or defense” relates

directly to military activities. “National defense” covers

the broader area of preparedness, not directly connected

with actual combat activities. Under the offense sec-

tions the distinction is significant. § 2153 involves of-

fenses against “war material” and a 30 year maximum sen-

tence. § 2155 involves offenses against “national-defense

material” and a maximum 10 year sentence. If Congress

intended no difference between “national-deferise prem-

ises and material” and “war premises and material”,

there was no reason to define these terms separately.

Recent cases indicate that Army, Navy or Air Force

combat equipment, during the present emergency, are

not “war material” but rather “national defense material”

under § 2155, where not employed in a direct combat

mission. See Melville, Stewart, Meeker and Reys, infra,

all tried under § 2155, not § 2153. Melville involved an

attempt to destroy Army trucks being used by the Na-

tional Guard. Stewart and Meeker involved damage to

Navy airplanes whose mission was the air defense of

the U.S. Reyes reversed a conviction on appeal for fail-

ure to admit evidence as to the mission of a B-52 Air

Force aircraft damaged by an Air Force enlisted man.

18 U.S.C. § 2153(a) has been in effect since 1952 in

its current form yet there are no reported cases under

that section except those arising out of the instant episode,

despite a long series of destructive activities against

ROTC, draft boards, Armed Forces Induction Centers, etc.

C. 18 U.S.C. §§ 2153 and 2155 Are Both in Effect in Times

of National Emergency.

In at least five cases since 1960, during the same “na-

tional emergency”, charges have been brought under §

2155. See U. S. v. Melville, 309 F. Supp. 774 (D.C. N.Y.

1970); U. S. v. Stewart, 19 U.S.C.M.A. 417, 42 CMR 19

(1970); U. S. v. Meeker, NCM 63-00102 (NBR April 19,

1963); and U. S. v. Reyes, 30 CMR 776 (A FB R 1960).

In U. S. v. Siskind, Case No. 68 CR. 283(1) (D.C.E.D.Mo.

1970), involving an earlier ROTC episode at Washington

University, the charge under 18 U.S.C. § 2153(a) was dis-

missed and District Judge Harper accepted a guilty plea

under § 2155.

On December 11, 1941, during World War II, Presi-

dent Roosevelt issued Executive Order No. 8972, which

authorized the Army and Navy to maintain military guards

over ‘‘national-defense material’ and “national-defense

premises”. President Roosevelt’s wartime concern for

“national-defense premises” and “national-defense mate-

rial” makes clear that they are not just peacetime equiva-

lents for “war material, etc.”, but that the two categories

involve different material and premises and co-exist in

time of war.

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The remarks of Congressman Rogers, Congressional

Record-House, July 8, 1954, page 10110, are significant:

“Certain acts of sabotage, occurring at any time would

be punishable by not more than 10 years’ imprison-

ment or not more than $10,000 fine, or both.” (Em-

phasis added).

If § 2153 and § 2155 are concurrently in effect and a

charge can be brought under either, there must be a dis-

tinction between “war material and premises” (§ 2153)

and “national-defense material and premises” (§ 2155).

Otherwise two statutes in effect penalize the same factual

offense, one with a maximum penalty of 10 years and the

other 30 years. Bell v. United States, 349 U.S. 81, 83, said:

“When Congress leaves to the Judiciary the task of

imputing to Congress an undeclared will, the am-

biguity should be resolved in favor of lenity.”

Narrowly and leniently construing §§ 2151 and 2153 (a)

there was no substantial evidence that the building was

“war premises”, the articles therein “war materials” or

that ROTC courses are “defense activities”.

D. No Substantial Evidence of “Reason to Believe”.

The indictment charges that defendant acted “with

reason to believe that his act might injure, interfere with

or obstruct the United States in preparing for and carry-

ing on defense activities”. There was no substantial evi-

dence as to this essential element. To come under the

language of the indictment defendant must have had

reason to believe that his act would cause substantial

damage to property directly related to defense activities.

Defendant did not participate in planning the rally of

May 4-5 and did not know it was planned or that it would

end up at the ROTC facilities (182). It was a spontaneous

—

reaction of many people to the student deaths at Kent

State that noon. There was no evidence of any calculated

intent of defendant to specifically interfere with the war

effort. His participation in the demonstration was based

on his feeling “that ROTC was not an activity that de-

served academic credit or any place as a part of the Uni-

versity community” (194). It was a method of expressing

a protest—not an effort to interfere with the war. Orig-

inally a candelight vigil at St. Louis University was pro-

posed, then that the vigil be at the Washington University

ROTC area (190). As to the Army ROTC shed, the only

evidence as to defendant’s knowledge of its use and con-

tents was that he understood that it was a storage shed.

