Appendix — United States v. Johnson

_. , LIBRARY

SUPREME COURT. U. 5

= APPENDIX | :

, GEC 7 1867 -

JOHN F. DAVIS, OLE@M

‘OCTOBER TERM, 1967 Kos

— No. 482°

UNITED STATES OF AMERICA, APPELLANT

on HORACE JOHNSON, ET AL.

\ . . . =

>

é

>

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

‘FOR THE NORTHERN DISTRICT OF GEORGIA ;

: °° FILED JUNE 13, 1967

- PROBABLE JURISDICTION NOTED OCTOBER 23, 1967 *

_ Supreme Court of the United States

OCTOBER TERM, 1967 ©

No. 482

,.

UNITED STATES OF AMERICA, APPELLANT

y:

~ _.. . HORACE JOHNSON, ET AL.

a

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

Relevant Docket Entries ..........: ty

Proceedings in the United States District Court ie the -

Northern District of Georgia:

Criminal Indictment .

Plea of Horace Johnson .......

Plea of James Raymond Hoffn ......”

Plea of Willie Everett Hester, Jr. ....... : ut

Plea of McCagger Bagwell z

Motion to Dismiss Indictment ....

Opinion Below .........--------------- ‘.

Notice of Appeal to. the Supreme Court of the United States..

_ Order Noting Probable J manne “ \ |

. \

S\

b

- RELEVANT. DOCKET ENTRIES

Date

- February 16, 1967

June —

March -

2, 1967

44, 1967.

24, 1967.

, 28, 1967

16, 1967

13, 1967

‘Criminal Indictment in (1) count, filed.

. indictment, filed. Brief filed.

filed. (Copies to Counsel and USSSC)

: ape => .

* ge 8 .

ARRAIGNMENT

RE ALL DEFTS: Plea of not guilty

entered and filed..

Roo A * *

RE ALL DEFTS: Motion to dismiss

Govt’s -response to motion to dismiss,

filed.

SUBMITTED’TO JUDGE SMITH on .

DEFTS’, MOTION TO DISMISS. |

* ‘ o* * * ; ‘a ;

Re ALL DEFTS:. Order ‘Sieiiiasinn: the

Indictment, filed. Copies mailed to Coun-

sel.

* e. @° 2 .

Government’s notice of appeal to the .

supreme court of the United States,

4° /3/

(fol. 2) | “

IN THE UNITED STATES DISTRICT COURT -

* FOR THE NORTHERN DISTRICT OF yeaa

* -* * *

INDICTMENT—Returned February 16, 1967

THE’ GRAND JURY CHARGE; = lu.”

COUNT ONE

_. That, on or about January 8, .1967, HORACE: ‘JOHN-

SON; JAMES RAYMOND HOGAN, WILLIE EVERETT

' HESTER, JR., and MecCAGGER BAGWELL did, in :

Jackson County, Georgia, within the Northern District of

Georgia, conspire together, with each other, and with other |

pérsons to the Grand Jury unknown, to injure, oppress, —

threaten, and intimidate Lester Hester, James Garland

Sheats, and John Lewis Smith, Negro citizens of the Unit-

ed States, as well as other Negro citizens of the United _

States, in the free exercise and enjoyment by.said Negro

citizens of the right and privilege, secured to them by the

laws of the United States, to the full and equal enjoyment

of the goods, services, facilities, privileges, advantages

* and accomodations of a restaurant, the 53 Truck Stop, ’

_ Braselton, Jackson County, Georgia, a place of public ac-

comodation as defined in Section 2000a, Title 42, United —

States Code, without discrimination or segregation on the

ground of race, color, religion, or national origin;

(fol. 3] It was a part of the plan and purpose of the con-

spiracy that the conspirators would strike and beat Lester

Hester, James Garland Sheats, and- John-Lewis Smith to

a. discourage them and other Negro citizens from seeking

service at the 53 Truck Stop on the same basis as white -

-citizens, } ,

. All in violation o Section 241, Title 18 of the United

‘States Code. | :

-ATRUEBILL ~~ /s/ Royce Donald Fair

uy | Foreman

CHARLES L. GOODSON

_ United States Attorney - >

‘[fol. 4] _- PLBA: |

I, Horace Johnson, Defendant, having received a copy of ©

‘the within indictment and having waived idee

plead Not Guilty thereto.

