(D.C. Criminal No. 14950). Appeal from the United States District Court for the Middle District of Pennsylvania.
Van Dusen, Aldisert and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Concurring.
Father Philip Berrigan and Sister Elizabeth McAlister appeal from judgments of conviction on seven counts of violating 18 U.S.C. § 1791,*fn1 as augmented by 28 C.F.R. § 6.1,*fn2 for sending seven letters into and out of Lewisburg Federal Penitentiary "without the knowledge and consent of the warden." (Counts IV-X.)*fn3
Appellants were originally indicted, along with six others, for conspiracy to kidnap Presidential Advisor Henry Kissinger, to destroy the underground heating system in Washington, D.C., and to unlawfully interfere with the Selective Service System by engaging in "draft board raids" (Count I); for unlawfully sending through the mails a letter containing a threat to kidnap Mr. Kissinger (18 U.S.C. § 876) (Counts II and III); and for smuggling or attempting to smuggle letters into and out of a federal prison without the knowledge and consent of the warden (Counts IV to X). The jury was unable to agree upon a verdict on Counts I, II and III. Appellants urge that we reverse the convictions on Counts IV to X, or, alternatively, grant a new trial. Appellants have advanced numerous contentions which we will consider seriatim.
Appellants contend that they are the victims of a prosecution which is discriminatory as to them, and, therefore, offensive to the equal protection clause. As to the counts for which they were convicted, they argue that (1) there have been relatively few prosecutions under § 1791, (2) these isolated prosecutions concerned letters directly relating to prison conditions, and (3) none of these cases involved prosecution of a letter writer who was not a prisoner, i.e., the position of Sister McAlister. They also argue that the prosecution of all the counts was conducted for political reasons, because of defendants' efforts to end the use of United States military forces in Southeast Asia and for personal reasons to vindicate the reputation of the late Director of the Federal Bureau of Investigation. Therefore, appellants conclude that the charges against them violate the concept of equal justice required by Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886), and reaffirmed in Two Guys v. McGinley, 366 U.S. 582, 6 L. Ed. 2d 551, 81 S. Ct. 1135 (1961). See also United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); and United States v. Robinson, 311 F. Supp. 1063 (W.D. Mo. 1969). These cases teach that although the government is permitted "the conscious exercise of some selectivity" in the enforcement of its criminal laws, Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962), any "systematic discrimination" in enforcement, Robinson, supra, 311 F. Supp. at 1065, or "unjust and illegal discrimination between persons in similar circumstances," Yick Wo, supra, 118 U.S. at 374, violates the equal protection clause and renders the prosecution invalid.
Distillation of appellants' discriminatory prosecution arguments yields three separate contentions: (1) that the question of the existence of discriminatory prosecution was a matter for the jury; (2) that appellants produced unmistakable evidence of discriminatory prosecution; and (3) that appellants' attempts to prove discriminatory prosecution were improperly frustrated by the district court.
Observing preliminarily that this court has already held that the burden of proving intentional or purposeful discrimination is placed upon the defendants, United States v. Malinowski, 472 F.2d 850, 860 (3d Cir. 1973), we proceed with our analysis of appellants' contentions.
Appellants sought to introduce evidence of discriminatory prosecution to the jury. After hearing argument on this point, the court decided that "discriminatory prosecution is not a defense to be presented before a jury but is a matter that could have been raised at pretrial on a motion and perhaps can be raised post-trial on a motion, if necessary." Appellants assert that the court erred in so ruling, and rely upon decisions of intermediate state courts in California and New York, People v. Harris, 182 Cal. App. 2d Supp. 837, 5 Cal. Rptr. 852 (App. Dept. Sup. Ct. 1960); People v. Utica Daw's Drug Co., 16 App. Div.2d 12, 225 N.Y.S. 2d 128 (1962), for the proposition that the defense of discriminatory prosecution should be presented to the jury. Moreover, they urge that the Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), contemplated this result when the Court observed that the right to a jury trial is granted to prevent oppression by the government, and to protect against arbitrary law enforcement. "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge." 391 U.S. at 156.
