*1 argument, sub we withheld oral After v. pending America, decision Strait
mission of STATES UNITED 1971) (9th cert. Plaintiff-Appellee, Laird, Cir. F.2d 843 308, 955, 92 S.Ct. granted 404 U.S. v. L.Ed.2d 271 FEATHERSTON, Defendant- Alfred Appellant. Force Re- Air in the Jensen enlisted completed the active He in 1966. serve America, UNITED STATES during obligation, duty portion his Plaintiff-Appellee, or- a medical he trained as was v. assigned derly, an or- then Defendant-Appellant. Jr., RILEY, Charles ganized Air unit at Mather reserve 71-2385, 71-2687. Base, Nos. Sacramento, California. Force discharge from requested he Appeals, United States Court ground he was a on the the reserves Fifth Circuit. objector. conscientious May 25, 1972. Air Force He was interviewed four Rehearing Rehearing En De- Banc officers, whom recommended all of July in No. 71-2385 nied proval. Department Air The request disapproved Force Octo- giving then
ber no reason. Jensen
sought denied, by the review was Military Board Correction reg- He has declined to attend Records. meetings September ular reserve since
1969 because of his beliefs. Rice, as com- respondent Colonel
The
manding reserve Jensen’s officer January petitioner unit, informed being subject or- he was 1971 that years duty for two dered active then drills. Jensen
nonattendance corpus petition habeas
filed his California, in which Eastern District was located unit reserve
district his resided.
Colonel Rice court concluded district jurisdiction writ. to issue the
had no findings was based This conclusion unit from absent had been that Jensen
training that his since assemblies
commanding no control had had officer no had time and him since that
over
power freedom. to restrain his deci- conclude, basis
We on the Laird, 406 U.S.
sion
Strait
(1972),
1693,
the district court corpus petition. termine his habeas any opinion expressing on the
Without petition, we remand to
merits of the proceedings.
district court further *2 (court appointed), Louis Beller R. Fla.,
Philip Jr., Beach, Carlton, Miami defendant-appellant for Featherston. Robinson, Miami, Fla., D. Steven ami- curiae. cus Matthews, Miami, (court James Fla. defendant-appellant appointed), Ri- for ley. Atty., Lloyd Rust, G. Robert S. W. U.
Bates, Miami, Jr., Atty., U. S. Asst. Fla., plaintiff-appellee. for BROWN, Before Chief JOHN R. Judge, SIMPSON, BELL Cir- Judges. cuit BELL, Judge: Circuit appeals, consolidated opinion purposes, Alfred Featherston Riley challenge and Charles their convic- teaching making or tions use explosives incendiary devices, or in vio- (l).1 lation of 18 U.S.C.A. § provides: may any way 1. The statute disorder or adversely degree obstruct, delay, or demonstrates “Whoever teaches or af- any person use, applica- other fect or the movement commerce tion, any making any commodity or or ex- firearm in commerce article or plosive device, incendiary performance any or or tech- or the conduct or nique capable causing injury federally protected or function. knowing having persons, death to or s}s s¡; s}s sj: intending reason than to know or “Shall not more fined unlawfully employed $10,000 imprisoned more same will be than in, of, years use in furtherance a civil or both.” five assignments use, making application, error that the There are several ap- employed primary in each devices be contention but the (1) un- furtherance of a peal either civil disorder. The is that § requirement court of ov- concluded “The on its face because constitutional vagueness, scope of intent alter- of course or in the ‘narrows erbreadth and native, exempting applied enactment innocent or unconstitutional as *3 alleged- government inadvertent pellants proscrip- conduct from the because its ” ly present Appellants tion.’ 411 F.2d a and at 937. failed to clear show urge reject danger interpretation by us to First Amend- of as mandated the this § 231(a) (1). However, appeals per- we do find no merit in ment. We the required by ceive that such a result is and therefore affirm the convictions. by permitted the nor Constitution Su- organi- Appellants in an leaders were preme precedent. Court Militant Black Afro zation known as BAMM, Movement, operating in the States, 1940, or In Gorin v. United 312 meeting Miami, At a 429, 488, Florida area. 19, U.S. Supreme 61 L.Ed. 85 the 1970, Riley, group May with upheld this on Court the constitution- supervision ality Espionage the under the assistance and of the Act of the gave Featherston, provisions to the instructions incorporat- of which are now to make in on how members attendance ed into 18 793. The statute § U.S.C.A. incendiary explosive employed and and before language assemble the in the court Gorin purpose of this The stated devices. “with intent or reason to be- prepare lieve,” challenged the mem- to proc- demonstration was on due coming BAMM, grounds vague- for “the revolu- bers of ess for overbreadth and activity, ap- argument response of this tion.” As a result to ness. this the violating pellants Supreme indicted for were Court stated: 231(a) They tried (1). were U.S.C.A. § uncertainty find no “[W]e in this separate juries appeals fol- to and deprives person statute which a their lowed conviction.2 ability predetermine to whether a con- templated action is criminal under the I provisions of this The obvious law. delimiting in the statute are words argument vagueness is di- Appellants’ requiring those ‘intent or reason to “knowing language or hav- the rected at believe the to that information be ob- 231(a) ing in as used § reason to know” injury used tained is to be this lan- (1). that It contention their is States, advantage the United the to liability guage in terms creates criminal any foreign requires nation.’ This vague common men of so broad and intelligence prosecuted those to in have acted bad meaning guess at its must apply only faith. The sanctions when application. and scienter is established.” 