He was not sure what was stored in it but thought it might

be connected with ROTC (190).

The offense is a severe one and must be strictly and

narrowly construed. So construed there is wide difference

between acts of protest against ROTC on campus or against

student deaths at Kent State, and acts which would rea-

sonably be believed to directly and substantially inter-

fere with combat activities. The Court made a comparable

distinction in Cramer v. U. S., 325 U.S. 1, 45 (1945), hold-

ing that treason involved “aiding adversaries of the United

States” which is not the same thing as “injuring our

country”. In U.S. v. Drummond, 354 F.2d 132, 152 (1965),

the court, citing Cramer, supra, said “The differences

may not be very great between . . . injuring our country

and aiding our adversaries. But the Supreme Court plainly

regards them as sufficient to make the two-witness rule

inapplicable”. Just as “injuring our country” is one step

removed from “adhering to or aiding the enemy”, so an

alleged attempt, as a protest, to damage items stored in a

ROTC shed is at least the same distance away from “in-

terfering with defense activities”.

“Reason to believe” under § 2153(a) is not merely to

wilfully injure government property. That element of the

offense is stated by the words “did wilfully injure”. A

more specific “reason to believe” is essential under the

statute. As stated in Schmelier v. U. S., 143 F.2d 544, 553

(involving destruction of war material), “But the con-

trolling question is not whether wilfulness was exhibited

but whether there was a wilful violation of the statute”.

There had to be substantial evidence that defendant had

some knowledge that would reasonably lead him to be-

lieve his alleged act would substantially interfere with

activities directly related to declared or undeclared war

and that he had reason to believe the building was “war

premises” and the articles were “war material” under

the statute. Otherwise the act charged would have been

merely attempted arson or destruction of government prop-

erty, not requiring the specific intent. There was no evi-

dence against defendant on these points.

In U. S. v. Stewart, supra, the accused was found

guilty of violation of 18 U.S.C. § 2155. On appeal the

evidence was held insufficient to convict on the count of

attempting to wilfully destroy an aircraft “with intent to

injure, interfere with or obstruct the National Defense of

the United States”. The court said: “There is evidence

from which it might be inferred that he attempted to in-

jure or destroy a specific aircraft engine and that engine

was properly classified as ‘National Defense material’.

However unless the necessary intent to commit sabotage

can be reasonably inferred from the fact of the act itself,

the accused’s conviction must fail for lack of sufficient

evidence”. In U. S. v. Meeker, supra, the charge was viola-

tion of § 2155 in that the accused with intent to interfere

with the National Defense attempted to injure a Navy

aircraft. Guilty finding was reversed on appeal, for in-

TEL SSOP SSERNAS Foo TE EEK DOT RA OORT ST EL FS

sufficient evidence of intent to interfere with the National

Defense.

In U. S. v. Reyes, supra, an air force enlisted man

was charged under § 2155 with wilful injury to a B-52

aircraft alleged as “National De‘ense material”, “with

intent to interfere with the National Defense”. Convic-

tion was reversed on appeal among other grounds for

failure to admit evidence as to the aircraft’s mission. Al-

though a combat aircraft, the court considered whether

the aircraft was on alert status as relevant to the issue

of intent to interfere with National Defense.

Although the judgment of the Court of Appeals is non-

final in nature in that it remanded the case to the District

Court for a new trial, this court should nevertheless take

jurisdiction because of the important and clear-cut issues

of law presented affecting the trial court’s jurisdiction.

Land v. Dollar, 330 US. 731, 734; Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 685. The judg-

ment herein presents novel and important questions of

law and if petitioner’s position is sustained will render the

lower court’s decision wholly void and obviate the neces-

sity of a new trial. American Construction Co. v. Jackson-

ville T. & K. R. Co., 148 US. 372.

There is a clear conflict between the use of 18 U.S.C.

§ 2153(a) in the instant case and the frequent use of 18

U.S.C. § 2155 by other federal courts in comparable cases.