In Open Court this ad day of March, 1967.

a a Horace Johngon |

‘ | Defendant

/s/ Robert B. ‘Tickipacn. P

a - Defendant

PLEA —

: L, Jomes one Hogan, Defendant, hia received a.

‘copy of the within indictment and having w waived arraign-

ment, plead Nog, Guilty thereto. ,

In Open Court this 2d ~~ of March, 1967.

_ /s/ James Raymond. Hogan

_ Defendant

nate | “/3/ Robert B. Thompson Dit

: Masses econ for lea ene

"PLEA

| Willie Everett Bester, JT., “Defendant, — couaboal

a copy of the within indictment and having Waiyen : ar- -

raignment, plead Not Guilty thereto. ‘ . ;

. In Open Court this 2d day of March, 1967.

/s/ Willie Everett Hester, Jr.

¢ .. Defendant -

' /s/ Robert B. Thompson

_. Attorney for Defendant |

" [fol. 5]. ..°: PBBA *. eee

{, McCagger Bagwell, Defendant, having received a copy

of the within iridictment and having waived —

plead Not Guilty thereto.

‘In Open Court this 2d day of March, 1967. i

y 7 - ’ ' ele . : 3

/s/ McCagger Bagwell .

Defendant ,

_ /s/ Edward T. M. Garland

Attorney for Defendant

‘{f0l. 6]

IN THE UNITED STATES DISTRICT COURT -

| FOR THE NORTHERN DISTRICT OF GEORGIA

MOTION TO Dismiss INDICTMENT—Filed March 14, 1967

Come now the above named defendants, by and through -

their counsel, and file this their motion to. dismiss the cap-

tioned indictment and for cause therefor iy apnea

show:

1;

The indictment fails to charge an offense against these ~

defendants which is a violation of the laws,. marcas or the

Constitution of the United States. .

: 2. i NG

_ The exclusive remedy of the United States for the vin- ,

dication or enforcement of rights accorded persons, in-

cluding Negro citizens, under the public accommodations

section of the Civil Rights Act of 1964, Public Law 88-

852, Title II, (42 U.S.C. 2000a, et seq., are remedies pro- -

vided therein, and do not include prosecution under 18

U.S.C. 241; consequently, the indictment fails to charge .

an offense against these nr marae) (42 U. S. C. Peers

j

}

i °

. : ‘ j .

7 ‘

. . ’

. ri

>

;" e

» .

ee

et ae

{th | a

‘. P.O. Box 679

The undersigned counsel, Robert B. Ticinpaen, § is repre-

_ senting the defendant, Willie Everett Hester, Jr., for pur-

poses of this motion only, it appearing that said counsel

made a limited appearance for Hester at the arraign-

ment, and is authorized by said es to pursue this —

motion. ,

"ys

ROBERT B. THOMPSON -

_Attorney for Horace Johnson;

James. Raymond Hogan and.

Willie Everett Hester, Jr. .

Gainesville, Georgia

Tel: 534-7341

/s/

- EDWARD T. M. G

a. Attorney for MeCagger Bagwell

229 Candler Building

Atlanta, Georgia

[Certificate of Service Omitted]

eee :

[fol. 8]°

4 ‘UNITED STATES DISTRICT COURT

ma NORTHERN DISTRICT OF GEORGIA

* * * _ @

OPINION BELOW—May 15, 1967

In this case the defendants were indicted for con-

_. spiracy to violate the civil rights of certain named Negro

_ citizens under 18 U.S:C.A. § 241.1. The particular right

and privilege allegedly violated was “the full and equal .

enjoyment of the goods, services, facilities, privileges, ad-

' . vantages and accommodations of a restaurant, the 53

Truck Stop, Braselton, Jackson County, Georgia, a place

of public accommodation as defined in Settion 2000a, Title

42, United States Code, without discrimination or segre-

gation on the ground of race, color, religion, or national

origin.” No other right is involved than those imposed by

my public accommodations section of the Civil — Act

of 1964.

