United States v. David T. Dellinger

Amеrica, STATES UNITED Plaintiff-Appellee, al., et Defendants-

David T. DELLINGER Appellants.

No. 18295. Appeals,

United States Court

Seventh Circuit.

Argued Feb. 1972.

Decided Nov. 5, 1973. March

Certiorari Denied See S.Ct. FAIRCHILD, CUMMINGS Before Judges. PELL, Circuit

and Judge. FAIRCHILD, Circuit appeals from convictions These are federal Anti-riot of the 1968 violation charges out of events Act.1 The arose Chicago during Au- the last week of during conven- national gust, party. There Democratic tion of the encounters between were violent several persons city police and other degree parks. of re- streets appel- sponsibility present of the five they act- lants and the intent with ed are the focal issues. appellants Dellinger, are David Davis, Hayden,

Rennie Tom Abbie Hoff- man, Jerry along They, Rubin. charged Bobby Seale, were with' with pur- making speeches for certain promoting, poses inciting, organizing, encouraging riot, having after traveled in commerce to interstate Chi- cago intent to do so. Codefendants with charged Froines and Weiner were incendiary teaching device the use of an statute, federal another violation eight charged conspir- .all were among acy themselves with others to commit offenses under these statutes. Schwartz, Kinoy, Arthur Helene E. trial,2 eight except All stood that a mis- Peterson, Doris Center Constitution during declared, trial, trial was as to City, Rights, W. York William al Brackett, Chicago, Ill., New appellants each Mr. Seale.3 The were Ball, S. Stuart respective convicted on the substantive Kunstler, Newark, J., Jr., M. N. William counts. Froines and Weiner were ac- Rights, New for Constitutional Center against quitted on the count substantive Haney, City, Thomas Thomas M. York them, appellants ac- Stavis, Sullivan, Chicago, Ill., P. Morton quitted conspiracy on the count. Rights, New Center for Constitutional Weinglass, City, I. New Leonard York Dellinger, Hayden as- Davis defendants-appellants. ark, J., for N. organization Na- called sociated with Thompson, Atty., James R. U. S. Jef End tional Mobilization Committee to frey Cole, Breen, Royal Martin, James (often in Vietnam referred the War Jr., Attys., Chicago, Ill., Asst. U. S. “Mobe”). Hoffman and Rubin had as organized, plaintiff-appellee. Youth Interna- late Chicago, Ill., Ganz, for amicus (often Party, Y.I.P. referred to as Alan S. tional Yippies). Yippie, curia. (7th Cir., 1972) contempt involve U.S.C. § proceedings resulting trial. from the same (7th Seale,

2. United States v. 461 F.2d 345 severed, Cir., 1972) Dellinger, and later 3. His case was dismissed and re F.2d government. on motion of organization Park, Mobe an “umbrella” near was Grant Lincoln in Park. protest groups composed Yippie festival, along and of various which held lies its sponsor Chicago’s Michigan purpose shore, demonstra was Lake its and ex- against military of activities tions tends northward from 1600 North. Vietnam, front, in and rac Grant Park is the United States also on the lake injustice poverty, in the United and extends from and about 100 ism, North Starting early 1968, plans Michigan in South. States. Avenue runs along protest edge demonstrations north and south were formed the west Chicago during con “Loop” in the Democratic Grant and the Park, downtown Michigan. Chicago from time Contact made area was is west of vention. Chicago city Da The to time with officials. Conrad Hilton Hotel was a focal Dellinger point during number of was one of a vid convention week because of Mobe, significant party others identified co-chairmen of individuals and being Sidney groups residing in the record Professor committees and and Peek, University, headquartered Pro Western Reserve there. The Hilton is on Kalish, University Michigan Avenue, fessor Donald west side of Msgr. Angeles, (or Los California at extends from Balbo Avenue East 7th Rice, Pittsburgh, Street) Rev. north, Charles O. at the East 8th Street Ralph Abernathy, Southern Christian at the south. Convention sessions Leadership Conference, Atlanta. Rennie Amphitheatre held at the International aged Davis, Project was Mobe’s Streets, many at 43rd and Halsted up Director for these and set activities blocks south and some blocks west of the Chicago. an office in Hilton, little a more than miles five away, Amphitheatre over all. The was Yippie organization, was a less formal objective protest the announced of a leadership Hoffman, under the Rubin place. march which did not take a number One announced others. protest interest was American con- charged I of the indictment Count style military ventional life as well as conspired that defendants and others Yippie involvement in Vietnam. only to in travel use the facilities of planned to hold a “Festival of Life” interstate commerce the intent with Chicago during parks convention week. incite, promote encourage organize, expressed circular, As in one the festival riot, participate but also to car- six-day music- “. ry riot, to commit of violence acts youth film-theatre-anti-draft festival riot, in furtherance of a and to aid and express youth which cul- will new persons activities, in such as well as abet ture and demonstrate to the world will to commit under 18 offenses U.S.C. § continuing the life conflict between (3).4 alleged (a)(1) and It a number of youth military- and the death of the objects overt to effect the of the con- acts political system.” spiracy alleged speeches besides Although sepa- Yippie By Mobe the various counts. reason substantive organizations, acquittal I, rate their came leaders verdict Count we together meetings early longer allega- at several are no concerned with its tions, activity proof 1968 where for convention week nor offered there- Chicago planned. under, except proof There was a as such tends es- degree community requisite of ef- considerable tablish intent or some other during fort the week itself. the much more substantive narrow counts. principal The events are of con- appellant charged

cern occurred in the south- this case Each in one Park, portion traveling ern Lincoln in and count in interstate com- teaching interfering 4. These offenses include demon- fireman enforce- with a or law strating incendiary engaged during use of devices with ment officer his duties disorder, knowledge be used will civil such civil commerce, disorder which obstruct 350 flict, appears from of Illinois to Chica- but that an

merce outside exhortation pro- by police go, incite, organize, Rubin to attack the the with intent to was August encourage riot, speech and thereaf- basis the 25th mote and a charged against at ter, specified dates and him Count VI. on or about locations, speaking “to an specified P.M., officers, police About 10:30 two assemblage purposes persons for the assigned Hayden, to follow Davis and organizing, inciting, promoting and of encouraging and who had followed them into Lincoln speech or riot.’’ The a Park, men, allegedly two discovered Dellinger charged were, against speeches Hayden letting Lowenthal, air and Wolfe Park; II, August Grant 28 at Count out of the car. A tires the officers’ August III, against at1 in Count Davis gathered crowd the officers elected and Chicago August at9 Avenue. 30 West time, not to make an arrest at that (407 Dearborn office S. the Mobe Hayden fol- the was made the arrest August Street), North Noble at 1012 18 lowing afternoon. Park; August Street, at Grant and 26 P.M., police after 11:00 the Sometime August IV, against Hayden in Count park closed. announced the August Park, at Grant Lincoln at police Later, line officers moved V, against Park; Au- Hoffman Count through park, from east west August gust Park, Lincoln 26 at remaining forcing crowd out of August Park, at Grant Lincoln Park; park. testimony po- There was IV, against in Count Rubin nightsticks, people lice struck with their August 26 August Lincoln 25 at ParkA park. within and outside of the both August Park, at Lin- at Lincoln coln Park. Monday, August 26: city between encounters Violent Hayden, After the arrest of Davis led persons police in and occurred and other protest 1,000 people march of about nights of in the Lincoln Park late near police from Lincoln Park station August Tuesday, Sunday, Monday, and (two at 11th and State blocks west and police ordered after Hilton). three blocks south of the After park people'in leave accord- making police various chants at the sta- closing park ance with the 11:00 P.M. tion, proceeded east on 11th the march major inci- The other violent ordinance. Michigan Avenue and then north evening dent occurred day, August Wednes- along edge A west Grant Park. Michigan Avenue 28th on Hilton, block there lit- south is a in- Hotel. The crowd near the Hilton park, topped by tle hill in the after- volved there had come from an Logan, equestrian statue of John A. rally noon Park. The relevant Grant Civil States War General during the week are summarized events Logan- Senator from Illinois. The first as follows: statue-ineident of week occurred up here. A number of marchers ran Sunday, August 25: hill, the statue. and several climbed very Yippies conducted rock concert The extent of violence does not except clearly testimony appear afternoon Lincoln Park. Esti- up young people mates ran that one man who climbed the number 4,000. There were minor brushes arm became two statue testified that his During wedged part police police. with the in some of it and the afternoon Hayden legs pulled until his arm broke. Davis led a march of sever- on his testimony Hilton, al hundred to the a mov- There that as the marchers where ing running hill, yell- picket up line without were Davis was was maintained ing loudspeaker hill.” About was a to “Take the incident. 9:00 P.M. there on directing police confrontation in a Later Lincoln Park between when down, testimony group police group people to come officers pigs yelled: let the persons. in con- that Davis “Don’t The details are Later, Park, appears in number of the Lincoln a That the hill.” take clergymen, presumably protest August speech in 26th for the basis against Sunday charged against Mon- in III. the force used and Davis Count meetings by day police, the held service a by Davis at earlier Talks 1,000 people participated. of convention which about preparation the events for speeches police after for the Sometime 11:00 P.M. the the bases were week charged against August 1, crowd, dispensing and him on moved on the tear gas. expelled the The crowd was park, testimony there of beat- and was evening Monday thousand several On ings officers, by policе assaults on gathered Trash Park. people in Lincoln police, and commotion and violence benches, cans, park elements and similar park streets near the for a substantial barricade, apparent- into a were formed period. impeding ly purpose the clear- for the police. persons ing park by After 11:00 Meanwhile several thousand police gathered portion P.M., in the Park an announcement Grant and park, Michigan Avenue, tear immediately people leave east of should that police- po- gas spread, opposite the Hilton. and and About 50 was park, along surmounted lice officers were a line the east men crossed expelled testimony crowd. There that and sidewalk. was barricade people testimony epithets were few missiles were thrown was and There people police police. police as- The made shouted at clubbed police; expelí missiles no effort the crowd from the saulted police police park vehicles and the crowd remained thrown at several mace; police used damaged; They speech by Hay- hours. left after a block area pursued people in several den. including had park, some who

near August Wednesday, park. : in the not been Monday, Nomination of for testimony a candidate Presi- on There dent groups in was scheduled for convention spoke to Rubin Hoffman city granted Wednesday. on urging park had Lincoln Park permit rally Mobe a for a band- the bases at the apparently are These held. Park, although requests charged shell in Grant speeches August 26th for the Amphitheatre for a V, march to the or a against VI. them in Counts neighborhood demonstration in its had August speech 26th basis Wednesday been denied rebuffed. On against Hayden charged IV Count afternoon from about 2:30 P.M. 5:00 clearly identified. P.M., 10,000 15,000 people attended rally Tuesday, August 27: at the bandshell. evening

Early speakers. Tuesday there was a There were a number Dellinger Rubin rally in Park at which was master of Lincoln ceremonies disput- only spoke. There was also his speech talks were basis for the and Seale charged against testimony to a Hoffman him in ed of a talk Count II. Hayden’s group speech These talks P.M. near the end of the about 8:00 ral- ly apparently for the Au- apparently the basis the basis for the Au- against gust against charged speech charged Ru- speeches gust 28th him in 27th Count Hoffman in Count IV. bin in Count VI and

V. and National Guardsmen were Police raising rally, Park, P.M. a fund At 8:30 hand Grant and before “unbirthday” party rally Presi- virtually off the an terminated sealed termed Coliseum, Johnson, park. was held violent confronta- dent One incident or during rally south tion occurred one block west and seven when flag lowered the American Hilton. individual flagpole Deputy Superintendent near the bandshell. He was of Police testimony of vio- police. arrested there was Rochford inwas command of the gave police and lence between some of the He the order to clear street. police in connection members the crowd Arrests and battle between the is, course, with that incident the area where crowd followed. There Dellinger plat- (some testimony from the it occurred. conflict in the of which urged apparently form the not to become comes audience from disinterested people), involved, testimony injuries and there is but there were as- and by Superintendent the some of marshals recruited Mobe saults on both sides. separate although indicating Rochford, made an effort the injured to crowd that he police. one, from the was at Davis considered the crowd a and vicious hospital. presumably injuries responsible went to a about this time for and the police charge occurred, testimony There of a admitted on cross-exam- tactics, police into the seated crowd. ination far the “As as beyond some a little officers went what Dellinger rally, Late the announced expect professional po- I to do them he would a non-violent march lead lice officers. That’s a matter of fact. I notwithstanding Amphitheatre, to the am with dissatisfied that.” permit. large segment lack of A the more) of the (3,000 crowd or formed Thursday, August 29: along Drive, extending ranks Columbus afternoon, rally In the there was a park. a north-south drive The by Grant Park addressed number north, to head march was the including Eugene speakers, Senator the near intersection of Balbo as it McCarthy Gregory. Mr. and Dick At park. police crosses the The did not al- point one it announced was there proceed, the low march to and it re- Amphitheatre. be a to march the orderly nearly mained immobile and A crowd of several thousand walked hour, negotiated leaders an while the Michigan Avenue, south on but was police. police per- with The offered to stopped Michigan police, at 18th amit march to one of several other des- under Superintendent Roch- command tinations, Amphitheatre. the but not to minutes, ford. After few crowd 7:00, Dellinger Approximately to 6:30 proceeded Michigan, on with north announced that the march would not oc- accompanying Rochford it. The second cur, began people and the to leave. Par- Logan-statue-incident Roch- occurred. Drive, it, allel Columbus and west of ford ascended the hill talked depressed Central Illinois Railroad crowd, dispersed pro- after which it through park. run The tracks ceeded north to the Re- Hilton area. bridges are crossed at tracks Balbo marks allegedly made Hoffman Congress (700,S.) (500,S.) and Jackson occasion, proposing kidnapping (300,S.), walkways. pedestrian and two Rochford, apparently basis bridges south of came All Jackson August charged speech for against 29th gas by guardsmen, off sealed and tear him Count V. was released at Columbus Drive government theory Congress. people Most at crossed Jack- facts: son, and moved on Mi- south there There inis some instances conflict chigan. evidence as what a said defendant did, attempt person reform or There was some or whether said who Michigan, something properly or did end identified march with head Street, police appellate as a On at about 10th defendant. considera- people tion, required stopped such this and north. we are resolve moved sustaining people very heavy conflicts in A concentration favor gov- (several thousand) occupied the Balbo verdict and hence favor of the Michigan areas, dis- In other there is intersection. ernment. prop- pute activity, over inferences which orderly can gradually to raise drawn, largely erly respect pitch get so as to the crowd more ex- the intent with which a trav- making defendant cited more involved trou- Chicago spoke ble, eled acted at but not so much as to have a mass alleged time of Wednesday, overt act. big before arrest when the sources of the inferences would be state- crowd was needed the finale. plans travel, ments and before acts and Hopefully the finale could occur during the after arrival and statements Wednesday evening Amphi- retrospective convention, and statements theatre, sought permits Mobe state, attempt afterward. We shall march to and demonstrate at that loca- broadly, government’s theory tion. At the time vio- nomination respect to intent. expected erupt, lence could be or at contended, defendant, easy Each Ideally, least be to incite. said the producing the common aim of vi- prosecutors, shared defendants wanted the during in Chica- government olence convention week using world troops see to the go against under circumstances where it would protect to protest- itself precipi-' ing clamoring that the violence had been youngsters seem to enter at- appear by tacking the perhaps scaling tated establishment and and the walls of government to de- the was forced Amphitheatre. stroy people in or- its own in the streets government pointed The out Although that was der to survive. enough more Mobe had obtained than allegedly purpose had in defendants real housing volunteer to all accommodate purpose they mind, could it was a actually who for both and came Mobe to announce. afford Yippie to and that none activity, needed argued that defendants could sleep It was defend- Lincoln Park. Several large only they if could induce a urged people stay succeed to there neverthe- ants Chicago people knowledge fighting to come to number less, would participate. Rubin to police expelled be on and hand result when the plan of a Festival and Hoffman used had more defendants crowd. One or promoted Davis, Dellinger, Hay- and and plans of Life for activities which holding used the “counter police den idea and divide the attention would Finally to Chica- convention” to lure multitudes violent mill-ins. so-called go organized upon to to and worked apparent a march it became when produce blocked, Per- violent confrontation. Amphitheatre would be to the sought parks for use of must be mits a division of called defendants performers rally, attrac- Wednesday order to obtain as afternoon at crowd permits Yet crowd. if occupying tions for the appearing and to march some pro- refused, others, ultimate were success police effort while with that ducing probable, engaged groups, violence would be more operating in small an- the total freedom restraint parts activity in various violent city. denial rendered nounced for the festival inevitable. out, things the confronta- turned As preparations re- included the Michigan Mobe place at took tion and battle training of volunteer cruitment government relies and Balbo. help marshals, ostensibly or- maintain made several subsequent statements among hoped to Mobe the thousands der event, claims this about defendants government produced But the long-abiding attract. in- proof victory, of a testimony the marshals violence. tent to cause aggressive techniques for trained theory facts: purposes. defense ac- urged government, analyzed counsel by Defense As testimo- where cept defense version tactic it a wise deemed defendants they particular In August ny in conflict. Sunday, 2'5th, out start Amphitheatre, urged police point of the several wit- than disbelief telling attending meetings argued defense that was like nesses who were patriots Boston protesting undercover role. before in an events want, Massacre, anywhere you “Go against addition, arguing infer- go don’t House.” Custom government, urged de- by the ences appar- defendants’ fense contended that issue of fact was whether The broad intent, demonstrate, march, to ent only engage intended the defendants organize activity, peaceful to hold activity, protected amendment first contrasting life, their festival of or, most, civil disobedi- non-violent intent; be- ludicrous to real ence, And second- violence. cause all a facade for the lieve that this was arily, feder- for the because the basis govern- plan to them attributed they under which al criminal statute ment. prosecuted, even the defendants produced parade of well The defense form did the time of convention week witnesses, prominent in litera- known violence, had intent cause ture, music, politics, them some of traveled their intent when been argued Mobe, Yippie involved Chicago? people have these that all govern- duped by if the been defendants THE I. IS ANTI-RIOT ACT UNCON- theory ment were true. STITUTIONAL? argued genuineness They of their constitutionality attempts permits The of 18 their U.S.C. § to obtain and of willingness already before this court. expressions out has been work 2101 suggest- They in Mobilization plans Plaintiffs National city officials. Comm, granted in v. permits Nam all to End War Viet ed that had been defendants, including Foran,5 present proceeded peacefully even have greater sought enjoin presentation of evi- though permits much grand jury in order to obtain people come dence to would have number arguing indictment, the statute Chicago. an The on its face. was unconstitutional theory that the deci- It is the defense consti- that the concluded district court major police actions sions to have by plaintiffs questions raised tutional unnecessary, consequence and therefore dis- and not substantial did occur was the violence which calling for than rather missed action aggression exces- police and product of three-judge would have court which sive force. required by 2282. We 28 been U.S.C. § city suggested that The defense conclusion is “Our affirmed: and, unwise, in- made administration deed, unconstitutional, upon plaintiffs’ statutes these attack pre- decisions constitu- present a substantial does not the Am- near vent mass demonstrations convening requiring question tional phitheatre in order to embarrass- avoid three-judge court.” district of a city par- to the ment as host mayor prominent ty, of was a which argu here make Defendants leader, line chose to follow a hard brought part, ments, not in which were end, which, inevitable made Because of these in Foran. us before Michigan battle at and Balbo. the stat the fact that challenges, added judicial only limited city’s ute received min- has last reference to With operates treatment,6 permit because to some a march ute offer States, 1969). grounds (7th Cir., 417 v. United Carter 411 F.2d 934 Cir., 1969), (9th den. 399 cert. F.2d 384 analysis 2253, only 935, L.Ed.2d 807. 26 2101 90 § other direct S.Ct. U.S. Foran,’s 560, con- F.Supp. Shead, cited other courts have Two find in In re 302 we Livingston approval: 1969), v. (N.D.Cal., aff’d on clusion with 564

355 degree poten- precise proof or standard there is substantial area where abridgment expression, we those elements which relation between tial again given imposed.9 careful the statute will be acknowledging Although consideration.7 warning may ex But a statute’s questions not identified substantial give may tend too far —it describe and perceived us, we when Foran was before regarding warning can conduct which below, when, as set out conclude that we penalized. constitutionally fairly as a whole the statute is read approach and “restrained” traditional elements are all basic relations between judge the statute this occurs is when noted, unconstitu- is not statute ap by its in terms the result worked tional. plication court.10 case before however, instances, where statutes every those must instance a statute constitutionally pro clearly adequately warn that com least its face be at activity be, or give expressive will tected plete precise to notice to rea vagueness, degree even, conduct with some to what sonable men as penal warning activity such is at a basic warn that prohibited.8 That recognized ized, “chill level, setting and re the courts have elements out those bring ing effect,” protected combined, which, deterrence of lationships when expression requires drastic scope. more It rea one within statute’s judicial sonably reflects, treatment of the statute. While but does specify (5th Cir., Garmire, 1053 8. “A meets the standard of cer- F.2d statute rehearing, tainty required 1971), opinion if its withdrawn Constitution Doug- 1971), language conveys sufficiently (5th Cir., definite 442 F.2d 1322 (E.D. warning proscribed Pitcher, F.Supp. las v. conduct “express understanding 1970). La., stressed the measured common Foran when Center, requirement” upholding practices.” both the Turf Inc. v. intent 231(a)(1) States, (9th 325 F.2d § Anti-riot Act and 18 U.S.C. United approved citing Cir., 1964), reliance was States v. This United Featherston, Petrillo, 1, 6, F.2d States 332 U.S. 67 S.Ct. Cir., 1972), involving (1947). 1119, (5th § 1121 L.Ed. 1877 231(a). recognized 9. be as frame- Statutes must rights setting works for and liabilities and 444, Brandenburg Ohio, 89 v. 395 7. U.S. descriptions all time not as detailed 1827, (1969) 23 L.Ed.2d 430 S.Ct. upon of all conduct which statute will in For- court’s decision decided after this impose legal consequences. This frame- suggest at in their brief an. Defendants concept expressed work Court Supreme p. Court 21 that “Until supra p. 7, Petrillo, in n. 8 at S.Ct. 67 clearly Brandenburg, spoke it in (cid:127) language 1542: “We think that at Congress panel arguable con- of this Court provides adequate an warn- used Supreme in Foran and as the cluded ban, ing as to what conduct falls under its Brandenburg it- found in Court of Ohio sufficiently distinct and marks boundaries Whitney [Whitney self, v. Califor- judges juries fairly to administer 357, 641, nia, L.Ed. S.Ct. 71 274 U.S. 47 in the will of the law accordance with though 1095], dis- undermined and even Congress.” years, Dennis v. ef. credited over concept application in An of the is seen States, p. 494 at 504 [71 United 341 U.S. 494, States, v. Dennis 341 U.S. 857, (1951), L.Ed. re- S.Ct. 95 1137] 1137, 515, 857, 870, 95 L.Ed. 71 S.Ct. vitality permit ad- sufficient tained states, no differ- when the Court ence, “We see vocacy facial attack statute to survive a vagueness, standpoint of from the constitutionally and be tested subse- present the standard of ‘clear and whether appli- quent of construction and standards danger’ contained haec verba is one persuaded statute, not this cation.” We are or whether it within judicial holding explanation appli- avoid the can of constitutional measure cability.” Brandenburg, Whit- Foran. As noted already thoroughly ney dis- had been 10. distinctions are discussed These any there indication that credited. Nor is Note, length in “The First Amendment any Doctrine,” relied on residue this court in Foran 83 Harv.L.Rev. Overbreadth (1970). Whitney. 844 356 unpunishable those of over- breadth. instances same deterrence this overly readily apparent con- likely from an breadth where “no oecurs