The relationship between these statutes has never pre-

viously been judicially construed. In view of the dif-

ference of 20 years between the maximum sentence under

a OP a SERRE

§ 2153(a) and that under § 2155, the applicability of the

appropriate statute is of major concern in the administra-

tion of criminal justice. Except for the three indictments

by the same grand jury arising out of the same episode at

Washington University on May 4-5, 1970, § 2153(a) has

never been the basis of an indictment by any other grand

jury, to the best of petitioner’s knowledge. On the other

hand § 2155 has frequently been the basis of charges in

similar circumstances.

CONCLUSION

For these reasons, a writ of certiorari should be

granted.

Respectfully submitted,

InvING ACHTENBERG

531 Walnut

Kansas City, Missouri 64106

Counsel for Petitioner

June 16, 1972

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OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 71-1392.

United States of America, ) Appeal from the

Appellee, United States Dis-

Vv. ‘ trict Court for the

Joel Achtenberg, Eastern District of

Appellant. ; Missouri.

April 3, 1972.

Before VAN OosTERHOUT and STEPHENSON, Circuit J udges,

and ReaisTer, Senior District Judge.*

Van OosTERHOUT, Circuit Judge.

Defendant Joel Achtenberg has taken this timely ap-

peal from his conviction by a jury on an indictment charg-

ing violation of 18 U.S.C.A. § 2153(a) and the resulting

sentence of fifteen years imprisonment imposed. The in-

dictment charges:

“That on or about May 4-5, 1970, at which time

there was in force and effect at all times a state of

national emergency proclaimed by the President of the

United States, at St. Louis County, in the State of

Missouri, and within the Eastern District of Missouri,

*Judge Register by reason of his death did not participate in

the writing of the opinion or the final determination of this case

but concurred in the result in conference.

JOEL ACHTENBERG

with reason to believe that his act might injure, inter-

fere with and obstruct the United States in preparing

for and carrying on defense activities, did willfully

attempt to injure and destroy, by fire, war premises

and war material as defined by Section 2151, Title

18, United States Code, to wit: the United States

Army Reserve Officers Training Corps facility at

Washington University, St. Louis County, Missouri,

and articles contained therein, intended for the use of

the United States in connection with defense activities.

“In violation of Section 2153(a), Title 18 United

States Code.”

Section 2153(a) reads:

“Whoever, when the United States is at war, or in

times of national emergency as declared by the Presi-

dent or by Congress, with intent to injure, interfere

with, or obstruct the United States or any associate

nation in preparing for or carrying on the war or de-

fense activities, or, with reason to believe that his

act may injure, interfere with, or obstruct the United

States or any associate nation in preparing for or

carrying on the war or defense activities, willfully

injures, destroys, contaminates or infects, or attempts

to so injure, destroy, contamfnate or infect any war

material, war premises, or war utilities, shall be fined

not more than $10,000 or imprisoned not more than

thirty years or both.”

This case arose out of a series of incidents occurring

on the Washington University campus in St. Louis during

the late evening of May 4, 1970, and the early morning of

May 5, 1970. A confrontation of students by troops at Kent

University on May 4, 1970, had resulted in the death

of four students. Students assembled at the quadrangle on

the Washington University campus to protest the Kent in-

cident, the presence of ROTC on the campus and the con-

flict in Vietnam. Shortly before midnight the assem-

bled crowd, including the defendant, proceeded to the area

on the campus where the Air Force and Army ROTC build-

ings are located. Various destructive activities occurred,

including setting fire to the Air Force ROTC building and

the Army ROTC building. The charges against the defend-

ant relate only to the Army ROTC building.

A crowd assembled at the ROTC building area which

included demonstrators, spectators, faculty members and

University policemen. More than one thousand people

were present. Several of the demonstrators broke open the

door to the Army ROTC building. Some demonstrators set

fire in the building. University policeman Abernathy was

the only witness to give testimony connecting the defend-

ant with the fire setting. He made his observations from a

point 115 feet from the building. He testified that there

was a small bonfire about 85 feet from the building and

about thirty feet distant from him and that he observed the

defendant make two trips into the ROTC building carrying

fire in his hands from the bonfire. He further testified that

he saw flames arise in the building shortly after the defend-

ant entered it and saw defendant come out of the building

without the fire. The nature and quantity of burning ma-

terial is not disclosed.