On more than one occasion this court has remarked that the citation of isolated nomenclature from miscellaneous opinions does not rise to the level of black letter law. United States v. Malinowski, supra, 472 F.2d at 854; United States v. Whipple, 482 F.2d 616 (3 Cir., 1973) (concurring opinion). Hence, the stark fact remains that Duncan, supra, never addressed the issue before us, and the intermediate state court cases are not controlling here. Moreover, appellants' characterization of these state decisions is totally inaccurate. Although in People v. Utica Daw's Drug Co., the Appellate Division of the New York Supreme Court did reverse appellant's conviction because the trial court improperly excluded evidence of discriminatory prosecution, the Supreme Court expressly disapproved the trial court's submission of the discriminatory prosecution issue to the jury. The court recognized the existence of "well nigh insoluble problems if a claim of discriminatory enforcement is left to the jury," and remanded the case with instructions that:
The claim of discriminatory enforcement should not be treated as a defense to the criminal charge, to be tried before the jury and submitted to it for decision, but should be treated as an application to the court for a dismissal or quashing of the prosecution upon constitutional grounds. Insofar as a question of fact may be involved, the court should take the evidence in the absence of the jury and should decide the question itself.
225 N.Y.S. 2d at 131-132.
In fact, two years after the New York Supreme Court's decision in Utica Daw's Drug Co., the New York Court of Appeals cited that case for the principle:
A denial of equal protection is not a defense to the criminal prosecution in the ordinary sense in which, when the point is raised, the prosecution has to prove beyond a reasonable doubt that it is not discriminatory. It is in the nature of an injunctive proceeding to bar prosecution of a crime regardless of guilt -- which the defendant must establish to the court, not the jury, "by a clear preponderance of the proof." (People v. Utica Daw's Drug Co., 16 A.D. 2d 12, 18, 225 N.Y.S. 2d 128, 134, supra).
People v. Walker, 14 N.Y. 2d 901, 200 N.E. 2d 779, 252 N.Y.S.2d 96 (1964). (Emphasis supplied.)*fn4
People v. Harris, supra, is similarly inapposite since the case never treats the issue of whether the defense of discriminatory prosecution should be submitted to the jury.
Indeed, appellants' argument misconceives the proper division of responsibility between judge and jury in a federal criminal proceeding. By both tradition and constitutional mandate the jury is given the responsibility of determining guilt or innocence according to instructions of law delivered by the court. The question of discriminatory prosecution relates not to the guilt or innocence of appellants, but rather addresses itself to a constitutional defect in the institution of the prosecution. Rule 12(b) (2), F.R.Cr.P., provides: "Defenses and objections based on defects in the institution of the prosecution . . . may be raised only by motion before trial." Rule 12(b) (4) provides: "An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct."
The Supreme Court has distinguished between the necessity for a jury determination when the question is the defendant's guilt or innocence, and those preliminary matters concerning the right of the court to conduct the trial. Thus, in reviewing a prosecution for smuggling alcoholic spirits into the United States in violation of federal prohibition laws, Chief Justice Taft observed that "the issue whether the ship was seized within the prescribed limit did not affect the question of the defendants' guilt or innocence," and, therefore, was not properly a jury question. Ford v. United States, 273 U.S. 593, 606, 71 L. Ed. 793, 47 S. Ct. 531 (1927).*fn5
Moreover, the federal substantive law of crimes derives only from statute, whereas federal practice emanates from rules and statutes. In the federal experience there has never been any constitutional requirement that the jury find facts other than those relating to the issue of guilt or innocence. See, e.g., Ford v. United States, supra. Appellants have not cited, nor has our research discovered, any federal statute or rule in support of their present contention.*fn6
After consideration of the evidence of discriminatory prosecution adduced at trial and at a special, post-trial evidentiary hearing, the court found that the prosecution did not "fall outside of the proscribed limits of the discretionary control of the executive over the prosecution of criminal cases." United States v. Ahmad, 347 F. Supp. 912, 928 (M.D. Pa. 1972).