conduct suggests dealing type struction vehicle for itself as a statute broad conduct, single rehabilitating high unin- the statutes value attached acknowledg- ,”12 prosecution. . . the whole expression, hibited nature, pro- statute must be declared a violation of its ment sensitive ap- amendment, judicial and void for all at- first exceptions usual duced plications. questioned on titude toward statutes grounds. constitutional Third, in a first amendment requirement First, there is not a range case of construction to avoid attacking person of the the breadth significantly overbreadth is narrowed. his con own statute demonstrate language any statute, For context of proscription duct in issue and within legislative guides history are the best constitutionally statute could congressional lengths purpose and the narrowly regulated by statute be Congress policy, enacted a “By permitting determination drawn — of the range thus set of construction. invalidity these statutes with 333, States, Welsh v. United 398 U.S. regard permissibility of some out 347, 1792, 90 26 L.Ed.2d 308 S.Ct. particular regulation on cas the facts (1970) Justice Harlan concur [Mr. effect, avoided es, Court has] [the ring]. range in non-first Within making ex of freedom of vindication might amendment cases there ly additional protracted pression outcome await the presumption be that the said to 11 litigation.” operate only statute was meant to within legislative power, although and that Second, in limits component interpre infringing on becomes another stances of statutes person who tation. In first amendment cases areas a first amendment presumption greatly is either weakened be in an area show his conduct could dropped.13 meaning, simply If with a clear have vindi overbreadth would presumption, out deter cannot be case, result his own a broader cated mined, re- then the statute suffers the over- required amendment for first apparent Pfister, 479, in first amend- This is most 1 1. v. U.S. Dombrowski statutory vague- dealing 1121, 1116, 487, ment 14 L.Ed.2d cases 85 S.Ct. Button, in NAACP ness. Thus 337, 328, 9 L.Ed. S.Ct. U.S. (1963), Id., p. S.Ct., p. 2d made the court that, clear by position be- preferred the decree of “If the line drawn 13. It is the the first permitted prohibited grounds ac- this treatment. tween amendment which NAACP, legislation its members im- tivities of “In [where such instances ambiguous lawyers one, pinges will is an we mind or conscience] on of freedom presume say presumption curtails statute is con- not to stitutionality there no of constitutionally activity protected recognize simply as in one per- possible. way preferred position For standards of of free- little as these vagueness statutory say, however, are strict This missible doms. is not expression.” feared, free in the area of Mr. Frankfurter has Justice vagueness legisla- presumption the close relation of We note is a that such there cases, in first amendment and overbreadth It is rather no tion is unconstitutional. overly permits vague broad a statute since way signaling special more than a of Note, activity, application protected society rights importance these of Doc- “The First Amendment Overbreadth they may regulated noting not 833, trine,” B. [Sec. Harv.L.Bev. by showing mere ‘rational basis’ for a Vagueness Statutes”] Overbroad “The of McKay, legislation.” “The Preference similarity (1970). we find the With Freedom,” N.Y.U.L.Rev. at 1213. against presumption construc- a reduced Cahn, also “The Firstness See in- render the statute tion appropriate Amendment,” equally Yale First L.J. for overbreadth valid considerations. vagueness and, during lated weakness if the and who either the course of any functional conditions set out below are such travel or use or thereafter met, any performs attempts perform overbreadth.14 or any purpose speci- other overt act for ap The doctrine of overbreadth (A), (B), (C), subparagraph fied in plies when a statute to a lends itself (D) paragraph— or of this impermissible ap substantial number of fined Shall be not more than plications, capable such it is de $10,000, imprisoned or not more than terring protected conduct,15 when years, five or both.” challenged by area affected sub law stantially 2102(a) involves first amendment defines the term “riot” to § interests,16 public involving and when there not a valid mean a disturbance n abridgment construction which avoids “(1) or an act acts of violence one first amendment interests. assemblage persons part or more of an mind, persons, With these considerations we of three or more or which act proceed to in- consider the statute now acts shall constitute clear a present danger of, in, volved. or shall result damage injury property or to the [a] Statute. any person person other or to the Congress July A concern of any (2) other individual or a threat stopping and March 1968 was riots. 18 or threats of the commission of an act ch. U.S.C. 102 was added Pub.L. 90- per- or acts of one or more violence April 82 Stat. enacted assemblage part or sons of an of three sections, chapter consists of two persons having, individually more or 2101, “Riots”, prescribing penalty for a ability collectively, of immediate activities, certain “Defini- threats, execution of such threat or tions”, defining certain terms used in § performance where the of the threat- 2101(a)(1) provides, 2101. § con- ened act or acts of violence would danger of, present “Whoever in interstate or travels stitute a clear and foreign facility any damage in, injury or commerce uses or or would result foreign commerce, person property any interstate or in- or to the other mail, cluding, to, person any but not limited other individual.” telegraph, radio, telephone, or televi- meaning 2102(b) the threshold sets § sion, with intent— results, to in the intended referred § (B): 2101(a)(1)(A) (A) riot; a to incite or chapter, term “As used ‘to (B) organize, promote, encour- riot’, organize, promote, incite or ‘to age, participate in, carry or on a encourage, participate in, carry or riot; or to, includes, riot’, but is not limited (C) any to commit act of violence instigating urging persons to or riot; furtherance riot, to mean but shall be deemed advocacy (D) person any (1) or abet in in- the mere oral or written aid citing belief, participating carry- (2) expression of in or of ideas or ing involving committing any advocacy riot or act act or riot; of violence in of a acts of violence or assertion furtherance Note, dissipating 14. Harv.L.Rev. the sake of at 872. focused law for chilling effect, holding its minimal Harv.L.Rev., supra, “A 15. note at effectively of foreclose field implicit rule is substantial overbreadth legislation.” chilling in the effect rationale. only article, supra, presumption at be that sub- 16. The Harvard note the stantially must later, 861, stresses, up as we elaborate the kind overbroad laws set judicially cog- impact” degree is be found chill that is this “area of of language argument of a than the “effect rather challenged is also made nizable.” The narrowly “if a court were to strike law.”

rightness of, right commit, recognized dicially or the as consistent with the any Thus, such act or acts.” first one amendment. who chal- lenges application of a statute Relation of First Amendment. [b] expression conduct which amounts begin Ideally analysis should bringing does not have the burden of his scope with a delineation expression within the amendment. first speech by protected first amend opponent Rather the burden is on his difficult, ment. delineation is Such expression show that such is within one suggested, for as each element is by of those narrow areas which their re- one’s mind is flooded with illustrations partake lation to action of the essential course, which will not fit. Of on the qualities expres- of action rather than hand, protected “speech” one lim is not away sion and therefore are carved from vocal, verbal, expres ited to or art-form the first amendment. sion, and, other, myriad on there are given As to statute then examples injurious everyday activity question there is first the threshold directed or carried on means of the expression whether the statute relates to spoken govern or written word which governed and is therefore first unquestioned regulate power ment has amendment considerations. look for We expression or forbid. All efr ideas is reality solely that answer by, is, conduct, itself, fected and all Thus, the words of the statute. if a necessarily idea, expresses conduct some impact statute in its has or can be ex emotion, thought. Perhaps we can do pected substantially expres to involve generalization no better than a which sion, sufficient, must whether or equates “speech” first amendment with provide. not the words of the statute so conduct which makes an offer is, secondly, question, There the removal place market of ideas. Indeed need we expressive whether conduct is so re precise pur no more delineation for the lated to expression action that pose considering here, the statute away protec therefore carved from the group it is clear that individual or con tion of the first amendment. virtually duct for the dominant and sole purpose expressing public views As to Act, the Anti-riot questions concept is well within government argues times travel speech protected by the first amend expression with intent and not is the ment. “gravamen that, the offense” qua therefore, fact that conduct ex the doctrines first pression “speech” does not mean that amendment are not relevant to our de- regulated it can not at all be or made a termination constitutionality. We crime,18 but does accept argument. result severe limita are unable process. tions on that The first amend There would be most serious doubt negative drafting (“Con ment its whether an individual’s travel with in- gress shall something make no law tent do inimical in- abridging speech. community, freedom of terests of the but without ”) protects any step qua expres- conduct other than the individual travel being sion unless intent, it can be taken removed to effect could be protection pursuant ju- to some made an could, doctrine offense.19 Even if Although Louisiana, protects 536, 554, the first amendment Cox v. 379 U.S. assembly freedom of S.Ct. well as freedom of L.Ed.2d 471 expression, s we think that a discussion of Act, example, require 19. The Mann respect impact the statute speech its transportation by the defendant of a wom appears will suffice. There no girl, specified an or as well as a intent. question validity respect to free- 18 U.S.C. 2421. 18 § U.S.C. 1952 re § assembly requires dom of distinct quires only by travel a defendant consideration. specified intent, with a but also fulfill attempt ment or an fulfill such to intent. constitutionally protected and here. We lawful Congress not done so has responsibility for and statutory interstate demonstration of element view legislative body accompanied activity facilities), for which the (or use of travel validly penalty. intent, prescribes specified element a an by as Congress required the founda- which (incite, provisions or many of its In punish power conduct to for its tion encourage) ganize, promote, the anti-riot inciting in a riot. participating or of causing persons relates to statute test to amendment the first consider We riot, possibility will and that others applied statute to this federal be persons of because liable makes those ap- be would have to as that which same role. It than active their causal rather except statute, plied identical to a state form, expression, is in whatever requiring as an ele- interstate travel bring punish adequate causation to of the offense. ment likely As to occur.20 most ment must be certainly examples very only, rele compels approach A realistic against examples, vant the counts application first amendment test charged incit five here defendants activity leading punishes which a statute ing, promoting organizing, and encour furthering riot, up for at least statute, aging riot under this rioting, in his is that reasons. One two making wholly speeches. based on the invariably by nature, oc tory and almost social, expression political, as an curs expression First Removal of [c] reactions, if not ideas. The or economic Amendment Protection. assemblage usually protesting rioting is employ government, purposes policies fun For our most of a institution, against principle guarding er, or the so re or some other damental probably general, protection first fabric as was moval from amendment cial expression must riots 1967 and 1968 is that the removed case legisla backdrop capacity pro very for have a which are substantial entwining may similarly pel action, is riot tion. A second reason that a or some originally peaceful relationship erupt requirement This well of an with it.21 out many participants present is at heart the clear demonstration danger such. Each intended maintain as test enunciated Justice Mr. participant Whitney It is entitled to a careful dis v. California.22 Brandeis implicit responsibility for the tinction between is the distinction in Yates v. Doctrine,” Note, separating 20. cedure of “conduct” into “ex- “The Overbreadth (1970) pression,” always protected “In- Harv.L.Rev. 861-862 : which is riot, example, subject regulation, is not is citement “action” which activity normally thought points itself an he out that there are “mixed cases” protection Constitution, within which fall the “action” side of may ‘general’ place “Expression and an incitement law takes in a line. often closely phraseology. Still, action, an incitement of- context of or is linked with may it, equivalent impact. often the context of fense occur is in its or speechmaking propagandizing necessary activi- mixed cases it de- these clearly cide, bear amendment ties first however artificial distinction may Similarly, appear be, prohibiting laws dis- interests. whether conduct orderly often the conduct conduct affect classified as one or the other. to be subject judgment protest guided This must be consid- demonstrators. opera- partakes matter test be flexible whether should eration of the conduct qualities expression upon Depending of the essential tion. the times practices bringing question In the is a evolution social action. main this punish- viewpoints public, the harm the con- whether attributable before the laws instantaneous, flag burning ing immediate or mutilation draft duct is except by pun- may whether is irremediable not have first amend- cards ishing thereby preventing subject the con- ment matters.” duct.” Theory Emerson, 21. See Toward General (1966), pp. 357, 372, 59- L. First S.Ct. Amendment 274 U.S. pro- (1927) (concurring opinion). Although Ed. the author follows 360 sought by expression advocacy immediate States,23 do is to harm between United irremediable ex- advocacy and instantaneous and something to believe expression cept by punishing something. essence of the dual It is the thereby Brandenburg Ohio,24 preventing conduct —wheth- requirement v. expression inseparably is locked advocacy use force er the of the before that proscribed it with action. can violation be law advocacy (1) “such shown

must examining question, in Our the validi inciting producing im directed to is ty of the Anti-riot Act its face is (2) that such action” and minent lawless whether, properly construed, punishes it produce advocacy likely to incite or “is sufficiently speech only when a close re 25 such action.” lationship speech between such and vio prem lent action is found to exist. is Semanti amendment The first cally suggest the cases upon that while a stat of unfettered ised the value utory prohibition advocacy protection speech.26 is of violence Constitutional overbroad, protected limited, therefore, speech is since clearly is not to be advocacy, prohibition presentation, it included within is mild innocuous of intentional incitement of unrewarding formula de violence is search scribing advocacy depends punishable overbroad.27 The of violence latter upon vigor. a construction The real “incitement” in terms fervor or sufficiently likely particular speech propel which is question is is whether capacity violent action to be such identified with intended and has ac propel tion. action it is reasonable speech such treat as action. We consider the statute as a whole in The test the attributes determining whether 2101 and 2102 §§ speech in favor of must violent action require expression the relation between achieve before it be classified as ac- necessary and action to avoid first tion and thus removed from first protection. amendment protection amendment has various- been ly phrased present danger— concept The base of the statute —clear inciting Although likely is directed to incite “riot.” there is much said imminent in favor of lawless action —whether definition of “riot” 298, 325, 1080, experiment, 1064, 23. 354 tion. It U.S. is an 77 S.Ct. as all life is an 1356, experiment. (1957). Every year every day 1 L.Ed.2d 1378 if not wager upon we have to our salvation some 444, 1827, 24. 395 89 U.S. S.Ct. 23 L.Ed.2d prophecy upon imperfect knowledge. based (1969). 430 experiment part sys- While that of our Brandenburg eternally 25. For a I discussion tem think that of the we should be requirements prior vigilant against attempts in a restraint context to check the ex- pressions Chicago opinions District, see Collin v. Park 460 we loathe and 746, (7th Cir., 1972). fraught death, F.2d 753 believe to be unless they imminently so threaten immediate Holmes, dissenting 26. Mr. Justice in Ab- pressing interference with the lawful and States, 616, 630, rams v. United 250 U.S. purposes of the law that an immediate 631, 17, 22, 40 S.Ct. 63 L.Ed. 1173 required country. check is to save the (1919), system describes the and its func- Only emergency that makes : tion “. . when . men have realized immediately dangerous to leave the cor- upset many fighting faiths, time has rection of evil counsels to time warrant they may come to believe ever more than making any exception sweeping very believe the foundations of their command, ‘Congress shall make no law good own conduct the ultimate de- ” abridging speech.’ ‍‌​‌​​​​​​‌​‌‌‌​​​‌‌‌‌‌​‌‌​​​‌​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‍. . the freedоm sired better reached free trade 494, States, ideas —that the best test of truth is the 27. Dennis v. 341 U.S. United power thought get accepted 857, (1951) ; of the itself 71 95 L.Ed. S.Ct. Yates competition market, States, v. U.S. 77 S.Ct. only ground upon (1957) ; truth is the which their L.Ed.2d Branden safely burg Ohio, wishes can be carried out. That S.Ct. U.S. theory rate is the of our Constitu- 23 L.Ed .2d 430

361 closely propelling assemblage a cause of a larger related threaten as requiring a danger28 ing public are un riot. greater we Congress in to conclude that §

able (C) (D) requires re- itself aiding action. 2102(a) disorder described a has not abetting quires in another enough type of an assault is which a carrying on, participating in or under safety personal property in on (B), only if and thus could occur action community partici so that of the terests occurred, inciting, (A), or under in intentionally pation and suc in a riot or there would to exist the same thus cessfully causing a riot can be made a relationship to would be re- action as criminal offense.30 quired for incitement. argument might developed The however, require is, no There “incite,” “participate in,” while to “car- riot in and 2102 ment §§ ry on,” any or and “aid abet” 2102(a) Rather as defined in occur. § foregoing embody all a relation to action 2101(a)(1) in four are listed there categories. § they logically appear require in that to occur, extent riot at least to the “(A) riot; or incite a or, specified 2102(a)(2), in with re- § (B) organize, promote, encourage, spect incitement, require element in, carry riot; participate on or a propelling action, that does not so or organ- clearly appear respect to “to (C) any to commit act of violence ize, promote, encourage,” and a less riot; furtherance of or perhaps close relation- insufficient ship required note, as to them. We (D) any person to aid or abet in in- however, (A) that all elements citing participating carry- or or (B) 2102(b), treated alike ing committing § riot or “indudes, to, each is not limited act of violence in furtherance of a urging instigating persons or other riot.” riot.” con- We think more natural categories specifi- One of these must be struction is that all the terms are an cally travel, intended at the time footing degree equal respect to the purpose one of them must be for relationship required. of causal required which the overt is done or act attempted. argument might A further “urge,” under of its dic made that some Assuming required that the overt act tionary definitions, g., e. “solicit or en by the statute must itself be a fulfill- might earnestly” mean little more treat ment of one of the elements listed in persuasion, unrelated an effort at than (and (A)-(D) merely step toward pro potential or to its success element), question one such then our ducing the desired action. whether one could ever un- be convicted conclude, however, We statute, construed, reasonably der the “urge” embody required does statute speech which fulfilled one of these (i) expression relation of being sufficiently elements action — without riot 30. current District of Columbia example, provided 28. For the definition analyzed statute, States proposed draft of the federal criminal D.C., (D.C., Jeffries, F.R.D. public code “a defines riot mean dis public requires 1969)', defined involving assemblage an turbance five especially Appen- occur. See persons disturbance or more [ten] which tumul A, sets out F.R.D. at which grave dix tuous and conduct creates violent charge the essential danger damage injury property or must substantially persons Government elements or or law obstructs beyond prove doubt. government a reasonable func enforcement Attorney proposed General Proposed riot act Federal tion.” New Criminal occur, required the riot Code, in 1968 also 1801. Title § U.S.C. Congressional for March Record 5213. Yol. 114 at Supra, p. suggest impell- preceding Nearly and action as described in all definitions persuasion, step. it is beyond ing mere pressing, indicates a that “URGE said impelling, The conclusion that the statute influence, seeking over- adequately required rela establishes the obstacle, check, coming or draw- some illegal tion to action which can be made (ii) The course.”31 a certain back argument disposes as of defendants’ well other statutes has term in use infringes that the statute on the funda embody relation ac- a been taken right travel. mental constitutional York, v. 394 U.S. Street New tion. relationship nar The existence of that 22 L.Ed.2d S.Ct. imposition in rows the on travel (iii) conclude (1969). we Unless “involving purpose adequately stances a changes following completely phrase government may which counter. 2102(b) meaning,32 in exclusion its § Aptheker State, Secretary of 378 U.S. (1) oral or written advoca- of “the mere 500, 511, 84 S.Ct. 12 L.Ed.2d 992 (2) expressions cy of belief of ideas or ” to indicate an can be taken . pretend We do not to minimize the of the drafters the neces- awareness problems presented first amendment categories sity avoiding which do of hypo- of face this statute. one relate to seems us that action. It application, thetical the statute could re- categories of all as threshold definition “urging punishment who, having in sult of one instigating” puts or a sufficient interstate, mail, traveled or used the gloss expression propulsion on the de- riot, attempted promote with intent to away it scribed that can be carved speech to make a or circulate a handbill comprehensive protection first purpose encouraging for the three guarantee amendment’s of freedom of people Arguably to riot. the statute

speech. require speech, does not if made, handbill, circulated, or the suc- persuaded If we could be degree any ceed in in substantial encour- any purpose specified the overt “for act aging Arguably the audience to riot. (D) subparagprah (A), (C), (B), in or attempt speak frustrated or circulate paragraph” speech of this could be a constitutionally would not achieve the only step which was a toward one of the relationship any essential with action (A)-(D), taking elements of mere those Arguably event. the statute does not re- ly goals, as we would unable to con be quire speech that a or handbill succeed required clude that the statute an ade producing bringing per- a riot or quate speech relation such between and riot, sons addressed to brink phrase any action. We think the “for prevented only intervening by some purpose specified” is amenable either superseding force, arguably no less meaning, (A)-(D) goals e., or as i. degree propelling by speech of action (A)-(D) as overt find acts. We suffice, though or handbill will in- even adequate what we consider an and un proved. tent to succeed Al- must also 2101(b) contradicted answer in § though reject we arguments, these overt, “one refers to or more of the acts part statute, as constructions of the subparagraph (A), (B), described part grounds declaring void, as for it (C), (D) paragraph (1) or of subsec acknowledge ” we the case is close. (a). Reading tion . . “overt act any purpose specified” equivalent as attack, There an additional purpose specified to fulfillment of particular phrase on a based in § (A)-(D) 2102(b). leaves the statute with an The contention is that rea adequate expression relation phrase definition, between son of this § discussion, 31. Webster’s Third New International Dic- infra, page. 32. See tionary (1961). segment protected repetition drafters meant a since exclu- expressly forbids a advocacy (1) (2) of violence sions would have expression, sufficed. mere point phrasing propelling such action. The defendants without problem, shall term the evidence of the vindictive intent which we whole explanation negative,” last fails to rec- is created drafters. Their “double italicized) ognize likely phrase (which here exclusions we have (1) (2) unnecessary 2102(b): show of § caution, only an as does abundance § chapter, the term ‘to in this “As used 2101(e) purpose excluding travel promote, riot’, organize, or ‘to incite a pursuing legitimate objectives in, carry encourage, participate organized through orderly labor includes, to, riot’, not limited but is so, lawful If exclusion from means. instigating persons urging (1) (2) should not be read to riot, deemed to mean but shall change intent of the statute which (1) advocacy the mere oral or written precedes (1) (2). exclusions belief, (2) expression of or of ideas approach Another is to assume that any involving advocacy or act of phrase the drafters of this realized that or assertion acts violence of of truly inciting, action-propelling speech a of, right commit, rightness or advocacy will include of of acts violence any such act acts.” rightness and assertion of the of such negation negation A true of a is an af- acts, challenged intended that firmation, a careful exclusion from phrase forestall claim such likely an exclusion is at least to result speaker that that context such advo- provides an If statute inclusion. cacy and assertion constitute mere advo- punishment for mere or written ad- oral cacy expression of ideas or of belief ex- vocacy an of of act violence or assertion (1) (2). still, cluded under There is rightness violence, of an of of act es- construction, in this some awkwardness principles already tablished referred to assumption unnecessary and an that lan- require declared that be void. guage employed, was but under all the Thus, phrase the italicized creates a se- circumstances, including relationship problem presented rious which phrase parts of this to nor either considered the district statute, we deem it the reasonable most court or court Foran. this construction. legislative gives history no sensitivity We are aware of the help identifying the intent with with which a court must undertake con challenged phrase which was added. portion struction of a of a statute warnings offеred, during It against does show that, properly construed, a claim period the matter portion was under consid such creates first amendment eration, advocacy, mere even prosecution that of un Possibility overbreadth. conduct, constitutionally protected lawful could not vague under conduct a be forbidden. If may we were to conclude arguably statute which cover it is negative the drafters of the double itself an element of overbreadth. advocacy intended make mere of “Even it can be said a convic- fense, we would have to believe did falsely taking tion for this oath would warning provid so the face of so sustained, possibility not be ing would render the statute invalid. prosecution gainsaid. cannot be The structure of the statute as a penalty ‘It is not the itself gives gov- whole likewise invalid, little aid. exaction of phrase calls ernment “awkward obedience to a rule or standard that is phraseology” vague really meant to exclude the de- so and indefinite as to be ” advocacy, preceding scribed Baggett not from the no rule or standard at all.’ exclusion, being Bullitt, but from 360, 374, the terms de- v. 377 U.S. 84 S.Ct. explanation 1316, 1324, fined. This assumes 12 L.Ed.2d encourage long incite, organize, promote remains statute avail “So specified prose a riot” and that on or about the State the threat

able to Chicago expression specified protected is a date location in at a cutions assemblage[s] speak to Even the did [an] real and substantial one. “he inciting, persons purposes or- prospect of such for the of ultimate failure encouraging ganizing, promoting dispels prosecutions their no means riot;” expression. in violation of protected 18 U.S.C. chilling § effect on Quantity Copies Books v. A adequate- We conclude each count Kansas, 378 U.S. 205 of] [84 [State ly stated an offense.33 To the extent 809]; Bantam 12 L.Ed.2d S.Ct. any uncertainty as to there Sullivan, Books, Inc. v. U.S. given speeches two more 584]; Mar 9 L.Ed.2d S.Ct. [83 day same same location would be Property, Warrant cus v. Search [s particulars on, relied a bill of etc.], 1708, 6 U.S. 717 S.Ct. [81 seen, appropriate. been As will we 1127]; Speiser Randall, v. su L.Ed.2d have decided to reverse for trial error pra 1332, 2 L. U.S. 78 S.Ct. [357 trial, and abuse of discretion. The first 364(4) is so in Since 1460]. Ed.2d § together our discussions up timately bound definition supplied opinion, has whatever identifi- Bag reasoning of under invalid particular speeches might cation of gett Bullitt, it is inval we hold that required surprise to avoid at a new trial id for same Dombrow reasons.” government proceed. if the elects to Pfister, 479, 494, ski 85 S. v. U.S. acknowledge We some attractiveness (1965). 1116, 1125, Ct. 14 L.Ed.2d argument in an in an indictment pros- possibility that We consider charging inciting speech as an of- ecution would be undertaken in reliance fense, amendment first considerations proffered on defendants’ construction of greater require specificity than is found challenged phrase as minimal. grand jury this indictment. A Bearing by purpose in mind the served merely likely be less to indict for the ex- doctrine, the overbreadth to avoid the pression of extreme views forced chilling speech, free consider it of we set out least at substance of the unreal, well, suppose that the exis- giving statement circumstances provi- tence of this obtuse and obscure reason to believe the statement had the problem expression. sion deter will capacity propel unlawful action. The Form, escaped recognition now raised resulting process analysis would be an by attorney present the then de- prophylactic against prosecu- additional fendants, court, the district protected expression.34 tion for areWe this court. not, however, persuaded that there is Accordingly pres- departure we conclude that the real need for a from the usual challenged phrase principles ence applicable sufficiency does not to the amount to overbreadth. of indictments. III. ADEQUACY VALIDITY OF

