The opinion of the court was delivered by: BECHTLE
By Order of April 21, 1981, this Court vacated judgments of conviction entered against four defendants in the magistrates' court below and remanded for a new trial. Defendants had been convicted of criminal contempt under 18 U.S.C. § 401 for having violated the terms of an injunction issued in litigation before another member of this Court. See Resident Advisory Board v. Rizzo, 503 F. Supp. 383 (E.D.Pa.1980). Following conviction, all defendants appealed. Jurisdiction over these appeals lies in this Court pursuant to 18 U.S.C. § 3402, which provides that "(in) all cases of conviction by a United States magistrate an appeal of right shall lie from the judgment of the magistrate to a judge of the district court of the district in which the offense was committed." All defendants joined in attacking the judgments of conviction on the following four common grounds: (1) the magistrate did not have subject matter jurisdiction to try the defendants; (2) the defendants were denied their statutory right to a jury trial; (3) the magistrate should have disqualified himself as factfinder because he had tried other persons for contempt of the same injunction arising out of the same events; and, (4) the injunction is invalid for overbreadth, impermissibly infringing on First Amendment rights. In addition, each of three of the defendants raised separate challenges to the sufficiency of the evidence supporting his conviction.
Upon consideration of the issues raised on appeal here, this Court concluded that, while the magistrate did have subject matter jurisdiction to try the defendants and the injunction is not constitutionally defective, the defendants were nevertheless improperly denied their right to a jury trial conferred by 18 U.S.C. §§ 402 and 3691. Although the Court did not so state in its Order of April 21, the Court saw no need to decide whether the magistrate should have disqualified himself or whether there was sufficient evidence to support the convictions. The cases were remanded for a new trial before a jury.
This Memorandum is in support of the Court's Order of April 21, 1981, vacating the convictions and remanding for new trial, and in support of the Order which accompanies this Memorandum now being entered in response to defendants' motion for clarification or reconsideration, reversing the judgment of conviction and directing the entry of a judgment of acquittal with respect to defendant Van Blunk.
The contempt proceedings giving rise to these appeals have their roots in the protracted litigation initiated to compel the construction of a public housing project in the Whitman Park section of Philadelphia, Pennsylvania. The turbulent history of that project has been recounted in detail elsewhere and need not be repeated. See Resident Advisory Board v. Rizzo, 425 F. Supp. 987 (E.D.Pa.1976), aff'd in relevant part, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 55 L. Ed. 2d 499, 98 S. Ct. 1458 (1978).
See also Sworob v. Harris, 451 F. Supp. 96 (E.D.Pa.1978), aff'd, 3 Cir., 578 F.2d 1376, cert. denied, 439 U.S. 1089, 99 S. Ct. 871, 59 L. Ed. 2d 55 (1979). In brief, however, the project envisions the construction of low-rise townhouses of public housing for low-income tenants in an area of the city where the vast majority of the residents are white. The project, which has been planned in some form since 1956, has faced strong opposition from area residents and, through much of its history, from the city government itself. Construction is still in progress.
In 1971, in response to the various delays in the project, a class of plaintiffs, made up of low-income minority persons, who were unable to secure adequate housing outside of areas of minority concentration, and two organizations whose memberships included similarly situated public housing tenants, filed a civil action against a number of defendants arguably responsible for the construction of the project. After certain additional parties were joined during the course of pretrial proceedings, the defendants included the mayor of Philadelphia, the managing director of Philadelphia, the city itself, the builder in charge of the project, the local community group opposed to the project, two municipal housing authorities, and essential to our decision here the United States Department of Housing and Urban Development ("HUD").
The non-jury trial of this underlying civil action consumed 57 days. At its conclusion, the district court held that the governmental defendants had violated statutory obligations to take affirmative steps to promote integration in public housing; had unlawfully taken actions in regard to the Whitman Park project which had a racially discriminatory effect without a compelling justification; and, in the case of the City of Philadelphia, had unlawfully taken racially discriminatory actions with a racially discriminatory purpose.
The Court, therefore, issued an order directing the various governmental defendants to "take all necessary steps for the construction of the Whitman Park Townhouse Project as planned." 425 F. Supp. at 1029. Of particular importance here, the Court specifically found that HUD had violated its affirmative duty to promote public housing imposed by Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3608(d)(5), 425 F. Supp. at 1021, which finding was not appealed by HUD. See Resident Advisory Board v. Rizzo, 564 F.2d at 139-140.