A number of other witnesses offered by the Govern-

ment testified that they did not see defendant carry fire to

the building but that they did see some other persons do

so. Some of such witnesses were faculty members and Uni-

versity policemen and were in a position to observe persons

carrying fire to the building.

Defendant appeared as a witness and admitted par-

ticipating in the march and demonstration but denied that

he carried fire to the building or that he commenced any

fire in the building, or that he had entered the building.

Evidence was received that an attempt had been made

to burn part of the gun cage in the ROTC building and

that a two-by-four partition board was charred, and that

two fatigue uniforms were burned.

The Army ROTC building belongs to Washington Uni-

versity. It is not a government building. It was used

principally for ROTC training. Certain supplies in the

building were property of the United States. An inventory

of such property received in evidence discloses that the

building contained 47 M-1 and M-14 rifles, office supplies,

equipment, helmets, tents, uniforms and other equipment.

Defendant as a basis for reversal asserts the court

committed prejudicial errors in the following respects:

: I. Overruling a motion to dismiss the indictment upon

the ground that § 2153(a) is vague and overbroad, and

violates the First and Fifth Amendments.

II. Overruling timely motions for acquittal.

‘ III. Denial of motions for discovery and additional

discovery.

TV. Refusal of requested in§tructions and errors in in-

9 structions given.

: V. Prejudicial statements by prosecutor not supported

by evidence made in closing argument.

VI. Permitting improper cross-examination of defend-

ant.

; VII. Cumulative effect of asserted errors.

For reasons hereinafter stated, we reject defendant's

contention that the statue under which he was indicted is

a preecaremen iy -onnnmaapeeonnnenen

’ my ‘ —

hh a

unconstitutional and his attack upon the sufficiency of the

evidence to support a conviction. We uphold defendant’s

claim that prejudicial errors were committed depriving him

of a fair trial and entitling him to a new trial.

We are indebted to counsel for providing us with a

legislative history of 18 U.S.C.A. §§ 2151, 2153 and 2155

at our request. A brief resume of the legislative history is

in order. The basic Sabotage Act, now codified as § 2153

(a), was passed during World War I in 1918. 40 Stat. 533.

It was designed to apply only in time of war and to make

acts detrimental to the war effort which are already

proscribed by state law offenses under federal law. See

H.R.Rep. 11, 65th Cong., Ist Sess. The statute was amended

and expanded in 1940 by 54 Stat. 1220 to afford protec-

tion of national defense activities against sabotage at times

United States was not at war. The main part of such

amendment is codified in 18 U.S.C.A. § 2155. Section 2155

differs from § 2153 principally in that it omits the require-

ment of war or declaration of war emergency and that

it provides a ten year maximum penalty rather than thirty

years.

In 1953 Congress by 67 Stat. 133 amended § 2153 by

adding the phrase “or defense activities” after the words

“carrying on the war” wherever they appeared in § 2153

and by adding the phrase “or defense activities” at the

end of the definition of war material wherever that ap-

peared in § 2151. Also added was a provision now incor-

porated in § 2157 reading:

“The provisions of sections 2153 and 2154 of this

title, as amended and extended by section 1(a) (29)

of the Emergency Powers Continuation Act (66 Stat.

333), as further amended by Public Law 12, Eighty-

“

Pees

third Congress, in addition to coming into full force

and effect in time of war shall remain in full force

and effect until six months after the termination of

the national emergency proclaimed by the President

on December 16, 1950 (Proc. 2912, 3 C.F.R., 1950 Supp.,

p. 71), or such earlier date as may be prescribed by

concurrent resolution of the Congress, and acts which

would give rise to legal consequences and penalties

under any of these provisions when performed during

a state of war shall give rise to the same legal conse-

quences and penalties when they are performed during

the period above provided for.”

The state of emergency proclaimed by the President

on December 16, 1950, has not been terminated either by

the President or by concurrent resolution of Congress.

See Sardino v. Federal Reserve Bank of New York, 2 Cir.,

361 F.2d 106, 109. In our view, the statute contemplates

a termination of the emergency only by act of the Presi-

dent or by concurrent resolution of Congress. No presi-

dential proclamation or Congressional concurrent resolu-

tion has been enacted to terminate the emergency. Thus

§ 2153(a) is in effect and operative in the situation pre-

sented by this case.