II. INDICTMENT: OF INDICTMENT. JURY SELECTION. challenged Defendants the in moved Defendants to dismiss the in- dictment for failure to state an offense ground grand sought jury dictment on the particulars. and also a bill of improperly They charged particular selected. later Each count defend challenged array jurors travelling during petit period ant ground. of our same time in view deci- commerce out interstate from respect sion error, to trial we are side to Chicago, Illinois “with intent protective argued function of See comments have not Defendants Hayes, grand jury. Branzburg charge speech U. counts more one than 665, 686, duplicitous. L.Ed.2d 626 S. S.Ct. are directly only stand- with the tested constitutional concerned chal- must be lenge independently grand jury indict- not and the ards whether perfect more cross section ment. seeks a act requires as itself than constitution attack the use of lists of Defendants minimum. actual) (registered as the voters sys court has held that a names in the master This source from which grand using only randomly jury are, effect, jury selection wheel tem arguing drawn,' of names “results voter lists as sources that this blacks, рermissible.35 disproportionate exclusion of mobile, youth politically and the alienat- only When the voter lists are ed, likely to be as these classes are most names, source of is obvious popu- members of the disenfranchised system qualified “excludes” residents lace.” jury quali- not service but who are Defend- fied or do not choose to vote. indictment was returned after suggest persons ants that the so “exclud- 22, 1968, date of the effective December politically ed” constitute a class of Jury Act of and Service Selection po- An infinite alienated. number of grand 1861-71. The 28 U.S.C. §§ go litical into attitudes inclinations empaneled the ef- before had been phenomenon non-participation date, time, however, when at a fective process. the electoral It is not clear that registration lists were the source voter grand jury the attitudes relevant prospective ju- the names 97% might function which be characteristic gen- act, rors. The declares § political alienation held also litigants policy “shall have the eral by many persons who do choose to vote. right grand juries petit selected providing We do think that the label from a fair cross section random cogniza- “politically creates a alienated” community in the district or division group being excluded ble convenes,” and, court wherein the § jury service.36 speci- on several forbids exclusion grounds. provides, It also fied § appear, generally, It does that a 1863(b)(2), jury plan shall, in that each percentage younger lower of some of the registration or voter addition actual age register vote, compared groups “prescribe lists, some other source or percentage of older with the some sources of names addition voter age groups register.37 who At the time policy necessary lists to foster the where jurors prospective selected for were rights protect and secured sec- aged grand jury case, persons in this tions 1861 and 1862.” qualified to 21 were not to vote. 18 To the defendants claim It if are atti- extent sub- would follow there jury grand jury comply func- failure to stantial tudes relevant act, subject period their motion is to a un- tion which are characteristic of the 1867(a) prescribed age groups derrepresented of limitations or excluded § the voir —“before dire examination be- and different from those characteristic days gins, age groups, within seven after the de- the older exclusive use discovered or discov- fendant could have voter lists of random selec- as the source ered, by diligence, probable the exercise of those it less tion will make grounds therefor, represented, propor- is earlier.” whichever attitudes will appears tionally represented, any particular It be conceded that defend- on grand jury. many ants’ motion came too late under And there are atti- government statutory provision. Hence their claims toward life tudes and analysis problem Judge Gast, 35. 37. 141 of the United States 457 F.2d See Doyle’s (7th Cir., 1972). opinion cited, p. v. Gar- 142. in United States See cases gan, (W.D.Wis., F.Supp. Kroncke, F See States v. Gast, supra 1970), affirmed fn. 1970). Supp. (D.Minn., group commonly thought asked the entire veniremen it is pro- following generally questions: from people differ younger whether jurors acquainted spective people. older FBI, employees of the or of the Justice Feasibility voter reliance on makes they Department; ac- whether large They contain a lists attractive. defendants, counsel, quainted with their quali- precisely perfect sample of the associates; they could or their whether reflecting area, all fied residents of an given agree follow law as varying attitudes relevant them; they keep open could whether grand jury resi- function which such verdict; mind time to reach a until Among persons qualified to dents hold. testimony they whether could treat discriminatory prac- vote, absent government agent of a the same as that administering sys- tices in election any witness; prior whether here, tem, voter not demonstrated jury prevent service them open list is as a matter choice. being impartial; whether there was choice of as the source the voter list any they fair and reason could not be surely jury in- names selection is impartial jurors Fifty-six in this case. except discrimination, where the vidious explanation veniremen without stated discriminatory prac- list itself reflects they impartial could not tices. agreement par- were excused underrepresentation We view they Two others who said could ties. residents, younger voter lists of impartial particular not be for a reason thus of attitudes which relevant were also excused. prevalent among younger may be more jury box was filled and the court residents, why than older as reason questioned individually. the first ways supple- desirable to seek feasible questions, pri- The court asked standard list, pre- ment the voter are not we marily relating family to marital and pared say voter use status, oсcupation prospective juror per- per se in distortion of list results length employer spouse, of em- fect cross section sufficient to render an ployment prospective juror constitutionally indictment invalid. spouse, children, number of their schools occupations. IV. DIRE VOIR EXAMINATION. veniremen said Two who worked paths impartial One of government for the federal were asked guaranteed by the sixth amendment government being employee whether the voir examination. dire Defendants judgment. would influence their Anoth- ground seek reversal that the voir asked, you er was “Do feel that the fact inadequate. dire examination was This your that father is a member of the Chi- claim has two branches. The first is cago Police Force and has been for “perfunctory” that the voir dire was so many years judgment your would affect respect to attitude it that failed to juror you if as a were selected this

provide basis for a defendants’ chal- they case?” All said could im- still be lenges, peremptory. for both cause and partial. similarly The second is that the court inquire any pre- failed to interviewing about effect of After of these each first publicity. trial 12, inquired group the court any whether or had close relatives A. Juror Attitudes. employed any friends who were law agency voir agency The dire examination took a little enforcement or other day. government. 24(a) local, over a Pursuant to Rule or F. state federal R.Cr.P., judge yes, the district conducted court asked When five answered examination, having pro- after his solicited each whether would influence posed questions parties. judgment. from the He All that answered it

367 168, question 519, 521, 162, 94 court did not ask this 339 U.S. 70 S.Ct. not. The succeeding (1950), per- 11 who entered L.Ed. 734 and that of the veniremen “[a] qualified jury jury sons otherwise for service box. subject examination as actual repeated defendants’ Defense counsel Wood, bias.” States v. 299 U.S. questions judge request that the ask 123, 177, 179, 133, 57 S.Ct. 81 L.Ed. 78 respond- they The court had submitted. Jury (1936). person service a ed, conclusion that “I have reached the particular bias case would vi- actual germane to haven’t asked are not those I right impartial jury. olate the to an presented here the indict- the issues guilty pleas ment and the of not there- Subsidiary challenge for is cause challenge peremptory to.” where bias is suspected implied. “on or It is exercised jury persons The after 24 was selected thought grounds normally irrelevant individually questioned, the de- had been legal race, proceedings” re- such as “the per- fense had exercised 10 of their 17 ligion, nationality, occupation or affilia- govern- challenges,38 emptory and the jury people for tions of summoned Appellants accepted ten- ment two. association, duty,” appearance, and the greatest jury dered but “under like, and it is “exercised without a rea- protest” asked because the court had not stated, inquiry son without without necessary questions they for considered being subject to the court’s control.” challenges. exercising fully their 202, 220, Alabama, Swain v. 380 U.S. In order sustain their 836, 824, (1965). L.Ed.2d S.Ct. necessary contention, present is not members of defendants to show that for government argues The prejudiced. The fact only obligated inquire court pro exclusively on whether the focus is disqualify the into matters that would testing impartiality cre for cedure used juror cause, for the court’s and that preju assurance ated reasonable group questions adequate first present. We dice would be discovered produce any relevant disclosure of generally recognize no ac there is disagree. govern prejudice. We determining ap cepted formula upon position ment’s must an as rest propriate depth voir breadth and sumption general question to the dire, except discretion is court’s group any whether there reason “subject demands of essential impartial fair and can be could not be Aldridge States, fairness.” v. United produce relied a disclosure 471, 283 U.S. S.Ct. disqualifying state We do mind. L.Ed. 1054 prospective juror is so believe jurors prejudices. We start with the exclusion of alert to his own Thus it is cause, explore backgrounds where actual bias is admitted essential presumed. Supreme jurors Court has attitudes of the to some extent ' “ bias, said that . . the trial has court actual order to discover cause. duty question Schaik, a serious to determine the See Kiernan Van 347 F.2d v. bias,” States, of actual (3d Cir., 1965).39 Dennis United 24(b), F.R.Cr.P., provides juror 38. Rule as a of another excused result peremptory challenges. expression inability impartial defense with 10 her of to be defendant, being In a trial of more than one after shown a letter sent to her may challenges. the court allow additional home. The trial in case court this allowed one challenge general additional for each additional drawn from the are “Jurors defendant, body community a a term total of 17. of the for short jurors service, Four alternate were also selected. . . . and then return to of provides 24(c) peremptory customary occupations Rule two chal- their with neither lenges impartiality. training if 3 or 4 are selected. of nor traditions alternate^ They The defense exercised both. their own One often be unaware of must juror disqualification specific alternates later a became when in cases . . .” 368 (7th 617, Cir., beyond this, 1960), F.2d 632 rev’d answer which But an grounds, 312, S.Ct. 81 short an admission of bias 365 U.S. falls of 645, (1961), deciding in to 5 L.Ed.2d a case counsel in 574

nevertheless aid challenge. eva- peremptory The which defendants were tried for a exercise taxes, per- wagering no er- Supreme we found that sion Court has stated although challenge, required ror to emptory in the district court’s refusal ask not defendants, Constitution,40 questions the most but “one of tendered is rights important the we trial court had substi- noted that the secured “ “designed accused,” questions uncov- denial or im- tuted two that he [t] against prejudice gamblers right er and reli- pairment error is reversible against gambling.” gious scruples At showing prejudice.” without Swain requested by counsel, 202, minimum, when Alabama, 219, 85 S.Ct. v. 380 U.S. 835, (1965). inquiry 824, into L.Ed.2d must be made matters 13 759 challenge peremptory provided prejudice is so where the likelihood great system by 24(b), inquire fail- F.R.Cr.P. that would risk federal Rule impartial jury.41 assembling ure in right empty If is not to be an this one, upon request, must, the defendants inquiries What these essential permitted inquiry into the be sufficient are, course, varies each case. background jurors attitudes of the Many might elements of ease this have intelligently enable exercise them jurors’ prejudices. aroused the One of challenges, peremptory their Cf. United protest the central themes was (7th 431, Esquer, 434 v. 459 F.2d States against this nation’s involvement in war Lewin, Cir., 1972); v. United States in Vietnam. Defendants were leaders in 1972); (7th Spells Cir., F.2d 1132 v. protest such and claimed their mili that (5th States, 609, 611 263 F.2d United tancy go constitutionally beyond did not denied, Cir.), cert. U.S. S.Ct. protected There bounds. were and are (1959). 3 L.Ed.2d 1535 deep resulting society divisions in our gravely war, from that illustrated government is correct unprecedented this confrontation at the should collateral or unrelated issues major political party convention of a Daily, United be raised. States activists, these 1968. Anti-war such as Cir., (7th 1943). But this 139 F.2d 7 defendants, last decade over questions does not all must mean that challenged validity concept directly pleas relate indictment patriotism young people, requires questions may appear case. Some might pro people who be akin sons tangential actually trial so country spective jurors, to die integral juror’s the citizen view they mistaken, immor war consider case, especially publicly one with al. do not the court We believe that they issues, controversial must safely assume, inquiry, could without id., explored. example, Daily, For preju no the veniremen had serious acknowledged right this of a court recognize subject, dice this could Witness defendant Jehovah’s prejudices lay such them aside. ju inquiry faith to a limited into the prejudice against evaluating topic, impor- rors’ Jehovah’s Wit this nesses, though religious trial faith recall time even his tant when occurred, recognize the divi- was not court. an issue before the Sim ilarly, public Clancy, sion States v. attitudes toward Viet- Certainly States, voir dire. there are situa- 40. Stilson U.S. v. United impanelled where instructions to an 40 S.Ct. 63 L.Ed. tions in the voir would cure weaknesses government suggests But 41. The dire. can never a substitute inquiries during into voir for essential the areas court’s instructions dire probable prejudice seemingly throughout trial created an atmosphere impartiality reinforced veniremen. changed changing evaluating inquired war and is nam has be in about his abili- unpopularity ty impartial juror. The extent of of the still. to be an 1972, opinion in when this is writ- war view, inquiry In our some minimal ten, probable index of the not a fair into at least these three basic areas was subject opinions on that in a cross sec- essential to a fair trial this extraordi- September, in tion selected nary case, at least when defendants re- Perspective important. These defend- quested inquiry. pointed such We have Chicago plans in in ants’ for activities general inadequacy question out the of a August, were first formed when testing juror’s possible prejudice in in expected President to be a Johnson was specific area where it well exist. candidate to succeed himself. He with- Robinson, 780, v. States 466 F.2d drew March 1968. The 1968 candi- p. (7th Cir., 1972); United States Eugene McCarthy dacies of Senators Lewin, pp. F.2d Kennedy, Robert latter assassi- (7th Cir., 1972). June, in nated were associated Comparison questions crys- of the the court with anti-war sentiment. Further point. did ask will illustrate our tallization of anti-war sentiment is asso- approximately court asked district ten ciated with the venture and Cambodian general questions venire, killings, of the entire the Kent State both appear spring probed episodes to have 1970. These had not attitudes yet associations, jury answers to which could when the was selected occurred challenge any September, have led to a trial cause this 1969. We given brought Many veniremen were dis- have no defendants case. doubt charges upon missed as a of answers to their result those trial questions. beyond specific questions The more anti-war activities were carried jurors primarily protection to individual constitutional entitled touched testing employment jurors family status, their with an for biased atti- subject. question particular tudes occasional on this whether a fact, primarily government employment, Perhaps secondary, significant, being prevent persons would represented were the conflicts of values impartial. By large, were neu- youth hippies, the so-called culture — questions, tral the answers to which yippies and freaks —in contrast with probative suspect- were not of actual or more traditional values of the vast ma- prejudice. ed jority community, presumably of the in- cluding jury most citizens summoned for only question that could said Again, service. we are not unaware peculiarly to relate to the case before many qualified otherwise members the court was the one addressed to the community impartial could not be first 12 interviewed: toward, and in fact are often offended every “I would each ask one of by, persons long hair, beards, who wear prospective jurors jury box clothing and bizarre and who seem to you . . whether close responsibilities avoid the burdens and employed or relatives friends who are regular employment. Several defend- by any agency law enforcement exemplify ants would this conflict. agency local, State A similar sym- conflict of values was Federal Government.” bolized in the confrontation between the city police ju- and the responded affirmatively, A Of demonstrators. those who sympathies ror’s basic the actors the court asked whether that would in- easily impair these events could judgment, his abil- fluence their and all answered ity to consider alternative views of the it would But this since not. presented case as again, only court. A venire- not asked four of those who relationship man’s subjected law enforcement on the served important officers inquiry. factor to Bailey States, satisfactory in v. limit the trial.” However (5th Cir., 1931); might some 58 F.2d cf. be in ed examination Mattin, trials,42 this United 419 F.2d 1086 States under the circumstances (8th Cir., 1970). case, of the restriction the court’s severe de curtailed well have voir dire Publicity. B. Pretrial challenges and failed for cause fendants’ guid provide with reasonable them from which this case The disorders exercising peremptory chal publicity. in ance lenges. generated world-wide arose continuing frequent and local There was coverage. press list submitted a Government counsel April of the Chica- In March and questions, requested of which some meetings go of “radical” media covered substance, by in at least were asked planning protest activ- were leaders who request- judge. questions district Other ity of certain convention. Names at the asked, government, in- but not ed leaders, including Davis, Del- defendants prospective juror quired whether Rubin, linger, Hayden, Hoffman and be- about, had read or was downtown gan appear, and it was announced Chicago during, national the Democratic Chicago police department had anyone that the convention; whether he knew assigned policemen to “tail” certain of participated protest demonstra- who on a 24-hour basis. these leaders then, time, any tions or at participated in a whether he himself had July August, the media carried demonstration; protest he had whether copious security accounts mea- experience unpleasant ever had an being anticipation of vio- sures taken officers. law enforcement demonstrations, example, instal- lent fences near the lation of barbed wire of 44 a list Defense counsel submitted Amphitheatre, activation the national inappropriate questions. raised Some special guard, provision ac- court subjects inquiry prop- were and few of arres- subject cqmmodations an overflow erly phrased even where the Hay- Dellinger, Davis, Defendants appropriate. questions, tees. Some den, Rubin, again, prospec- Hoffman and however, would elicited a have groups juror’s dissent, as leaders of various identified tive attitude toward security public protest against war; di- at measures which the Vietnam long hair, beards, rected. toward unorthodox clothing, differing styles and life from Publicity peaked during convention own; policemen his and toward law published all The media shades week.

enforcement. ranging opinion, those suggest violence on “terrorists” We do not court blamed the that the blaming obligated agitators,” propagan- “outside to those to ask all the often “gestapo city questions dists administration’s the form submitted part evi- request tactics.” A defendants. But their substantial raised judicial films, duty news do dence trial consisted of “to what was reasona- at bly parts practicable had shown on televi- of which been enable the accused August, right peremp- sion at the time the events benefit of tory challenge prevent unfairness judge’s than for reason courts on voir dire One of the district comments hearing November, 1970, I know of.” con sympathetic cerning district We are communications between clearly view, judge’s expedition judge deliberating (see and the Part impanel subsidiary duty V) an im- indicates that he limits voir dire as partial jury. practice: Judicial Conference See Jury Operation prospective “I restrict voir dire of Committee jurors very carefully. System, F.R.D. 465-467 I think there many American more time wasted

371 grand September, 1968, May 9, the In federal On 1969 for defendants moved began investigation city jury July, its and the a continuance until of 1970 because pretrial publicity. its of they administration released account With the motion disorders, Strategy presented of pages the Confrontation. to the court over 200 hearings brought newspaper (upon the October before articles the summary based) House Un-American Activities Commit- above related to the coverage disorders, tee. December continued news convention its aftermath Report, investigations, hearings, release Walker reports with the of the investigation.43 federally eight commissioned the the indictments of defendants. The court the denied motion. On Au- the The articles before court show gust 27, 1969, again defendants moved through that 1968 December contempora- for continuance because of engaged press March 1969 the in much publicity concerning neous defendant grand speculation jury’s about the con- denying Seale’s In the latter arrest. tinuing investigation anticipated and the motion the court said that a voir careful again Publicity rose indictments. when proper proce- dire examination was the jury on the returned its indictments safeguarding against prejudi- dure 20, when, course, March all these de- publicity. cial fendants, who often been linked had anticipation disorders, clearly publicity of the with the were identi- issue in the voir coming prosecution. dire fied with the defendants moved for peremptory challenges nine additional presented Because articles questioning each defendant44 and for May 1969, 9, the district on court presence each venireman out of the press record contains little of the cover- requests the others.45 Both were denied age time, appear it does after place and the examination took as de- arraignment April well on 9 as scribed A Part above. as the arrest of defendant Seale in Au- government gust After tendered in connection with Connecticut panel, began charges conspiracy but before the defense ex- murder case, ercising peremptories, brought defendants made other matters reopen a motion to again public “to in- voir dire defendants into the questions concerning clude . Septem- . view. was selected exposure press, ber, veniremen 1969. required jurors Report 45. This court has not on the National Commission individually questioned Violence, exposure about the Causes Prevention pretrial g., Study publicity, Team, Walker, Chicago e. States Daniel United ' Cook, (7th 1970) Rights Cir., Director, Chicago’s v. 432 F.2d 1093 in Conflict: 996, 1224, Days (1968). cert. denied 401 91 U.S. S.Ct. Seven Brutal (1971), 28 L.Ed.2d 535 contrast happened it did not As defendants ex requirement such where there has been peremptory challenges, haust their and we exposure publicity during trial. they do know whether Margoles States, v. United 407 F.2d 727 jurors prospective so if had have done (7th Cir., 1969) denied, cert. U.S. 396 questioned in areas here dis been 833, (1969). 89, 90 S.Ct. 24 L.Ed.2d 84 pass upon We cussed. need not their See, however, recommendation, A.B.A. challenges, although claim for additional Relating Standards to Fair Trial Hoffa, noting " United States v. (Approved 1968), Draft, Press Free 3.4§ 1966), 698, (7th Cir., F.2d 367 710 approval cited Committee grounds, 231, vacated 387 U.S. Operation Jury System, (1967), 1583, L.Ed.2d 738 87 S.Ct. 18 States, Judicial Conference attracting publicity, this ease much 391, (1968) ; 45 F.R.D. 413 see Silver rejected error based on an court claimed States, 627, thorne v. United 400 F.2d allegedly peremp insufficient number (9th Cir., 1968) ; Patriarca v. United challenges. tory Cf. United States States, 314, (1st Cir., 1968), 402 F.2d (7th Cir., Shaffer, 689, 291 F.2d denied, cert. 1961) 393 U.S. 89 S.Ct. cert. denied 368 U.S. 82 S.Ct. (1969). 21 L.Ed.2d L.Ed.2d 130 concerning prevented veniremen from od also reporting & TV radio publicity by being “reinfected” with court surrounding case.” facts up stirring memories these grounds their on the the motion denied presence of one another. events general question of the en- had asked could whether about might tire venire if the voir dire have been Even was, question impartial. government This differently, handled argues issue. waived the gentlemen that defendants you, ladies and “I ask They point to ask failure any defendants’ jury, reason there whether the trial, or on the for a continuance eve now, lead that would you think of can change Fur for a of venue. to move you are selected you if feel that jury, de ther, impanelling of the case, you at the jurors lawyers in this as proposed voir to submit fendants failed impartial in this not fair could be relating publicity, de questions dire giving States case, United peremptory their clined to exercise all Dellinger, Mr. America, Mr. David T. inquiry request challenges, and did not Davis, E. Thomas Mr. C. Rennard pretrial publicity until after Hoffman, into Mr. Hayden, Mr. Abbott H. panel, government tendered the had Wеiner, Rubin, Mr. Jerry LeeMr. C. government says too late. Bobby which the was Mr. G. R. Froines John interpret this con counsel Government impartial trial ?” fair Seale attempt inject duct a “nefarious had, court be noted It should least, they error into record.” Or at gone dire, beginning over of the voir argue, duty no to concern the court has I, conspiracy Count indictment. par pretrial publicity if the itself with many of the facts count referred request it, so defendants ties do not charges, background so that consequenc accept must unfavorable may jurors prospective well They action. es of their chosen course of recognized epi- involved the case rely Cook, 432 F.2d on United States v. August, 1968, of which sodes in news Cir., (7th 1970), cert. 1101-1102 they seen or had heard. denied, 91 S.Ct. U.S. district Defendants claim that L.Ed.2d 535 duty protect breached its them court Taking question first prejudice by pretrial from reason of issue, defendants waived this whether publicity. They error voir claim in the government’s reject we view. Since dire as well as the court’s failure to mo the district court had denied several grant against protect a continuance to continuance, re tions two which prejudicial publicity.46 They maintain pretrial ‍‌​‌​​​​​​‌​‌‌‌​​​‌‌‌‌‌​‌‌​​​‌​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‍ publicity, for- lated to a motion general question that the on dire of voir may continuance trial eve of jurors any there whether reason the futile, well have been failure to impartial could not be was insufficient prejudice make it should not defendants probe issue, pretrial publicity seeking protection which would be that combined the denial of their adequate afforded an voir dire. The motions, various defendants received no respect same should true with protection barrage prejudi- from “the change of their election to seek a pretrial publicity” cial that surrounded venue. this case and from the events arose. accept Further, we can not argument government argues gen- failure to exercise all that the challenges precludes peremptory impartiality question adequate a find eral ing inadequate response persons voir to evoke the that the dire was who publicity. opinion defend formed The less had of the case as a the area jurors’ impressions pretrial publicity. result of This meth- ants knew about the since it could not arise same manner re- issue not reach the continuance We do trial. they what had dire, and reactions to voir it can determined wheth- jurors read, prospective exercis- had for articles the less basis er read challenges. dealing and, ing quota defendants, if their with these Shaffer,47 readily jurors so, prospective distin- States v. whether these ” guishable, obviously impartial. most because could . remain . specifically the veniremen Shaffer questioned This assurance well have lulled de- publicity regarding pretrial questions fense counsel into omission of per- failure to exercise defendants’ subject. of their own on this Even challenges acceptance emptory indicated go required into the the court was not knowledge spite prior jurors in subject request, al- the absence of a of the case.48 importance, recognizing its beit we see why no reason the court could not have only speculate Finally, can we reopened purpose dire voir when why did submit defendants as to brought the matter was its attention. publicity, concerning pretrial questions Indeed, the court’s stated reason for de- object of why they the lack did not to nying untimeliness, the motion was government had questioning until the subject but rather that it considered the panel. from tendered do know the We have been to covered. record, however, when the dis that pretrial public prejudicial ofMost continu denied a motion for trict court ity have before the Su cases that been prejudicial publicity, on of ance account preme attacks on state Court have been represented inquire into it that it would highly publicized in eases. convictions pretrial publicity dire: on the voir high appear to of sensa These be cases saying procedure proper “I granted has tionalism where the Court safeguard against prejudicial publici- explore protec minimal certiorari ty carefully prospective tois examine required process the due tions jurors on voir dire and I assure coun- See, g., Sheppard e. Max clause.49 v. my parties voir dire sel all that well, 333, 1507, 384 86 S.Ct. 16 L. U.S. only comprehensive in it- will not Dowd, (1966); Irvin v. 366 Ed.2d 600 I invite counsel for self but ... 717, 1639, 81 S.Ct. 6 L.Ed.2d 751 U.S. gov- counsel for the all defendants and (1961); Washington, v. Beck 369 U.S. writing suggest- in ernment to submit (1962); 955, 541, 82 S.Ct. 8 L.Ed.2d 98 questions put the venire- ed to be 723, Louisiana, Rideau 83 S. v. 373 U.S. men. 1417, Ct. 10 L.Ed.2d 663 nearly comparable The situation practi- most “Voir dire is an effective and publici- in this one terms of of resolving extent a cal method of factual ty, though type activity very specula- the otherwise debatable basis Dowd, different, is found in Irvin 366 question im- a fair tive whether 717, 1639, U.S. 81 S.Ct. 6 L.Ed.2d 751 Upon partial jury can be selected. jurors potential Cir., 1961). before trial and even (7th 689, 47. 291 F.2d 694-695 during trial, thereby course of Delaney Stаtes, F.2d v. United Cf. extremely making difficult, im- it if not (1st Cir., 1952). jury possible, capable a to secure taking in, prepossessions, Frankfurter, evi- free con- Mr. Justice See open dence submitted court. Dowd, curring, Irvin v. U.S. one reason or another this Court 1639, 1646, For 6 L.Ed.2d 81 S.Ct. not undertake all does review such (1961): prosecutions. But, state passes envenomed without this Court “Not Term again, disregard again convictions, such being importuned to review flagrant country, fairness is so that fundamental throughout had States compelled re- ... Court that claims are made which substantial prejudicial in which verse a conviction jury because trial has been distorted poisoned newspaper intrusion has inflammatory newspaper accounts pressures upon exerting outcome.” “[a]¡though some ad corpus there was habeas (1961).50 was a Irvin period] validity publicity relevant brought verse [in test proceeding nor intensive neither it was death conviction Irvin’s murder at 963. Id. extensive.” S.Ct. six or For state court. sentence though find the it did trial, But even news- preceding the months seven Irvin, prejudice” “deep publicity bitter radio, paper, and television voir dire examine the unsavory past and the Court went Irvin’s about transcript its satisfaction and found to allegedly satu- committed he crimes had everyone served on who area of Indiana rated the lay could that he aside demonstrated place. found “clear took Court trial might opinions he the case pub- convincing” evidence pretrial publicity. “deep drawn from there licity itself community. prejudice” bitter These cases demonstrate independent an it went on to make But danger widespread publicity about transcript dire of the voir examination pro will highly dramatic events render pre- whether in order détermine incapable impartial spective jurors prejudicially fact, publicity, had trial think consideration the evidence. We persons for serv- summoned infected pretrial pub that where must follow jurors in two- the case. Since ices licity and extent is of character jurors admitted thirds probability real that veniremen raise a opinion the de- formed had opinions and formed about have heard admitting guilty, some also fendant was case, the to a relevant events difficulty laying in aside their their here, where, least as the defense has opinions, conviction held the the Court brought pretrial publicity to the the void. requested dire court’s attention and voir inquiry inquiry, must make the court similarly analyzed the both The Court anyone adequate to determine whether transcript publicity the voir dire and, facts, has read or heard the about 541, Washington, v. 369 82 S. Beck U.S. so, impact on the has his what been peti 955, (1961). The 8 L.Ed.2d 98 Ct. ability impartial juror.51 serve as persons con was one of several tioner agree Appeals We with the Court growing out of scandals victed of crimes Circuit, the which Ninth Silverthorne Union. He the Teamsters in West Coast States, 627, F.2d v. United 400 637-638 publici argued pretrial that adverse the said, (1968), ty prevented a fair selection of both the “Therefore, pretrial publicity when jury. is grand jury petit fair Re and a great, judge the trial exercise jury, must garding petit Court found the the licity in the instant case was not com cases Rideau v. 50. More extreme are parable journalistic 1417, Louisiana, with the witch-hunts 723, U.S. 83 S.Ct. 373 Sheppard. jury Sheppard of Rideau and was 663, This v. 10 L.Ed.2d sequestered during 1507, almost trial Maxwell, 333, entire 16 384 U.S. 86 S.Ct. allegation publicity no and there is that (1966). L.Ed.2d In Ridean 600 creating during publicity trial a factor pretrial was held that Court jury prejudice. confession, alone, principally a televised process prejudicial that could was so due persuaded govern- are not We jury by a from the not be afforded drawn argument publicity ment’s that locality Sheppard, of the crime. In on so balance favorable accused pretrial publicity alone Court found defendants been that could have trial, that did not foreclose a fair Widespread prejudiced publicity it. great impact community was so event, though about a controversial even totality circumstances, in sympathetic part participants cluding to take the trial court’s failure criminally responsible, allegedly are who strong prevent the media’s measures prospec- signal is a to the court unprecedented trial, intrusion into the questioned jurors see tive must presumption particular jurors bring- created what amounted to these are whether jury guilt abiding ing with bias. were infected innocence notions pub 354ff, the courtroom. into id. at See 86 S.Ct. 1507.