Despite the court's order, which was affirmed in all pertinent respects, see id. at 153, area residents continued to resist the construction of the project. On March 14, 1980, upon the motion of plaintiffs in RAB v. Rizzo, the district court entered a temporary restraining order to be effective March 17, 1980, barring the area residents ("Whitman Council") from interfering with the construction of the townhouses, which was scheduled to begin March 18, 1980. Plaintiffs also moved for a preliminary and permanent injunction. The court held three days of hearings, during which the Court granted the motion of A&R Development, Inc., the project developer, and Jolly Construction Co., the general contractor, to intervene as parties plaintiff. "The intervenors, along with HUD, joined plaintiffs' motion for preliminary and permanent injunction." Resident Advisory Board v. Rizzo, supra, 503 F. Supp. at 385 (emphasis added). The court thereafter entered the preliminary injunction, which was allegedly violated by the four defendants now appealing to this Court.
In pertinent part, the order enjoined the Whitman Council, its members and officers, and all those acting in concert with them, from "(picketing), protesting, rallying, demonstrating or similarly assembling in the Whitman Construction Site Area," which was defined by a dotted line drawn on a map of the area attached to the order. As an exception to the general prohibition, however, the order provided that one informational picket could stand at each of the ten gates to the construction site; further picketing was also permitted within a barricaded sidewalk area along one block across the street from the construction site. The order permitted the informational pickets to peacefully converse with persons entering or leaving the job site, but provided that such conversations were to be limited to 60 seconds in duration and also prohibited the informational pickets from obstructing access to the job site. In nine additional paragraphs, the injunction prohibited, in detail, other acts of direct interference with the construction of the project.
Finally, the order provided for the United States Marshal or his deputies to assist in the enforcement of the order.
On the morning of June 3, 1980, a crowd of area residents gathered in front of the two eastern gates to the job site, barring access to the site. The United States Marshal, using a bullhorn, announced that the crowd was obstructing access to the site in violation of the district court's injunction, and that those who did not disperse would be arrested. A little more than five minutes later, the Philadelphia Police backed emergency wagons into the area and began arresting people. Among those arrested were the four defendants here.
Defendants were charged with criminal contempt under 18 U.S.C. § 401 for violating the injunction prohibiting interference with the construction of the project. On June 27, 1980, the district court from which the injunction had issued referred the cases for trial by the magistrate pursuant to 18 U.S.C. § 3401, "provided that the potential penalties for such contempts do not exceed misdemeanors, as defined in 18 U.S.C. § 1." The Government also moved to limit sentence to six months' imprisonment, a $ 5,000 fine or five years' probation, and this motion was granted. Defendants pleaded not guilty and signed forms consenting to trial before the magistrate. Defendants crossed out, however, that part of the consent form which states that any right to a jury trial is waived. On July 10, defendants moved for a jury trial or for recusal of the magistrate assigned to try the case. Both motions were denied, and defendants were tried without a jury. Each was found guilty and sentenced to a period of probation. These appeals followed.
II. Subject Matter Jurisdiction
Defendants first contend that the magistrate lacked subject matter jurisdiction to try the defendants for contempt upon referral from the district court, even under the recently amended language of 18 U.S.C. § 3401. See Federal Magistrate Act of 1979, Pub.L.No. 82, 96th Cong., 1st Sess., 93 Stat. 643 (1979) (amending 18 U.S.C. § 3401). Section 3401 now provides:
(a) When specially designated to exercise such jurisdiction by the district court or courts he serves, any United States magistrate shall have jurisdiction to try persons accused of, and sentence persons convicted of, misdemeanors committed within that judicial district.
Congress, however, has not placed any specific limits on the penalties courts may impose upon persons convicted of criminal contempt. Nevertheless, the Supreme Court has held that "in prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense." Frank v. United States, 395 U.S. 147, 149, 89 S. Ct. 1503, 1505, 23 L. Ed. 2d 162 (1969). See also Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 495, 94 S. Ct. 2697, 2701, 41 L. Ed. 2d 897 (1974). On this reasoning, the Supreme Court has held that whether the Sixth Amendment to the Constitution entitles a person charged with criminal contempt to a trial by jury depends on the severity of the penalty actually imposed. See Codispoti v. Pennsylvania, supra; Taylor v. Hayes, supra; Frank v. United States, supra; Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S. Ct. 1523, 16 L. Ed. 2d 629 (1966). Although the defendants contend that this analysis is "unworkable and inappropriate" for purposes of deciding whether a case of criminal contempt is triable by a magistrate under 18 U.S.C. § 3401, the Court sees no reason why the analysis should not be employed. In both situations, the court is seeking to determine whether a particular case of criminal contempt warrants the attachment of an important procedural right. If the Supreme Court has determined that the penalty imposed for the offense is a sufficiently accurate measure of the severity of the offense for the purpose of determining whether a person charged with criminal contempt is entitled to a trial by jury, it should be an equally accurate measure for the purpose of determining whether a case of criminal contempt is triable before a magistrate.