Defendant in his attack on § 2153(a) as unconstitu-

tional, vague and overbroad states;

“The vague terms are ‘defense activities’, ‘rea-

son to believe’, ‘national emergency’, ‘preparing for’,

‘war material’ and ‘war premises’. Both the terms

themselves and the manner in which they are inter-

linked or applied in the statute, create the constitu-

tional infirmity.”

National defense materials are defined in § 2151. The

definition clearly includes much of the government prop-

MPNERAM DN PUAN eae ge Torte eo or MeN nORN EITM

—

erty such as guns and clothing stored in the ROTC build-

ing. National defense premises as defined in § 2151 in-

clude places where national defense material is stored.

The scope of the national emergency and defense activi-

ties are covered by the statute, its legislative history and

the President’s proclamation. The statute and its legis-

lative history show that Congress intended the coverage

to be broad.

It may well be that the Act was not designed pri-

marily to cover a situation such as here presented where

minimal damage is imposed on the defense effort by the

acts bringing the charge within possible coverage by the

statute. There is no language in the statute which limits

coverage to situations where the damage is severe. The

Statute proscribes attempts and hence would cover

situations where an attempt was unsuccessful, and no

damage at all resulted.

In United States v. Mechanic, 8 Cir., ...... F.2d ...... (De-

cember 22, 1971), we stated:

“A statute may not forbid the doing of an act in

terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its

application. Connally v. General Construction Co.,

269 U.S. 385, 391 (1926). It will be found void for

vagueness and overbreadth if it fails to give a person

of ordinary intelligence fair notice that his conduct

is forbidden by the statute. Palmer v. City of

Euclid, 402 U.S. 544 (1971). We think that § 232,

read in conjunction with § 231(a) (3), is sufficiently

clear that a normally intelligent person could as-

certain its meaning and would be given fair notice

of whether or not his conduct is forbidden under it.”

We are satisfied that such test is met in our present

Il.

The court properly denied defendant's timely motions

for acquittal. The evidence must of course be viewed in

the light most favorable to the government as the pre-

vailing party. The government has produced substantial

evidence to support all essential elements of the offense.

The most troublesome issue is whether the government has

produced substantial evidence to support a finding that

the defendant attempted to set fire to the ROTC building.

Of the one thousand people present at the scene, only

Captain Abernathy identified the defendant as a person

who applied fire to the Army ROTC building. His testi-

mony is substantially impeached by cross-examination.

Captain Abernathy was positive in his testimony that the

defendant set fire to the building. His testimony, if be-

lieved, is adequate to support a finding against the defend-

ant on the fire setting issue. The issue of Abernathy’s

credibility is one for the jury to resolve. We cannot say

as a matter of law that the evidence was insufficient to

support the conviction. See United States v. Mechanic,

supra.

ITT.

Defendant made repeated requests for Grand Jury

testimony and for evidence in FBI statements favorable to

the defendant. The court sustained the request to the

extent that the government was required to disclose testi-

mony in its hands favorable to the defendant and otherwise

overruled the discovery request. The United States At-

torney took the position that the Grand Jury transcript

and the FBI statements contained no information favor-

able to the defendant. Counsel disagreed as to what con-

stitutes favorable testimony. Defendant regarded testi-

mony of witnesses present at the scene and in a position

to observe who did not see defendant carry fire favorable,

PEO OS. Et RE Neen oe i ae eel ta

re 1

while the United States Attorney regarded such testimony

as negative testimony. Ultimately the United States At-

torney produced excerpts of the Grand Jury testimony and

FBI statements of some witnesses who did not identify

defendant.

Defendant renewed the motion for full disclosure on

the basis that they were not able to evaluate the testi-

mony without a complete record of it. The United States

Attorney had a complete transcript of the Grand Jury tes-

timony. Transcripts of government witnesses were pre-

sented to the witnesses for examination before they tes-

tified. The court refused to make the Grand Jury testi-

mony of defense witnesses available to defendant but on

offer of the United States Attorney permitted defend-

ant’s witnesses to review their testimony in the court’s

chambers in the presence of the court but in the absence

of counsel.

Additionally, defendant asserted a particular need for

the Grand Jury testimony by reason of the fact that two

previous indictments returned by the Grand Jury against

the defendant were dismissed prior to the return of the

indictment upon which he was tried. A need to examine

the testimony of the government’s witnesses for impeach-

ment purposes was asserted. Defendant contended that

Abernathy had identified as a participant in setting the

fire a person whom it was later established was in jail at

the time of the incident.