Appellants claim that the evidence they presented discloses that some one hundred F.B.I. agents were arrayed outside of a New York City church on April 21, 1970, for the purpose of capturing a brother of the priest appellant, one Daniel Berrigan, who had been convicted on another charge and had failed to appear for sentencing;*fn7 that thereafter agents surveilled Sister McAlister for the purpose of locating Father Daniel Berrigan, and that this surveillance ceased after his arrest; that the government had a "chagrin and concern over the publicity surrounding Daniel Berrigan's fugitive status;"*fn8 that by August, 1970, the government had in its possession the critical evidence supporting the convictions now under review; that by Labor Day the government had the letter suggesting a plot to kidnap Dr. Kissinger, yet no investigation was underway commensurate with the charges later made by F.B.I. Director J. Edgar Hoover before a Senate appropriations subcommittee in November, 1970, and the subsequent publicity surrounding these statements.*fn9
In sum, appellants contend "they were prosecuted for conspiracy and smuggling of letters in [an] attempt to vindicate the reputation of the former Director of the Federal Bureau of Investigation and because of their outspoken views and position of leadership in deeply opposing the war in Viet Nam."*fn10 We have carefully considered the various contentions and accompanying evidence in support of appellants' argument of discriminatory prosecution. We find no error in their rejection by the district court. There was sufficient evidence supporting a prima facie case of conspiracy to kidnap Dr. Kissinger, to destroy the underground heating system in Washington, and to interfere with the Selective Service System by engaging in draft board raids. A fair reading of the letters involved in this appeal persuades us that they were germane to the matters which form the substance of the prosecution. Appellants contend that the prosecution was contrived as an attempt to rationalize Director Hoover's public statements of November, 1970. This contention implies that no serious investigation of appellants went forward prior to Hoover's statements. At the same time, however, appellants argue, "by the end of August, 1970, the government already had in its possession the critical evidence supporting the convictions now under review." Thus even the most superficial analysis of appellants' basic argument reveals it to be self-contradictory and, therefore, self-destructive.
Without denigrating the importance of the right of a person accused of crime to establish the presence of discriminatory prosecution, central to the issue must be some initial showing that there is a colorable basis for the contention. Appellants attempted at the trial level to isolate the prosecutions under § 1791 from the charges of conspiracy and charges of the overt acts of planning the kidnap of Dr. Kissinger, the disruption of the Selective Service System, and the destruction of the underground heating system in Washington. They renew this attempt here. Were we to accept this approach, we would be applying judicial blinders to the realities of the actual prosecution. There was ample evidence justifying initiation of the prosecution of these appellants:
In the letter forming the basis of Count IV, Government Exhibit 25, Father Berrigan discussed a code for use in the letters. "Sorry as hell that I missed the code -- hellova wasteful stupidity on my part. But let's develop an axiom, viz -- will check every regular letter of yours for the third word thing -- the other is too hard. Do the same with mine -- need to perfect the technique, and then too, periodically, there may be a need. Moreover, will get the Harlem address from Pete, and see if I can locate a mail drop while working outside." The priest then suggested to Sister McAlister plans to convince members of the National Guard "(1) that they resign their military status (2) that they make a unit, public resignation (3) that they join the movement. . . . As a capstone, the students can perhaps, be lead (sic) to the idea that occupying buildings, going nose to nose with cops & N.G. is passe -- bad politics, bad tactics. They should shut down ROTC and begin to zapp Sel. Service in college and University towns. So the statement could address N. Guard & students."
In Government Exhibit 48, the Count IX letter, Sister McAlister reported to Father Berrigan:
Eq outlined a plan for an action which would say -- escallated (sic) seriousness -- & we discussed pros and cons for several hours. It needs much more thought & careful selection of personnel. To kidnap -- in our terminology make a citizen arrest of -- someone like Henry Kissinger. Him because of his influence as policy maker yet sans cabinet status, he would therefore not be as much protected as one of the bigger wigs; he is a bachelor which would mean if he were so guarded, he would be anxious to have unguarded moments where he could carry on his private affairs -- literally & figuratively. To issue a set of demands, e.g. cessation of use of B 52's over N. Vietnam, Laos, Cambodia, & release of political prisoners. Hold him for about a week during which big wigs of the liberal ilk would be brought to him -- also kidnapped if necessary (which, for the most part it would be) -- & hold a trial or grand jury affair out of which an indictment would be brought. There is no pretense of these demands being met & he would be released after this time with a word that we're non-violent as opposed to you who would let a man be killed -- one of your own -- so that you could go on killing. The liberals would also ...