The statute itself buttresses our conclusion. Under § 3401, the grade of the offense determines whether a criminal case may be referred to a magistrate. Since the grade of the offense is gauged by the severity of the punishment it carries, it follows that Congress considered the severity of the punishment to be the relevant measure of the seriousness of an offense for purposes of determining whether a criminal case is triable before a magistrate.
Defendants argue, however, that 28 U.S.C. § 636(e) prohibits magistrates from trying contempts. Section 636(e) provides that "(in) any proceeding before a magistrate," certain enumerated acts, including disobedience of any lawful order, "shall constitute a contempt of the district court for the district wherein the magistrate is sitting." The section then goes on to say:
Upon the commission of any such act or conduct, the magistrate shall forthwith certify the facts to a judge of the district court and may serve or cause to be served upon any person whose behavior is brought into question under this section an order requiring such person to appear before a judge of that court upon a day certain to show cause why he should not be adjudged in contempt by reason of the facts so certified. A judge of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a judge of the court, or commit such person upon the conditions applicable in the case of defiance of the process of the district court or misconduct in the presence of a judge of that court.
28 U.S.C. § 636(e). Defendants contend that this provision and its legislative history reflect the intent of Congress not to permit magistrates to try contempts.
Defendants are clearly mistaken. By its own terms, § 636(e) merely prohibits magistrates from trying contempts committed in their own proceedings and requires that such cases be certified to the district court for trial. This limited congressional objective is reflected in the Senate report accompanying the Senate bill which contained § 636(e):
S.945 adopts the substance, if not the language, of the Committee on the Administration of Criminal Law's suggestion. Thus, the commission of the specified acts or conduct before the magistrate constitutes a contempt of the district court which he serves, and the magistrate before whom any such act or conduct takes place is required to forthwith certify the facts to the district court.
Your committee is satisfied that the procedure for handling alleged contempts specified in this section is adequate both to insure proper respect for the office of U.S. magistrate and its process, and to protect the rights of alleged contemnors....
S.Rep.No. 371, 90th Cong., 1st Sess. 27 (1967) (emphasis added). Thus, in proceedings presided over by magistrates, the magistrates are not empowered to define, in the first instance, what conduct constitutes contempt, that responsibility being left to the district court. However, once the district court has entered an order prohibiting certain conduct, thus defining what conduct constitutes contempt, nothing in § 636(e) prohibits a magistrate from determining whether a person accused of having engaged in such conduct has, in fact, done so.
For these reasons, the Court concludes that the magistrate had the power to try these defendants under § 3401.
III. Statutory Right to a Jury Trial
Defendants next contend that they were denied a statutory right to a jury trial in the magistrate's court and point to two statutory bases for such a right.
First, defendants contend that the contempts charged constitute criminal offenses under Pennsylvania law, thus giving rise to a right to a jury trial under 18 U.S.C. §§ 402 and 3691. In the alternative, defendants argue that the contempts charged consist of acts in violation of an injunction issued, at least in part, under the Civil Rights Act of 1964, thus giving rise to a right to a jury trial under 42 U.S.C. § 2000h. The Court now turns to these claims.
(A) Jury Trial Under 18 U.S.C. §§ 402 and 3691
Defendants here were charged under the current provision of the United States Code, entitled "CHAPTER 21 CONTEMPTS," defining, in two sections only, the crime of criminal contempt. The first of those two sections, 18 U.S.C. § 401, provides in pertinent part that "(a) court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as * * * (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command." Generally speaking, a person charged with criminal contempt is not entitled to a jury trial as long as the punishment imposed does not exceed that imposed for petty offenses. See Muniz v. Hoffman, 422 U.S. 454, 475-476, 95 S. Ct. 2178, 2190, 45 L. Ed. 2d 319 (1975); Taylor v. Hayes, supra 418 U.S. at 496, 94 S. Ct. at 2702; Bloom v. Illinois, supra, 391 U.S. at 201-202, 210, 88 S. Ct. at 1481-1482, 1486; Cheff v. Schnackenberg, supra, 384 U.S. at 380, 86 S. Ct. at 1526. However, the second section of Chapter 21, 18 U.S.C. § 402, provides as follows:
Any person ... willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States ... by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title (Title 18) and shall be punished by fine or imprisonment, or both.
