Petition for Writ of Certiorari — Floyd v. United States

SONS Oe ee

ae AM ee ara el AT ie oh EA al

MICHAEL RODAK, J

In THE _

Supreme Court of the United States

Ocroser Term, 1973

No. 23 » 2 0.5

a ~

Jon Ranpotex Ftoyn, e¢ al.,

Petitioners,

—V.—

Untrep States oF AMERICA,

Respondent.

—————— —————————————————

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

——

STEPHEN JONES

P. O. Box 3339

Enid, Oklahoma

Metvin L. WuLF

Joun H. F. Suattruck

American Civil Liberties Union

Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Petitioners

EEE

INDEX

Opinions Below

Jurisdiction

Questions Presented

Statutes and Regulations Involved 2

Statement of the Case 7

Reasons FoR GRANTING THE WRIT

1. The holding of the court below is in direct con-

flict with the requirement that specific intent to

enter a military base in violation of a lawful

regulation be proved to sustain a conviction

under the first paragraph of 18 U.S.C. sec-

tion 1382 9

2. There is no evidence that petitioners intended

to violate a lawful regulation when they en-

tered Tinker Air Force Base, but rather they

intended to exercise their First Amendment

rights 12

3. Since petitioners were charged with a petty of-

fense and elected to be tried before a district

judge, they were entitled to a trial by jury as

guaranteed by the Sixth Amendment to the

Constitution since this right has not been spe-

cifically taken away by Congress 14

_ ConcLusion 16

FE:

= PAGE

APPENDIX:

Opinion of the United States Court of Appeals for

the Tenth Circuit la

Order Denying Petition for Rehearing .................... 13a

Order on “Motion and Demand for Jury Trial” .... 15a

Order Denying Motion to Dismiss Indictment ...... 25a

TaBLE OF AUTHORITIES |

Cases:

Callan v. Wilson, 127 U.S. 540 (1886) 15

Flower v. United States, 407 U.S. 197 (1972) ................ 10, 13

Holdridge v. United States, 282 F.2d 302 (8th Cir.

1960) 9, 10, 11, 12

Jenness v. Forbes, 41 U.S.L.W. 2270 (D.R.I. 1972) ...... 13

Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970) ............ 13-14 |

Lambert v. California, 355 U.S. 225 (1957) ............ 10, 11, 12 |

Smith v. California, 361 U.S. 147 (1959) 10

Spock v. David, 41 U.S.L.W. 2242 (3rd Cir. 1972) ....10,13 |

United States v. Bishop, 261 F. Supp. 969 (N.D. Cal.

1966) 10, 15, 16

United States v. Bradley, 418 F.2d 688 (4th Cir. 1969) .. 14

United States v. Freed, 401 U.S. 601 (1970) -......0....... 10

United States v. Seijo, 281 F. Supp. 708 (D. P.R.

1968) 12

Weissman v. United States, 387 F.2d 271 (10th Cir,

1967) .

Constitutional Provisions:

United States Constitution

First Amendment 12, 13, 14

Sixth Amendment me

Regulation:

Oklahoma City Air Materiel Area Tinker Air

Force Base (Air Force Regulation) 125-37,

Supp. 2

6b.1

6b.1(d) (2)

Rule:

Rule 3 of the Rules of Procedure for the Trial of

Minor Offenses Before United States Magis-

trates 3,15

Statutes:

18 U.S.C. §1(3) 14

18 U.S.C. §1382 passim

18 U.S.C. §3401 15

18 U.S.C. §3401(b) 3, 15

18 U.S.C. §3401(f) 3,14

28 U.S.C. §1254(1) 2

Ly THE

¢

Supreme Court of the United States

Ocroser Term, 1973

We. cnnmisin

<>

Jon Ranpotpx Froyp, et al.,

Petitioners,

—v.—

Unirep States oF AMERICA,

Respondent.

$<

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Tenth Circuit, entered on April 13, 1973, affirming peti-

tioners’ conviction in the United States District Court for

the Western District of Oklahoma for violating Title 18,

U.S.C. §1382.

Opinions Below

The opinion of the United States Court of Appeals af-

firming the judgment of the District Court is reported at

477 F.2d 217 (10th Cir. 1973). It is set out in the Appendix,

infra, pp. la-12a. The order of the United States Court of

Appeals denying the petition for a rehearing en banc is set

out in the Appendix, infra, p. 18a. The opinions of the Dis-

trict Court are reported at 345 F. Supp. 283 (D. Okla.

1972) and set out in the Appendix, infra, pp. 15a-34a.

EAST kT A B 3

Jurisdiction

The judgment of the United States Court of Appeals for

the Tenth Circuit was entered on April 13, 1973, and a

timely petition for rehearing en banc was denied on May 3,

1973. By order dated June 30, 1973, Mr. Justice White

extended the time to file this petition to and including July |

30, 1973. This Court has jurisdiction under 28 U.S.C. |

§1254(1). |

Questions Presented |

1. Whether a conviction for entering a military base

under 18 U.S.C. section 1382 can be sustained in the ab- |

sence of proof of a specific intent to enter in violation of |

a lawful base regulation.

2. Whether persons charged with a petty offense under

federal law are entitled to a trial by jury when Congress

has not specifically provided otherwise.

Statutes and Regulations Involved

18 USC. §1382 provides as follows:

Whoever, within the jurisdiction of the United States

goes upon any military, naval, or Coast Guard reserva-

tion, post, fort, arsenal, yard, station, or installation,

for any purpose prohibited by law or lawful regulation ;

or

Whoever reenters or is found within any such reserva-

tion, post, fort, arsenal, yard, station, or instaliation,

after having been removed therefrom or ordered not

to reenter by any officer or person in command oF

charge thereof—

Shall be fined not more than $500.00 or imprisoned not

more than six months, or both.

18 U.S.C. §3401(b) provides as follows:

Any person charged with a minor offense may elect,

however, to be tried before a judge of the district court

for the district in which the offense was committed.

The magistrate shall carefully explain to the defen-

dant that he has a right to trial before a judge of the

district court and that he may have a right to trial by

jury before such judge and shall not proceed to try

the case unless the defendant, after such explanation,

signs a written consent to be tried before the magis-

trate that specifically waives both a trial before a judge

of the district court and any right to trial by jury that

he may have.

18 U.S.C. §3401(f) provides as follows:

As used in this section, the term “minor offenses”

means misdemeanors punishable under the laws of the

United States, the penalty for which does not exceed

imprisonment for a period of one year, or a fine of

not more than $1,000, or ae

Rule 3 of the Rules of Procedure for the Trial of Minor

Offenses Before United States Magistrates provides as

follows:

(a) Complaint or Citation. The trial of a petty offense

may proceed on an information filed with the clerk of

4°

the district court or on & complaint, citation, or viola-

tion notice filed with the magistrate.

(b) Consent; Arraignment. The magistrate shall state

to the defendant the charge against him and shall in-

form the defendant of his right to counsel and to a trial

in the district court. If the defendant signs a written

consent to be tried before the magistrate which specif-

ically waives trial before a judge of the district court,

the magistrate shall take the defendant’s plea to the :

charge. The defendant may plead not guilty, guilty or, |

with the consent of the magistrate, nolo contendere.

If the defendant pleads not guilty the magistrate shall |

either conduct the trial immediately or fix a time for

the trial, giving due regard to the needs of the parties

to consult with counsel and to prepare for the trial.

(c) Trial

(1) Procedure. The trial shall be conducted as

are trials of petty offenses in the district court by

a district judge without a jury.

(2) Record. Unless the Defendant waives in writ-

ing keeping of a verbatim record, proceedings un-

der this rule shall be taken down by a reporter or |

recorded by suitable sound recording equipment.

Oklahoma City Air Materiel Area Tinker Air Force Base

(Air Force Regulation) 125-37, Supplement 2 provides in

pertinent part as follows:

6b.1 Estry ControL PROocEDURES FOR Tinker AIR

Force Base:

a. This supplement applies to members of the gen-

eral public as well as Air Force personnel. Personnel

5 ;

with identification other than those identified im b, ¢

and d below are prohibited from entering into Tinker

Air Force Base.

b. The following personnel identification will be

recognized at all perimeter gates for base admittance :

(1) AFLC Form 80, “Interim Identification.”

(2) AFLC Form 80F, “Temporary Credenfial.”

(3) AFLC Form 80M, “Identification Credential.”

(4) DD Form 2 series: 2AF—Air Force; 2A—

Army ; 2N—Navy; 2MC—Marine Corps; and 2CG—

Coast Guard.

(5) DD Form 1173, “Uniformed Services Identi-

fication and Privilege Card.”

(6) PHS 1866-1, 2 and 3, “US Public Health Ser-

vice.”

(7) General Accounting Office Credentials.

(8) Federal Bureau of Investigation Credentials.