375 gained might correspondingly great as- news re care all he relating publicity ports. question think the is not ade pects case We showing bring impair responses might quate out tend defeat or jurors gained rights judge information and had of an accused. opinions exami- formed about relevant matters voir dire must insure that the jurors if in This broad de- in issue truth had. affords a fair nation of the prejudice question should not be a sit no has relied termination probability He must de- uation where ... there been fostered. exposure. contrast, in all the ‘the nature Su termine whether above, preme strength opiniоn formed Court cases mentioned [if necessarily inquired specifically pre any] trial into such in law court ” publicity. Dowd, presumption partiality.’ Irvin 366 trial See v. raise the 717, 727-728, 1639, States, Reynolds 6 L. 81 S.Ct. v. United 98 U.S. U.S. (1961); Washington, 145, 156, (1878). Ed.2d Beck L.Ed. 244 751 v. 541, 556-557, 955, 8 369 U.S. 82 S.Ct. surrounding publicity That the (1962); Louisiana, v. L.Ed.2d 98 Rideau the instant case was tremendous cannot seriously 373 U.S. 83 S.Ct. 10 L.Ed.2d Although questioned. we (1963); Maxwell, Sheppard perceive “deep do not and bitter n.9, 333, 354, L. U.S. S.Ct. community prejudice” in the Ed.2d 600 present Irvin, we are certain that the findWe no decision of this court con publicity prejudi could well have had sidering type gener this a claim that impact persons cial on the summoned question explore adequate al government Even con service. impact pretrial publicity. In Mar possibility cedes the that the -veniremen goles (7th States, v. United 407 F.2d 727 opinions had formed before entered Cir., 1969) denied, cert. 396 U.S. the courtroom. Under these circum (1969), 89, 24 L.Ed.2d 84 S.Ct. stances, conclude court we must that the transcript court examined the voir dire pub duty inquire pretrial had into district court alerted and found that the licity on voir dire.52 possible exposure veniremen their the Despite the district court’s earlier as- pretrial publicity, and then asked: surance that pretrial dire would cover the voir “If, newspaper as the re- result only publicity, explicit refer- the broadcasts, ports, radio or television might publicity ence to was to that which others, you or conversations with during occur only court’s trial. any opinion formed or ex- pretrial publicity oc- reference to n opinion pressed any whatsoever re- when, response curred to defend- garding guilt or innocence of the reopen dire, request ants’ the voir it you defendant, should so . . pretrial publici- said that had covered indicate.” ty general inquiry in its into whether they responded had When some any there was reason the veniremen case, read or heard about court impartial. could not be fair and inquired further determine whether question expressly This broad was not they impartial. could be pointed juror impressions gained Cook, reading hearing or from about In 432 F.2d United States v. Cir., denied, (7th 1970) the relevant Natural human 401 events. 1093 cert. pride suggest negative 996, 1224, 91 L.Ed.2d answer U.S. S.Ct. 28 535 juror (1971), to whether there con was a reason the this court did detail the impartial. juror However, by could re not be fair of the voir dire. A duct might ferring good negatively to its in Cook which sets well answer brief faith, stopping passages from voir dire tran without to consider out government significance script, impressions instant or firmness Lewin, p. (7th Cir., 1972). 1132, 1139 United States F.2d Cf. v. 467 376 pretrial impact this caused veniremen establishes case juror’s impartiality.” knowledge they on the had heard if were asked

there Patriarca, the trial In Specific questioning F.2d at 400 the case.53 about substantially question pretrial or court asked respect publicity Unlike the one asked here. knowledge identical prior case occurred of the judge case, however, in trial Shaffer, F.2d 689 291 v. United States question he counsel of 1961) denied, formed (7th 368 Cir., U.S. cert. responded planned counsel (1961), to ask 915, 192, 130 7 L.Ed.2d 82 S.Ct. “the court “fine.” Because States, it was F.2d 688 4 Allen United v. appellate requested,” the (7th 1924).54 did all Cir., prospective That reverse, it criticized did not but explicitly court jurors in the above cases being question ill-directed at knowledge prior of the case asked about publicity: inconsequential issue of It is not an distinction. pro difference the crucial makes such a feel to concede that bound “We spective jurors being to the alerted panel single question posed en to the problem pretrial publicity in evaluat response, bloc, with an absence jurors. ing to serve as their own fitness by way nothing little achieves removing seemingly weighing, identifying, closest The two cases prior publicity.” prejudice us before are Silverthorne situation Cir., (9th States, 400 F.2d United govern contrary Finally, States, 1968), to the Patriarca v. argument, undoubtedly pos (1st Cir., 1968) cert. de it is ment’s 402 F.2d 314 jurors prospective question nied, L. 89 S.Ct. sible U.S. expos Silverthorne, pretrial publicity without about Ed.2d 567 ing where, unlike other members the venire court reversed a conviction procedure prospective jurors publicity. individual case, the instant anything Ameri they questioning recommended were asked had heard Relating case, Association, no Standards about the “made can Bar the court (Ap 3.4 and Free Press effort ascertain information Fair Trial § what and, Draft, 1968), jurors consequent proved one course had is of accumulated assessing ly, way objectively individual no even without had method. But (1951), 53. Cook is instant also different from the 71 S.Ct. L.Ed. pub- argued appellants Goolc, that “heated case in where of four veniremen prevented feeling against lic Communists” who admitted had heard about impartial jury. case, only impanelling questioned first We counsel one defense government on the an attack of them. val- note that Dennis was not Thus the could pre- against argue protection idly of that cannot court’s methods defendant “[t]he problem complain publicity. inadequacy a heard This was the of trial society.” feelings prevalent “general jury рanel. interrogation the the the publicity distinguished sit- the The court though by saying, “it not was uation pretrial publicity arising 54. Another case against prejudice Communists] [the Hoffa, this circuit is v. United States any hope temporary, that there was so (7th Cir., 1966), F.2d 698 and vacated re- it reasonable continuance with a that grounds, 231, manded on other 387 U.S. Id. at 226. fade.” 87 S.Ct. 18 L.Ed.2d 738 quotes government state- the court’s The opinion Our does not make clear what by jury ment, break not “If trial questions, any, if But the were asked. weight, feasible it own down its did court indicate that the voir dire met upper of a probe levels than the more requirements the of Irvin v. Dowd and note juror’s But we Id. at 227. mind.” “transcript proceedings that ex- of the upper concept levels court’s tending period over a two is con- weeks’ ex- not an endorsement the mind was of cluding vincing jurors were not selected questions. general the most all but prejudiced by publicity. . .” Id. several in fact asked trial had The court at 711. against prejudice pertaining questions government also relies on United Communists. (2d Cir., Dennis, States 183 F.2d 201 1950), grounds, F.2d at 55. 402 aff’d on other 341 U.S. probe apparently speeches could questioning, court made one or publicity pretrial re- impact without more defendants. to describe what quiring veniremen began \The deliberations before noon

they had heard. Saturday, February on\ arguments have considered We morning, Wednesday February ended pertaining to the voir dire examination finding when a verdict was returned all mer- to be without have found them then who were defendants seven importance dis- insufficient it guiltjFs^crfconspiracy, finding here. cuss present guilty of the re- five defendants in- spective the failure to counts. mes- We conclude substantive publicity pretrial sages, agreed, quire into the effect of most witnesses upon jurors piece paper error. was on a handwritten judge through

transmitted to the Eight jurors marshal. remembered BY THE COMMUNICATIONS Y. message telling judge one least AND MARSHAL TRIAL JUDGE. jury was unable reach a verdict. DELIBERATING THE WITH Four believed this note was sent on Sun- JURY. thought day; on two had been sent de- months after the verdict Several Monday, “very day,” first one on magazine through fendants a discovered Saturday, on either and one the first jury in this case article about day of deliberations. Four had second there had been communications between message. no recollection of this judge jury during its the district jurors Three also remembered a sec- knowledge without of coun- deliberations they reach ond note that were unable to court Defendants then asked this sel. agreed verdict, on which was sent hearing jurors for a at which the and Monday. jurors remembered Thus five deputy marshals had the charge who been Monday Sunday note and four note. during jury of the its delibera- Eight message jurors remembered a regarding could tions be interviewed ex- judge portions requesting certain pressures jury. ternal on the thought transcript. jurors Three hearing This court remanded message Sunday, this sent on one on was district to record the court facts such Monday, Tuesday, three one any communications, any, if commu- day it sent. could not recall which charge nications officers in jurors no Four had recollection of jury may arguably have inter- message. jurors’ impar- fered with the exercise of Deputy Dobroski Marshal judgment. provided tial Our order also only com- marshal who remembered judge may district if de- “[t]he he judge jury. munications between the incorporate sires into the record his own He testified that delivered a note he relating recollections of the events judge Saturday, four or five communications, any.” such begun hours after the had to delib- hearing Despite A was held. inevita- response note erate. to this memory ble elapsed differences because of said, Marshal, judge “Mr. instruct November) (February time deliberating.” jury continue Marshal jurors testimony of the and mar- deliv- Dobroski further testified that he supplemental shals and the statement of Monday morning, ered a second note on judge report verified the com- that judge responded, “You to which the will ap- munications had occurred. There deny appli- jury instruct the that I their pear one, prob- to have been at least transcripts.” for cation ably two, judge ju- request (9th Cir., 1957), Chang (9th to hear States, denial of v. United 91 F.2d 805 States, recording; Cir., 81 1937) ; Chicago, v. United Outlaw R. I. and Pacific 1936), copy (5th Cir., instruc- (8th Cir., Speth, F.2d 805 R. R. Co. v. 404 F.2d 291

379 relaying except mes- ternatives, of court The nature of the out longtime through sages marshal in this is similar ease communications judges in district harmless, practice of all held which have been those reasons, court. There several above noted. are say why however, with we are unable apparent been no have There would certainty they harmless were making promptly inconvenience this case. and defendants. matter known counsel There other courses which during in court the con- Counsel were might judge when the well followed have presumably tempt proceedings, close him; presented jury’s he notes were was returned until at hand verdict might jury open into have called the Wednesday, February de- 18. The given appropriate re- therе court and during days jail were those fendants might message; sponse he have except in court. when message possible re- discussed verdict, return of the Kun- After Mr. presence sponse with counsel counsel, stler, of defense asked leave to defendants but absence jurors, noting interview the response; he jury and then made a might compromise. represent verdict message might jury, have sent a calling February 20, On attention writing, preferably in made a record jurors reports of news interviews open reasonable court at the earliest who stated that was a com- the verdict opportunity,62 perhaps when there promise, he his motion. Leave renewed argue in favor for counsel to still time was denied both Without occasions. supplemental response. of a intimating any criticism of the district Even the last those alternatives strong against permitting policy court’s problem would have minimized parties jurors, point to interview we fading occurred. recollection as to what question out that when the was raised less, perhaps There would have been jurors may compromised no, jury’s doubt as to the nature of the go permitted in order to be home aft- request response actually or the trans- sequestration, er four months it would judge explained has that he mitted. clearly appropriate have been did not choose first alternative be- judge record he knew about the what jury cause he concluded that if the agree. messages asserting inability to courtroom, returned to the there was very danger exposure prepared substantial We are not to resolve the prejudicial testimony finding statements, disruption, or vi- conflict and make a olence. He the re- recalled there had whether not marshal made been attempts persons marks attributed to either them the courtroom to jurors, suggesting jury disruptions jury influence the some might improper jurors, sequestered for statements to a substantial and that hostility period judge had been further intensified before the after sub- accept hung jury. jury mission of the fact of a the case to the Had and dur- messages ing responses light contempt proceedings come on Satur- day, February promptly probably Sunday, February more the issue could greater judge resolved explanation 15.63 The have been certain- offered no following ty. for not either of the other al- tions; DiPietto, Compagna, supra, supra, 62. United See States v. n. States United 58, judge personally jury note told its re- quest testimony granted; to hear would be contempt proceedings Arriagada, United States v. 451 F.2d These are the sub- (4th ject (7th Cir., 1971). See, however, Dellinger, F.2d re- re States, Cir., 1972). versal in Little v. F.2d (10th Cir., 1934), stenographer sent requested into room to read material. they sug- conclude happens harmless, case that the therefore this and It grounds

gestion verdict for reversal. See result are (2d Cir., may Glick, compromise F.2d 491 between who v. some of States 1972). acquit entirely some and have desired to entirely may to desired convict

who have VI. SELF-SERVING plausible. is indeed difficult is It DECLARATIONS suggest analysis of the evidence support particular this case which would trial were the intent issues at Central five defendants on of all conviction in- his at the time of of each defendant counts would not lead substantive Chicago and at terstate travel conspiracy equally to on a conviction alleged overt In each of his acts. time “hung jury” count. It true that presence in Chi- a defendant’s instance messages a arrived within few hours aspects cago participation some jury. day or two of submission a during activity week of the convention jurors sequestered for These had been plan of a he were the culmination devel- notwithstanding four months and over period oped of over a Each de- months. duty until their discuss case not to sought people fendant to interest other submission, surprising really is not coming Chicago joining in they that- each other’s discerned views planned activity. result, As a evidence very rapidly. is also It true motive, plans, intent of at a number acquittal conspiracy of of verdict period during of times months counts conviction on the substantive relevant and not deemed too remote. days, most, within of the came two government offered evi message. “hung jury” second by dence of statements made defendants travel, before interstate after arrival promptly judge had If Chicago up to the time of the overt messages brought attention acts, of and after the overt acts. When defendants, other some and the counsel by government, fered relevant might well have been of action course intent, properly as received might persuaded have Counsel chosen. admissions, although prior give those made jury judge summon overt acts also have evi been called kind instruction mind dence state of at the time the v. in United States court’s decision made, pro things, statement was and therefore asserting, among Brown,64 bative at the time of travel or intent juror his hon surrender no should act, or, the time the overt under the purpose of mere conviction for the est doctrine, supplying Acts as Verbal returning perfectly It verdict. significance contemporaneous of conduct transcripts speeches the what clear statement, with the in itself the conduct interpretation of see, desired to being probative of intent at the time speeches im evidence had an various travel or the overt act. bearing al portant case, either leged of a or as to intent overt acts The defense also offered evidence Although particular action defendant. statements made defendants describ- transcript jury’s request ing plans their for convention ac- week discretion is within the certain evidence tivity. usually admitted court testi- suggestions judge,65 of coun mony, either a defendant or other might helpful led sel well been witness, of oral statements of a defend- of discretion. a different exercise ant, objections to written but sustained related, statements, diffi- we a distinction we find the circumstances Under certainty that cult the circum- unable find with understand where comparable. stances were otherwise of court communications these out DePalma, (7th Cir., 1969). 414 F.2d 64. 411 F.2d United States (9th Cir., 1969).

381 by Examples As stated Mc of written state- Professor excluded Cormick : ments are: “Actually appropriate a docu- rule for the Exhibit 235 was Defendants’ party’s Campaign of of

ment, 1968: exclusion a declarations “Movement titled was It fered his own behalf as Year Offensive.” evidence An Election Hay- by truth of the facts is the and declared defendants Davis written hearsay Correspondingly, copies den, distrib- rule. when some were and 150 representing or- declarations fall the ex people various such within uted to ceptions hearsay rule, ganizations so- to which are and assembled at designed hearsay 22 to admit of March statements Villa conference called Lake unusually specially shown when needed and This conference was to 1968. organizational gathering trustworthy, they a should and be admitted to be an stage though by development plans party a offered made 66 activity. The docu- in his week behalf.” the convention propos- goes point pages, 21 on to dif- announced He out that courts had ment year program of or- treatment election fer their of declarations al of “an against present emotion, protest ganizing the failure state of mind or says: particularly the government, fail- then of the Party” governing Democratic ure of the “If made under circumstances war, seeking end to the Vietnam “an seeming sincerity they come in should steps racism, new from liberation to show the state of mind emotion society.” Vari- more humane toward accused, party’s of the as a third dec- organizational activity, plans local ous laration would when material show nationwide, forth, and sev- were set his of mind. state The courts which activity pages eral were devoted to by exclude assume that because made Chicago during convention week. One party and offered on his behalf the portion, Disrup- with the subtitle “On likely declarations are so dishon- Chicago” argued activity tion in at hearing. as not to be worth This est must, time to be ef- convention fective, order assumption same discredited legal.” be “nonviolent and testimony interested purged weighed, Defendants’ an issue not Exhibit on which rested 225 Magazine” containing parties of “The Realist an the ancient rule that could by plans testify.” article defendant Hoffman Chicago. Yippie in think that a flat rule ex We Defendants’ Exhibit a memo- 279 was party clusion of on the declarations of a prepared randum under Da- defendant grounds they be described as describing assistant, vis’ direction an “self-serving” though even otherwise Mobe, purpose supporting for the objection hearsay free from under the application for the use of certain Chica- exceptions, rule and its detracts go parks. the fund which of relevant information Defendants’ Exhibits without, 347 and 348 jury, should be available to the press were news films of insuring interviews compensation, materially Dellinger with defendants Davis and on integrity process. As trial we August 24. Bucur, held in United States 194 F.2d (7th Cir., citing 1952), excluding these, ap- all of the court Matot, (2d States v. 146 F.2d pears significant- have relied least at Cir., 1944): ly, wholly, upon proposition they self-serving right declarations attempt had a “[Defendant] defendant, although, already sug- of a proof meet overcome this [of gested, testimony knowledge] against as to oral statements his evi- him subject equally tending good to that characterization his dence establish usually compelled admitted. faith. To be meet this McCormick, Evidence, p. ed., Ibid, p. 66. 67.

challenge trying persuade whom to a testi- without the benefit of concerning mony course action which would lead to his conduct Chicago us events in out of this case . . seems statements represent- wrong. testimony manifestly its face exhibit If arose. On legalis- respect ed their intent to violence this nature is excluded stage development tag ‘self-serving,’ anomalous of an tic plans, prеsented at a time too ac- remote. Wheth- is where the situation deceitful, or er statement was is need to bolster cused faced with the changed plans deprived whether their before is his claim of innocence but was, doing travel, in logical time of their interstate so.” of the most means of case, jury to the context of for the this persuasive reasoning in accord We find decide. (3rd Wigmore, ed. Evidence § 1940): VII. EXPERT REJECTION OF self-serving excluding “But here [in WITNESSES. singular fallacy is statements] taking possible of committed planned opinion Defendants to elicit ground guilty persons trickery as a of testimony from nine witnesses as ex- excluding of in favor evidence perts. testify solely Four were called guilty; person yet proved in other society on facets of the American idea of the fundamental words defendants, which the and convention repudiat- Presumption of Innocence is allegedly generally, demonstrators were ed.” August Rep. responding in John 1968— Conyers (racism), Ostendorff, Franklin Bardacke United States v. See also (youth culture), (Viet- ‍‌​‌​​​​​​‌​‌‌‌​​​‌‌‌‌‌​‌‌​​​‌​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‍1967), Peter Martinson (4th Cir., 729, cert. 371 F.2d war), Staughton Lynd (his- nam Prof. 18 L. den. 87 S.Ct. 386 U.S. rights revolution). protest of torical and Ed.2d protest The areas of which the witnesses self-serving against decla- A flat rule presumably explained have grew rations, of the one-time out closely Yippie most related to and its testify, no refusal to allow defendants to government “Festival of Life.” The ob- longer pragmatic ap- A makes sense. testimony jected relevance proach place. should its find take We in each area. guidelines Wigmore, adequate 1732: § both why Five witnesses were called of “There is no reason a declaration expert re- fact and witnesses existing mind, witnesses an state of if it would be garding practices against accused, of and crowd control admissible should Styron, favor, except law enforcement —William so not' be admissible his Wright, Gillette, Prof. plainly James Richard far as circumstances indicate Pomeroy. Misner, Wesley Gordon and a motive to deceive.” government objected in- each Accordingly none of either of stance to the relevance

written statements of defendants should opinion questions qualifying or of the of their been excluded reason have objections questions. sus- All being Arguably self-serving. some tained. objectionable for them been judge is trial It is clear that a unnecessary reasons, here other and it is discretion as vested with wide definitively do think to rule all. We expert,68 qualifications of an Hayden enti clear that Davis materiality relevance tled 235 ad to have Defendants’ Exhibit testimony,69 only such abuse jury. It mitted for consideration er reversible discretion will constitute group people was their to a statement objectives ror. interested similar Gipson, Co., 385 F.2d 341 F.2d States

