# Petition for Writ of Certiorari — Floyd v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1003%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 1044 ## Text 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. $—_ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1003%3A1. Public record. Not legal advice.