312 U.S. at by rejected argument was This same 27-28, 61 433-434. S.Ct. at Mobili- in National Circuit the Seventh End the War to zation Committee We led to the are thus conclu Cir., 1969, Foran, 411 F.2d 231(a) (1) Vietnam sion that is not unconstitu § the lan- language There court construed 934. guage the tional stantially its face. The is sub require by intent an of the statute to the that sanctioned same as charged charged Riley 2. in an indict- were with defendants The third count also containing 5861(d) violating three counts. The first ment and §§ 26 U.S.C.A. charged jury guilty the both defendants with count A verdict of not 5871. (1). against violations of this final § 18 U.S.C.A. was returned on count only charged Riley. remaining The second count Featherston the issue Thus §§ with violations of 26 U.S.C.A. concerns the under 18 U.S.C.A. conviction (d) of the indict- and This count § by court. ment was dismissed the district govern- stitutionally Gorin, applied Supreme the and we because the Court prove happening sufficiently definite ment failed to the is hold intelligence pendency particular disorder prise its of a civil men common meaning application.3 a and thus failed to show clear danger present justifying an interfer- in both cases We note also that activity protected ence the First with jury district court instructed argument Amendment. find this We defendants, order convict unpersuasive. they the time must find that at danger” present The words “clear and knew place question, the defendants government require do not devices intended illegal planned con await the fruition in, unlawfully employed or in for use here nature as involved. duct such of, Thus furtherance a civil disorder. States, v. United As stated Dennis infirmity aris we find no constitutional ing *4 L. 95 71 S.Ct. 341 U.S. applica interpretation and from the Ed. 1137: language statutory to tion these appellants. be- mean that words cannot “[T]he may act, it must the fore Government sum, the does not cov statute putsch is about to be until the wait re er mere conduct. It inadvertent plans laid and the have been executed, quires prosecuted to have acted those signal If Government the is awaited. knowledge infor with intent or that the aiming its group a at is aware that in used mation disseminated would be attempting to indoctri- is overthrow the furtherance of civil disorder. a them members and to commit its nate whereby they strike will to a course II. the circum- feel leaders when the argument Amendment The First govern- by permit, the stances action First, is that is the contention two-fold. required.” at 341 U.S. ment is language statutory does re since the at 867. 71 S.Ct. knowledge intent, quire permits it prosecution the for dissemination co a showed Here the evidence showing of ideas clear and without a by group, Feather organized lead hesive danger. present In view of our decision engaged by Riley, in aided ston and that the as and statute construed here coming revolution.” preparation for “the showing require the district court does a regularly group a force included This knowledge intent, this contention incendiary de explosives and trained in rejected. transpor standing ready vices, to strike Second, facilities urged, despite our hold- tation and communication it is mo ing operations a regard language at enforcement law the § fae- 231(a) (1), this uncon- Taken within that ments notice.4 the statute was get lliley] heads our utilize ‘We must 3. other criminal statutes Several right substantially the for the lan- and bodies the same or same and minds telling See, revolution, guage complained revolu- the when as that of here. no prepared g., 792-794, 954, might We must tion come. §§ e. 18 U.S.C.A. ” oncoming 2153-2154, 1383-1384, revolution.’ and 2511-2512. the 71-2385, witness another And No. transcript: present page 4. at the 185 of the One witness who was at stated meeting p. taken over the tran- had stated at 61 of “Mr. Featherston 27 group explaining script to the in No. 71-2687: class bombs, use these different “The these items were how could use we everyone help upcoming revolution, make how to in the understood us organization everyone them, it came.” whenever them, Further, p. 69, women how to make the witness stated learn had to keep men, ‘We must that: ingredients one or the house or Mr. made a state- around “After Featherston up revolution, use re- we could ment made so on the was two bombs emphasized [appellant notice.’ Jackson a moments Mr. them on setting, tual we hold that there awas showing present sufficient of clear and al., John A. MADER et Plaintiffs- danger governmental justify interven- Appellants, prosecution appellants tion and the teaching the use and manufacture al., Daniel E. ARMEL et Defendants- explosives devices, as Appellees.
provided in § No. 71-1549. argument Congress exceeded Appeals, United States Court of power its under the Commerce Clause Sixth Circuit. enacting (1) fails to rise § June ques- level of a substantial constitutional rejected. At- tion and is Heart of See Motel, States, 1964,
lanta Inc. v. United L.Ed.2d U.S. similarly no
258. We find merit
assignments having of error to do with indictments, sufficiency and ad-
missibility evidence, and court’s jury under
voir dire examination of the 24(a),
Rule Federal Rules Criminal assignments Procedure. All error
have been considered. We find no re-
versible error.
Affirmed.
ON PETITION FOR REHEAR- AND
ING PETITION FOR EN
REHEARING BANC
PER CURIAM: Rehearing
The Petition for denied panel Judge
and no member of this nor regular active on service Court having requested polled the Court be rehearing banc, (Rule en 35 Federal Appellate Procedure;
Rules of Local 12)
Fifth Circuit Rule the Petition
Rehearing En Banc is denied. “Mr. fighting Featherston made the roof, remark from roof house day, that we could all house, be dead the next and street ...” street. tomorrow, next week or the revolu- And in reference to the meet- jump tion ing, would off and transcript we would have at P. 91 of the in No. things to be 71-2385, able to use following appears: on a moments notice.” “There was some discussion about Other witnesses blowing testified to the same use of these devices as far as testimony systems effect in both up police cases. The re- communication veals the department, nature the revolution con- either the communication
templated system system lighting the defendants. For ex- or the of Florida ample p. transcript any- Light, against police cars, 103 of the in No. Power & 71-2687, following appears thing might : an a hinderance or aggression organization “Mr. Featherston stated that the rev- and to the community.” olution was to be a confrontation be- black street, tween blacks and whites in the