(9) Civil Service Commission Credentials.

ce. Subject to the security requirements as deter-

mined by the installation commander, the following

personal identification may be recognized at Gates 1

and 2 for base admittance:

(1) CAP Forms 14 and 16,

(2) Boy Scout Registration Car

Post 116, Troop 67.

(3) Membership card

members of the Tinker AF

Messes.

“Civil Air Patrol.”

d of Pack 116,

of auxiliary or associate

B Officers’ and NCO Open

a

(4) Membership cards of Tinker AFB Rod and

Gun Club.

d. Subject to security requirements as determined

by the installation commander, personnel with iden-

tification other than those described in 6b and c above

may be authorized admittance to Tinker Air Force

Base under the following procedures:

(1) Visitors desiring admittance to Tinker Air

Force Base must state the nature of their visit and the

person or activity to be visited, to Security Police Divi-

vision personnel.

(a) Statements submitted in accordance with 6b.

1d(1) above will be verified by Security Police per-

sonnel prior to the issuance of identification of an

admittance to base.

(b) Monitors for major staff offices, OCAMA, and

tenant organizations are authorized to verify visi-

tor’s admittance statements to Security Police Divi-

sion. Military personnel may verify individual guests

as authorized by 6b.1(d)(2) below.

(c) Upon verification visitors will be issued proper

identification.

(d) Visitors must retain issued identification on

their persons at all times until exiting base.

(2) Military personnel are authorized guests in the

housing area or for social functions at designated

areas. Guests must be in the physical presence of the

military member or one of his dependents at all times

when outside the housing area or area designated

for social functions.

1

(3) Civilian members of the Officers’ and NCO Open

Messes otherwise qualified for admittance in their own

right may bring guests to social functions at the

Messes.

(4) Law enforcement officers and firemen in uni-

form, on official business, will be permitted entry with-

out the issuance of identification. :

(5) Personnel escorted under the procedures

OCAMAR-TAFBR 190-3 will not require issuance of

individual identification.

Statement of the Case

The petitioners, eight men and four women, were con-

vieted under Title 18, United States Code, section 1382 on

a charge of “. . . knowingly, willfully, and unlawfully

enter[ing a] military reservation for the purpose of vio-

lating a lawful regulation prohibiting the entry upon or

into said . . . reservation without the consent or permis-

sion of the Commanding Officer . . . .” [emphasis supplied].

Prior to their trial, in a consolidated motion to dismiss

the information, petitioners challenged their prosecution

on the grounds that the Tinker Air Force Base regulation

they were alleged to have violated had been improperly

promulgated and was, therefore, invalid; that the regula-

tion did not prohibit what the information alleged, but

merely established an identification procedure for visitors

desiring to enter the base; and that, in any event, the gov-

ernment’s reliance on the regulation as a basis for criminal

prosecution was constitutionally impermissible on due proc-

ess grounds. Both this motion and petitioners’ consoli-

dated request for a jury trial were denied by the District

Court with opinions which are set out in the Appendix,

infra, pp. 15a-34a.

The events which led to petitioners’ convictions were as

follows. On May 3, 1972 the Commander of Tinker Air

Force Base ordered that an identification system be put

into effect at all gates of entry into the base, prohibiting

persons without authorized identification from entering

the base [R. 42-43]. Prior to May 3, 1972 only certain areas

of the base were designated as “Controlled Areas” [AFR

125-37 TAFB Supp. 1] and the (‘commander was authorized.

only to remove but not to arrest civilian persons who

violated a base regulation, and to forbid them from re-

entering the base [R. 45-46, 54].

On May 4, 1972, less than twenty-four hours after the

Commander’s promulgation of the order requiring iden-

tification as a condition of entry onto the base, but before

the order was posted, petitioners and others gathered peace-

fully at the main gate [R. 180]. Several persons, including

petitioners, indicated that they wished to meet with the

Base Commander to deliver a statement registering their

opposition to recent events in the Vietnam War [R. 68,

931]. They were given no notice of the identification sys-

tem which had gone into effect the day before; they were

not asked by the security guards at the base gate to sup-

ply any of the authorized forms of identification, including

a driver’s license [R. 42-48, 124]; and, as the Base Com-

mander himself testified, they could not possibly have

known about the regulation which they were subsequently

arrested for violating since it was not posted at any of

the base gates [R. 47-48, 56, 190, 256].

When petitioners and others had stopped approximately

fifty feet inside the base they were told to leave but were

still given no notice of the new regulation. When they

failed to leave they were arrested, notwithstanding their

peaceful conduct which in no way interfered with vehic-

ular or personnel traffic or otherwise interrupted the opera-

tion of the base [R. 180].

Nowhere does the trial record contain any evidence that

the petitioners intended to violate a lawful Air Force regu-

lation by entering the Base. Nevertheless, they were con-

victed as charged and sentenced as follows: the four women

were given suspended sentences and one year’s probation;

six of the men were sentenced to four month prison terms;

and the other two men were each given maximum sentences

of six months in prison and were assessed fines in the

amount of $250 and $500 respectively.

REASONS FOR GRANTING THE WRIT

1. The holding of the court below is in direct conflict

with the requirement that specific intent to enter a mili-

tary base in violation of a lawful regulation be proved

to sustain a conviction under the first paragraph of 18

U.S.C. section 1382.

When Congress made it a crime to enter a military base

“for any purpose prohibited by law or lawful regulation,”

it implied that both the prohibition and the unlawful pur-

pose must be shown. In Holdridge v. United States, 282

F.2d 302, 309 (8th Cir. 1960), Judge (now Mr. Justice)

Blackmun pointed out that such an interpretation is essen-

tial to protect the innocent trespasser from prosecution.

" ease

AOR Ts

10

Congress could not have intended that the mere coinci-

dence of entry onto a military reservation and the violation

of a base regulation prohibiting speeding or running a stop

sign would subject a person to prosecution under the stat-

ute. It is well settled that unauthorized entry onto a mili-

tary reservation is not, per se, blameworthy, Flower v.

United States, 407 U.S. 197 (1972) ; Spock v. David, 41 L.W.

2942 (3rd Cir., 1972) ; United States v. Bishop, 261 F. Supp.

969 (N.D. Cal. 1966). It becomes so, within the meaning of

paragraph one of section 1382, only when accompanied by

a specific intent to violate a lawful regulation. Cf. United

States v. Freed, 401 U.S. 601 (1970).

Mr. Justice Blackmun’s construction of section 1382 for

the Eighth Circuit is in direct conflict with the holding of

the Tenth Circuit in its decision below. In Holdridge, the

court pointed out:

[I]t seems clear enough, from the use of the words “for

any purpose prohibited” in the first paragraph of the

section, that motive is, to some extent at least, an ele-

ment of the offense there defined. Purpose and the

prohibition must both be proved. This interpretation

affords some protection to the innocent trespasser.

This construction is essential to sustain the constitution-

ality of the first paragraph of section 1382, but it was not

applied by the court below. This Court has long established

that a statute setting forth criminal penalties for the viola-

tion of a separate regulatory scheme cannot be used as the

basis for a prosecution unless the defendant had a specific

intent to violate the regulatory scheme. Lambert v. Cali-

fornia, 355 U.S. 225 (1957); accord Smith v. Caltfornia,

361 U.S. 147 (1959). In Lambert, the petitioner’s failure to

if

register with municipal authorities as a convicted felon was

held to constitute an omission which could not be elevated

to a criminal offense without proof that the petitioner had

actual notice of the registration requirement and therefore

specifically intended to violate it. In the instant case the

record is utterly devoid of proof that petitioners had notice

of the identification requirement they were charged with

violating when they entered the base. Indeed, several of the

government’s witnesses testified that petitioners could not

possibly have known about the regulation containing the

requirement because it was not posted at the gate where

they entered. “Where a person did not know of the duty ...

and where there was no proof of the probability of such

knowledge, he may not be convicted consistently with due

process.” Lambert v. California, 355 U.S. at 229.

The holding of the court in Holdridge that the second

paragraph of section 1382' does not require proof of specific

intent is entirely consistent with this construction of the

first paragraph of the section. In explaining the difference

between the two sections Mr. Justice Blackmun pointed out

that:

This second paragraph is directed to re-entry after

removal or after appropriate order not to re-enter.

This paragraph thus involves a second invasion of the

premises and one where the accused, because of his

1 The second paragraph provides as follows:

Whoever reenters or is found within any such reservation,

post, fort, arsenal, yard, station, or installation, after having

been removed therefrom or ordered not to reenter by any officer

or person in command or charge thereof—shall be fined not

more than $500 or imprisoned not more than six months, or

both.

aap aes ee

ed tie Day

12

prior removal or the formal order, is definitely aware

that re-entry is prohibited. [Emphasis supplied in

part.] 282 F.2d at 308-09.