A need for discovery because of the numerous poten-

tial witnesses and the fact that the student witnesses had

scattered after the school year were asserted. Defendant’s

contention was that the government had superior ability

through the FBI to contact possible witnesses and that

the time and expense of defendant in obtaining interviews

with the many prospective witnesses would be prohibitive.

Al0

We believe that the defendant has shown a par-

ticularized need for more of the Grand Jury testimony

than was provided him under the liberalized standards set

forth in Dennis v. United States, 384 U.S. 855, and Na-

tional Dairy Products Corp. v. United States, 8 Cir., 384

F.2d 457. As stated in Dennis:

“In our adversary system for determining guilt or in-

nocence, it is rarely justifiable for the prosecution to

have exclusive access to a storehouse of relevant fact.

Exceptions to this are justifiable only by the clearest

and most compelling considerations.” 384 U.S. 855, 873.

Defendant requested an in camera inspection of the

Grand Jury testimony by the court. If the disclosure of

any of the Grand Jury testimony would adversely affect the

public interest, such portion could be withheld by the

court in connection with the in camera request.

IV.

Defendant submitted numerous requests for instruc-

tions which were denied and also excepted to many of the

instructions given. The court in its instructions sets out the

indictment, quotes § 2153(a), and the definition of war

material and war premises contained in § 2151, and then

goes on to say:

“Two essential elements gre required to be proved

in order to establish the offense charged in the indict-

ment:

“First, the act or acts of attempting to injure, de-

stroy, contaminate or infect any war material, war

premises, or war utilities, when the United States is at

war or in times of national emergency as declared by

the President or by Congress;

All

“Second, doing such act or acts willfully and with

intent to injure, interfere with or obstruct the United

States or any associate nation in preparing for or carry-

ing on the war or defense activities, or with reason to

believe that his act may injure, interfere with or ob-

struct the United States or any associate nation in pre-

paring for or carrying on the war or defense activities.

“It is the position of the Government in this case

that on or about May 4-5, 1970, during a time of national

emergency proclaimed by the President of the United

States, the Defendant, Joel Achtenberg, and others, did

willfully attempt to injure and destroy, by fire, war

premises or war material, as defined by Section 2151,

Title 18, United States Code, to-wit: The United States

Army Reserve Officers Training Corps facility at Wash-

ington University, St. Louis County, Missouri, and arti-

cles contained therein. It is the position of Defendant

that although he was present with many other indi-

viduals in the vicinity of the Air Force and Army ROTC

Buildings during the early morning hours of May 5,

1970, that he in no way did attempt to destroy the

Army ROTC Building and war materials contained

therein by fire and participated in no acts designed to

destroy the Army ROTC Buiiding and war materials

therein by fire.

“The evidence in this case raises the question of

whether the Defendant was, in fact, the criminal actor

and necessitates your resolving any conflict or uncer-

tainty in testimony on that issue.

“The burden of proof is on the prosecution with

reference to every element on the crime charged, and

this burden includes the burden of proving beyond a

reasonable doubt the identity of the defendant as the

perpetrator of the crime charged in the indictment.”

Al2

The above in substance constitutes the court’s instruc-

tions on the offense charged, the elements thereof and

the explanation of the elements. Defendant contends that

there are eight essential elements of the offense, to wit:

“(1) a national emergency declared by the presi-

dent, (2) Defendant had reason to believe that his

alleged act would injure, interfere with and obstruct

the United States in preparing for and carrying on de-

fense activities, (3) Alleged act was wilful, (4) De-

fendant attempted to injure and destroy the Army

ROTC building and articles therein, (5) Attempt by

fire, (6) Building was ‘war premises’ under the stat-

utory definition, (7) The articles were ‘war materials’

under the statutory definition, and (8) the articles

were intended for use in connection with defense ac-

tivities.”

Defendant urges that he is entitled to have such

elements set out and explained to the jury and to have

the jury clearly informed that he is entitled to an acquittal

unless the government has proved beyond a reasonable

doubt each essential element.