68. Cohen v. Travelers Ins. (7th Cir., 1967). (7th Cir., 1943). against discretion, including people, tion Exercise black gross under-representation however, gauged proper test them testimony. admissibility expert In the convention. Mr. Bardaeke described setting youth proper embracing test must ac culture out the we relationship nature, new knowledge no hard desire to there are society people structure fast rules: so that could do in, work appreciation believe subject this can a “On people place of racism. He stated person help? appreciable receive that, areas, in these “there been has one, words, the test a relative attempt develop a whole new value subject depending particular on the system country by young people, in this particular refer- witness revolutionary system” and, new value subject, and is not fixed ence to others, persuading as to methods of persons act- or limited to class young people country “to in this the ing Wigmore professionally.” 7 place street has become ... to 21, Evidence 1923. § others, meet to communicate with starting point point From D.C. that the people, fun, to have and to demonstrate States, Circuit in v. United 113 Jenkins your political views. . .” Mr. 637, U.S.App.D.C. 300, F.2d 644 307 Martinson described American use of following (1962), approach, derived the interrogation pris- tortures in various of 70 to which we subscribe: oners of war and others Viet Nam. principle “The from the to be distilled Lynd Professor described the American experience plain: cases is train- protest historical context of revolu- and ing expert proferred enables a witness right tion of and the first amendment to opinion aid an which would form petition. jury, of some coun- absence The court deemed the offered testimo- consideration, testimony tervailing his ny irrelevant to the issues. will be received.” opinions These observations and were resulting presumption in- The that why people, relevant to the reasons opinion formed will admitted seems young people particularly, may have particularly appropriate in our increas- Chicago par- been moved to come to complex ingly society specializa- where ticipate in the Festival of Life and segmentation knоwledge tion are and degree they the Mobe activities. To a living common, everyday as well as make idea of the of Life a Festival highly levels, plural- and our technical intelligible generation little more to the society kaleidoscope polit- ist with its court, which the of this and members styles. ical At the same views and life perhaps belong. jurors, in or- But (including ju- people time it seems that they der to received in evidence must rors), unexposed increasing propor- helpful be deemed on a nar- knowledge experi- tions of relevant pro- rower issue: Did these defendants ence, becoming capable, are more be- mote the Festival of Life and the Mobe evaluating greater education, cause genuine demonstrations out belief expression expert opinion. protest legitimate bounds, within or did expert We treat the offered witnesses they producing purpose do so for the groups sug- in the two their functions a riot? gest. Perhaps testimony supporting having Offers were made of the testi credibility Life Festival mony Bardaeke, Conyers, of witnesses and Mobe demonstrations without vio- Martinson, Lynd. Representative slight tendency lence have had Conyers described of discrimina- probable facets it less make had defendants application son, U.S.App.D.C. 143, For of this standard where 425 F.2d abuse claimed was admission of certain ex- pert testimony see United States v. Jack- motives, D’Aquino v. United is.” ulterior but we unable evidence (9th Cir., say probative States, is- 192 F.2d on that value rejec- denied, 1951), clear cert. U.S. 72 S. sue was so the court’s testimony in this area was L.Ed. tion of the Ct.

an abuse of discretion. five wit As four Gillette, Wright, Wright, (Styron

Styron, Mis first nesses Pomeroy, two, ex the last ner, Pomeroy as Misner and were offered objected perts two) government subject riot when the crowd or sup They attempted offered control.71 were establish each defense port theory opinion expert. qualified defense’s No subsequently asked of questions were Chicago “if there were riots government Wright. Styron during Convention Democratic again questions objected opinion when solely week, ex- were caused Pomeroy. of Misner and asked clusively by police. The defense objected during government first police brutalized maintains testimony of Gillette when de crowd, that, effect, police fense how conduct asked certain going on here is an at- trial training compared in riot con justify tempt the Government had received in trol the witness police did in the streets what guard. objections the national All Chicago during week, and convention objections All were sus to relevance. testify po- that the can this witness subject for conclude tes tained. We existing what he considered lice broke timony case. One of relevant to the was rules, regulations, and of methods un for conviction elements essential handling go out of Lincoln crowds to degree probability der is a of night, § Tuesday them on and beat Park alleged produce a that overt act will an Chicago, part that is the streets ” 2102(a). Evidence riot defined in as § [emphasis defense, of our . . . police tending measures that show added.] tend to caused the crowd riot would proof offer No formal was made as speeches exonerate defendants’ refused, do not find each was but we responsibility. such raising the is fatal defendants’ that appeal. opinion sue on The sort crowd reac- Likewise we conclude that sought and the inference to be raised proper compared improper tion to as were set out Mr. Kunstler when the police techniques crowd control is not a offered, group first of this subject equally as well expe- within the realm attempted questions.72 jury later “A rience of “ex- members necessary proof formal offer of not perts.” is dynamics, are at Crowd which where record shows, either from the question, the heart of causal add an questions form of the may produce asked or other element which an overall wise, proposed what the of the quite substance reaction different from an individ- “ qualifications vary goes type question of the witnesses . .a which considerably. Pomeroy ap- your opinion, something Misner and like : this did peared very qualified ; procedures, police well the remainder follow established quite arguably experience that, or had train- inference raise the and from ing procedures, breaking which would enable them to form an if the established opinion would, police witness, and whicdi because based believes this experience training really on or outside the a desire not to control motivated experience jury, Park, but to be of aid Lincoln beat crowds jury. ground Given our conclusion it was them to the so that expert testimony error to exclude in front of the all . never demonstrate any- necessary this line we do find it National Democratic Convention City Chicago. determine which in the of the witnesses else and how where testimony much of this should been admitted. ju- period During repre- ual’s reaction. While an individual he insisted might senting himself, ror the latter without ex- assess and some of his conduct assistance, pert contempt the former almost cer- resulted in the which citations beyond experience subject tain to be his are the States v. United training.73 erupted Conflict Seale.75 with some fre- During quency. sessions, several Octo- testimony expert Because the of the ber 29 to November he was bound subject or riot on the of crowd witnesses (cid:127) gagged. negated a crucial ele- control could have government, proof ment usually The courtroom was filled with countervailing con- the absence of and in spectators press personnel. There siderations, we conclude that it were numerous disorders and outbursts pos- abuse of discretion to foreclose among spectators, com- occasional sibility. plaints there was discrimination seating arrangements. occasion, On THE JUDGE VIII. DEMEANOR OF procedure trial seems to have disinte- AND PROSECUTORS. grated uproar. into The record indi- many that at cates times there were as argument, present At oral as 19 marshals the courtroom. It also suggested Attorney States provocative, insulting, shows sometimes guilt proof found, the if error be even language activity by several defend- should the verdict was sufficient ants, instances, all, product of error and deemed not be contempt specifications included in in In to re found sufficient not be error Dellinger.76 re Conduct of defense trial There is a reasonable quire reversal. counsel, contemptuous by considered degree judicial tolerance of error judge, district por- is also reflected in pervasive, particu than is less when tions of the record set forth in those long larly one. “A the trial is a where specifications. entitled to a fair trial but defendant perfect directly not a one.” We are not concerned here assessing definitively responsi- prospec- voir dire of The insufficient bility of these coun- defendants their jurors type or- is of error which tive for sel deficiencies in the That trial. dinarily prejudicial in would be found subject proceedings will be the of on re- weight may But event. whatever Dellinger. mand Inin re above to it or the other errors ascribed mentioned, approve following to we are unable We make the observations fulfilling considering only stand- trial in this case as to make it clear in system justice. complaints concerning ards of our of of the conduct judge prosecuting attorneys trial and we simple to is not a matter evaluate It holding responsible have them avoided assign responsibility trial, nor to reasonably necessary for conduct made lasted almost deficiencies. It its arising the trial conditions transcript months, exceeds and the five activity from the of others. 22,000 pages. often fell Trial decorum emotionally in- dramatic and victim to system justice The of can not episodes. flammatory pre permitted work defendant is to destroy on trial vent of an was a codefendant a trial or the effect Mr. Seale 5, September 1969. to November adverse verdict his own deliberate from 24 parallel States, 604, in 74. a close United States Lutwak v. 73. We find United 344 U.S. p. 576, supra, Jackson, 619, 481, 490, F.2d at 425 v. 73 S.Ct. 97 L.Ed. 593 expert (1953), quoted Hoffa, was allowed to describe in where an v. United States pickpockets (7th techniques 698, 1966). who work F.2d 367 709 Cir. simply pairs, “conduct innocent because may carry (7th 1972). eyes Cir., en- 75. the untrained 461 F.2d 345 in the ‘messages’ experi- tirely different (7th Cir., 1972). F.2d 389 or trained observer.” 461 enced 386 good scrutiny recognized Moreover, makes because of the fact

misconduct. judge latitude for “the to reasonable influence of the sense allow trial sensitivity judging jury necessarily properly human and normal great responses provocation weight, lightest delib- to that his whether erately word deference, A are excessive. defend- or intimation is offered received with controlling.” ought prove suc- and ary ant not rewarded Caution- baiting judge prosecutor. cess do cure instructions a comment likely firmly a sort most “of remain right prosecutor has to lodged memory jury in the reasonably object which he to that prejudice preclude excite which would judge conduct, improper deems dispassionate a fair consideration objections, admonish, duty to sustain 79 Although the evidence.” in- these appropriate in ac action or take other por- speaking stances the Court was judgment propriety his cordance with judge’s instructions, tions the same necessity. reason There must be principle apply must the cumulative respect the manner latitude with able judicial effect of a remarks series performed. these duties are deprecating defense de- counsel and the high hand, there are On the fense case. judges and for the conduct of standards judge’s deprecatory The district by persons prosecutors, impropriety antagonistic and often attitude toward give does not license before the court from the defense is evident in record depart those standards. very beginning. appears in re It presence marks and actions both judge’s behavior must The trial jury.80 absence atmosphere preclude of auster “that ity especially presented dominate The defense an extensive which should indispensable case, calling trial and which more than 100 witnesses. criminal responsibili judge might, reason, appropriate al- sense within for an part ty court, counsel and on the leviated of the difficulties defense some pres encountered, jury.” comments counsel he did not do Judicial subject special so.81 ence of the States, jeeting going absence, U.S. v. United 77. Offutt trial 11, 15, illness, Garry, 99 L.Ed. 11 S.Ct. due to of Mr. a ninth attorney, but were satisfied with the with- States, U.S. Starr drawal of four who wanted with- 919, 923, L.Ed. 841 14 S.Ct. draw. States, (1894) ; 326 Bollenbach v. United attorneys withdrawing The were four 402, 607, 612, 350 L.Ed. 66 90 U.S. S.Ct. contempt. in found Two of them who States, Moody ; F. (1946) v. 377 United jailed brought with- were into court were 1967). (5th See United Cir. 2d suggests out bail. The record the 374, 376, Scott, F.2d v. States willing government and court were re- Cir., 1958). (7th if lease them the defendants would ac- States, proceed knowledge willingness 289 U.S. without Quercia 79. 698, 700, Garry. L.Ed. 1321 Mr. S.Ct. obligation Although the an un- four had court, and til relieved technically subject the thus were day, the selection of the first before On 80. in the to its direction judge war- bench jury, issued district justification matter, appears real there no attorneys had who of rants for four for the the court exercised extent to which who appeared and for defendants earlier days later, power. on motion its Two present the trial. These for not were government, the court vacated the of the government their of notified had four contempt gave proceedings four withdrawal, leave obtained had not but events occurred These leave withdraw. attorneys liad who Four court. of alleged in defense miscon- well advance of appeared, Kun- previously Messrs. also at duct trial. counsel, Weinglass two local stler rep- appeared 81. of record for Every Mr. Kunstler was present. defendant Weinglass attorneys for Mr. some defendants rec- of or more one resented arrangement pro- doubtless others. This ob- present. Defendants then ord significant, however, There are a number of areas Most were re- lawyers presence law in jury, of evidence marks dep- recatory judges considerably interpreta differ of defense counsel and their applica case. tion of the These rules where the comments were often governed by really sarcasm, implying touched tion rule is rather saying outright than discretion individual views that defense coun- judge. question bumptious, inept, sel trial lead was When a is or untrust- ing; worthy, testimony per when that his another case lacked merit. made a is be Sometimes son statement admissible the comment was not asso- making ruling any ciated ordinary cause the of the statement course; though gratuitously relevant, even also the statement sometimes added to fact; proper ruling; an nearly contains assertions when a otherwise al- question ways unnecessary. individually cross-examination is outside Taken scope direct; very significant question one when might objectionable repetitive disregarded because as a harmless at- —are tempt examples cumulatively, all at humor. But such areas. We shall attempt reviewing telegraphed must task all judge’s contempt rulings for the defense.83 evidence in this case. It does however, appear, comparable sit It must be said that defense counsels’ uations, judge likely ex was more technique trial inadequate, often seemed against ercise so, gratuitous his discretion the defense but implications even against government.82 ineptness jury, especially than before advantages, Friday January afternoon, duced some tactical such as On one gov- two when chances cross-examination of the defense ran out of witnesses at p. m., hand, ment witnesses. On the other 4:42 the court announced that Saturdays, trial meant that one defense trial counsel would beginning run Jan- absent, uary 24, represented restricting opportun- the defendants lie further ity present, Weinglass did not have counsel of record Messrs. Kunstler and having out local counsel been excused at- of court efforts. tending the trial. case, Particularly during against impropriety Admonitions defense seem advantages been there would have hav- have been directed at defense counsel ing lawyer go significant gov- one free to the witness less causes than when while the room other remained court. ernment counsel offended. sought permission Mr. Kunstler and de- willing consent, readily fendants were Out of but the several hundred identifi- judge request. able denied the comments of The defense such character putting claimed this resulted at times in record more than 150 were made in the presence jury. only on witnesses who liad not inter- been We set forth viewed counsel. There were a num- illustrations here. colloquies. Occasionally ber Mr. On occasion Mr. Kunstler was when slip objecting room, leaving Kunstler would out of the to the restrictions on his Attorney report room, tlie United States the way he concluded: “There is no judge. judge’s his absence to the rul- we can conduct a defense under those ings on these judge matters were within areas circumstances.” remarked: normally discretion, defense, you committed to his “I but don’t know about ” doing conducting. in these circumstances seem at times are some . . . by hostility have been Attorney, to motivated to- Later the United States in ob- jecting by ward the defense. Kunstler, to a statement Mr. began, judge way” pre- When the defense ease the referred to his “comic book of began senting to judge extend the afternoon session a case. The struck Mr. explana- (properly, about a half hour. He declined Kunstler’s statement under the tion. quests circumstance), On occasion he declined defense re- but when Mr. Kunstler a short for recess convenience asked he whether also struck the observa- time, saying defense,” of defense counsel at one tion about a book “comic the jury: judge before the “We have wasted “I so said: would describe it differ- here, ently much time on recesses and we want but I will let that stand.” get to rid of this case.” planned by impact sarcasm, (rather being defend the added with of were than justified.84 ants) avoided had the would have been poli city made different administration dealing the defense witnesses cy granting permits and about decisions judge ordinary beyond often the went police of demon about forceful control designed prevent admonitions to unre volunteering judge sponsive in The made comments strators. answers and denigrating presence jury the the the One the claims which defense defense.86 attempted to establish that was violence occasion, judge ridi- hearsay to ruling the resorted grounds, On 84. After a on Mr. Weinglass, argu- on cross-ex- attempt When Mr. cule. Kunstler in an said amination, suggested he ment, just the witness and “I it.” don’t The understand disagreement, “explore” there judge replied: areas “You to a will have see objection, judge lawyer, Kunstler, you the said: an was Mr. if don’t under- Pole. not at the Nortli “No. AVe are stand it.” exploring, going Weinglass Mr. Wein- are not an AVe glass.” On occasion when Mr. was arguing appropriate that he had asked judge Shortly recess, questions purpose impeachment, a before noon for the interrupted responded: Mr. cross-examination the court “I would like to length preside evidence, to him at Kunstler admonish some a over class I apparently posture, today.” he his because about haven’t the time In a similar lectern, leaning elbow the was witii his on situation when Mr. Kunstler acknowl- judge designed, noted, edged having difficulty, judge late as the said: building. glad privately you At the conclu- “I architect will be to tell subject, colloquy any right of a on this how to public it. I sion judge do haven’t in a said, you tired, you give are we will trial to a in evi- “Since course you go sleep for take a recess and can dence.” afternoon,” complained and recessed court. When Mr. Kunstler that be- testimony referring changes length sessions, a When witness’ cause of it by Congressman keep supply was a a statement Lowenstein difficult to of witnesses stricken, Weinglass hand, judge said, that on me Mr. observed “Don’t tell bring have to him about how to run I defense this Court. When testify. try somebody, get have call will I ” judge responded bring qualified person. “Well, him : a . The . you lot, brought question in a in. You brought singers After Mr. a Kunstler asked Bring people. previous per- testimoy, and other which he misstated haps inadvertently, yet Congressman. hear We have in a the court sustained an Congressman. might objection. inter- inquired He When Mr. Kunstler esting.” problem, “Well, judge about you just said : made a statement inac- uni- an admonition to a After such uglier curate. I could use an word. It say, versity professor, “This went he was inaccurate.” program. You’re on is not lecture emphasized judge often fact indi- witnesses witness stand.” Several counsel defense were local at- they cated, apologetically, some- torneys. Besides those occasions when prac- ill at under court rules what ease present, was not he made similar one, judge “Don’t said to tice. suggesting jury, remarks before come;” you ask of me. I didn’t critical Weinglass Mr. about some- mistaken sorry. another, invite I didn’t “I am thing Chicago because he was think- unhap- you third, you;” and to “If ing Newark; suggesting, in admonish- here, maybe you py being make can about ing shouting, Mr. Kunstler that he lawyer arrangement who an from, where he shout comes but not you called to withdraw.” here; response suggesting, to Mr. reproduction defendants Kunstler’s contention that Under circumstances tape misrepresentation were, effect, challenging the wisdom was á because posing mayor, good played, volume at which it was will Symphony ad- as to and he “isn’t like New York issue you may Although go you go were entitled verse. defendants when back they could, home”; pointing out, colloquy in a to establish their claim issue, recognize judge points not the about a Chicago, two the remarking did distance between Mayor the “I seen that that Mr. was a hadn’t Kunstler “vis- indictment,” and at was indicted in this itor.” opinion ry, the defense by In our had duties, were nоt called for their right jury present and, to its case before whatever contribution the defense implications free from the cumulative conduct have made to the defi- type of comments to which we have trial, ciencies of this these remarks were referred. justified thereby fell below applicable by prosecutors representative standards to Remarks made a number, ju- and before the considerable of the United States.87 point “I another don’t observe added: kindergarten.” “We are not some kind of police parties Weinglass are to this case.” When After Mr. of- mayor explanation, Mr. ness, called the as a wit- Kunstler fered his Attorney the United States asking questions prevented crybaby from said: “This he stuff theory they leading, goes your through, every and asked Honor, on the time he witness, just him a hostile wrong question, to have declared asks a is ...” Mayor “Why judge remarked, has On cross-examination of defendant friendly Later, Davis, witness.” Attorney been a most the United States asked remarked, connection, judge up another when had Davis dreamed a in- certain “Mayor Daley, concerned, responded far I am as as cident. Mr. Davis he was mayor.” told, good present I am is a and so when it occurred and that “You purpose leading question pretty of the would have to have a im- active principle danger, agination up where is to reduce the something to dream like a Attorney witness is favorable to the examiner’s that.” The United States re- case, joined you side of de- could, the examiner’s “I am sure that Mr. knowledge sires than cross-examination, rather the witness’ In Davis.” the same testimony. will mold “precisely” In the instance Mr. Davis used the word an Mayor Daley, made circumstances answer favorable to himself. The United Attorney it responded pre- obvious that he would not be vulnerable States : “That is leading questions, cisely get precise language whether or not he be where we truly witness, you, a found hostile Mr. Davis.” judge properly question could have exercised After a Mr. Kunstler accordingly, respect clearly discretion repetitive, was not he said: objectionable questions “Objection. whether as Mr. Kunstler has an answer leading. and he it likes so much because two Instead, policemen beating boy the court restricted defend- are a that he narrowly ants so it repeat again.” became difficult asks the witness to it specific them to elicit information. colloquy, right. In a he said: “That’s 'Under the circumstancs a number of jury Because the lias here had sit questions objections to which were sus- questions, and listen to nonsensical direct fairly directing tained are more viewed as cross, wasting all of time. our We topic inquiry, attention rather than get way, perti- want out ask facts, get suggesting an answer. Under a reason- questions, nent determine the interpretation evidentiary rule, able of the go the trial over so that can many objections of the not have should hurry home. That’s the we’re in.” McCormick, been sustained. See Law Ojecting question, he said: “I (1954 ed.) of Evidence at 9-11 object. question bad, is so Mr. Furthermore, narrow inter- court’s Weinglass had trouble with the last word. pretation questions ap- leading does not He almost swallowed it because he knew pear equally restrictively ap- to have been objection coming. an It an im- plied government questioned when the its proper question, object.” I example, witnesses. For an occasion requested Mr. When Kunstler a half objected, leading, when Mr. Kunstler hour’s variation in the schedule to accom- question government, asked witness, modate a the United State Attor- rejoined, Kunstler, court “Mr. do a little ney Honor, said: “Your that was a half leading ques- research on this matter of They put trial hour of time. haven’t Really tions. evidence authorities are yet they got witness on on and off in very against leading questions much they kidding? a half hour. Who This days.” these just a showboat.” Berger States, Attorney, in See The United States U.S. terjection which is S.Ct. difficult to relate to 79 L.Ed. (1935). Again only progress, then in “In we set out presence illustra- the matters said tions, case, your Honor, jury. all in the we have heard these adopt objecting question put people adopt attempt to a Mr. Dr. Weinglass, Attorney King, attempt adopt United States Senator Mc exploit yielded temptation argument During the to the the He final rulings were, compar- de- various the courtroom conduct of court made against de- formed the the fendants which basis the more restrictive atively, Dellinger. contempt in In government.88 citations re than fense the ignore jurors they the need not He told argument, States final the United act,” people look “out- “how those and proba- up to, Attorney and at least went courtroom,” in “the sudden the bursts boundary of bly beyond, outermost the occurring decency” respect, the sudden the evidence permissible from inferences days the “in last we reach the few as defendants. in his characterizations suggested case,” similari- end of the the men,” “evil to them as referred He ty jurors technique the had between the haters,” “profligate and “liars obscene the in the courtroom with seen used anarchists.” extremists,” “violent and allegedly and used at the marshals that doing suggested was one defendant He police. time of the convention with the “predators got dark as it because well Dress, appearance, gets personal always operate close and con- better when guilt. probative trial duct at to dark.” happens Carthy, Kennedy, are all the dock because what of whom both Robert they happens hap- them to all of us. What mine than friends were better pens to them is the ultimate answer to all theirs.” ever were of objection An of us.” sustained. was admonished After a defense witness exactly jurors urged responding Mr. Kunstler the to decide about court only facts, sorry, questions, the case on the not on whether said she Attorney lawyers; they liked that re- he said Assistant United States lawyers all, unimportant, whether Mr. at marked “It is difficult very carefully judge liked disliked the or the de- told all Kunstler has so unimportant, say you please, too.” The fendants was what his witnesses you say say your Honor, judge glad you off, broke “I am are cut when say unimportant.” I was time.” didn’t the first that went be- Mr. Kunstler referred to the fact After another defense witness Weinglass yond jurors question, he and he “The wit- knew Mr. said: very town, Zenger answering witness were from out of and to ness is not eager, —the say know, where Andrew Hamilton came all the terrible case we Philadelphia Zenger did, things police in New is to answer to defend but she ” ability suggested questions. He own . York. his . . may speak in been this courtroom Weinglass the decision 88. Mr. referred to the Assistant insured Zenger summary judge Attorney’s in: “I case. The broke cer- States question validity testimony government last have to statement, tain on which the your theory.” “government’s ob- I must strike as relied given appear objection leave to to the use servation. You were court sustained an by the in this I am not here prepared case. Court of this term. theory go Weinglass argued . . back 1700’s Mr. the defense city law, policies think basis and I don’t had as the you that hard line happened law is responsible have established what for what been that, demonstra- either.” the event another Attorney, Chicago the United States “I think” that a cer- When tion dont argument, practice repeated. attributed to then defend- tain will be The As- Attorney had statement been made inter- ants a sistant United States Seale, posed “Objection Weinglass Mr. Kunst- former codefendant Mr. : what judge challenged assertion, thinks, think, thinks all. ler if he doesn’t challenge by pointing out answered the The court sus- It is not relevant here.” all, that, objection. had back later after Seale come tained the defense, jurors trial a witness for the Mr. Kunstler stated to and, responsibility remember one “You awesome theirs was an they taking Mr. Seale when I was defendants were ultimate arbiters of the fate said, support Bobby Seale.’ task ‘We He went on to of the seven defendants. say defendants “are not Remember?” the seven really sitting in the here. dock We

391 judge properly 13, instructed We do af- The district that 1969 note June any jurors they Attorney in assert- “must fidavit General antag- any way by possible particular ed that conversations be influenced agents you may government the defend- onism have toward “were overheard them, dress, monitoring wiretaps any hair their who were ants or gather foreign styles, being speech, reputation, employed de- courtroom gather intelligence quality, personal philosophy in- or meanor information or to telligence concerning style.” Attor- domes- or life States information urged organizations ney tic to use force should not which seek have things. and other unlawful means to attack and those consider existing subvert structure the demeanor of We conclude that government.” “foreign The reference to require judge prosecutors re- intelligence is not found information” if other did not. versal errors affidavit set forth United States Court, United States District 407 U.S. v. IX. ELECTRONIC SURVEILLANCE. 300, 2, 2125, at footnote 92 S.Ct. relat- raise several issues Defendants logs may indicate some these eavesdrop- ing of electronic to instances may involved raise “issues which agents. by government ping foreign respect with to activities powers agents,” their to which the or over- A. Conversations defendants Supreme expressed no Court said it pursuant heard to authorization 321, opinion (407 at at 92 U.S. S.Ct. grounds security. national reaching 2139). from We also refrain trial, Defendants claimed at the stage those issues since the this right denied, inspect but unequivocally record show that does hearing89 have an Alderman taint some of the overheard conversations logs government certain as which the stemmed from of activities surveillance legally acquired, made serted were but foreign agents powers nor their judge available to the district before segregate logs, any, from the those during inspection trial for his in camera required ones of which is disclosure only. logs wiretap These resulted United States v. United District States ping Attorney authorized General Court. grounds on the such surveillance necessary security. to national We concerning B. Conversations Seale (but decided the issue of law with same pursuant overheard to similar authoriza- respect logs) de different favor of tion. position v. fendants’ in United States rights Defendants claim the same (7th Cir., Sale, 345, 461 F.2d 365 respect logs, furnished after recognizing 1972), Supreme trial, resulting similarly from a au- considering Court was same issue during thorized surveillance the trial pending another case it. before Since disclosing communications concern- Seale, Supreme our decision in Court ing logs Mr. Seale. These the same resolved the issue United States examined, which we have and dealt with Court, United States District 407 U.S. Seale, pp. 461 F.2d at We 364-366. 752 S.Ct. 32 L.Ed.2d already decided connection with (1972), Seale, as in in favor of defend contempt proceeding the five position. possible excep ants’ With a remaining standing no defendants have rulings noted, tion hereafter of Seale challenge logs. Dellinger, these re and United Dis States v. United States Cir., 1972). (7th 461 F.2d For apply logs trict Court involved en- same reason we find are not here, to the extent five remain ing standing. defendants can titled see them or have a taint hear- show States, 165,.