Other courts which have construed paragraph two of the

statute have adhered strictly to the requirement that per-

sonal notification not to re-enter a base, or actual physical

removal therefrom, be shown to sustain the conviction. See,

e.g., United States v. Seijo, 281 F. Supp. 708, 710 (D. P.R.

1968) ; cf. Weissman v. United States, 387 F.2d 271 (10th

Cir. 1967).

The specific knowledge or notice requirement implicit in

the first paragraph of section 1382 is absolutely necessary

to satisfy due process. “Were it otherwise, the evil would

be as great as it is when the law is written in print too fine

to read or in a language foreign to the community.” Lam-

bert v. California, 355 U.S. at 229. The holding of the court

below is in direct conflict with this well established principle.

2. There is no evidence that petitioners intended to

violate a lawful regulation when they entered Tinker Air

Force Base, but rather they intended to exercise their

First Amendment rights.

Cross-examination of the government’s witnesses at trial

revealed not only that the petitioners could not possibly

have known about the regulation they were charged with

intending to violate, but also that they had gathered peace-

fully to protest the Vietnam War and seek an audience with

the Commanding Officer and that generally their activity did

not disrupt the base [Tr. 179-80, 195, 231]. Furthermore,

the general public was permitted to enter the base both

before and after the regulation in question was promulgated

aah —

‘ee

ha SAB REAR ASS SUSI UR

13

one day prior to petitioners’ arrest, and the forms of iden- ©

tification sufficient to authorize entry under the new regu-

lation included those as universal as a driver’s license and

as indiscriminate as a Boy Scout registration card {Tr.

42-43].? Petitioners were not told that they could not enter

the base without the requisite identification, but were

warned simply that their entry would result in their arrest.

This Court recently held that a conviction under the

second paragraph of section’ 1382 could not be sustained

where the defendant had sought to exercise his First

Amendment rights on a military base generally accessible

to the public, even though a base regulation prohibited

such activity and he had previously been barred from the

base for violating the regulation. Flower v. U nited States,

407 U.S. 197 (1972) (per curiam). For the same reason a

base may not be “selectively closed” to civilians who intend

to engage in peaceful political activities such as leafleting

or campaigning for public office, Spock v. David, 41 LW

2242 (3rd Cir., 1972), nor may the commander of a “closed

base” grant access to some members of the public but deny

it to others because he disagrees with their views. J enness

v. Forbes, 41 LW 2270 (D.R.L., 1972).

Where the purpose of entering even a restricted military

base touches the First Amendment, therefore, the prohibi-

tion must be construed narrowly to ensure that it is not

discriminatorily applied and that it is invoked only to pre-

vent “imminent lawless conduct,” Kiiskila v. Nichols, 433

2Two Tinker Air Force Base regulations promulgated prior to

May 3, 1972 established certain “eontrolled access” areas within the

Base, but did not control access to the entire Base. Exhibits E and F

to Supplemental Memorandum in Support of Defendants’ Motion

to Dismiss Information.

14

F.2d 745, 751 (7th Cir. 1970) or conduct intended to “pro-

mote disruption.” United States v. Bradley, 418 F.2d 688,

691 (4th Cir. 1969).

In the instant case the record is devoid of evidence that

petitioners’ conduct either had or was intended to have such

an effect. On the other hand, there is ample evidence that

petitioners were engaged in protected First Amendment

activity which they had no reason to believe ran afoul of

any lawful base regulation at the time they entered the

base. This Court should therefore grant certiorari to re-

view the broad construction given by the court below to

the prohibition in section 1382, in direct conflict with the

decisions of this Court and other federal courts regarding

the prohibition of First Amendment activity by civilians

on military. bases.

3. Since petitioners were charged with a pefty offense

and elected to be tried before a district judge, they were

entitled to a trial by jury as guaranteed by the Sixth

Amendment to the Constitution since this right has not

been specifically taken away by Congress.

18 U.S.C. §1382 provides that any person who goes

upon a military reservation for any purpose prohibited

by law or any lawful regulation shall be fined not more

than $500.00 or imprisoned not more than six months or

both. The penalty clearly puts the offense into the “petty

offense” category of 18 U.S.C. §1(8). This offense also

falls within the “minor offense” category of 18 U.S.C.

§3401 (f).

The question here is whether a person who elects to be

tried before a district judge under the provisions of 18

as) we, 4b eOule ea

aT :

U.S.C. §3401 (b) is entitled to a jury trial even if he is

charged with a petty offense. Section 3401 is silent about ©

the right of a person charged with a petty offense to a

trial by jury if he elects to be tried before a district judge.

That section provides only that the Supreme Court shall

prescribe rules of procedure and practice for the trial of

cases before magistrates and makes no mention of any

authority given to the Supreme Court to prescribe rules of

procedure concerning the trial of petty offenses before

district court judges. Congress, however, has not expressly

provided that a defendant who has elected to be tried before

a district judge is not entitled to a trial by jury. Rule 3 of

the Rules of Procedure for the Trial of Minor Offenses

Before United States Magistrates, which states that a trial

of a petty offense before a district court judge is to be

tried without a jury, is therefore beyond the rule making

power of the Supreme Court.

The Tenth Circuit held in the decision below that since

petitioners were charged with a petty offense they had no

right to a jury trial. In United States v. Bishop, 261 F.

Supp. 969 (N.D. Cal. 1966), however, the District Court

held that the defendants who were also charged with violat-

ing Section 1382, were entitled to a jury trial. The court

noted that the federal statutes have no provision concern-

ing whether a trial of a petty offense in the district court

upon election of the defendant will be jury or non-jury.

As to those offenses for which a defendant is not guaran-

teed a trial by jury by the Constitution he is entitled to a

jury trial unless Congress has provided to the contrary.

In Callan v. Wilson, 127 U.S. 540, 555 (1886) the Su-

preme Court stated that “there is a class of petty or minor

offenses not usually embraced in public criminal statutes

2g va

16

and not of the class or grade triable at common law by a

jury, and which [may] ... wnder the authority of Congress,

be tried by the court and without a jury ...” (emphasis

added). The District Court in United States v. Bishop, 261

F. Supp. at 971, after reviewing the English and common

law right to a trial by jury, stated that “the right to a

criminal jury was a protection generally in existence ex-

cept where the positive law of Parliament or the colonial

legislatures make explicit inroads upon u

Because of the apparent conflict between the Rules of

Procedure for the Trial of Minor Offenses Before United

States Magistrates and the Federal Statute on the ques-

tion, which has no provision concerning whether a trial

of a petty offense in the district court upon election of the

defendant will be jury or non-jury, the Court should grant

the petition for a writ of certiorari to resolve this question.

CONCLUSION

For the foregoing reasons the petition for certiorari

should be granted.

Respectfully submitted,

STEPHEN JONES

P. O. Box 3339

Enid, Oklahoma

Metvin L. WULF

Joun H. F. SHattruck

American Civil Liberties Union

Foundation

22 East 40th Street

New York, New York 10016

Attorneys for Petitioners

July 30, 1973

EES i SDE FD ALIAS ORIN 5S

i eas hee

Opinion of the United States Court of Appeals

for the Tenth Circuit

UNITED STATES COURT OF APPEALS

Tents Circuit

_ April 13, 1973

Nos. 72-1741 to 72-1752

Rehearing Denied May 31, 1973

ll

Unrrep States oF AMERICA,

Plaintiff-Appellee,

v.

Jon Ranpo.px Foy et al.,

Defendants-Appellants.

Barnett, Circuit Judge.

The appellants were convicted of going upon Tinker Air

Force Base military reservation for the purpose of violat-

ing a lawful regulation prohibiting their entry without the

permission of the commanding officer in violation of 18

U.S.C.A. § 1382. Section 1382 carries a fine of not more

than $500 or imprisonment of not more than six months

or both.

On May 4, 1972 the appellants and 75 to 200 others

gathered at Gate Two at Tinker Air Force Base in Okla-

homa City, Oklahoma to protest the war in Vietnam. A

group of between 30 and 40 people crossed the “white line”

2a

signifying entrance to the base. They were met by Lt.

Col. George Malone who read them the following statement:

The installation commander, Col. John C. Holley,

United States Air Force, denies you permission to

enter this military installation or to be physically pres-

ent on its property.

You are trespassing on a military installation of |

the United States. By order of the installation com-

mander you will immediately remove yourselves from

this military installation. If you do not immediately

comply, you will be arrested and prosecuted by the

federal authorities. You are advised that pursuant to

Title 18 USC 1382 “whoever, within the jurisdiction of

the United States, goes upon any military, naval, or

coast guard reservation, post, fort, arsenal, yard, sta-

tion, or installation, for any purpose prohibited by

law or lawful regulation . . . shall be fined not more

than $500 or imprisoned not more than six months, or

both.” (R., Vol. I, p. 212)

The Appellant Flower then read a statement to Col. Malone.

