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August 25, 1972

UNITED STATES of America Plaintiff,
Eqbal AHMAD, Philip Berrigan, Elizabeth McAlister, et al., Defendants1

Herman, District Judge.

The opinion of the court was delivered by: HERMAN

HERMAN, District Judge.

 Before this court are two post trial motions submitted by defendants Philip Berrigan, a Roman Catholic priest, and Sister Elizabeth McAlister, a nun. Philip Berrigan was convicted on four counts of violating 18 U.S.C. § 1791; Elizabeth McAlister was convicted on three counts of violating the same statute. The so-called "contraband" statute *fn2" essentially prohibits the smuggling into or out of a federal prison any item without the "knowledge and consent" *fn3" of the warden. Each of the separate convictions involved letters between the defendants. Berrigan, an inmate at the Lewisburg Federal Prison, Lewisburg, Pennsylvania, was convicted of causing one letter to be smuggled out of the prison to Elizabeth McAlister. He was also convicted on three counts of attempting to send letters out of the prison on separate occasions. Sister McAlister was convicted on three counts of attempting to smuggle three letters into the prison. Each of the seven letters was carried by the same courier: one Boyd F. Douglas, Jr. Douglas, also an inmate at Lewisburg, was both a confidant of the defendants and, ultimately, an informer for the Federal Bureau of Investigation.

 The government contended at trial that the letter smuggling began after prison officials removed Sister McAlister from Berrigan's list of approved correspondents. The system apparently used Boyd Douglas as a direct courier for Berrigan's letters out of prison. Douglas was on a study-release status studying days at a nearby university and sleeping nights at the prison. Douglas admitted on the witness stand that he had kept an apartment near the university campus, contrary to prison regulations. The informant would take the letters directly from Berrigan, hide them in his school notebook and remove them from the prison. Once on campus, according to Douglas, he would use a photocopy machine to duplicate Berrigan's letters to McAlister. Douglas would then send the original on to a mailing address where McAlister could retrieve it. Defendant McAlister used the addresses of other nuns and on occasion the rectory of Saint Gregory's Church in New York City. In return, McAlister would mail her letters to Douglas's unauthorized Lewisburg apartment. Douglas would then copy her letter into his notebook (on occasion the copying was done by coeds whom Douglas knew). He would then take the notebook into the prison and retain the original.

 Defendants have submitted motions in arrest of judgment and for acquittal. The motion in arrest of judgment renews a defense pre-trial motion challenging the constitutionality of 18 U.S.C. § 1791; contending that the statute is overbroad, vague, and an improper delegation of authority.

 The motion for judgment of acquittal sets forth the following contentions:

(a) The evidence does not support the verdicts in that the warden knew of the alleged smuggling;
(b) The court's charge to the jury improperly defined the statute;
(c) The defendants were entrapped as a matter of law;
(d) The government discriminatorily prosecuted the defendants and the court improperly denied the defendants the right to obtain and introduce evidence of such discrimination; and
(e) The court improperly refused to order the government to grant immunity to defense witnesses.

 In this opinion the court also deals with the defense contention, originally presented in a motion to dismiss the indictment that the government's evidence was the product of illegal electronic surveillance.


 Defendants first challenged the constitutionality of 18 U.S.C. § 1791 in a pre-trial motion for dismissal. This court rejected the defense argument in an order unaccompanied by an opinion. Although nothing has occurred to alter the court's conclusion, an explanation is in order.

 As is often the case in such a complex problem, there is a dearth of judicial scrutiny of 18 U.S.C. § 1791. Needless to say, the United States Supreme Court has never directly passed on the matter, despite the statute's nearly quarter-century of existence. United States v. Ruckman, 169 F. Supp. 160 (S.D.W. Va. 1959) was apparently the first direct challenge to the statute and its attendant regulations. In that case the defendant was convicted of smuggling food into a federal prison. Despite the relatively innocuous nature of the "contraband" the court rejected defendant's arguments and ruled the statute to be a constitutional delegation of authority. *fn4"

 Ruckman has been supported by the only other cases to have considered the problem. United States v. White, 295 F. Supp. 893 (N.D. Ga. 1968); Fulwood v. Alexander, 267 F. Supp. 92 (M.D. Pa. 1967); and Carter v. United States, 333 F.2d 354 (10th Cir. 1964).