18 U.S.C. § 402 (emphasis added). Section 3691, in turn, referred to in § 402, provides:
Whenever a contempt charged shall consist in willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state in which it was done or omitted, the accused, upon demand therefor, shall be entitled to trial by a jury, which shall conform as near as may be to the practice in other criminal cases.
18 U.S.C. § 3691. Thus, read together, §§ 402 and 3691 modify § 401 by creating a right to a jury trial in favor of a person charged with criminal contempt of a court order, where the conduct constituting the contempt charged also happens to constitute a federal or state criminal offense.
That the sections must be read together is apparent from a study of the legislative history and purpose of §§ 402 and 3691. As will be discussed in greater detail below, §§ 402 and 3691 were intended to end an abuse of the contempt power in which, in some circumstances, persons were prosecuted for contempt of injunctions instead of for violations of criminal laws stemming from the same conduct and were thus deprived of their right to trial by jury.
If the Court were to treat §§ 401 and 402 separately, as if they defined separate offenses, the Government could avoid having to deal with the vital protections accorded by §§ 402 and 3691 simply by typing in the indictment that the accused is charged only with a violation of "§ 401." A more sensible construction is that, where the person is charged with criminal contempt only under § 401, but in fact the contempt charged consists of conduct which also violates state or federal criminal law, the provisions of §§ 402 and 3691 automatically come into play. That consequence should not depend solely on the choice by the draftsman not to mention § 402.
The statutory right to a jury trial conferred by §§ 402 and 3691 is, nevertheless, subject to two exceptions:
This section shall not be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.
18 U.S.C. § 402. See also id. § 3691. Thus, even where the contempt charged does consist of conduct constituting a crime under either federal or state law, the accused is not entitled to a trial by jury if the order allegedly violated was entered in a suit brought "in the name of, or on behalf of, the United States." It is in respect to the applicability of this exception that the present appeal is concerned.
The Government does not dispute defendants' contention that the alleged conduct of the defendants is "of such character as to constitute also a criminal offense under ... the laws of (the) State in which the act was committed." Specifically, defendants argue, without opposition, that defendants' alleged conduct, if proven, would constitute a violation of 18 Pa.Cons.Stat.Ann. § 5507, Pennsylvania's statute defining the criminal offense of disorderly conduct.
The parties also agree that, even though the defendants were charged with criminal contempt under § 401 alone, the provisions of §§ 402 and 3691 nevertheless apply simply because the alleged conduct constituting the contempt would also constitute the criminal offense of disorderly conduct under Pennsylvania law.
The parties disagree, however, over the applicability of the exception to § 402's statutory right to a jury trial eliminating that right where the contempt charged consists of disobedience of an order entered in a suit or action "brought or prosecuted in the name of, or on behalf of, the United States." The injunction allegedly violated by the defendants was entered in Resident Advisory Board v. Rizzo, supra, 503 F. Supp. 383, litigation originally instituted by private parties: a class of public housing tenants and those on the waiting list for public housing, and two organizations consisting of members with like interests in public housing. The agency of the federal government involved in the action, HUD, was named as one of the defendants. Defendants argue that "the plain unambiguous meaning of the relevant statutory language is that the right to a jury trial is lost only when the United States is a party plaintiff." Defendants' Joint Brief, at 12. Defendants contend that this interpretation is also clear from the legislative history of §§ 402 and 3691. Since the injunction allegedly violated by the defendants was entered in an action brought by a private party rather than by the Government, and the Government was in fact a named defendant, the defendants conclude that the exception for criminal contempts of orders entered in suits brought "in the name of, or on behalf of, the United States" does not apply and that §§ 402 and 3691, therefore, entitled defendants to a jury trial.
The Government, on the other hand, points out that the order allegedly violated by the defendants was entered in response to a motion for a preliminary injunction made by the plaintiff-tenants and the plaintiff-intervenor-developer and was joined in by the Government. The Government also states that "HUD's consistent position, throughout the approximately nine years of the RAB v. Rizzo litigation, has been that the Whitman project should be built," Government's Brief, at 8, and notes those docket entries which reflect the Government's efforts to have the project constructed. The Government then argues that "its motion for an order limiting picketing at the site, when considered in the context of the underlying RAB v. Rizzo litigation, was the functional equivalent of a "suit or action brought or prosecuted in the name of, or on behalf of, the United States' within the meaning of 18 U.S.C. §§ 402 and 3691." Government's Brief, at 10 (emphasis added). The Government argues that "to accept the defendants' argument would be to denigrate ...