The group was asked to leave; instead, they sat down in the

middle of the street and refused to leave. They were next

placed on a bus and taken to Security Police Headquarters

where they were photographed.

Tinker Air Force Base is one of the nation’s largest mili-

tary installations, with thousands of civilian employees.

Reports had been received by the Base Commander several

days before the gathering that a demonstration against the

Vietnam War was going to be held on the base.

Some of the appellants plead guilty; others were tried

by the Magistrate. These 12 appellants were tried by the

U. S. District Court.

1S ee oe

ee ee —

3a ‘

Air Force Regulation 125-37 was promulgated on July

27, 1964 by then Air Force Chief of Staff General Curtis

E. LeMay. It established procedures to protect Air Force

physical resources. Regulation 125-37 was revised and sup-

plemented several times thereafter. On May 3, 1972 Col.

John C. Holly, then Commander of Tinker Air Force Base,

supplemented AFR 125-37 by the promulgation of OCAMA-

TAFB Supplement 2 which effectively precluded the demon-

strators from entrance because they did not qualify as

“visitors”. See United States v. Vaughan, 475 F.2d 1262

(10th Cir. 1973). The appellants were convicted under

§ 1382 of violating Supplement 2.’

2 Supplement 2 reads in part as follows: AFR 125-37, 27 July

1964, is supplemented as follows:

6b.1 Entry ConTrot Procepures ror TINKER Aim Base:

a. This supplement applies to members of the general public

as well as Air Force personnel. Personnel with identification

other than those identified in b, e and d below are prohibited

from entering into Tinker Air Force Base.

b. The following personnel identification will be recognized

at all perimeter gates for base admittance: . . .

e. Subject to the security requirements as determined by

the installation commander, the following personal identifica-

tion may be recognized at Gates 1 and 2 for base admit-

tamce:...

d. Subject to security requirements as determined by the

installation commander, personnel with identification other

than those described in 6b and e above may be authorized ad-

=— to Tinker Air Force Base under the following proce-

ures :

(1) Visitors desiring admittance to Tinker Air Force Base

must state the nature of their visit and the person or ac-

tivity to be visited, to Security Police Division personnel.

(a) Statements submitted in aceordance with 6b.1d(1)

above will be verified by Security Police personnel prior to

the issuance of identification or an admittance to base.

(b) Monitors for major staff offices, OCAMA, and tenant

organizations are authorized to verify visitor’s admittance

SES AEA ee De ey Rs SE CA IS, pom

4a

The appellants contend that: (1) the trial court erred

in denying them a jury trial; (2) Supplement 2 is void and

violates the due process clause; (3) the trial court penalized

them for standing trial; and (4) the trial court erred in

overruling their motion for judgment of acquittal.

L i

The appellants contend that they were entitled to a trial |

by jury because of the seriousness with which a violation

of § 1382 is regarded by the community. The District Court

ruled against them in United States v. Floyd, 345 F.Supp.

283 (W.D. Okla. 1972), holding that a violation of $1382

is a petty offense which does not entitle the defendants to a

jury trial, and further that Article III, Section 2, Clause 3

and the Sixth Amendment of the United States Constitution

do not extend to petty offenses. A petty offense is defined

in 18 U.S.C.A. §1(3) as: “Any misdemeanor, the penalty

for which does not exceed imprisonment for a period of

six months or a fine of not more than $500, or both...”

If an offense is malum in se it may be serious enough to

require a jury trial even though it qualifies as a petty

offense. District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct.

52, 75 L.Ed. 177 (1930). The offense here is malum pro-

hibitum. Congress has not been silent on this subject as

the appellants suggest. It has intended that there be no

jury trial for a petty offense. 18 U.S.C.A. $1(3). If the

statements to Security Police Division. Military personnel

_ verify individual guests as authorized by 6b.1(d) (2)

low.

(ec) Upon verification visitors will be issued proper iden-

tification.

—_—-* Supplement 2, AFR 125-37, 3 May

)

(continued on following page)

ee

Bt tems PAT ee Eo eT 5 te ge ALE I FT

5a

offense is a petty offense within 18 U.S.C.A. §1(3) and is

not otherwise a serious offense under prior U.S. Supreme

Court decisions then a jury trial is not required. Cheff v.

Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629

(1966). The reasoning of the District Court is sound. The

evidence supports its holding. See United States v. Floyd,

supra. The violation of Section 1382 here involved consti-

tutes a petty ‘offense not requiring a trial by ‘jury.

IL

The appellants allege that TAFB-OCAMA Supplement 2

to AFR 125-37 is void because it was never lawfully

adopted. They also contend that Supplement 2 violates

the due process clause because it established only policies

which cannot be criminally violated and that it is void for

vagueness because it failed to announce the acts it forbids.

The appellants argue that Supplement 2 is void because

it was not promulgated in compliance with the Federal

Register Act, 44 U.S.C.A. § 1501 et seq. and the Adminis-

trative Procedure Act, 5 U.S.C.A. $500 et seq.

We hold that there is no merit in this argument. Both

are, in effect, “notice” statutes intended to protect persons

who have no actual notice from in any manner being ad-

versely affected. It is unrealistic to contend that “closed

base” commanders charged with the obligation of protect-

ing the national security thereon, cannot adopt regulations

effective immediately, even if only orally communicated

to the base security personnel, so long as such regulations

are thereafter communicated to one who wishes to enter

upon the base. Neither the Federal Register Act nor the

AP.A. require publication of Supplement 2 on the facts

of this case. In recognition of the needs involving national

ee itt BEY

LEIS LEAT TAT SEIT, - Ft ee.

!

6a

security, we recently held that once one is within an area

where base security is imposed, a search may be conducted

without probable cause, and without consent. United States —

v. Vaughn, supra.

The appellants contend that Supplement 2 is void because

it was issued in direct violation of the controlling regula-

tion it supplements, AFR 125-37. Paragraph 2 of AFR 125- ,"

37 provides in part as follows:

Further, the on-base violation of a lawful regulation /

issued by a base commander may be sufficient to sustain

the removal from the base of a person not subject to the

UCM and to sustain a criminal prosecution of such a

person for an unauthorized re-entry of the base under

18 USC 1382 even though the base regulation may not

have been issued pursuant to 50 USC 797.

(Para. 2, AFR 125-37, 27 July 1964)

Paragraph 4° of 125-37 announces mandatory steps which

must be taken for subordinate regulations to have legal ef-

2 In general, to have legal effect for various categories of persons,

any directive or regulation applying to the protection of USAF

physical resources should meet the following requirements:

a. For persons subject to the UCMJ, it must: |

(1) Be issued by order of the base commander. At bases

utilizing civilian contractor guards, the authority to issue

such directives cannot be delegated to the civilian contrac-

tor. ,

(2) Clearly describe, identify, and locate the property f

or area.

(3) State that specific permission of the commander is re-

quired to enter or use the particular area or resource.

(4) Be posted or otherwise displayed to insure that the

individual has constructive or actual knowledge of the direc-

tive.

7a

fect. The requirements in paragraph 4 generally pertain

to prosecutions of offenses arising under 50 U.S.C.A. § 797

and the offense of re-entry after removal under 18 U.S.C.A.

§ 1382. The appellants were not charged with the crime

which the regulation defines. It is within the sole discretion

of the commanding officer of a “closed base” to promulgate

rational regulations excluding people from the military in-

stallation in the interest of the national security. He has

practically exclusive and extensive power to exclude per-

sons from the base in the interest of good order and mili-

tary discipline. Cafeteria & Restaurant Workers Union,

Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743,

6 L.Ed.2d 1230 (1961); McQueary v. Laird, 449 F.2d 608

(10th Cir. 1971).

b. For persons not subject to the UCMJ, to sustain removal

and order not to re-enter under 18 USC 1382, it must:

(1) Meet the requirements stated in a (1) through (3)

above.

(2) Direct removal and forbid re-entry, in the name of the

base commander.

ce. For all persons within the US, its territories and posses-

sions, it must:

(1) Meet the requirements stated in a (1) through (3)

above.

(2) Have been issued by a person designated in DOD

Directive 5200.8.

(3) Be posted in a conspicuous and appropriate place.

For standardization, the display of such a directive at gates

of bases or areas will satisfy this requirement.

(4) Pertain to one of the subjects listed in 50 USC 797.

(5) State that it was issued under the DOD directive and

the statute. The notice to the public incident to the issue of

the regulation must also contain the same statement.

(6) Cover a physical area that is subject to USAF juris-

diction, administration or custody.