89. See Alderman v. United 89 S.Ct. U.S. L.Ed.2d sufficiency evidence examine the ing retrial in connection determine in order to first trial at the case. presently enti- defendant whether one or more conversations C. Other judgment of direction that a tled to a defendants. be- acquittal on remand. We entered resulting logs also other There are no additional that lieve it safe to assume of conversa- from electronic surveillance significant at be available evidence will more defendants tions of one trial, government elects if the a second gov- by the defense turned over to the preface retry re- our the cases. We ernment, subject protective order to a must principles several view with government not con- did court. The the determining whether be observed hearing right as to a taint test the t.o support a conviction. there is evidence to logs. these activity group out of When the points re- defendants’ Because alleged develops can offense which the un- logs just spect mentioned are undertaking, be described as a bifarious on manner likely in the same to arise illegal involving legal purposes both only retrial, them consider we shall conduct, and the shadow is within however, find, that de- briefly. doWe amendment, factual issue of the first hearing on is- forced to fendants were alleged must be as to the criminal intent stemming the last sues of taint judged juris. neces strictissimi This is being without mentioned surveillance partici sary punishing to avoid one who given opportunity reasonable undertaking pates inis an such re- prepare.90 defendant Before aims, legitimate sympathy with its oppor- a reasonable tried he must have accomplish them does not intend to hearing tunity wheth- on the issue for a Specially meticulous unlawful means. as surveillance er this or other unlawful sufficiency proof is inquiry into standing tainted show which he can justified required of the because against government’s him. evidence considering group possibility ac real objection to the Defendants’ tivity, political or social characteristic against protective order court’s district imputation movements, of an unfair logs with others is disclosure of the participants the intent or acts some Alderman United out merit. See v. to all others. 961, 185, States, 165, S.Ct. 89 394 U.S. judging requirement intent The find also L.Ed.2d We 22 176 juris grew penalties strictissimi out no the record shows evidence such, v. membership based Scales on as good government faith did not States, 230, 203, 81 S. United 367 U.S. ac materials disclose the surveillance 1469, 1487, 6 L.Ed.2d Ct. Alderman decision. cordance with (1961), Webb, Scythes 307 F.2d v. (7th Cir., (standard 1962) deter for OF THE X. SUFFICIENCY mining deportation one intent for EVIDENCE. organization that who is a member of an . . “advocates or teaches decision to reverse In view of our force, violence, discretion, we or other overthrow trial error abuse attorney general postpone in the inter- elected to ized 90. The district court security lawful, (Alderman hearing est of national taint v. United proceeded States, the surveillance to deal with 89 S.Ct. 394 U.S. government logs had disclosed (1969)) until after trial. L.Ed.2d 176 day February IS, The court refused earlier. the verdict was the defendants On permit returned, judge Mr. Michael announced a continuance the district expert Tigar, on elec- counsel defense’s deal with the matter of that he would Chicago February eavesdropping, come to de- on 20. When tronic surveillance participate. hearing insisted The court instead an such fendants resisted hearing. say proceeding early said, time, judge with a taint “I did not prepared February 20, hearing.” said defendants it was a On proceed. and could not author- court ruled surveillance States, v. Heilman 298 F.2d means Govern unconstitutional (9th charge 1961), States”). appli Cir., Its involved a of the United ment membership under expanded States clause in United cation Cir., 1969) (1st Evidence defendant Spock, Smith Act. F.2d 165 held in- carried on certain activities was defendants were instanсe where op “[t]hey charged conspiracy as ex- rooted in sufficient with a because plainable theory Heilman position on the and to war the draft sought Party’s only le- to effectuate the un Vietnam. court described gal objectives premise derlying that he under as situation “a bifarious legal illegal personally taking, involving intended violent overthrow both (298 814). concept ap the Government.” adopt F.2d at conduct.” We because, although plication in this case not, however, doWe understand the longer no with the we are concerned juris requiring strictissimi doctrine charged charge conspiracy, of the acts compel- evidence of unlawful intent so against occurred individual defendants ling guilty that a verdict of not would undertaking group in context of the a perverse. be do not We view it as whol- legal (protest the war and ex with of ly depriving customary jury of the its dissent) pression, generally, of and al ambiguous interpreting function in illegal legedly (violent) It is branches. light statements in of circumstances the usually duality our that belief would this choosing among infer- reasonable involving undertaking in an activi exist convict, jury must ences. order to a ty group riot a out which a any beyond in event be satisfied a rea- arises. juris sonable The strictissimi doubt. emphasizes doctrine the care need for ease, In the of our the context analyzing against particu- the a evidence juris surely pre doctrine of strictissimi type, both lar defendant a case of this (if general principles do cludes other fact-finding by process the in its finding not) any had a defendant that by determining the court in whether finding be an unlawful intent if the convincing capable the be- evidence is solely partici based the fact that he yond a doubt. reasonable planning organizing pated in the activity Yippie or Mobe out which requires that The Anti-riot Act arose, imputation to riots or on mere the a com defendant travel interstate plan any him of the that associate (or facilities) merce intent use its with produced. such riots be (A) to follow one listed of the courses Spock court said: (D), objective. each “a riot” with as an alleged agreement page 357, supra, the is “When both text. See political requires bifarious within the act statute overt also another Amendment, purposes. shadow of First we the list of of the same specific objec hold that an in individual’s Thus an intent a riot as the illegal portions junctures, tent adhere to the al required is at both tive may ways: actually though “course,” (A)-(D), be shown one of three by prior may defendant’s or individual followed be different unambiguous statements; subsequent originally “course” Reasona intended. bly construed, surely the individual defendant’s subse does statute very illegal quent nature, require situation, commission of the agreement; contemplated by contemplated act riot at details exactly defendant’s identi individual subse the time of travel remain quent legal ‘clearly act, if that act act is until cal the overt time specific purpose they does, think, require undertaken suf for the we be rendering illegal ficiently the later ac so that it is reasonable effective similar ” (416 tivity say which F. is advocated.’ the later is the same as evolving 173). product 2d intended at one If identity the riot did not occur no such es- is substantial earlier. This identified, the inference having im- can force statute sential to avoid drawn, may absence right tie well pinge travel, and on the circumstances, speech did travel, basis is the the interstate propel capacity to not ac- legislative jurisdiction, have sufficient federal following consequence. a riot occurrence of socially tion. The harmful some particular speech, fact or the un- presented Thus we are prevent riot inter- force sufficient convict, that, problem order usual vened, similarly upon, but does not bears intent substantially the same unlawful proposition conclusively establish the points in to exist at two must be found speech capacity. An that organizational relationship had such here, by as separated, in time, the facts between much as four weeks. speaker hearers or some other against defend The cases commitment the hearers to follow content, least at but in ants differ speaker themselves directions par it is true that cases some of the adequate probability establish an state conduct and ticular defendant’s produce his action. words will alone, travel, stood ments before point We out that conduct other than unlawful intent could not establish speech subject statutory penal- ample Typically there time. ty. by pure (C) be fulfilled ac- (if by the clear evidence government that offered might Various conduct which in- tion. believed) the time that at only expression incidentally, volve such alleged the defend overt act same the like, preparation weapons as and the with, Typi ant unlawful intent. acted might purpose be an overt for the act sufficiency cally to the the evidence organizing, on, carrying or a riot. Con- finding support a that he had the same charged duct of sort is in the this depends intent at time of travel the counts us. Proof that the before hear- upon interpreting the reasonableness of organized ers are extent to an to be his earlier statements and acts light following committed to the directions of relating ones, of the later and of enough speaker may the to establish unlaw back to the time travel the spoken that the re- directions the have clearly ful more estab intent much quired capacity produce to action. expression lished conduct. later juris proceed We now to outline the evi- We do not view the strictissimi direct, dence as requiring clear, to defendant. each doctrine proof sufficient of unlawful intent at stage, wholly independently each A. as to Davis. Proof proof at other. alleged acts of Davis The overt discussed, ge- (A)-(D) As earlier are speeches specified at locations descriptions necessary neric overt August August Chicago August acts; they merely goals are not to which government August The 26. By the overt acts contribute. definition proved Cleveland, to Ohio travel from 2102(b) it follows where the § During Chicago August to 18. 17 speech overt act is it a must at least defense from Cleveland case travel instigated” “urged the assem- Chicago July was 20 to 25 established.

blage to riot. July travel is doubtless The high travel the indictment speech relied on when was must a cause drafted, although August reliance riot stat likelihood of as defined does, determining to 18 a fatal variance. travel would be ute. whether it August appropriate If the to 18 travel were relied will to consider whether August on, only occurred, and, not, 18 and the overt acts the riot fact if such, intervening since the could be considered as force, such as whether an August police preceded action, prevented other overt acts occurrence. blocking traffic, running through stores, spoke August 1 overt act: Davis smashing Chicago trying meeting windows and to shut Peace Council Loop fifty persons present. He down. with about during con- proposed activities described Hayden they Davis and said that including week, vention march diversionary planning Hoffman had been August Amphitheatre He said police away to draw the tactics if the demonstrators were allowed Amphitheatre at the of the march. time get Amphitheatre, dissi- breaking windows, There would be McCarthy “would return dent students pulling alarms, setting fire small Loop, Loop flood with demon- fires. Loop, strators, disturbances cause meeting This more occurred Loop he said the would fall.” proposed than two weeks before the ac speech almost four weeks before tion. There is evidence record proposed proof no action. There was would, think, support we fol- that his listeners were committed finding meeting people at the lowing we think his directions and sufficiently parts committed as speech was not to have shown organization that announcements of requisite capacity propel action neces- plans could, for action without offense sary qualify as an act. overt amendment, first be associated August meeting 9 overt act: A expression with action rather than held at the office of Mobe. About twen- advocacy po of ideas. The resistance to including ty-five persons present, clearing lice action Lincoln Park even Davis, Dellinger, Hayden, defendants tually except occurred as modified or began and Hoffman. Davis and others prevented by police action itself. guide recruitment of marshals issues, credibility We decide no during control demonstrators convention course, but conclude that there was evi week activities. This was first which, believed, support dence finding could meeting of that marshals. Davis said alleged that this overt act oc trained, present the marshals would be curred. and train who able to would arrive others August presided 18 overt act: Davis August possible He outlined march meeting seventy-five at per- of about activities, assigned routes and other person each jury sons who the could find from the target a demonstration area sufficiently evidence were committed so map, appointed and committees. plans that his announcements of could Government witnesses testified be treated as associated action with plans Davis outlined certain activity. for violent expression. rather than expected He said he According government witness to one sleep demonstrators tried in Lincoln Tuesday Davis said that on and Wednes- past po- Park curfew, the 11 o’clock day Loop. there would mill-ins in the be begin lice park would surround the and Another testified that if that Davis said designated arrests. Places in should be city did on Au- not allow the march advance so that demonstrators could gust 28th, there would a mill-in groups groups. form should break Loop and in- that he would use this through police rioting lines, out if neces- permits formation as a lever obtain sary. They Loop should move into the for the march. m., try disrupt about 7 a. “should traffic, windows, should smash run Accepting testimony, the latter through through stores and find could from the evidence that Generally streets. . . make havoc Wednesday likely the mill-in on Loop area.” for occurred but at battle having Michigan He mentioned a “mill-in” on and thus fa- Balbo and find Tuesday Wednesday during alleged government con- of the vor as He vention. described a mill-in as overt act. alleged peaceful expression in-

August massed but 26 overt act: This result attended can tent. The ultimate Park to have occurred at Grant case, Davis’ well as violence. In only at the first remarks refer to Davis’ others’, tend- Logan-statue-incident. oc- and conduct statements The incident ing produce intent vio- to show an of about the end of a march curred near testimony, lence, proved by 1,000 direct march people, led Davis. result, stages. Hayden, protest occurred at later As a was a over the arrest proof riot passed police headquarters at of an intent to cause a had alleged proceed- more direct the time Streets, at 11th State and was alleged ing in- along overt acts than at the time of side of Michi- north the east edge gan terstate travel. of Grant Avenue the west Park. organizational early meet- There were York, ings. There was one New Jan- testimony head There was as the Davis, uary 24, Dellin- at which Logan of the march even with the came Hayden present; ger, one Feb- statue, demonstrators 100 or more ruary 11, Chicago, de- with the same up Some dashed the hill to the statue. Camp, fendants; Villa and one at Lake placed flags on mounted the statue and Davis, Chicago 22-24, with near March yelling mi- it. Davis then over the Dellinger, Hoffman, Hayden, and Rubin eight crophone, times, seven or “Take meeting present. July there was a hill, high ground.” po- A take Davis, Dellinger, Cleveland, Michigan Avenue lice line came across Hayden. present These three were also and formed a skirmish line at the base meeting August 4 at the Moraine at charge of the hill. di- The officer Chicago. Hotel, near each instance rected the down demonstrators move people of other also substantial number said, pigs Davis “Don’t let the hill. meetings participated. Other followed high Keep ground. take the hill. August. during testimony There was give up.” Don’t Thereafter speeches meet- Davis’ at the earlier struggling screaming, crowd was ings expressed the view that the demon- police, tossing objects. a few Short- strations should non-violent. ly, Davis announced the march proceed should Beginning July Park across Grant 16 there were contacts Hilton, rally from the representatives where a was con- between Davis and concerning ducted. permits Later Davis city remarked people up police stood parks Amphitheatre, well march to use things ready statue and were sleeping, for more and sites for assemblies. to do. July representative On 8 a Com- the munity Relations Service of the U. S. Surging up unoccupied the hill Department on Justice called Davis climbing and the statue did not amount plans and discussed for the demonstra- riot, direction, to a and Davis’ first to superiors tions. He his made ef- and hill, take the could not in have been an forts to facilitate communication be- keep citement to riot. His direction to mayor’s Davis, the tween office and and hill, however, reasonably implied the high July in on 25 officers the Justice physical police. resistance We Department successively May- met with qualified conclude it an overt act Daley July and Davis. On Davis riot, though incitement to even the vio application permits, an for later filed perpetrated lence the crowd did denied, amended, and later and on sever- turn to out serious. be August occasions in conferred al Davis Deputy Mayor Stahl.

Davis’ Intent: Early activity people organiz- mid-August, Yippie planning of Mobe and Mobe filed and ing compel convention court to week demonstrations was actions in federal issu- (as Hearings shows) permits. far as direct evidence con- ance of and confer- August sistent with creation of for ences held 21 and and a channel were charged as overt statements dis- olence. The August were the actions on already been referred to. On During acts have August conferences missed. Hayden privately and permit on alter- Davis city marches offered using away for- a marshals’ from conversed about and rallies routes native Amphitheatre, prepar- police lines and insisted on mation break and Davis squirt ing mace meeting for demonstrators he wanted Davis said near it. police. Hotel assembly, told the Moraine predicted at Davis peaceful that a meeting “mill-in” there would be a fight demon- between out break would August 6, August Loop sleep On needed to who strators Mayor Deputy attempted police Davis told city’s Stahl parks police, if the and permits in- failure to issue expel it would be sui- He said them. city vitation to violence. the re- not to consider cide for the park. sleeping in quest Without for August said, meeting, At the Davis city resolving issues, offered reference a rock on the festival permit accepted the ral- Davis and ly 25th, going the Mc- “We to invite of Au- at Park the afternoon Grant delegates Carthy kids, young gust 28. prominent people children of lure them here with and sex music times estimated At various Davis people 50,000 keep . there after 11 at of demonstrators number keep 500,000 o’clock we will music marshals because number going Actually 2,500. 2,000 and the marshals’ the num- from duty go time out not exceed at did should be ber of demonstrators . 15,000, The de- and build the barricades . marshals 200-400. police in, if the came of these estimates some fense would be that view people in- good that were would be faith the smaller ac- invited were in jured develop sympathy fear induced would resulted tual number Committee, line; city’s Davis’ de- the National Mobilization hard people was, in- application would been lay for vari- because these formal good jured police trying to clear as the were reasons, faith. consistent with ous park closing point after 11 o’clock time.” prosecution of view The designs served were better that Davis’ by August 15, group that On Davis told a permits size of his denial of since not avoid confrontation could delay application would demands and police, with the the demonstrators cooperate likely city make less going provoke to harass and them with him. through On Au- the whole convention. training of marshals occurred gust promised defendant Hoffman he August days in in Lincoln number in defend- that the marshals would aid present times. Park. Davis was ing August 22 told Lincoln On he Park. group forma- marshals were trained representatives city that would physi- techniques of tions individual city suicide for the to consider and tech- cal combat. These formations niques sleep permitting demonstrators aggressive capable of use August 26, park. On told defend- Davis although they, that the defense claimed a Rubin others there should be ant and arrangements aid and like for first the Hilton, and when sit-in front the legal upon aid, decided because police up, the it the demonstrators broke aggression expectations police and vi- alarms, windows, pull could fire break olence. lights. police cars, street stone break August by midnight, the 1 After Davis was at barri- Statements Davis before ambiguous urging people, over indicated cade Lincoln Park were either fight police. Early bullhorn, plans peaceful the At a for demonstrations. to August August morning during demonstra- times he made state- the according the'police government ments, in front of to testimo- tors were massed gave ny, planned that the directions showed he for vi- line. Davis police August, position in the such intent kick but his demonstrators by clearly by if they would react club- would he shins so that had it then, original bing pointed out his plan, He was not but demonstrators. pick up the was the result of his in deal- the TV cameras would frustration ing city. police action, provocation. with the Whether this is true depends upon good Apparently plans not carried evaluation of these his August 28, morning appearing permission faith in he seek out. On the peaceful Hayden, and for con- Dellinger, told others that demonstrations and we rally, attempt jury question. clude after a the bandshell Amphitheatre some to march to Hayden. B. as to Proof and others could could create a diversion Hayden’s alleged to overt acts were rally go across from the Hilton or into specified have occurred at locations Loop and be- have mill-in. Just Chicago August August on 26 and meeting rally, fore a he addressed government proved Hayden marshals told them that should and Chicago traveled from York New be- taking split group up, to one of each August July tween 25 and Amphitheatre, several or the hotels dispersed August police Hayden al- as a 26 overt act: result leged spoken assemblage and their effectiveness weakened. to an at Apparently govern- Lincoln Park. There is evidence earlier state- Hayden ment relies on remarks as made ambiguous ments Davis which were police approaching officers were to ar- respect peace- whether violent or Riggio rest him. Officer testified that activity vigorous ful but was intended. partner Hayden he and his saw He described he intended to the action group people. Lowenthal After bring about “militant.” This term as alerting officers, Riggio and his not, activity. can, mean but need riotous partner approached. Hayden “Mr. speech November, 1967, he said up Mr. Lowenthal stood informed there would be civil disobedience to dis- group, coppers come ‘Here the two rupt the convention. He admitted that They night. going from last ar- “may he have” said in March that there ” rest us.’ The arrest was effected. demonstrations, should be a week of dis- Members of crowd two screamed and ruptions, marches, clogging argument. people offered The testimo- Chicago; streets of the march on ny does indicate there the convention should make the demo- activity forceful the crowd. process by pinning cratic work the dele- night before the arrest when had been gates Amphitheatre; ac- attempted, Hayden and had Lowenthal employed tivities must be that will force help resisted called troops the President to use to secure his against pressed crowd had the officers paper nomination. In a written in the causing them desist. Whatever Hayden fall of Davis and included August 25, case on there is no basis statement, people hurt “We who interpreting the remarks after- country. impose rule this We an inter- August inciting noon of 26 as the crowd national humiliation them.” violence, and there is a failure ample We think evidence, there is proof alleged as to this overt act. believed and if allowable inferences are August speech 28 overt act: This ais favorably government, drawn Hayden gave at afternoon bandshell justify finding that Davis had the re- rally. spoke just He platform, from the quired criminal intent the time of rally, before the end of the follows: August Chicago travel 17-18 and at alleged act, August “May briefly points; the time I overt first —two Dayis. It is much less clear that he had Rennie Rennie is—remember travel, Davis, such project intent at time of his director of the Mobili- July having hospital He split did not 20-25. is admit in the with a zation spoke activity. 14, 1968, him. he March We are close touch On head. right, meeting going he in New to be all at a Resistance He’s Dellinger you he him what He that he and to do for York. said want would planning is in the to do he demonstrations in Chica- because is unable go purpose up that hospital that make sure it was Mobe’s fuck is and —and going flow, May it flow all In in the let he was blood convention. if gas being going Chicago, city. If be office in inter- Mobe over the reporter. gas over called come down all He was that viewed used—let Chicago long just this dis- and over us into the next room take a police going Jersey, park. if the from New and That tance was call call, during say over the “Fine. let them run wild all run wild heard Chicago city us the revo- and not over them on out. We’ll start Send they fight?” going park. to be That we are lution Do want now. violated, disrupted, this whole and let testimony July 25 that on There was stinking city disrupted violat- be and Hayden spoke meeting in York at a New military ed, whole machine let this Avenue Parade Com- of the 5th Peace is aimed at us ... which Speaking of the war in Viet- mittee. get trapped city, don’t around nam, he said that the “United States large organized march some kind had outlaw nation. ... it was an Begin to can be surrounded. which rules, therefore the broken all of the your way I’ll see out of here. find you peace demonstrators could break all streets.” spoke rules, ... He about too. appear listeners It his that the North does that fact Vietnamese through city disrupted shedding dispersed peace and the demonstra- blood sug- they Chicago violated it as he seemed to be when went to should tors however, gesting. followed, blood, prepared There be to shed He said too. Chicago march, waiting lineup for it more for the there arrests in flowing through right begin, people than the toward election jails Michigan Hilton, could hold.” and the battle at and Balbo. There was evidence meeting Washington April At a his be found some of which could that it Hayden said the demon- var- armed listeners had themselves Chicago put to- stration at “had to be types weapons made of crude ious gether way in such a clear it made during in- use of them battle. country people of the that was legitimate would be ference government violent.” was weapons would have elsewhere been used concerning testimony was also There testimony There con- if not was there. August 4, on and tend- statements after cerning group people, one led Hayden ing called for vio- to show Rubin, through moved downtown who Hayden’s August 4 conver- lent action. throwing Wednesday evening, streets already re- Davis had sation with been cars, at and the conclude rocks like. We Hayden present ses- ferred to. at Hayden’s speech rally could training sions marshals. be found to have been an incitement meeting August 9, marshals’ At the riot. Hayden Hoff- said Davis and Hayden’s Hayden’s Intent: case planning diversionary tac- man had been testimony private public there police away from the to draw tics statements that the demonstrations at Amphitheatre march. at the time Chicago He at- should not be violent. windows, breaking of There would be meetings organizational as tended the setting pulling alarms, fire small Intent, indicated under Davis’ above. fires. testimony There was of statements meeting August July Hayden there was read- could On before people pre- calling twenty-five interpreted involved ily about for violent Speak- Davis, Hayden paring and Davis wrote for demonstrations. that the vigil they imposed ing Amphitheatre hu- had international of the the an a at Hayden people night 28th, the miliation the who rule of the said country. city had We conclude there is sufficient could knock the fences the down findings jury indi- evidence to that erected location. Hе also sustain at that suggested Hayden approval required mill-in of a had intent cated the criminal July August march, Wednesday, to shut lieu of a at the time of travel 25 to August Loop. down 28. the August Hay- of On the afternoon Dellinger. C. as to Proof Park, spoke group den to Lincoln a government proved The travel discussing happen at 11 what should Chicago Diego, San California to be- police plans ap- o’clock when the became August July 25 tween It parent. people feel “Most seem to at Dellinger also established that acted as park this time that will at we leave master ceremonies and num- made a 11 o’clock if we are threatened with rally ber remarks at bandshell that, death and all but we will be back August speaking 28. His at Park Grant park by necessary at means day only alleged that was the act overt necessary the time decide we it is against him. park.” to be back in the eight speakers. He introduced theAt morning August Very early in the flagpole po- time of the incident and the 28, Hayden spoke to the demonstrators it, lice action which followed inter- he He Grant Park. referred jected urging people several remarks planned afternoon, for march seated and leave the situation to the going speech, saying, closed his “We marshals. he Later announced word way Amphitheatre to make our deputy police from a chief necessary.” any means being gave withdrawn. He directions forming Amphi- for the march to the planning meeting Hayden attended theatre which he was to lead and which August morning on the There literally, was to be Taken non-violent. testimony said, refer- he partial transcript his remarks permission ence the denial instiga- urging evidence contain no march, City give in “If doesn’t tion riot. demands, our there would be inwar government theory appears streets there should Davis The be.” to be having suggested Dellinger’s demonstrators who introduction of Tom speak injured rally. Newman, Dellinger’s suggestions had been at Hayden objected, saying, those “In revolu- who wished to follow New- you expect inju- injuries, begin tion and those man’s recommendations could supposed ries displayed. rally qualified aren’t leave as an overt act injured people under be dis- the statute. shouldn’t played. They accepted, should be plan There was evidence to have struggle go should on.” groups demonstrators, led some marshals, go to various sites for a properly interpret could mill-in, so defined as to be a riot rather statements as indicative an intent than non-violent Mar- demonstration. merely cause violence rather than in- among shals were to circulate crowd flammatory night rhetoric. On the rally describing op- the several August 28, reporter when asked There was that Dellin- tions. evidence evaluation, days, after last few ger plan his and indicated knew of Hayden said, of Mobe, effectiveness approval. “Well, I think it’s been a tremendous accomplished everything Dellinger success. We in his first remarks said expected meeting accomplish.” that we As “this is for action —not discussing against Tay- stated speeches.” the evidence introduced Bo He triggered things plans action, said, lor, “I for violent among other to be who sing, I came Newman’s down to remarks. that didn’t come here With knowledge, sing, I he come introduced down here to Newman and didn’t come project, guardedly. ready hope everybody in this endorsed his I albeit fight keeps expectin’ to crowd who’s majority panel The concludes Dellinger point up At one fists here.” the record contains that evidence suffi- said, announcements will have clear “We finding Dellinger support to cient that options. definite with definite —with performed an overt act under stat- may people prepared to act be Some charged, ute, punishable as without im- way, this one in fact we envision at pairment of the first amendment. point alternatives three different opinion opposite writer of this holds the amongst people ‍‌​‌​​​​​​‌​‌‌‌​​​‌‌‌‌‌​‌‌​​​‌​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‍can choose.” view. Newman, introducing Tom Before Dellinger’s Intent: evidence tend- going said, Dellinger to there are “Now ing may analyzed to intent establish ways in which three different be at least as follows: people moment In a will want to act. Dellinger’s case, in Davis’ and going to someone talk I’m to call on testimony Hayden’s, of a num- there was give toon them.” He went about one of that ber statements the convention assembly for for directions at-He should not be violent. activities lead, referred to then march he would meetings organizational as in- tended the “people it is im- that those who believe Intent, dicated under Davis’ above. portant away get and to re- from here to group and take other action.” August 23 over A letter distributed signature together of co- his those referring spoke, to as-