We believe the court committed error in classifying the

crime as consisting of only two elements and in not ade-

quately explaining such elements to the jury and advising

them of the burden of the goverpment to prove each ele-

ment beyond a reasonable doubt. See Johnson v. Bennett,

8 Cir., 386 F.2d 677, 682; United States v. Harris, 4 Cir.,

346 F.2d 182, 184; Jackson v. United States, D.C.Cir., 348

F.2d 772, 774. As stated in Jackson:

“Obviously, if the jury is to function effectively,

it must be given a clear statement of each element

which the Government must prove. The elements,

as expressed in the statute, are hardly set forth with

— : , 3

EDP NL IY NRG PETER ATS > gerree (2853 i x. 2

Al3

sufficient clarity to permit the jury to perform its

duty intelligently. . . .” 348 F.2d 772, 774.

We find no cases construing the Act under attack.

Gorin v. United States, 9 Cir., 111 F.2d 712, aff'd, 312

U.S. 19, discusses the interpretation of the somewhat re-

lated Espionage Act and sets out and discusses appro-

priate instructions on the meaning of national defense and

other elements of the espionage offense. No comparable

instructions were given ‘in the present case.

The position instruction contained in the instructions

hereinabove quoted also omits essential elements of the

offense. It also contains the words “and others” following

the defendant’s name and could mislead the jury into be-

lieving that the defendant would be responsible for acts

of others when in fact no conspiracy or joint responsibility

has been charged.

From the court’s statement of the defendant’s defense,

the jury could well infer that the defense rested solely

on defendant’s claim that he had not attempted to set the

fire. In no place is it adequately stated that the govern-

ment must prove the allegations of its indictment that the

defendant set the fire with reason to believe that his act

might injure or interfere with and obstruct the United

States in preparing for or carrying on defense activities.

Whether such allegation, which is an essential element

of the offense, is established is a fact issue which the

government is required to prove and the jury should have

been so advised. See Gorin v. United States, 312 U.S. 19,

32.

Section 2153(a) provides as an element of the offense

the alternate of “with intent to injure .. . war or defense

activities” or “with reason to believe that his act may

injure . . . war or defense activities.” The indictment

nme

Al4

charges the alternate “with reason to believe.” There

is a difference between intent and reason to believe. |

United States v. Drummond, 2 Cir., 354 F.2d 132, 152. The

“intent to injure” instruction should not have been given. |

Other attacks are made upon the instructions but we

deem it unnecessary to prolong this opinion to discuss them.

Defendant urges prejudicial error in four statements

made by the prosecutor in his closing argument.’ We shall

refer to but two of such statements. The prosecuting

attorney stated, “Three witnesses testified that the defend-

ant waved to the crowd, ‘Come on, guys, let’s go, let's

destroy the building.’ Jerry Koester, Trudy Spigel and this

morning—.” Mr. Achtenberg objected, stating, “Tf the

court please, I do not recall any evidence that anyone said,

‘Let’s destroy the building’ ” The court ruled, “Ladies

and Gentlemen of the Jury, as the Court has previously |

instructed you, the opening statement of counsel and the

closing statements of counsel are not evidence. The Jury

heard the evidence and they will be guided by what was |

or was not said from the witness stand.” At a later point

the prosecutor, in response to the argument of defendant’s

counsel that the evidence disclosed only two burned fatigue

clothes and a burned piece of wood, stated: “Also mention

that this was all the damage that was in the building, that

we brought it all in. Well, that isn’t necessarily correct;

there is other damage. It had been shown to the Defense.

There is another piece of wood back there; there’s some |

photographs of burnt stars on the desk. But that’s really

neither here nor there.” The court disposed of this in |

substance by advising the jury that they alone are judges |

of what the evidence is.

1. The government in brief concedes such statements “may

have better passed unsaid” but urges that the error was not prej-

udicial.

_—

Al5

There is no record support for the statement, “let’s

destroy the building.” The statement appears to be a de-

liberate misstatement on the part of the prosecutor who

by .reason of his familiarity with the case doubtless was

completely aware of the scope of the testimony he referred

to. The jury, after hearing testimony for a number

of days, may well have difficulty in recalling precisely

what a witness said and be influenced by the prosecutor’s

representation. The statement is critical because of the

weakness of the Government’s case on the issue of defend-

ant starting the fire.

The second statement is an effort on the part of the

prosecutor by his statement to enlarge the damage estab-

lished by the evidence. It is clearly improper for the

prosecutor to testify.

The court’s treatment of the prejudicial statements

did not cure the error. See Robinson v. United States,

8 Cir., 32 F.2d 505, 510; United States v. Guajardo-Melendez,

7 Cir., 401 F.2d 35; Dunn v. United States, 5 Cir., 307 F.2d

883, 886.