(Para. 4, AFR 125-37, 27 July 1964)

8a

‘The 4th Circuit recently held in Burnett v. Tolson, 474

F.2d 877 (4th Cir. 1973), that where military reservations

are open to the public it is now clear that civilians have an

unqualified right to enter these public areas to exercise

their constitutional right to freedom of expression. Where

the area is open to the public the base commander has no

_ discretion but has a ministerial duty to allow leafletting.

However, when the military reservation is a “closed base”,®

the base commander at Tinker had the authority to deter-

mine the degree of control over personnel entering or leav-

ing the base. Para. 6b, AFR 125-37, 27 July 1964.

The appellants challenge whether posting a sign outside

the confines of Tinker Air Force Base sufficiently conveys

actual notice of Supplement 2. The large sign reads as

follows:

WARNING

U.S. AIR FORCE BASE

IT IS UNLAWFUL TO ENTER THIS AREA WITHOUT

PERMISSION OF THE COMMANDER TINKER AIR

FORCE BASE WHILE ON THIS INSTALLATION

ALL PERSONNEL AND THE PROPERTY UNDER

THEIR CONTROL ARE SUBJECT TO SEARCH

(See. 21, Internal Securities Act of 1950: 50 U.S.C. 797)

8 Closed Base. It will be:

(a) Posted with warning signs at all perimeter gates and

along the base perimeter.

(b) Patrolled internally by air police forces in vehicles. Air

police forces will be assigned at perimeter gates, when open,

to control personnel and vehicle traffic.

(c) Fenced around the perimeter, when practicable.

(Paragraph 6(a) (1), AFR 125-37, 27 July 1964)

REE BG I aOR DENG 4 FOI SINE 3H IE

jh SRA aca ETE AINSI ROP LI, Sie AE NN Bl

9a

To be sure, the sign does not convey actual notice of the

entire content of Supplement 2. It was not, however, the

only notice that the appellants had that Tinker Air Force

Base was a controlled entry installation. They. were warned

by the sign, the five security guards, and the fence around

the installation. In any event there can be no question that

the sign and the security guards gave the appellants actual

notice that they could enter only with the permission of the

base commander. The record is clear that they were in-

formed of his denial of their right of entrance before they

entered the base.

The appellants argue that Supplement 2 violates the due

process clause of the Fifth Amendment to the United States

Constitution in that it is void for vagueness, and that it

establishes guidelines only, thereby lacking the sufficient

enjoinder required of prohibitive regulations.

AFR 125-37 grants the base commander the authority to

determine the security to be imposed on personnel entering

or leaving the base. Paragraph 6b, AFR 125-37, 27 July

1964. Pursuant thereto the Base Commander promulgated

Supplement 2 on May 3, 1972. Twenty-five copies of Sup-

plement 2 were sent to the security guards at the gates.

The procedures set forth in Supplement 2 prohibit all per-

sons who do not possess proper identification from entering

the base. The language is plain. Those who have proper

identification may enter the base and those who do not have

such identification may not enter the base. Courts do not

require the same precision and specificity of standards in

military regulations as in criminal statutes. Dash v. Com-

manding General, Fort Jackson, South Carolina, 307 F.

Supp. 849 (D.S.C. 1969), aff’d, 429 F.2d 427 (4th Cir. 1970),

cert. denied 401 U.S. 981, 91 S.Ct. 1192, 28 L.Ed.2d 333

(1971). We agree with the District Court which stated:

10a

It is not significant or prejudicial to the Defendants

that the Information describes the regulation as one

prohibiting the entry upon the military reservation

“without the consent or permission of the Commanding

Officer,” rather than “without proper identification.”

Such language is merely descriptive of the regulations,

which speaks for itself. The important fact is that the

regulation prohibited entry to certain persons. It be-

comes a matter of proof as to whether the Defendants

were such persons and intended to enter the base know-

ing that they were so prohibited. (R., Vol. I, pp. 130,

131)

Ii.

The appellants allege that the trial court penalized them

for exercising their right to stand trial in the District Court.

Those who pleaded guilty before the Magistrate were given

suspended sentences except for one defendant who received

a one-year probation. Those who pleaded not guilty and

who were tried by the Magistrate received suspended sen-

tences except for one defendant who received a two-year

probation. Of the twelve defendants who were tried in the

District Court, the women received probationary terms,

while the men received prison terms of from 4 to 6 months

plus ‘varying fines.

In United States v. Wiley, 278 F.2d 500 (7th Cir. 1960),

the Court held that a person may not be punished because

he has, in good faith, exercised his right to stand trial, even

though his effort proves unsuccessful, and that it is im-

proper to make his sentence more severe because he has

done so. There is no evidence in the record to support the

application of this rule to these appellants. We have held

erie: PE Riga PR ey RISNIN A

nie Pa

- 5 TADS hig A TEE as SR

‘ya Mee RdD Ts

lla

and now hold that when the sentence is within the limit pre-

scribed by the statute, the length of the sentence imposed

is within the discretion of the trial court and will not be

disturbed by the reviewing court. United States v. Stidham,

459 F.2d 297 (10th Cir. 1972), cert. denied 409 U.S. 868,

93 S.Ct. 168, 34 L.Ed.2d 118 (1972) ; Andrus v. Turner, 421

F.2d 290 (10th Cir. 1970); Martin v. United States, 364

F.2d 894 (10th Cir. 1966). The sentences imposed on the

appellants were within the statutory limits.

IV.

The appellants contend that the trial court erred in over-

ruling their motion for judgment of acquittal because the

Government failed to prove each essential element of the

crime beyond a reasonable doubt.

On appeal the evidence is considered in the light most

favorable to the Government. United States v. Weiss, 431

F.2d 1402 (10th Cir. 1970). Although the Government con-

ceded that the identification procedure in the early part of

the trial did not clearly reflect the names of the appellants,

the trial court had an opportunity to observe those persons

who were identified during the trial. There was no error.

The appellants contend that the motion for a judgment

of acquittal should have been granted because the Govern-

ment presented no evidence of their purpose or intent to

enter the Base without permission of the Base Commander.

Intent and purpose may be inferred from the facts and cir-

cumstances surrounding the case which reasonably tends

to demonstrate mental attitude. United States v. Woodring,

464 F.2d 1248 (10th Cir. 1972) ; Cummings v. United States,

289 F.2d 904 (10th Cir. 1961), cert. denied 368 U.S. 850, 82

S.Ct. 638, 7 L.Ed.2d 48 (1961). The warning sign posted

at the entrance to the Base just north of Gate Two was

visible to anyone who walked or drove onto the base. It

states that permission to enter is required. The closed

Base, evidenced by the guards, the warning sign, and the

fence, gave due notice and warning to the demonstrators

that they were approaching & military installation involving

the national security. Officer Twomey attempted to hold the

group back. He told them that they were not allowed on the

Base unless they had permission of the Base Commander.

Appellant Tom Flowers asked Officer Maddox what would

happen if they crossed the “white line”. He was told they

would be arrested. Upon entering Col. Malone told them

to leave. He read them the warning. In lieu of obeying,

they sat down and refused to leave. They carried placards

protesting the war in Vietnam. Their intent to enter the

base without permission and their intent to demonstrate

against the Vietnam war on the Base may be reasonably

inferred from these facts.

The appellants allege that the Government failed to prove

the location and jurisdiction of the Court beyond a reason-

able doubt. This contention has no merit. The trial court

properly took judicial notice that Tinker Air Force Base

is within the Western District of Oklahoma. United States

y. Carter, 430 F.2d 1278 (10th Cir. 1970). The trial court

did not err in denying their motion for judgment of ac-

quittal.

Affirmed.

———

Aaa PCL AREAS Bh ACI LINO SE AIOE LE ESO Ge

13a

Order Denying Petition for Rehearing

May Tzrm—May 31, 1973

Before Honorable David T. Lewis, Chief Judge, Hon:

orable Delmas C. Hill, Honorable Oliver Seth, Honorable

William J. Holloway, Jr., Honorable Robert H. McWilliams,

Honorable James E. Barrett, and Honorable William E.

Doyle, Circuit Judges,

Nos. 72-1741 thru 72-1752 Inclusive

i

Unirep Srares or AMERICA,

Plaintiff-Appellee,

v.

Jon Ranvotpu Froyp, Tom Fiower, Heten Juw Fox,

Wittiam Axexanver Freeman, Hous Ann Futtrz,

JerrrEY N. Herren, James ALAN HinpMan, Danny O.

Nouan, Maria Euizapernh Pascate, WiiiaAM LeRoy

Patcnett, Exuten Lovise Woopier, and MICHAEL

Puituie Wricxt,

Defendants-A ppellants,

and

AMERICAN Civit Liserties Union Founpation

b ]

Amicus Curiae.

i

This matter comes on for consideration of the Petition

For Rehearing En Bane filed by the Appellants in the

captioned companion cases.

l4a

Upon consideration whereof, the Petition for Rehearing

En Banc is denied.