Newman then chairmen Peck and what saying many Kalish states that police, saults po- genuinely his fight claims going defense they to for felt have to part sition. It read in as follows: space assaults, of such closed. free space, “If we are not allowed will you are sure realize “We longer space. no not be We are allowed Chicago. testing Al- time this is a waiting for them to make moves. We though plans for non-violent our us, decided, some of to move out of for clear actions and we have made any can, park way we to ob- that we do not desire months space any way move their into struct convention or to interfere can, we defend ourselves delegates in movements of with the way we can.” Mayor convention, Daley out of the speech, Dellinger Party Newman’s and the Democratic have turned After engaged camp apologized Chicago having of Na- been into armed hearing Guardsmen, troops on tional airborne what New conversation Mace, wire, tanks, said, standby, man added “I’m sure he made barbed but weapon every message of in- conceivable his clear those who be about repression. get timidation and lieve here and better out regroup other action. take Prague becoming “Chicago fast doing They that now should be—can be disagree We Middle West. _" sup- urged their who have those giving directions further After away stay porters to because march, gathering he intro- for the danger repression. In- violence and Hayden, spoke as set forth who duced people appealing stead we are act, August Hayden’s overt under not lose clear that will make it we above. rights by default. our democratic rights plan Obviously to assert our “We evidence there was to hold properly convention march to the find from which the could hearings public there. approved Dellinger knew too, going Chicago per- persons, need other the Democratic Na- “But we re- tional Convention come not to confront where there sons who machinery, problems.” Then, shaking fist, pressive to assemble his he meeting Chicago.” said, park, you peacefully in to hold a “I’ll see permit for a which we have meeting At a a Mobe leaders with elsewhere, where, happens whatever deputy mayor August testified Stahl of trou- no likelihood there should be Dellinger me, that “said to that he had any people’s as- kind. A mass ble just recently returned from Paris where August sembly 28 at will convene studying had he been street riots of p. shell at Grant one m. near the band students at He said he Sorbonne. Loop, Park, just and will east of. the studying was these was anx- because he it p. This makes conclude at four m. why they failed, ious to know and was Chicago possible people to come to for subject in interested the whole of dem- noon, arriving day, at for that one onstrations and street He activities. home departing to in time be was, however, said he interested again hour. at a reasonable disturbing delegates violence or women, men, people, the convention —He said that he believed “Thousands day coming to disobedience, civil that the activities children peace tremendous witness the Mobilization Committee at make a Pentagon, equality, the same at where invaded the build- and racial city ing, pressure example on the provide of the kind of were civil time their to to come that he believed in.” Mr. disobedience the administration Baugher Dellinger those properly with deal testified also senses and challenge one carrying people “he said was convinced that were be who will willing Am- by proceeding to the step to to their further use violence obtain rights necessary phitheatre.” if it was and that civil city pay this had better attention Dellinger testimony There was happening.” what was August present 9 marshals’ at meeting meeting overt described under Davis’ Stahl testified at a Au- Dellinger agreed gust Hayden, he said acts and that 26 after the arrest of Tom plans Dellinger necessary He Davis. outlined “said that it was meeting August permit sleeping 4 at had attended the that a be issued for there would be Lincoln Davis said Park in order de- minimize August Loop anger He “mill-in” in struction —that over the arrest— morning meeting participated going expression.” to seek August suggestion of a and Davis’ majority panel (other than rally Hilton or a mill-in near opinion) the writer of this concludes Dellinger’s Loop response was a the record contains sufficient evi- assertion that a march should least be finding support dence Dellin- tried, and could a diversion ger intended, Chicago when he came to get people out of Grant Park and others August July incite, between 25 and could “do a more militant action.” As- organize, promote encourage a riot. suming plans for Davis’ remarks stated ' D. as to Dellinger’s riot, apparent approval Proof Hoffman. alleged same be evidence that he had the overt acts of Hoffman are speeches specified intent. locations in Chica- go August August 26, August 27, Dellinger July 25, Diego, On in San government proved 29. The travel spoke meeting college campus. at a on a Chicago August New York to testimony There is “Burn that he said your August draft cards. Resist the draft. Vi- 26 overt act: There is testi- jail. Disrupt mоny meeting people olate the laws. Go of a of 40-50 way any Park, States Government Lincoln termed meet- a marshals’ you stop ing, August can to am war —I insane 26 in the Hoff- afternoon. spectators preparation then man asked to leave and evidence of some of missiles meeting during purpose of the was to before and said “the use the battle at Michigan groups rally five or six form self-defense and Balbo after groups day, people to be and that these next we conclude there is sufficient assigned specific in Lincoln Park -evidence areas from which a could find police attempted hold when the these statements were an overt act un- drive them out o’clock.” He after eleven der the statute. groups called for volunteers. Several August stopped 29 overt act: Police formed, and Hoffman said that Michigan Avenue, march south on occur, one trouble should member demonstrators, thousand, several group was to communi- come proceeded Logan then north. At center, cations communications statue, Deputy Superintendent Roch- dispatch help to them. center would then ford ascended the hill and talked to the Bearing in mind all the circumstances testimony crowd. There was Hoff- that tending persons to through to show that horn, man shouted a bull while pointing whom these were Rochford, big statements were made to “We have tending committed to action and to those kidnap cheese now. Let us him take and resisting show in violence the crowd Amphitheatre him to the and now we clearing by police park got the evening, that bargaining power.” have our think sufficient we was testimony there officer’s “At went on this began evidence to find these re- get up time the crowd to and urged cheer,

marks violence neces- began and had the My and to move forward. capacity sary propel riot. to others to partner began up and I to move toward Deputy Chief and the one or two August 27 overt act: There testi-. was sergeants who were At there. ... mony (disputed) Tuesday that on eve- squad policemen time the August who ning, at the Hoffman was were stationed on the sidewalk moved in group prople of a center of 200 or more Deputy surrounded the then said, in led Lincoln Park. “Tomorrow He him down from the incline.” going There was Park, we’re to meet in Grant testimony that in- Hoffman had solicited going we’re to storm We the Hilton. help kidnapping plan. dividuals to got get go singly there because we if groups going pigs the blank are cross-examination, On Hoffman was stop us. We can’t make it asked whether he had stated his weapons. going without areWe to need you book: “That told Dick [Hoffman] weapons, bring lot a so we should Gregory rap cops that the a was rocks, bottles, sticks, good and another your strategy get bluff and was to weapon is a But we brick. have cop grab here, get head down him and break the bricks in half so that it will through; pigs us the other wouldn’t be easier to conceal and it will be easier Gregory they touch us. said what if throw, girls and the can throw them you did, replied, top pig ‘I’ll kill the ” too.” There was discussion between and I meant it.’ answered Hoffman weapons Hoffman and others statement, that he had written the al- self-protective equip- and the need for though mythi- he characterized it as “a holding ment. park asked about Someone suggestive very cal interpretation, loose.” night, and there was testimo- writing you He also admitted “that ny “Yeah, replied, that Hoffman we publicly plan announced [Hoffman] park should hold the at all costs. It’s kidnap pig the head and to snuff him park, pigs our and the no blank if touched us.” think evi- We right push park. us out. It’s our permit jury finding dence would going fight.” We’re this was a sufficient overt act under the statute, Considering (or and that violence at least as- all in- the circumstances Rochford) cluding prevented sault on was the fact that there violent police night police action. resistance to action August Hoffman, present at Intent: Rubin On Hoffman was Hoffman’s meeting, began plan already ac- marshals’ others late 1967 to described Chicago

tivity during respect to convention with Davis. week, distributed 1968. Letters were August 19, On Hoffman said at explaining promoting Yippie and meeting already described he want- planned number festival of life. A ed the Mobe to assist in marshals appear. of entertainers were invited to Park, starting defense of Lincoln Au- Many willing city appear who gust 25. permits ultimately de- obtained August On 20 and Hoffman was city apparent the clined when it became being present when marshals were permit park in would not use trained various maneuvers. contemplated. Admittedly it manner August 24, group On Hoffman told a planned participants would be Hayden which included Davis thing” free to “do and or- their and laws police sleep if the don’t let them might by pub- dinances well be violated park they going go into the down- drugs. nudity, fornication, lic and use town area and over hotels. take 1968, Yip-in March, Grand concerning August 25, On a newsletter in vi- York ended Central Station New the Lincoln Park festival contained police. A olent confrontation with attributing authorship statement peaceful Yip-out later in was held weeks dealing Hoffman and Rubin and Park, York, apparently Central New police pushing the out the demonstrators being permissive policy fol- with a more park. said, park the It “leave the by police. lowed necessary groups small and do what is Hoffman Rubin the Lake and attended pay kicking . them us make meeting 26, Villa in March. park On March out of the win.” but let’s letter, asking coopera- city’s 1968 a the August On 26 Hoffman demonstrated tion, Hoffman, Rubin, was delivered warding technique to others a aoff parks department and the and others to kicking blow with the arms as- while the deputy mayor. reply ever No was present de- sailant. Rubin was and Applications received. July were submitted activity “giving scribed lessons August and An action was self defense and on instructions how brought in federal court same at fight pigs.” Hoffman said earlier by Mobe, time as the was action day “tonight going that that we’re withdrawn. park.” said, they hold push He “If park tonight, going us out of the we’re Although there was testi- considerable to break windows. . . . We’re mony of statements indicat- Hoffman going up to F-.- north side.” ing violence, that there he desired no August testimony following: was On also Hoffman told the press, consistently going fight “We’re Rubin, August Hoffman, On and right park, for our be in but the they others met with Stahl. Rubin said just police push street, out us and going to hold police. defense classes in they expect do what thousands and thou- against Hoffman “he said they people sands to do. It seems prepared up town,” was to tear City care more about a Ordinance about “willing Park,” to die in Lincoln that if sleeping park they do in the than city smart, city] “the we would [the Chicago.” about the destruction Ear- spend a hundred thousand dollars day, lier that Hoffman con- referred in sponsor Then he the Festival Life. up police versation “the car we busted said, give yet, ‘Or them better we would night.” park last $100,000 sponsor and would still, cross-examination, said, Festival of Life’ he On Hoffman ad- ‘better give we would had him a hundred thousand mitted the convention he before ” fight people cops dollars and he said will in Chica- would leave town.’ light prop- fight subsequent events. In the go; many people die and stated, just think evi- he ositions we Chicago; has written that he go strategy jury, to dence to the was sufficient much better “considered again presumably park cops would be suffi- out of the drive us have government trial, going night,” if the to cient at a new that “We each fucking society proceed. if we chooses so to because wreck itself;” going don’t, its to wreck E. as to Rubin. Proof going way plane back to “all alleged The overt acts of Rubin are you fuck what the New York wondered speeches specified stay at locations Chica- they let us we done August go August August night. usual the in Lincoln As Park government proved 27. The travel decisions;” cops took care of the Chicago July Chicago New York to between felt we . I left I . . “When August great victory. lines be- had The won a us, people in streets and tween August 25 overt There testi- act: them, authority, people in had been Park, mony that in Lincoln Rubin was police clearly had seen established. wearing helmet, with three a football a small number that. people . . With sitting, standing, people four hundred to successful- we had been able lying nearby. police officers Eleven damage huge powerful po- ly do building. park standing near a party.” litical shouted, Rubin waved his arm August mother-fucking pigs “Look at Hoffman admitted that on these your victory standing “you cham- toasted over here. standing pagne They park headquarters” and that have to the park at Mobe protecting park, wrote, be- later he “It is debatable whether longs get people. or not massacre Let’s these Grand Central Chicago. gath- helped people fuckers out of here.” or hurt our chances began shouting; tremendously.” Rubin, helped He ered he I maintain it nearer policemen, to and the considered that it “let world walk toward the whole the going people yelling, to blood followed. After further know that was there be ” Chicago. cigarette Rubin toward on the streets flicked a butt . . . began officers, crowd to the and the inAs the cases of some of the stones, cans, bottles, throw and debris defendants, ample evidence to there is yelling police. the Rubin continued finding support jury a Hoffman peo- time, a but left while the scene committed one or more overt acts with ple throwing. were still required by the intent the statute. The find this We conclude the could question in- then whether becomes conduct an overt act under statute. tent was formed after arrival in Chica- August go, response experi- testi- to circumstances 26 overt act: There was mony speeches there, that Rubin made several or whether there is suffi- enced groups August finding support to in Lincoln Park. cient evidence to Selecting building just one Hoffman had such intent when he came before Chicago barricade, testimony was that to from outside Some Illinois. got present. up city about 600 Rubin his demands on the wеre unrea- post sonable, support in- on a table at the command and so-called this lends shouted, produce to and is time make to “Now the ference that he intended any- negative your yourselves city with thus stand. Arm reaction from the and thing you mar- find follow the His can make it easier to cause violence. together now, August If we don’t band statements to shals. Stahl on park arrival, costs immediately all is lost—Hold at all this made after up your giving own supports in- even if it fact his means the inference that shouted, up tent to life.” The crowd cheered “tear the town” existed when barricades, fires, being generated by threw lit came, built the he rather than stay prepared in the po- to “we” are police. when the Later debris at the fight keep park night to all and will park mem- some clear the lice moved to people told park. he On other occasions some of assaulted of the crowd bers police push from the them let the officers. thing. big “Wednesday park is the un- overt act could found an This fight yourselves pigs.” Arm der the statute. August 26, Park, after On Lincoln August testi- overt There act: was conversing Rubin, Hayden, the arrest of speech con- mony of more than one said, officer, police an undercover with August 27 in Lincoln versation Rubin get going these even “We’re with which comes closest Park. one going pigs ‘F----n’ . . we’re qualifying was a conver- as an overt act pushed park, hold the we’re into he marshals in which sation with ten go streets, going the Old we’re park said, held and I want “Abbie Town area when we win- where break tonight costs, pushed and if we at all fires, place dows and start we’ll have going streets, we are to riot and into the speeches to hide.” tell- He several made Construing F-up as a Old Town.” ing any- people yourselves to “Arm people direction committed to follow thing fight you find and can it, qualify we overt think can as an pigs.” Davis a conversation where act under the statute. suggested go people should into already Rubin’s Intent: Reference has Loop windows, Rubin said break presence been made to Rubin’s at meet- they also also should start fires. Rubin ings Although there Hoffman. through park, group went testimony Rubin statements group, fight said, “We have to indicating violence, that he wanted no tonight pigs park —We’re testimony there also of the follow- going park.” to let them take the ing: August discussing newspa On 1967, conversing In late about per Chicago” “The headline Battle of youth Chicago, festival Rubin said officer, said, with the same Rubin “We presence 100,000 young people got Chicagos every have to create little terrify so the establishment that where, got that we’ve have riots the nomination would made every city.” He said in conver another guard. beauty under armed “I think the holding sation park going of it the establishment should use “the same tactics the Viet to it do all do themselves. We a won’t Cong, use the hit and run Lat tactics.” thing. just going We are to there be began pelting police er when the crowd a They won’t be able to take it. car with objects, rocks and other Rubin They city will smash the themselves. yelled, pigs.” and the crowd “Get provoke will all the violence.” leaving park, After Rubin July 1968, 23, On group engaged Rubin addressed a a in various of van acts large rally in street dalism, New York. He said paint he bottle threw a at people substance “that police should a car. disruptions mass and cause to elec- August 28, bandshell, On at the Rubin system tion in the United States. —He told the officer that he and other leaders Chicago during said convention and people bring had told their “to to back day on election disruptive these tactics their home cities the revolution that had should be such the candidates would Chicago.” flagpole started in After campaign able publicly, and he Rubin, group, including incident a also said that thousands and thousands jumped police on a car tried to roll people Chicago will inbe so as im- screamed, pigs. over. Rubin “Kill the plement this, disruptive these tactics.” cops.” Kill the August On spoke group 25 Rubin evening to a Later after the Michi- in Lincoln early evening, saying gan Park battle, and Balbo Rubin led crowd a

407 throwing through forth conclusions which ob- We here downtown streets set significance only cars, if a jects there is new like. have at and the trial. sufficiency cases, As in the made several claims Defendants have Rubin intended to of the evidence that respect first trial of error with Chicago cause a riot when he arrived unfounded. conclude which we sufficiency question is a closer than the might if arise Since the same claims intent of the had such evidence that he upon pass there were a second trial we is our overt acts. It at the times his expressly. them judgment, however, the evidence go jury, and was sufficient Claim, testimony use again A. presumably at be sufficient agents is unconstitutional. government undercover trial, chooses new proceed. so to argued Defendants suppressed the although have summary, trial court should overt In certain agents against Hayden testimony because charged undercover acts Davis and agents first, uрon violated use of such their proved, there is evidence fifth sixth amendment fourth, or the overt acts which one more rights. city police charged against These officers the defend- each 91 government agents by testified to conversa ants could be found pre- occurred, by, accompanied individual defendants well tions with meetings planning ceded travel as remarks made at time of interstate arguments charged. public unlawful intent With Similar rallies. States, respect particular rejected v. situation in Hoffa United Davis, conceivably 293, 408, conviction could 17 L.Ed.2d 385 S.Ct. 87 U.S. finding (1) White, (1966). based on either that he v. States See United Chicago 1122, 745, traveled from 28 L. 752, outside Illinois to 91 S.Ct. U.S. July requisite Hoffa, Court between 20-25 with Ed.2d 453 In performed intent quoted one remarks Mr. Justice Brennan’s States, August 9, August Lopez overt acts of or his dissent August intent, requisite or 10 L. 83 S.Ct. U.S. finding (2) August dispos that he so (1963), traveled find Ed.2d 462 we performed being 17 with such intent and ei- overheard “The risk of itive here: August August ther betrayed overt eavesdropper an act with identity such intent. or deceived as to the informer probably one deals is one with whom XI. human so in the conditions of MATTERS OF SIGNIFICANCE inherent ciety. THE neces

IN OF A It kind risk we EVENT NEW is the sarily speak.” TRIAL whenever we assume deciding the record contains represented B. Claim of defendants’ support evidence sufficient a verdict jury. right personally address guilty, suggest any opinion do we not urge guilty that defendants in fact the trial are the Defendants right charged denying in to offenses court them the under the Anti-riot erred closing personally Act. ar There is their evidence in the record conduct own which, gument jury. They believed, claim that and inferences favor- drawn, right common able lead from the law. defendants the derives jury acquit. denying request judge The in said decision whether to The bring again his discre the matter to trial decision was within one government and that make. 165492 tion under 28 U.S.C. § opposite 92. The writer holds the “In all courts of United States view respect may plead parties Dellinger. their own and conduct 408 light defendants, testimony Ramsey prior some of their D. Exclusion of during might trial,

conduct be dis- Clark. ruptive argument.93 during The old complaint We do find merit one changed common rule law has because defendants, and the sit- so state because purpose its rule— was based on another again uation could arise the event testify defendant could not in his another trial. abrogated. own behalf—which been has subpoenaed Defendants former Attor- Cartano, See United States v. 420 F.2d ney Ramsey General Clark a witness 362, (1st Cir., 1970). 365 We conclude in their behalf. Government counsel represented that whether a defendant apprehensive that the defense would may jury himself address the lies within questions purpose ask for the of elicit- judge. the discretion of the trial ing testimony by inadmissible and that reason of Mr. Clark’s status as a former jury Claim C. that the should told legal be cabinet officer and chief officer of by judge’s it is not bound statement government the time of the the law. events, defense could counsel succeed thereby leaving preju- erroneous and principle, contrary The to this impressions jury. dicial with the by defendants, duty claim that it is the government request At the of the jury apply the law as declared court conducted a voir dire in the ab- by (notwithstanding the court finali jury sence of the to determine whether ty acquittal of an inconsistent with the testimony might which be elicited law, resulting “pardoning pow and the would be admissible. Then the court jury) firmly er” of the established ruled that defendants failed “to demon- by Supreme Sparf Court in Unit v. strate that the witness could a rel- make 51, 106, ed-States, 156 S.Ct. U.S. 15 contribution,” evant material and sus- 39 L.Ed. 343 government’s objection tained the by As said the first circuit a crimi- having testify. Mr. Clark case, “Today jurors may nal power procedure ignore law, duty The is indeed followed their apply unusual. We no case in interpreted by is to have found law as required court, a court a witness who was should so instruct- be 94 resisting being called to submit to Appeals ed.” for the Court relevancy questions dire voir recently before District of Columbia has de- ordinary put could be to him in course cided is not to instruct- presence jury. prerogative-in-fact There have ed that it has the suggestions bring been guilty that there situ verdict of not calling ations for “such a before-the-fact reversible court.95 proceeding possible Appeals Court of intended to avoid for the Ninth Cir- 97 departure cuit think reached the same result.96 abuse.” We that such personally as, by holding Spook, cases counsel of United States v. courts, respectively, (1st Cir., 1969). rules of such F.2d 165 also See permitted manage Moylan, and conduct causes F.2d States (4th Cir., 1969). therein.” judge 93. The also said that there is no (D.C.Cir., Dougherty 95. United States v. right hybrid representation both 1972), F.2d 1113. defendant and counsel. Lee See v. State Simpson, Alabama, (5th Cir., United States v. 460 F.2d 406 F.2d (9th Cir., 1972). 1969) ; States, 518-520 Duke v. United F.2d 721, (9th 1958), Cir., 725 cert. denied Bohle, 54, 97. United States v. F.2d 445 74 920, 357 U.S. 2 78 S.Ct. L.Ed.2d (7th Cir., 1971) ; Gajewski v. United 1365. States, Cir., (8th 321 F.2d 269 Boardman, 1963). United States v. 419 F.2d (1st Cir., 1969), explaining 116 also enjoys prestige does di- procedure office thereby should be from the normal disqualify witness, engage him a nor only not as intention to when an rected testimony prejudicial. clearly make his United prejudicial shown. is conduct (7th Cerone, v. 452 F.2d States proce or not the But whether 1971). Cir., justified by previous con here dure judgments appealed re- The from are urged counsel, by the of defense duct government, remanded for a versed and the cause excluding court erred in government so to new trial elects testimony. portion Mr. Clark’s one proceed. permitted Mr. The court have should May- telephoned testify Judge (dissenting that he PELL, Clark Circuit Daley important July, An concurring part, part). part that the defense was the claim appeal panel this is before a This nego- city administration’s refusal consisting more a vehicle court on parade permits ac- and other tiate about 22,000 transcript pages than numbered fol- commodations, the hard line it briefs, parties’ pages some 2485 and using oc- to the violence that lowed contributed descriptive term in that no sense. The curred. defendants offered testimo- per- necessity, brevity not has been Of ny to show had that Davis others panel’s picture in mitted to enter attempted many times without success majority opinion. It is with considera- city officials; contact that make with with that I confronted ble reluctance am Chicago only of the when the office necessity, ex- I that which deem a Community in- Relations Service became divergent pression of views which will volved, any July 8, after was there re- However, pages. I entertain more add only by sponse city, from the and then under the statute no doubts grant persons authority who had no prosecuted appellants is which permits. testimony The defense offered facially it unconstitutional July mayor 25 the meet with did clearly Amendment violative of the First Department Justice ington, officials from Wash- right speech. of freedom of Pomeroy, Wilkins and after My im reluctance, overridden Washington officials and compounded issue, portance of the Attorney met Davis. United States factors, probably two additional at least Mr. Clark on voir dire he testified that significance mere greater than the telephoned Mayor Daley prior July 25 length. First, prior to to avoid desire report he but after Wilkins, received a appeal, panel present court the unanimously Chicago, who had been district that a had held that as a result of that conversation the dismissing chal was correct court lenge Pomeroy. mayor met with Wilkins constitutionality the stat government did not the rele- contest holding that the at there was ute. vancy of this fact. the context of the even upon did not tack statute sig- theory, defense it could been have ques present constitutional a substantial required nificant have National Mobilization Committee tion. telephone Attorney call from the General 1969), Foran, (7th Cir. F.2d mayor States to move the (N.D.Ill.1968). F.Supp. aff’g, negotiations groups. into these It slate, writing I on a clean While least, would, at have dimension added a ordinary respect my put aside have facts, defense’s version essentiality de to stare of adherence therefore it should not exclud- been my principles disinclination cisis ed. fact therefrom because deviate controlling aspects un This court has held where one of that constitutionality presented relevant, a witness is to offer com able Supreme petent panel, Court material evidence as because trial, I subsequently consider the fact he holds decided what issue case, because, dispositive drawn, sufficiently on final could be narrow my analysis, reading accomplish punishment can of statute precise, of activity running lead to no other result. such without of afoul rights. view, my First Amendment In Secondly, particular us case before that was not done here. any subjective not one which induces legislative history of the so-called my part add reasons to desire 1968,” “Anti-Riot Statute of 18 U.S.C. majority already those advanced providing 2101 and while a §§ compels opinion for reversal. Candor plow- broad field for law review article recognition is not of the that this case ing, lengthily here, will not concern me coming ordinary type court. before this being primari- attention instead devoted appellate jurisdiction While our custom- ly language which evolved from arily us confines us to the record before legislative process. Freedom of legal —using “record” in the narrow speech, although seemingly her- accorded of that term—none of us can sense platitudinous culean stature in the out- the trial oblivious of the status pourings Day orators, of Constitution of case has assumed in this becomes, vacuum, when vulnerable,” of out “deli- very minds of a substantial number cate and and the “threat Putting very public. it members simply, sanctions deter al- exercise [its] vigorously status, ex- often potently applica- most as as the actual pressed, in which is that the courtroom tion of sanctions.” But- v. N.A.A.C.P. forum in trial was was a conducted ton, 415, 433, 328, 338, 371 U.S. 83 S.Ct. arrayed on one which were side (1963). Thus, 9 L.Ed.2d 405 seems to forces of and order and on the other law me that we as court should con- a “not designedly persons representative side disruptive anarchy. Any quеstion sider the abstract of whether for re- basis Congress might have enacted a valid by many versal bound to viewed as statute but instead must ask whether victory destroy for those who would Congress the statute that did enact will country. fairness, many others permissibly bear a construction render- contrary possessed completely are ing it free from constitutional defects.” views of the trial and the incidents lead- Aptheker Secretary State, v. U.S. ing express thereto. I no views on these 500, 515, 1659, 1669, 84 S.Ct. 12 L.Ed.2d differing to rec- evaluations other than ognize their existence and their inherent pulls judicial which for our function Nevertheless, by background, way of put judici- firmly must be aside. “The mid-1960’s, it must be noted ary always responsi- has borne the basic Congress gave serious attention to na- bility against protecting individuals tional anti-riot bills. “These bills unconstitutional invasions their response grave problem to a national rights by all branches of the Govern- —the outbreak of riots and other violent Willis, ment.” Stamler F.2d good incidents number of cities (7th 1969). 1369-1370 Cir. country.” various sections De- belief, bate reflected a at least on the do, however, express, I a further as part some, just did the riots matter, saying threshold the view that happen spontaneously but were the possibility persons, there individually be no could planned professional agitators work of collectively organized, frequently whose home bases not co- did crossing our state boundaries geographical incide with the state of express bringing intent of a riot about occurrence. history political is to look at with naive- also, corollary, Congress I It té. therefore am was not overlooked in opinion agitator ordinarily that a federal communi- statute must Doar, 1. Statement John Assistant No. 5 of the House on the Committee Attorney General, Judiciary, before Subcommittee October