We believe the other two statements challenged to

be improper but consider them less prejudicial than those

discussed.

VI.

A close issue is presented on defendant’s improper

cross-examination issue. We are of the opinion that any

error committed in the respect urged is not prejudicial and

hence we omit discussion of the issue.

VII.

We believe that each of the errors discussed at points

II, IV and V are prejudicial errors which deprived de-

fendant of a fair trial and which require a new trial. We

Al6

are convinced that the cumulative effect of the errors is

such as to make a reversal and new trial mandatory. We

have held that the strength of the Government’s case is

an important factor to be considered on the prejudicial

error issue. In Homan v. United States, 8 Cir., 279 F.2d

767, 771, we stated:

“Errors of the trial court which may be prejudicial

in a close criminal case, in the sense of being capable

in such a situation of possibly affecting the result, can

well be without any such rational possibility in a

strong case, and thus not entitle the defendant to a

reversal of his conviction. The reviewing court must,

of course, be able to say with fair assurance that the

errors complained of could not with natural operation

in the total setting and proceedings had, be regarded

as having possessed any influencing effect. Blackwell

v. United States, 8 Cir., 244 F.2d 423, 431. ‘If, [how-

ever], when all is-said and done, the conviction is

sure that the error did not influence the jury, or had

but very slight effect, the verdict and the judgment

should stand, except perhaps where the departure is

from a constitutional norm or a specific command of

congress’ (presumably as a question of substantive or

procedural due process). Kotteakos v. United States,

328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed.

1557.” «

We have previously pointed out that proof of defend-

ant’s attempt to burn the Army ROTC building is ex-

tremely weak and that it is dependent upon the credibility

of a single witness whose credibility is challenged. Reli-

able persons present at the scene and in a position to ob-

serve testified that they did not see the defendant carrying

fire to the building. If defendant actually made two trips of

85 feet to the building carrying fire, adequate opportunity

to observe him was afforded. Abernathy’s testimony with

Se ae eS ie

MEI OS OT DEPRES PRS ER IVI ION ERATED E BSG TGCS aE Ee

—

respect to starting a fire in the building consists of the

following:

“Q. What, if anything, did you observe Joel Ach-

tenberg do at that time, sir? A. Observed him with

some lighted material in his right hand going to the

doorway right at this Gun Shed, go into this building.

[Indicating].

“Q. And then what did you observe, sir? A.

After a short period of time I observed him from this

area and seeing the light through the window on this

south wall of the building, observed the flicker of the

light towards an upper area or wall inside the build-

ing. I saw the light of the illumination go out and I

saw Joel Achtenberg leave the building and come back

to this area here. [Indicating].

Al7

“Q. Now, after you observed him come out of

this building without the flames in his hand did you

observe him then, sir? A. Yes, sir.

“Q. What, if anything, did you observe him do

at that time? A. I observed him hurriedly come to a

location where there was a small bonfire right here and

pick up another piece of flaming material and rush back

into the building. [Indicating].

* * *

“Q. And what, if anything, did you observe him

do then, sir? A. Observed him leave this area, rush

back into the area of the Gun Shed, go into the door.

Again, I could see the illumination of the material.

That was formerly a darkened building. The illumi-

nation of what he had taken in there caused a blaze

or a blaze to become ignited in that area. [Indicating].

And at that particular time it was just gaining more

Pe erg re oe ee Ee

ea ———

Al8

illumination or a greater blaze and then he come run-

ning out laughing.”

Assuming Abernathy saw what he said he saw, there

is a minimal basis for inference that the illumination re-

sulted from an act of the defendant rather than that of

others whom the evidence establishes had lit fires in the

building. Miss Milton, a student who testified that she

was in the building much of the time while the fire set-

ting was taking place, testified as to the fire setting activi-

ties of others and stated that Achtenberg was not in the

building while she was there. She saw a person, not Ach-

tenberg, throw some burning material over the partition

in the gun shed area and that a board on the partition was

still burning when she left. She had participated in ex-

tinguishing other fires that had been started.

When the Kotteakos test of prejudicial error is applied

to the facts in this case, we cannot say that the errors com-

mitted did not substantially influence the verdict of the

jury.

Reversed and remanded for a new trial.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.