‘Howarp K. PHILLIPS

Clerk

A true copy

Teste

Howarp K. Pxu.irs

Clerk, U. S. Court of

Appeals, Tenth Circuit

By Awne CaBaT

Deputy Clerk

1a

:

Order on “Motion and Demand for jury Trial”

{Filed July 11, 1972]

IN THE

UNITED STATES DISTRICT COURT

For tHe Western District or OKLAHOMA

Cr. 72-175

Violation 18 USC § 1382

~<

Unrrep States or AMERICA,

Plaintiff,

v.

Jon Ranpotpx Fioyp, Tom Fiower, Heren Ju Fou,

Wiuiam ALexanpeR Freeman, Houtuis Ann FUvurz,

JEFFREY N. HERREN, JAMES ALAN Hinpman, Danny O.

Notan, Marra EvizapetH Pascate, Wituiam LeRoy

PatcHett, Exxten Louise Woopierz, MicHaEL PHILLIP

Wricaxt,

Defendants.

~~

ALL THE DEFENDANTs have joined in a motion and demand

for jury trial. All are charged jointly by Information with

violation of Title 18 U.S.C. § 1382, in that they did know-

ingly, wilfully, and unlawfully enter the Tinker Air Force

Base, a military reservation, for the purpose of violating

a lawful regulation prohibiting the entry upon and into

said military reservation without the consent and permis-

sion of the commanding officer. The maximum punishment

is imprisonment for six months and a fine of $500.

rere provides that the trial of all crimes, exeeD! 1 Tek)

of impeachment, shall be by jury- Under the sixth amend-

Sine cn accused, in all criminal prosecutions, bet right

ea epeedy and public trial by impartial Jury: The con-

stitutional impera

“glass or grade of offences called petty offences, which

according to the common law, may be proceeded against

summarily in any t ibunal legally constituted for that pur- ~

pose.” Callan v. Wilson, 127 U.S. 540, 557 (1888). As stated

in Duncan V. Louisiana, 391 US. 145, 160 (1968) :

“So-called petty offenses were tried without juries both

in England and in the Colonies and have always been

held to be exempt from the otherwise comprehensive

e of the Sixth Amendment’s jury trial pro-

visions. There is no substantial evidence that the

Framers intended to depart from this established

common-law practice, and the possible consequences

to defendants from convictions for petty offenses have

been thought insufficient to outweigh the benefits to

ified judicial ad-

efficient law enforcement and simp

ministration resulting from the availability of speedy

and inexpensive nonjury adjudications.”

Counsel suggests there is a split of authority as to

whether a jury trial is required for a petty offense. Cases

of the United States Supreme Court refute this. “It is

old law that the guarantees of jury trial found in Article

III and the Sixth Amendment do not apply to petty of-

17a

fenses.” Bloom v. Illinois, 391 U.S. 194, 210 (1968). No

decision of our highest court holds otherwise.

The essential injury, then, is not whether the Consti-

tution requires a jury trial for a petty offense, but whether

the defendants are charged with a “petty offense.” If it

is a petty offense, the constitutional right to a jury trial

does not exist. If it is not, the court must - the de-

fendants’ request.

Congress has defined a petty offense as follows: (3)

Any misdemeanor, the penalty for which does not exceed

imprisonment for a period of six months or a fine of not

more than $500, or both, is a petty offense.” 18 U.S.C.

§1(3). The present charge is obviously within that defini-

tion.

The Supreme Court has, however, utilized other criteria

in determining whether a particular offense is “petty” or

“serious.” In District of Columbia v. Colts, 282 U.S. 68,

73 (1930), the court said:

“Whether a given offense is to be classed as a crime,

so as to require a jury trial, or as a petty offense,

triable summarily without a jury, depends primarily

upon the nature of the offense.”

In that case, the defendant was convicted of driving reck-

lessly “so as to endanger property and individuals.” The

relevant statute provided for punishment by not more

than a $100 fine or thirty days imprisonment. The court

found that the offense was malum in se, indictable at

common law, and “an act of such obvious depravity that

to characterize it as a petty offense would be to shock the

general moral sense.” The charge in the present case is

not malum in se, but malum prohibitum. It becomes an

18a

offense under 18 U.S.C. § 1382 only because some statute

or lawful regulation pro ibits entry without permission.

United States v. Bishop, 261 F. Supp. 969 (N.D. Calif.

1966).

At other times, the Supreme Court has looked principally

to the length of the maximum possible sentence to deter-

mine if a jury trial is required. In Duncan v. Louisiana,

supra, at 161, the court held that a erime for which the

punishment could be two years could not be labeled a petty

“In determining whether the length of the authorized |

prison term or the seriousness of other punishment is

enough in itself to require a jury trial, we are coun-

seled by District of Columbia v. Clawans, supra, to

refer to objective criteria, chiefly the existing laws

and practices in the Nation. In the federal system,

petty offenses are defined as those punishable by no

more than six months in prison and a $500 fine. In

49 of the 50 States crimes subject to trial without a

jury, which occasionally include simple battery, are

punishable by no more than one year in jail. More-

over, in the late 18th century in America crimes triable

without a jury were for the most part punishable by

no more than & six-month prison term, although there

appear to have been exceptions to this rule. We need

not, however, settle in this case the exact location of

the line between petty offenses and serious crimes.

It is sufficient for our purposes to hold that a crime

punishable by two years in prison is, based on past

and contemporary standards in this country, @ serious

crime and not a petty offense. Consequently, appellant

was entitled to a jury trial and it was error to deny it.”

19a

In the most recent case treating the right to a jury trial,

Baldwin v. New York, 399 U.S. 66, 73 (1970), the court

held that where possible penalty exceeds six months, the

defendant cannot be denied a jury trial:

“One who is threatened with the possibility of imprison-

ment for six months may find little difference between

the potential consequences that face him, and the con-

sequences that faced appellant here. Indeed, the pros-

pect of imprisonment for however short a time will

seldom be viewed by the accused as a trivial or ‘petty’

matter and may well result in quite serious repercus-

sions affecting his career and his reputation. Where

the accused cannot possibly face more than six months’

imprisonment, we have held that these disadvantages,

onerous though they may be, may be outweighed by the

benefits that result from speedy and inexpensive non-

jury adjudications.”

Here, the defendants cannot possibly receive more than six

months imprisonment, and it would appear likewise that

the benefits resulting from the expeditious nonjury deter-

mination of guilt or innocence outweigh any possible disad-

vantage to the defendants.

In other cases, the court has ignored the maximum pos-

sible sentence and considered the sentence actually imposed.

In Chef v. Schnackenberg, 384 U.S. 373 (1966), a sentence

of six months was imposed in a contempt proceeding. The

court viewed the proceedings as equivalent to a procedure

to prosecute a petty offense, and therefore, the defendant

was properly convicted without a jury. See also Frank v.

United States, 395 U.S. 147 (1969).

20a

By every suggested standard, the charge against the de-

fendants in this case is a petty offense, not triable by jury

under the Constitution. The only other court considering

this specific statute has reached this same conclusion, United

States v. Bishop, supra, principally relied upon by the de-

fendants.

The conclusion that the offense charged is a petty of-

fense for which no constitutional right to jury trial exists

would seem to be dispositive of the defendants’ demand, but

in Bishop, the court proceeded to hold that a defendant is

entitled to a jury trial unless Congress has specifically pro- |

vided to the contrary. Compare United States v. Beard,

313 F. Supp. $44, (D. Minn. 1970), in which the court con-

cluded that where Congress had not spoken on the subject,

the granting of a jury trial rested within the court’s discre-

tion. Counsel for the defendants now urges the reasoning

of Bishop upon this court. We must reject the reasoning

and the conclusion. We find no basis for the assumption

that Congress has been silent on this issue. By its very

definition of “petty offense” in 18 U.S.C. § 1(3), it has mani-

fested an intent that there be no jury trial. Since it was

the rule at common law and under the uniform rulings of

the Supreme Court that a petty offense was triable without

a jury, it would be unrealistic to suppose that Congress was

unaware of this most important characteristic of a petty

offense in making this classification. The very purpose of

classification is to attribute certain characteristics to the

class. There is no reason for a subdivision of misdemeanors

of minor gravity if such petty offenses are to be treated as

are all other misdemeanors. It is significant that the prin-

cipal cases relied upon by the court in Bishop, (Callan v.

Wilson, supra, (1888), Schick v. United States, 195 U.S. 65

21a

(1904), and District of Columbia v. Colts, supra, (1930)),

were decided prior to the Congressional enactment of the

petty offense classification on December 16, 1930.