411 turn, by speech, which, in advocacy cate would ne- mere or ideas the mere ex- pression possibility that im- laboring cessitate the controls of belief.” Without might agitators infringe posed specificity, on First the matter into extended a rights. appraisal push Amendment In letter a fair indicates that a Judiciary passage essentially chairman of the House Com- Senate of what is Attorney mittee, present early from Assistant General statute occurred in March following Doar, Attorney General, 1968. October in accord- previous ance recommendations, was stated: with his submitted on of the behalf President ‘inciting a “The term riot’ should be containing following language: bill defined in The definition the Act. recognize “(c) organize must incitement is To incite or a riot specif- expression, urging instigating form of and should shall mean or other ically expression protected persons riot, urging state that where such or by instigating the First Amendment —the mere place done a time and advocacy of and the ex- ideas mere and under such circumstances as pression existing belief —is not included further course riot scope light danger within the the Act. or to create an imminent of a Lowry, of Herndon occurring, 301 242 riot U.S. and shall not mean the 1066], L.Ed. such a advocacy [57 S.Ct. 81 mere ideas or the mere might along expression definition structured Cong.Rec. of belief.” 114 following: (March 5, 1968) 5213 appellants’ summary of the ensu- “Inciting urging shall mean a riot ing events, unchallenged by factually instigating persons riot, or Government, is as follows: instigating urging or where such place done and under “Despite at a time pleas various Senators such as to im- circumstances create an to consider the Administration version danger occurring, riot of, minent of a put in view as Senator one it ‘the advocacy very shall mere not mean the questions delicate constitutional expression ideas or the mere of be- here’,2 are involved [which] the Thur- containing lief.” amendment, mond the text present Act, pushed was to a legislation subject on the did National supporters, its successful vote thus proceed apace. However, statute plea rejecting the President’s ‘a with we now fi- which concerned did carefully piece narrow and drawn’ April being nally come into In- 1968. legislation.” discussion, only terim have personal finally articulated legislation passed and individual view- That points few, something of a reflected that those who than a model of less punished incite violence should draftsmanship is illustrated the ob- speech 2101(b),4 whether or not freedom U.S.C. scurantism of 18 § impaired, analysis say but at least the 1967 House which on would seem (HR421) engaged bill contained an exclusion in proof had defendant inciting the definition of a riot of “the in an overt had travelled in in- act and Harris, paragraph (1) (a) (1) 2. See remarks of Senator of subsection (March 5, Cong.Rec. 1968). traveled interstate or [sic] foreign (2) commerce, has or use of or Attorney General, any facility accom foreign See letter used of interstate or bill, panying proposed Cong.Rec. commerce, including to, but not limited (March 1968). mail, telegraph, telephone, radio, or tele- vision, to communicate or broadcast prosecution 2101(b) persons any рerson group prior : “In under § or section, proof acts, en- this defendant travel or shall to such overt such use attempted gaged engage proof or one or establish that such be admissible facility more of the overt described sub- defendant traveled in used such acts (C), paragraph (A), (B), (D) foreign of interstate or commerce.” problem commerce would be admissible there terstate would have been no particular proof wording he had in interstate travelled score if the had commerce. terminated the word “belief.” Nei- however, wordings, ther of these here, however, The crucial subsection utilized. suggestion of did not follow which General, Attorney is U.S.C. § suggest phrase To the tacked-on reading 2102(b), as follows: legisla- deliberately in the inserted “(b) chapter, As used tion to invalidity cause would seem to organize, riot’, assumption. or term ‘to ‘to evoke a violent incite This does in, mean, promote, encourage,'participate considering or however, not the na- riot’, includes, carry array on a but is not tion-wide of violence and riots instigating to, urging Congress or limited about which members cer- riot, persons tainly recipients but shall not be to were the of much corre- spondence the mere or writ- constituents, deemed mean oral from disturbed (2) (1) legislators advocacy ten of ideas or ex- there who, were not de- involving pression belief, spite not advo- Attorney the admonitions of the cacy any General, or acts of violence or punish- act were of the belief that rightness of, or the any assertion of the upon ment should be visited who commit, right any or merely such act acts.” advocated the idea of violence or added.) (Emphasis expressed rightness belief thereof. legislative history does not neces- majority opinion pre- does “not sarily dispel meaning. such all re- With tend minimize the First Amendment spect, majority’s attempted saving problems presented on the face of this phrase construction that was insert- statute,” my opinion rightly and in does by ed the drafters to forestall a First exposition not. of the While the consti- Amendment defense the ease of a tru- problems majority opin- in the tutional inciting, ly action-propelling speech, is being apol- ion sometimes borders only beyond not strained reasonable ac- ogia legislative draftsmanship inept ceptability unsupported is but historical- according (“awkward phraseology” ly. Further, pro- such a construction nevertheless, Government), am in I guidance vides no the interstate analysis accord with much the acute speak traveller who intends to of the underlying of the issues as written rightness of violence as a last resort so- Judge only It when we Fairchild. problem lution to whatever of civiliza- doorway disposition near the our caught tion concerns him. He will be paths part. inciter, the same net as the true and the The matter of the so-called “double context of his remarks as well as the re- negative” is to me the first determina- audience, possibly action of his unwar- through leading step tive to and unanticipated, provide ranted and will gateway of violations. First Amendment peril being subject grand of his presented This nor matter was jury scrutiny punishment and eventual panel considered of this court statutorily option at the uncontrolled supra. Foran, There would have been comminatory prosecutor. problem part no the final of § “ 2102(b) had been statute, written: “The existence of such a but shall not be deemed mean the readily lends itself to harsh and (1) advocacy mere oral written discriminatory enforcement local (2) belief, expression prosecuting officials, against ideas or even particular though involving advocacy any groups displea- act or deemed to merit their sure, acts of violence or perva- assertion of results in a continuous and rightness of, right any commit, or the sive restraint on all freedom of discus- such act or might regarded acts.” That is the reasonably construc- sion that perforce tion for which the purview.” Government as within its v. Al- Thornhill Alternatively, must in effect abama, 97-98, contend. 310 U.S. 60 S.Ct. I L.Ed. These later have fash- decisions any principle ioned direct unfavorable criti- constitu- intended to charged guarantees speech tional cism toward official free n duty prosecuting press permit Anti- free under the do not a State examining advocacy proscribe Riot a statute forbid or statute. regard availability except for consti- use of force or of law its violation abuse, advocacy con- where to in- tutional the view cannot be such is directed citing producing to known officials with their imminent lawless fined philosophies pro- likely action to incite or known tendencies and include duce As in Noto must those who such action. we said States, positions the tomorrows v. United 297- tomorrow U.S. 1517, 1520-1521, 298 L. thereafter. 6 S.Ct. [81 (1961), Ed.2d ‘the mere abstract 836] am to no conclusion other I able reach teaching pro- of the moral ... phrase the than that intended added priety necessity moral for a or еven pain prosecution, preclude, under violence, resort to force and not the is though advocacy only of violence even an preparing group same as a for violent expression It or of belief. is re- idea steeling action it such action.’ of, hopes pugnant to our ideas and our Lowry, v. See also Herndon 301 U.S. for, resort violence civilization 242, 739-740, [, 732, 259-261 57 S.Ct. necessary. should ever be Self-defense (1937); Floyd, 81 L.Ed. Bond v. 1066] might excep- ordinarily to an seem 348, 116, 339, 134 [87 U.S. S.Ct. ideally tion, but should devel- civilization 17 L.Ed.2d A statute 235] obviating point op this even which to draw distinction fails however, necessity. Civilization, unfor- impermissibly upon the free- intrudes tunately progressed has to this guaranteed by doms the First point, point nor to where there are sweeps It Fourteenth Amendments. way or it one another not believers that speech which within its condemnation improvement. Nevertheless, could stand our has immunized Constitution panoply in of constitutional man- our governmental (Footnote control.” exceeds, my opinion, none dates in omitted.) free, significance upon impact in its rely on Whit- civilization, While did not though yet ideal, this court even nevertheless, ney decision, in its Foran speech. that of freedom of significance it is than of more casual Thus, though we, or at least the sub- Brandenburg opinion hand- majority us, stantial find subsequent Foran. to that in ed down rightness abhorrent think that correctly points Foran, out the court advocated, should even violence ever be sufficiently defi- must there though expressed belief, an idea as warning proscribed con- nite as nevertheless, must be distaste over- under- duct when measured common preservation ridden essen- standing practices, at 939. 411 F.2d tial freedom here at stake. re- The here when fault of the statute necessity quite This is made clear light teaching read Brandenburg 444, Ohio, v. 395 U.S. Brandenburg purported 447-448, 1829, 89 S.Ct. 23 L.Ed.2d speaker in, or the facil- who travels uses Supreme (1969), in Court of, foreign ities commerce interstate per opinion, in a unanimous aft- curiam provided specifically is not with the referring discrediting by er sub- protected and viola- drawn line between opinions Whitney sequent Califor- tive utterances. nia, L. 274 U.S. S.Ct. (1927) opinion (which upheld majority case be- The Ed. 1095 had negative us, Syndicalism Act), the double Criminal fore aside from California issue, seem find salvation stated as follows: would by construing ducing “to incite a the statute imminent lawless action and is likely action, referring produce to words which to incite or riot” as such sufficiently likely propel the violent 395 U.S. at 1827. The im- S.Ct. portance qualification action. of this action to be identified with was con- Attorney cru- tained in conclusion is then that the letter reached General’s “urge” 2102(b) set cial word embodies out hereinbefore. The advice was § required expression to ac- not heeded. relation of agree. tion. With this I am unable overly sweep I find also an broad § range shadings meanings of 2101(a)(1) in the inclusion of the word “urge” Third (Una- word Webster’s “thereafter.” This subsection ba- Dictionary New International Stripped sic statement of the offense. bridged, 1966), in addition to constitut- modifying verbiage, and alternative ing morass, provide a semantical subjects the subsection to fine and im- prosecution simultaneously a basis prisonment one who travels in interstate Thus, prosecution. defense commerce with intent to incite riot meaning prosecution point to the can and thereafter incites a riot. There is exercising inciting being that of an relationship required no causal between counter influence. The defense can the travel with intent and the riot ac- showing presentation in ear- that a tually necessary incited. No connection equally acceptable nest manner is an whatsoever need be shown them between definition. any nor is there time limitation as might if one This result be otherwise place when the overt act shall take meaning only was the definition or relationship to the travel. I con- cannot accepted commonly definition and validity ceive the constitutional of a archaic, ob- the other or others were scure, open-ended statute which in this punishes manner category. dialect of similar or person at the federal level find That is not situation here. I for what would otherwise a local compulsion no in the definitions toward only crime because at some in his time the narrow one needed sustain past he had crossed state line or had rewriting “judicially it.” statute without facility used a of interstate commerce Aptheker Secretary State, su- v. example with a nefarious intent. Cf. pra, 378 U.S. 84 S.Ct. 1659. above, inciting, I used actual applicable same result would be if the Further, I do not find basis original travel was with the intent of restricted statute to cause me to read a aiding person participat- in some not, meaning in I do into word. ing in a riot. No convicted criminal on sum, guidelines by in see the statute the probation placed under is such severe speaker right- in of the which favor nonterminal strictures. of violence can a safe deter- ness make goes beyоnd merely mination. If he people prone speak Sometimes by proposition bare statement of the offhandedly slightly perhaps inaccu- stating only right to that violence is rately of well-established or cherished particular that it is correct a abuse but concepts without resort to the exact text imperative, it the or- seems he is within plain language of the source. The “urging,” maybe indeed, he al- bit of the First Amendment to Constitu- by sincerity ready impaled pos- his tion of the of America is United States iting proposition. his basic “Congress make no shall law Further, equal significance, abridging speech. and of freedom of ” by present intend- speech” statute does not clear . While “freedom of Brandenburg pronounce- right proper ment meet the not an absolute curbs only advocacy unprotected by spelled judiciary, ment that have been out e. inciting pro- g., libel,5 it where is directed to in the area of the word (and example) 5. Likewise inasmuch as no freedom out reference to the traditional speech opinion complete yelling would be with- in a “fire” crowded theater. qualified Thompson, “speech” by is not limi- 89 S.Ct. itself 394 U.S. 1322, 1329, subject 22 L.Ed.2d 600 tation matter to innocuous Imaginative stirring mundanities. question is not before Since equally ideas and idealistic beliefs are acceptable propose constitutionally sweep. Speech effec- within its without guidelines national anti-riot stat- speech tive communication is not but an on constitu- ute but rather scrutinize monologue idle in the wilderness. Com- grounds actually en- tional the statute munication involves A “law” listeners. necessary acted, to con- I do not deem upon construction reasonable the numerous bases sider each of would, by punish- its deterrent threat of challenge by appellants. advanced expression of ideas or ment the mere appear to me Those I have discussed speaker beliefs, cellularly isolate principal and more than suf- be the ones potential listeners in all of challenge. for a successful ficient except his own states Union scope judicial inquiry has been abridge would, my opinion, freedom aptly stated Chief Justice Warren speech. Robel, 389 United States v. U.S. arguments of facial unconstitu- Other 267-268, 419, 19 88 S.Ct. L.Ed.2d 508 tionality appellants, are advanced (1967), as follows: arguable merit of which some “It is not our function to examine the draftsmanship imperfect view congressional judg- validity of statute, to which there reflected ment. . are concerned . We previous herein. reference has been determining solely with whether 2102(a) Thus, definition the § before exceeded the statute us has is used. “riot” the word “disturbance” imposed by the Constitution bounds Landry Judge stated Will As rights are at when First Amendment (N.D.I11. F.Supp. 968, Daley, 280 legislation writing The task of stake. 1968), “New ideas more often than stay within those bounds which will disturbances, very purpose yet the create Congress. committed to Our has been of the is to stimulate First Amendment recognizes that, today simply decision the creation of new and dissemination legitimate legislative concerns when concepts.” expressed im- in a statute which thought protect- on poses Somewhat was ex- burden the same a substantial activities, Whitehead, pressed by Con- Alfred North ed First Amendment English goal by mathematician, gress philosopher means must achieve its impact reality in drastic’ “Great ideas often enter have ‘less strange guises disgusting vitality of First Amend- alli- the continued Tucker, Whitehead, Shelton v. ances.” Adventures of Ideas ment freedoms. (1933). supra U.S. S.Ct. [364 (I960)]; cf. United L.Ed.2d Also, language overly broad Brown, 461 [85 v. 381 U.S. States already the statute referred to has 1707, 14 L.Ed.2d 484] S.Ct. significance in constitutional its discour- posi- the basic The Constitution and aging impact on the freedom to travel. rights tion of First Amendment nothing fabric demand our democratic long ago recognized “This Court less.” the nature of our Federal Union concepts per- our constitutional portion quoted footnote to the liberty require sonal unite to that all p. (at opinion p. 419 at 88 S.Ct. throughout citizens be free to travel meaningful be- 426) the case also is length and breadth of our land un- gov- to balance fore us in the refusal regula- by statutes, rules, inhibited or expressed interests ernmental unreasonably against or Amendment

tions which burden First statute rights by Shapiro individual. asserted this movement.” restrict put statutory pertaining The rationale for the refusal was than those con- stitutionality, majority I concur in follows: opinion. recognize interests are that both “We substantial, opinion process inappro- it As this but we deem being finally drafted, people priate one as of the for this Court to label by being important more sub- world were stunned and more shocked occurring inquiry terroristic violence at the site the other. than Our stantial Indubitably Olympic games. a of the 1972 is more Faced circumscribed. by popular de- federal stat- shock will be followed conflict between a clear suppression mand for of violence as in the interests of nation- ute enacted political weapon. security An an individual’s exеr- ideal state of civi- al rights, person no Amendment lization should find cise of his First wellbeing analysis jeopardy of loss life confined our we have Congress adopted irrespective a con- from violence of its motiva- has whether achieving state, however, its con- tion. To attain that stitutional means cededly legitimate legislative goal. suppression interchange of the free making pyrrhic we have ideas and determination beliefs would be a this sac- necessary precious the va- rifice of it to measure freedom for an illu- found adopted sory safety. lidity my of the means Con- It is because of under- goal against lying gress preservation has both belief of that pro- sought specific freedom have written as I have to achieve I Amendment, My panel of the First hibitions herein. share brothers way pres- my importance ‘balanced’ But we have no views respective interests. those We ervation but do not find the cause only particular re- the Constitution ruled alarm that I do stat- quires con- the conflict between ute. rights gressional power individual legislation drawn accommodated narrowly the conflict.” to avoid more us, hold before I would In the case suffi- not drawn the statute was

ciently narrowly the conflict to avoid re- must be the convictions and that being grounded on an versed because COMPANY, MORTON SALT a division enactment. Inasmuch International, Inc., unconstitutional Morton Petitioner, panel majority of contrary and inasmuch result reached resort, court is not one of final I as this NATIONAL LABOR RELATIONS myself BOARD, Respondent, remainder of address majority only opinion of an on the basis arguendo statutory assumption con- Machinists, International Association of stitutionality. Lodge Oakland No. International Association of Machinists and Aero- writing appellate Every judge space Workers, AFL-CIO, Intervenor. probably phrase opinion will simi- court No. 71-1853. analysis differ- result somewhat lar ently. extensive The difficult issues and Appeals, United States Court unlikely before us make record Ninth Circuit. exception. present case would be an Dec. might approached Thus, I not have while exactly the same some of the issues language,

manner, nor identical used

upon my of the results consideration covered, as to the

reached issues notes that agree judge, supplement rors were unable to on a verdict The district his Saturday asking “transcripts,” record, and one note recalled mes- 378 expect trial, you long can’t been a first “It’s on the hour sage dinner “near the Marshal so soon.” a verdict to come to jury reach day” “could that any making these denied message Dobroski “the next agreement,” and a February 15, statements. ... Sunday, day, agree on a jury unable to argue judge that com- that the Defendants jury was that the failing but verdict or verdicts a record to make mitted error having me send judge exchanges desirous between of the transcripts transcript jury or responding room a jury, without as well as during the admitted affording par- of evidence opportunity . . counsel an formulating response. trial.” ticipate argue re- They the marshal’s also that re- various versions There were de- interference with the were an marks conveyed by Deputy Do- orally sponses, deprived im- them an liberations that marshal, wit- one other broski jury. partial agree response tended nesses messages message “hung jury” right gener Counsel has a as a deliber- they continue were to was that proposition al to assume that com request response ating, to their bearing jury, upon the munication to the transcripts was denied. was that it place open case, court.57 will take scrutinized, Lapses closely should be al support testimony to was also There though they may be or tolerated excused allegation a marshal defendants’ certainty appears no when during jury comments volunteered present harm has case been done.58 jurors testified Five its deliberations. judge gave is not one addi say- they the marshal remembered tional instructions substantive of, something ing “The effect jury counsel, without notice to for which long you judge keep as he here as can consistently the federal courts have jurors remembered the Four wants.” reversed.59 making a statement marshal 56 conveyed through Messages, a mar- jury case had delib- Krebiozen shal, long that the should continue extraordinarily delib- time. for an erated erations, been held error.60 harmless jurors remem- Four testified like, something There are saying instances out of court marshal bered the communication information in judge’s docu- instructions.” “Remember mentary unequivocal or other form jurors also testified that or two also One duty;” found to said, your be harmless error.61 marshal “This 1968) ; States, Durovic, Rice v. 356 F.2d United 56. v. No. 64 668 United States CR (8th Cir., 1966) ; 709 (N.D.Ill., 1966), Gomila v. United the celebrated trial States, (5th 1944) ; Cir., judge allegedly concerning 146 F.2d 372 before the same (3d Arrington Robertson, practices v. 114 F.2d 821 fraudulent connected with Cir., 1940) ; Schor, drug v. 418 United States sale of the “anti-cancer” Krebiozen. (2d Cir., 1969) ; Bukowski, F.2d 26 v. Jones United F.2d See v. 435 United ‍‌​‌​​​​​​‌​‌‌‌​​​‌‌‌‌‌​‌‌​​​‌​​‌​​​​‌​‌​‌‌​‌‌‌‌‌‍States States, U.S.App.D.C. 352, (7th Cir., 1970). F.2d 113 308 1094 Swenson, (1962). But v. 307 see McClain 583, States, 57. Shields v. United 273 U.S. (8th Cir., 1970) (court held 435 F.2d 327 588, 478, 47 S.Ct. 71 L.Ed. 787 presumption error clear overcome Compagna, prejudice). 58. United v. States 146 F.2d indication lack of 524, Cir., (2d 1944). DiPietto, F.2d 60. United v. States See, Fillippon g., e. v. Albion Slate Vein (7th 1968) ; Cir., v. Walsh United Co., 76, 81, 63 L. U.S. 39 S.Ct. ; (9th Cir., 1967) States, 371 F.2d 135 States, (1919) ; Ed. 853 v. Shields United (3d Grosso, F.2d 154 v. United States 273 U.S. 47 S.Ct. 71 L.Ed. 787 Cir., 1966). (1927) ; Gagliardo States, v. United States, (9th Cir., 1966) ; 244 F.2d 132 Ferrari F.2d 720 Ah Fook

Case Details

Case Name: United States v. David T. Dellinger

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 5, 1973

Citation: 472 F.2d 340

Docket Number: 18295

Court Abbreviation: 7th Cir.