 Carter also involved the unauthorized introduction of food: five jars of instant coffee. It eventuated that the jars actually contained ordinary dirt. Defendant Carter was convicted of conspiracy to violate the statute, and the Tenth Circuit upheld the conviction, the court concluding that Congress may attach a criminal penalty to an administrative rule which it may constitutionally delegate. United States v. Grimaud, 220 U.S. 506, 31 S. Ct. 480, 55 L. Ed. 563 (1911) was cited with approval in Carter. In Grimaud, in reversing demurrers to the evidence in a criminal case in which defendants were charged with the violation of a regulation of the Secretary of Agriculture, the Supreme Court in speaking of the party making the regulation said, at 518, 31 S. Ct. at 483:

"They did not go outside of the circle of that which the act itself had affirmatively required to be done, or treated as unlawful if done. But confining themselves within the field covered by the statute they could adopt regulations of the nature they had thus been generally authorized to make, in order to administer the law and carry the statute into effect."

 In Fulwood, supra, the late Judge Follmer, sitting in this district, affirmed the delegation of power in § 1791. The court also upheld the right of the warden to confiscate a Muslim newspaper and to partially proscribe religious practices that interfered with prison order and routine.

 Defendants concede the case law to be limited and against their position but contend that the above cases go only to the issue of congressional authorization. Father Berrigan and Sister McAlister argue that the crucial issue is the granting of the "unfettered discretion" to the warden. Contrary to defendants' assertion, the limited case law does involve the regulation in question. In each instance the contraband was not specified in the statute or regulations, but drawn into the ambit of § 1791 by the "anything whatsoever" concept of 28 C.F.R. Chapter 1, Part 6. Defendants cite White as casting doubt on the breadth of the delegation as set down in the regulations. However, the court in White looked squarely to the Tenth Circuit's Carter decision and denied the defendant's appeal. What the defendants in the instant case point to can only be described as pure dicta in the footnotes.

 Defendants also argue that the statute is both overbroad and vague. As to the issue of vagueness, defendants assert that inmates cannot possibly know what is forbidden from being sent out of the prison. Likewise, potential visitors, etc. cannot know what is forbidden from importation. In reality, the regulation makes quite clear that "anything whatsoever" is forbidden as contraband unless the warden gives his consent. While such language may appear overbroad, the breadth of the language is not sufficient to attack its specificity.

 This court finds an analogous case compelling in rejection of the defendants' breadth and first amendment arguments. In United States v. Flower, 452 F.2d 80 (5 Cir. 1971), a military compound had a similar regulation giving equivalent authority to the post commander as that given to the warden. Regulation 210-6, promulgated under authority of 18 U.S.C. § 1382, was the subject of an appeal closely aligned to the problem presented by this case. Appellant, the Peace Education Secretary of the American Friends Service Committee, was convicted for distributing leaflets. The Fifth Circuit affirmed the conviction. The court said nothing in its decision condoned "unfettered discretion," but that broad powers were necessary for effective control of such an institution. The court indicated that the proper remedy was not an attack on the power of the Commandant, but on whether he abused the discretion granted to him. Second, the court drew an important distinction between closed institutions and everyday activities:

"To acquiesce in appellant's claim that both the statute and the regulation are unconstitutional we would have to accept his contention that there is no difference between public streets, public roads, towns, shopping centers, and public parks on one hand and military reservations under the exclusive jurisdiction of the federal government on the other. We would have to agree all are one and the same and that the exercise of First Amendment rights at all of these places is governed by the same standards. This we cannot do." . . . .

 A letter is essentially neutral, made dangerous or innocuous by its author. Given the potential of a letter -- to transmit escape plans, etc. -- the warden must know of its contents before passing judgment on its suitability for importation into or exportation from the prison.

 As Mr. Chief Justice Warren noted, in United States v. O'Brien, 391 U.S. 367, 376-377, 88 S. Ct. 1673, 1678, 20 L. Ed. 2d 672 (1968):

"This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on the alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." . . . (Emphasis added)

  This court concludes that 18 U.S.C. § 1791 meets each of the requisites set down in O'Brien. In light of the cases noted supra, interpreting § 1791, the Congress constitutionally delegated the authority in question. The interest involved is an "important and substantial" one *fn5" and unrelated to the suppression of free speech. By definition there is a distinction between "incidental limitations" on speech and its suppression. This statute and case present examples of an incidental limitation, at most, and a limitation no greater than that absolutely required for the furtherance of safe and efficient prison maintenance. This court, therefore, rejects defendants' attack on the constitutionality of 18 U.S.C. § 1791.


 (a) The evidence does not support the verdicts.

 Defendants argue that no crime was committed relative to 18 U.S.C. § 1791 since the warden (or assistant warden) knew of the letter smuggling and impliedly consented to it by failing to intervene. The defendants accurately quote § 1791 as requiring the act to be done or attempted "without the knowledge and consent" of the warden. The crucial question is the balance between mens rea in the crime and the knowledge elements as a requisite to the occurrence of the crime.

 The defendants contend that the congressional intent of the statute was to assure the warden maximum knowledge of activities within the prison, thereby making management of the prison a feasible task. The defense reasons that if the warden knows of the ...

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