In Bishop, the court looked at 18 U.S.C. § 3401, relating

to trial by commissioners, and could discover no intention

by Congress that the trial of a petty offense in district

court be without a jury. Subsequent, however, ta Bishop,

Congress amended this section to provide the magistrate

shall explain to a defendant charged with a minor offense,

(a misdemeanor subject to a maximum punishment of one

year imprisonment and $1,000 fine), that “he has a right

to a trial before a judge of the district court and that he

may have a right to trial by jury ...” (Emphasis supplied.)

By inference, Congress has recognized there might be minor

offenses, i.e. petty offenses, in which there was no right to

trial by jury in the district court.

Further, Congress, by limiting the punishment which may

be imposed under 18 U.S.C. § 1382 to six months and $500,

has included within the definition of the crime itself a judg-

ment about the seriousness of the offense and therefore the

right to a jury trial. Frank v. United States, supra.

There really is no basis to conclude that a right to jury

trial exists outside the Constitution and statutes of the

United States. The Supreme Court, in determining the

right to jury, has indicated that if an offense can be treated

as petty in the eyes of 18 U.S.C. § 1(3) and is not otherwise

a serious offense under the prior decisions of the court, the

denial of a jury trial is proper. Chef v. Schnackenberg,

supra.

Rule 23(a) of the Federal Rules of Criminal Procedure

provides: |

ee en

“Trial by Jury. Cases required to be tried by jury shall

be so tried unless the defendant waives a jury trial in

writing with the approval of the court and the consent

of the government.”

The Note to subdivision (a) of the Advisory Committee on

Rules states:

“1. This rule is a formulation of the constitutional

guaranty of trial by jury, Constitution of the United

States, Article III, Sec. 2, Par. 3: “The Trial of all

Crimes, except in Cases of Impeachment, shall be by.

Jury °° °’; Amendment VI: ‘In all criminal prosecu-

tions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury ***.’ The right to a

jury trial, however, does not apply to petty offenses,

District of Columbia v. Clawans, 57 S.Ct. 660, 300 U.S.

617, 81 L.Ed. 843; Schick v. United States, 24 S.Ct. 826,

195 U.S. 65, 49 L.Ed. 99, 1 Ann. Cas. 585; Frankfurter

and Corcoran, 39 Harv. L.R. 917.”

As the Note indicates, the rule embodies only the constitu-

tional guaranty of a jury trial and contemplates that the

district court is not required to grant a jury trial for a

petty offense.

At the time Bishop was decided, there was in effect “Rules

of Procedure for Trials Before Commissioners,” adopted

January 6, 1941, by the Supreme Court. Rule 2 of these

rules provided, among other things, that the trial before

the commissioner “shall” be conducted as are trials of crim-

inal cases in the district court by a district judge in a crim-

inal case where a jury is waived,” but no reference was

made in the rules concerning the trial in the district court.

2a digo Beh cate ae Rese 6

KOREA LEG

The court said, at 973, “Significantly, there is no provision

concerning whether a trial of a petty offense in the district

court upon election of the defendant will be jury or non-

jury,” and found that there was no indication of an intent

on the part of the Supreme Court as expressed in its rules

that there should be no trial by jury when the defendant

elects to proceed in the district court.

This argument is no longer valid. The Supreme Court,

in a major departure from the former rules, has expressed

itself on the requirement for a jury trial in the trial of

petty offenses in the “Rules of Procedure for the Trial of

Minor Offenses before United States Magistrates,” promul-

gated January 27, 1971. Rule 2 provides that the magistrate

shall inform a person charged with a minor offense other

than a petty offense “that he has a right to a trial before

a judge of the district court and a jury,” (emphasis sup-

plied), unless he consents to be tried before the magistrate.

Before the magistrate can conduct the trial, the defendant

must waive in writing “Trial before a J udge of the District

Court and Jury,” (emphasis supplied).

Rule 3 provides that the magistrate shall inform the de-

fendant accused of a petty offense “of his right to trial in

the district court.” He must waive only the right to be tried

before a judge of the district court before the magistrate

may proceed. Rule 3 also specifically states that the trial

before the magistrate shall be conducted “as are trials of

petty offenses in the district court by a district judge with-

out jury.” By the distinction between the minor offenses

and petty offenses in the rules, it is evident that the Su-

preme Court conceived only a right of trial by jury for

minor offenses and rejected the proposition that a jury is

constitutionally required in the trial of petty offenders.

tO ihe A TIBI OAS LOTS tla a UI N "

24a

And recently the Fourth Circuit in United States v. Mer-

rick, —— F. 24 — (Fourth Cir. 5/18/72) held that a

federal “petty offender” has no constitutional or statutory

right to a jury trial.

Since the court finds no constitutional or statutory basis

for a jury trial in this instance, the defendants’ demand

for a jury will be denied. If it were within the discretion

of the court, the result would be the same. Because of the

court’s interest in the orderly administration of justice and

the practical problems confronting the court in a case with

multiple defendants, the advantages of an expeditious and

relatively inexpensive adjudication by the court outweigh ©

the benefits which might accrue to the defendants from 8

jury trial.

Tr 18 SO ORDERED.

Dated this 11 day of J uly, 1972.

F rep DavGHERTY

United States District Judge

PEAR WE ATOR,

2a

Order Denying Motion to Dismiss Indictment

[Filed July 11, 1972]

In THE

UNITED STATES DISTRICT COURT

For tHe WEsTERN District or OKLAHOMA

Case No. 72-175 Criminal

—<

Unitep States or America,

Plaintiff,

—V.—

Jon Ranvotpx Fioyp, Tom Fiower, Heten Ju Fou,

Wriuiam Atexanper Freeman, Hous ANN Futrz,

JEFFREY N. Herren, JAMES ALAN HinpMan, Danny O.

Notan, Maria Exizapern Pascare, Wiuiam Leroy

PatcHett, ELLEN Lovise Woopviez, MicwarL Puiu

Waicurt,

Defendants.

—_———<f>—_

ORDER

Defendants move to dismiss the Information filed against

them in this case for the various reasons set out below.

They are charged with a violation of 18 U.S.C.A. §1382,

which reads in pertinent part as follows:

“Whoever, within the jurisdiction of the United

States, goes upon any military .. . reservation...

26a

for any purpose prohibited by law or lawful regulation

_ |. shall be fined not more than $500 or imprisoned

not more than six months, or both.”

The Information charges Defendants under this Statute

in the following language:

“That on or about the 4th day of May, 1972 at Tinker

Air Force Base, Oklahoma, on lands acquired for the

use of the United States of America, and on lands con-

stituting a military reservation over which the United

States has exclusive jurisdiction and in the Western

Judicial District of Oklahoma, [the Defendants] .. -

did knowingly, willfully and unlawfully enter such mili-

tary reservation for the purpose of violating a lawful

regulation prohibiting the entry upon and into said

military reservation without the consent and permis-

sion of the Commanding Officer all in violation of Title

18, United States Code, Section 1382.”

Defendants’ attack on the Information: is two-fold. They

claim that the statute and regulations are unconstitutional

and that the Information fails to state an offense. The

Constitutional claims are that:

1. The Statute is an invalid restraint of rights guar-

anteed by the First Amendment.

2. The Statute denies equal protection under the Fifth

Amendment.

3. The Statute is an unlawful delegation of legislative

authority in violation of the doctrine of separation of

powers.

27a

4. The Statute and regulations are vague and ambiguous

within the meaning of the due process provision of the

Fifth Amendment.

5. The regulations fail to adequately notify what is the

forbidden conduct in violation of the Sixth Amendment.

6. The punishment provided by the regulations is dis-

proportionate to the offense and constitutes cruel and un-

usual punishment in violation of the Eighth Amendment.

Defendants’ nonconstitutional claims are that:

(1) The regulations do not prohibit entry on a military

base.

(2) The regulations merely establish conditions of entry.

(3) The regulations are void because they were not pub-

lished in accordance with law.

Defendants’ claims will be considered in the order set

out above.

The Statute and regulations are not an unconstitutional

abridgement of the Defendants’ First Amendment rights.

Weissman v. United States, 387 F. 2d 271 (Tenth Cir. 1967).

Defendants did not see fit to brief this question and it does

not merit further discussion.

In like manner, Defendants fail to brief the equal pro-

tection argument. The guarantee of equal protection is

found primarily in the Fourteenth Amendment, which ap-

plies exclusively to State action. However, the Supreme

Court has recognized that equal protection principles are

contained in the Fifth Amendment guarantee of due proc-

ess. Bolling v. Sharpe, 347 U.S. 497, 98 L.Ed. 884, 74 S.Ct.

693 (1954). In Bolling, however, the Supreme Court noted

that due process and equal protection are not interchange-

able terms and the discrimination alleged must be so unjus-

tified as to amount to a deprivation of due process. See

also Schneider v. Rusk, 377 U.S. 163, 12 L.Ed. 2d 218, 84

S.Ct. 1187 (1964). Defendants’ claim of discrimination

seems to be based on the premise that the regulations in-

volved here give commanders of military installations

power to exclude persons therefrom whose views are not

the same as their own. No claim is made that this was the

ease here. It is beyond rational doubt that military com-

manders have the power to exclude any person from their

area of command and that their reasons for so doing are

conclusive. Weissman v. United States, supra. The power

lawfully exists; the reasons for its exercise in this case

are not in issue on this Motion.