Defendants have. filed a motion to dismiss on the

' grounds that (1) the indictment fails to state an offense

and, correspondingly, (2) that the exclusive remedy pre-

4 scribed by the Civil Rights Act under 42 U.S.C.A. 2000a-6

‘ (b) prohibits the prosecution.

‘[fol.9] As the violation of no other “civil right” than

the public accommodations provisions of 42 U.S.C.A.

§ 2000 is alleged, the question is squarely presented as to

_ whether the limitations of 42 U.S.C.A. § 2000a-6(b) fore-

' close the prosecutions under the general terms of 18

| US.C.A. § 241. Ina multi-violation indictment, determi-_

| nation of the issue was avoided in United States v. Guest,

1 et al, 388 U. S. 745, 16 L. Ed. 239, even Roe the Dis-

Cipcccr gat ite anki RIBAS Ah Re.

1“Tf two or more persons conspire to injure, oppress, threaten,

or intimidate any citizen in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws of

the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or.on the-

premises of another, with intent to: prevent or hinder his free

exercise:'or enjoyment of any right or privilege so secured—They

shall be fined not more than $5,000 or ee not more than

ten years, or both.” 4

be

trict Court had inferred that such prosecutions were pro-

hibited. United States v. Guest, 246 F. Supp. 475, 484. -

The limitations of the Civil Rights Act of 1964 -_

vides:

“The remedies provided in this subchapter shall be

the exclusive means of enforcing the rights based on

~ this subchapter, but nothing. in this subchapter shall

preclude any individual or any State or local agency .

from asserting any right based on any other Federal

or State:law not inconsistent with this subchapter,

including any statute or ordinance requiring nondis-

crimination in public establishments or accom oda-.

tions, or from pursuing any remedy, civil or crimi- .

nal; which may be available for the vindication or:

enforcement of such rights.” (42 U.S.C.A. 2000a-6

(b) ; § 207(b) of original Act.

_ While the coriduct described by counsel is certainly of

‘the type that ought to call for criminal penalties, it is

concluded that the present law does not so provide and

the motion to dismiss is good. Absent.a contrary showing

of congressional intent, the clear language of the above.

section is controlling.

The government argues that the prohibition applies

only to the owners, operators, and employee-agents of ©

such establishments as constitute a place of public accom-.

[fol. 10] modation under the act and a “direct” depriva-

. tion of. the right at the lunch counter, registration desk,

etc. Such reasoning, however, would permit the unjust |

" result of insulating a shopkeeper from prosecution while

subjecting his “co-conspirators” or “aiders and abetters”

to criminal penalties. Thus, a wily owner could instigate

a violation of this right, engage a group of hoodlums to

carry it out, and yet be an exception to any penalty for

his own wrongdoing. :

There is no question that 18 U.S.C. A. § 241 has been

given a broad liberal construction in its almost 100 years

of application. And, clearly, it protects all Federal rights,

whether flowing from the Constitution or created by Act

of Congress. United States v. Mosley, 238 U. S. 383, 387

. (1945) ; United States v. Price, 388. U. S. 787 (1966).

However, here, we are concerned with the granting of

a new federal right with a concurrent restriction as to

_ prosécution.. In the absence of § 207(b); or in the pres-

ence of a state statute or other federal statute establish- .

ing such right, there would be no hesitancy -in holding

that a prosecution in the proper forum could proceed.

Thus, the public accommodation rights granted by Con-

gress in the Act, are such as are covered by 18 U.S.C.A...

§241, unless the Congress clearly intended that -such

rights be excluded. As stated, the language of -§ 207(b)

itself does so exclude whether the action is “direct” or

“indirect”.

A close examination of the legislative history of the bill,.

conducted with the assistance of counsel here, strengthens

this conclusion. Thus, the prior “ * remarks of then

~ Senator Humphrey: Wigs a nea —

| [fol. 11] “The-clause which iis that ‘the remedies

provided in this title shall be the exclusive means of.

enforcing the rights hereby created’ is designed to

make clear that’ a violation of sections 201 and 202

cannot result in criminal prosecution of the violator

or in a judgment. of money damages against him.

This language is necessary because otherwise it. could

be contended that a violation of these provisions

- would result in criminal liability under 18 U.S.C.

; 241 or 242, or in civil liability for damages under 42

U:S.C. 1983 or 1985. Thus, the first clause in section -

[207(b)] simply expresses the intention of Congress

that the rights created by title II may be enforced

only as provided in title II. . . . It does not limit

' enforcement of rights’ granted or created by other

valid laws, whether State or Federal, even if they

cover the same facility.” (110 Congressional Record,

page 9767, May 1, 1964)

and Senator Young:

“The prohibitions of title II would be enforced ‘iad

_ by civil suits for an injunction. Neither criminal

. penalties nor the recovery of money damages would -

be involved.” (110 oe Record, page 7384,

April 9, 1964)

‘ed

and Senator Magnuson:

“Moreover, in every case, a judicial determination of

coverage. must be made prior to the entry of any

order requiring the owner to stop discrimination.

Thus, no one would become subject to any contempt

sanctions—the only sanctions provided for in the act, .

until after it has been judicially determined that his

establishment is. subject to the act and he has been

ordered by the Court to end this discrimination, and

he has violated that Court order.” (110 Congressional

Record, page 7405, April 9, 1964)

-. Moreover, an express amendment to substitute direct —

criminal. proceedings for the injunctive and contempt sanc- - -

+ions was soundly defeated. See Congressional Record,

page 13647, June 12th, 1964. Nothing is found to indi-

[fol. 12] cate an interit contrary to that. expressed in the

act itself. It is concluded that under Title II of the Civil —

Rights Act, “remedies are limited to civil actions for pre- _

ventive relief”. Atlanta Motel v. United States, 379 U:S.

- 241 at 248. Accordingly, this criminal prosecution is

barred and the motion to dismiss. is, therefore, granted.

IT IS SO ORDERED.

This the 15th day. of May, 1967.

/s/ :

’ SIDNEY O. SMITH, JR.

United States District Judge

10

_ [fol. 13)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA -

* os opie .*

NOTICE OF APPEAL’TO THE SUPREME COURT OF THE ©

UNITED STATES—Filed June 13, 1967

= 3

es Notice is have given that the United States of ited

ica, the Plaintiff above named, hereby appeals to the’Su-

preme Court of the United States ‘from the final order

dismissing the indictment under 18 U.S. C., 241 entered

in this action on May 15, 1967.

This appeal is taken Pursuant to 18 US. C., 3731.

Il.

The Clerk will Soden prepare a saaneiiek of the record

of this cause for-transmission to the Clerk of the Supreme

_° Court of the United States and include i in said transcript

the entire record in this case.

TIL

“The following question is presented by this. appeal

a Whether the District Court erred in holding that the in-

dictment failed to state an offense because 42 U.S.C.,

2000(a)-6(b) barred this prosecution brought under 18

U.S.C., 241. :

This 13 day of June, 1967.

CHARLES L. Goopson

United States oe

" Roperr L. SMrru |

Assistant United States daccany .

I es ey

——

__ SUPREME COURT OF THE UNITED STATES

No. 482, October Term, 1967

UNITED. STATES, APPELLANT.

y Vv.

_ HORACE JOHNSON, ET AL,

; APPEAL from the United States oe Court for

the Northern District of Georgia.

~The statement of jurisdiction in this case having been

submitted and’ considered by the Court, ‘probable juris-

diction is noted and the case is placed on the summary

calendar.

- October 28, 1967

er;

a

| “Mr. Justice Marshall took no part in the consideration

or decision, of this case. ~ .

W ov. S. GOVERNMENT PRINTING OFFICE; 1967 262829 423