Defendants’ next unbriefed contention is that the Statute

unlawfully delegates the legislative function. This argu-

ment appears to be based on the supposition that the power

to exclude any person from a military base permits a base

commander to establish public policy, presumably by con-

fining exclusions to persons possessing particular views.

The whole argument is specious and falls of its own weight.

18 U.S.C.A. §1382 forbids entry on a military base for an

unlawful purpose. The power to issue regulations does not

derive from the Statute. See Cafeteria & Restaurant

Workers Union v. McElroy, 367 U.S. 886, 6 L.Ed. 2d 1230,

81 S.Ct. 1743 (1961). Again, the power lawfully exists;

the reasons for its exercise are not an issue on this Motion.

Defendants’ next two constitutional claims will be con-

sidered together. The Defendants urge that the regulations

are void because they are too vague and ambiguous and

because they do not, in fact, prohibit the entry upon Tinker

Air Force Base without the consent and permission of the

commanding officer. Under the scheme of these regulations,

Tinker Air Force Base has been designated a “closed

base.” TAFB Supplement 1, 15 September 1967. The fol-

lowing minimum controls are mandatory for a closed base:

“(1) Closed Base. It will be:

(a) Posted with warning signs at all perimeter gates

and along the base perimeter.

(b) Patrolled internally by air police forces in vehi-

cles. Air police forces will be assigned at perimeter

gates, when open, to control personnel and vehicle

traffic.

(c) Fenced around the perimeter, when practicable.”

Para 6a(1), AFR 125-37, 27 July 1964.

The regulation prescribes that warning signs will be at

each gate around the perimeter of the closed base as

follows:

“WARNING

ENTRY IS PROHIBITED WITHOUT THE PER-

MISSION OF THE COMMANDER, ...........

miacasibisaaimboeiaiaids AIR FORCE BASE. PERSONNEL

ENTERING THIS AREA AGREE TO A SEARCH

OF THEIR PERSON AND/OR VEHICLE IF DI-

RECTED BY THE ABOVE COMMANDER. (Sec.

21, Internal Security Act of 1950; 50 USC 797)” Para

10 AFR 125-37, 27 July 1964.

The basic regulation provides the base commander will

determine the degree of control over personnel entering

or leaving the base. Para 6b AFR 125-37, 27 July 1964.

Pursuant thereto, the base commander of OCAMA and

30a

Tinker Air Force Base, on May 3, 1972, promulgated

OCAMA-TAFB Supplement 2. Para 6b.1(a) thereof pro-

vides :

“Personnel with identification other than those identi-

fied in b, ¢ and d below are prohibited from entering

into Tinker Air Force Base.”

Subparagraphs b and ¢ deal with the admittance of per-

sonnel with previously issued credentials. Subparagraph d

states:

“Subject to security requirements as determined by the

installation commander, personnel with identification

other than those described in 6b and ¢ above may be

authorized admittance to Tinker Air Force Base under

the following procedures :” (Emphasis supplied.)

These procedures to screen visitors may or may not result

in the visitor receiving proper identification and being

permitted to enter the base. The specific language of this

order by the commanders of OCAMA and TAFB prohibits

all persons who do not possess proper identification from

entering the base. Nothing could be plainer. By this order,

the commanders, in quite unequivocal language, have said

those who have proper identification have consent to enter

the base, and those who do not have such identification do

not have consent and are therefore prohibited. It is beside

the point to argue that the Defendants might have obtained

the necessary identification and thereupon to have been

admitted to the base. Such possibility does not render the

regulation vague or ambiguous or otherwise destroy the

positive prohibition against entry without consent, that is,

without proper identification. Courts do not require the

3la

same precision and specificity of standards in military

regulations as in a criminal statute. Dash v. Commanding

General, Ft. Jackson, South Carolina, 307 F. Supp. 849

(D.C. S.Car. 1969). It is not significant or prejudicial to

the Defendants that the Information describes the regula-

tion as one prohibiting the entry upon the military reserva-

tion “without the consent or permission of the Commanding

Officer,” rather than “without proper identification.” Such

language is merely descriptive of the regulation, which

speaks for itself. The important fact is that the regulation

prohibited entry to certain persons. It becomes a matter

of proof as to whether the Defendants were such persons

and intended to enter the base knowing that they were

so prohibited.

Also not briefed is Defendants’ contention that the regu-

lation provides for a cruel and unusual punishment. The

regulations here involved do not provide for any punish-

ment. The Statute provides for punishment. The Defen-

dants are charged with a crime under the Statute. The

punishment provided by the Statute is not cruel and un-

usual. Our Circuit has affirmed the imposition of the

maximum sentence under that Statute. Weissman v. United

States, supra.

Defendants’ first two nonconstitutional claims have pre-

viously been discussed in their constitutional dimension

and further discussion here would serve no useful purpose.

Defendants’ final nonconstitutional claim is that the regu-

lations issued locally are invalid because they were not

published in the Federal Register. Such is said to be the

requirement of the Federal Register Act, 44 U.S.C.A.

§§ 301 et seq. and the Administrative Procedure Act, 5

U.S.C.A. §§ 501 et seq. Defendants also contend that the

local regulations are void because not promulgated in com-

It is the Court’s opinion and holding that the local regu-

lations, OCAMA-TAFB Supplement 2, AFR 125-37 dated

May 3, 1972 is not required to be published in the Federal

Register. 44 U.S.C.A., §1505(a) provides in pertinent part

as follows:

“There shall be published in the Federal Register—

(1) Presidential proclamations and Executive orders

one documents or classes of documents that the

President may determine from time to time to have.

general applicability and legal effect; and (3) docu-

ments or classes of documents that may be required

so to be published by Act of Congress.”

“For the purposes of this chapter every document

or order which prescribes a penalty has general ap-

plicability and legal effect.”

Defendants apparently rely on the last quoted paragraph

of 44 U.S.C.A. §1505(a), for they cite cases dealing with

regulations prescribing a penalty. The regulations here

do not prescribe a penalty. It does not otherwise appear

that the regulations fall within any of the other classes

enumerated by the Statute.

The Administrative Procedure Act likewise contains no

requirement of publication of the local regulation in the

Federal Register. 5 U.S.C.A. §552(a)(1) provides in perti-

nent part as follows:

“Each agency shall separately state and currently

publish in the Federal Register for the guidance of

the public—(A) descriptions of its central and field

33a

organization ... (B) statements of the general course

and method by which its functions are channeled and

determined .. . (C) rules of procedure... (D) sub-

stantive rules of general applicability adopted as au-

thorized by law, and statements of general policy or

interpretations of general applicability formulated and

adopted by the agency ' ;

Except to the extent that a person has actual and

timely notice of the terms thereof, a person may not

in any manner be required to resort to, or be adversely

affected by, a matter required to be published in the

Federal Register and not so published . . .”

The regulation issued by the local commander which pro-

hibited Defendants from entering the base does not fall

within any of the classifications of the Statute. Even if it is

within the Statute, the Government is entitled to show that

they had actual notice.

Defendants question the legal status of the regulations

issued by the Base Commander under the provisions of

paragraph 4 of AFR 125-37, contending that it does not

meet the requirements there established. In general, those

requirements have to do with prosecutions of offenses aris.

ing under 50 U.S.C.A. §797 and the offense of reentry after

removal under 18 U.S.C.A. §1382. Defendants are not

charged with crimes with which the designated parts of

these Statutes deal. Under 18 U.S.C.A. $1382, they are

charged with entry with intent to violate a regulation, which

is the first paragraph of the Statute, and not with reentry

after removal, which is the second paragraph of §1382.

Thus, whether the challenged regulation might be sufficient

to sustain a prosecution for an offense under 50 U.S.C.

§797 or for an offense under the second paragraph of 18

U.S.C.A. $1382, is not here presented. If such regulation

can be sustained as authorized on any basis, it is sufficient

for the purposes of this offense. Under the explicit au-

thority of AFR 125-37 and in the light of the historically

unquestioned power of a commanding officer, in his dis-

cretion, to exclude any person from the area of his command

under such restrictions as he may prescribe in the inter-

ests of security, good order and military discipline, there

can remain no serious doubt of the authority to issue the

challenged regulation. Cafeteria & Restaurant Workers’

Union, Local 473 AFL-CIO v. McElroy, 367 U.S. 886 (1960).

Defendants’ Motion to Dismiss is overruled.

It is so ordered this 11th day of July, 1972.

Frep DauGHERTY