The opinion of the court was delivered by: GREEN
Now before me are the appeals of eight people
who were convicted of criminal contempt pursuant to 18 U.S.C. § 401 for alleged violation of an injunction issued by Judge Raymond Broderick on April 1, 1980. This order prohibited certain activities by the Whitman Area Improvement Council (its members and those acting in concert with it) in its protest of the construction of public housing for low-income families in the Whitman Park area of Philadelphia. The proposed construction of this housing has been the subject of longstanding dispute and litigation. See Resident Advisory Board (RAB) v. Rizzo, 425 F. Supp. 987, 1029 (E.D.Pa.1976), aff'd as modified, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S. Ct. 1457, 55 L. Ed. 2d 499 (1978).
On June 3, 1980, fifty-four persons, including the eight appellants in this case, were arrested for allegedly obstructing access to the Whitman construction site in violation of Judge Broderick's order. The district court referred these contempt cases to the United States Magistrates of this district pursuant to 18 U.S.C. § 3401(a) for trial.
The government successfully moved to limit any sentence to be imposed to six months in jail or a $ 500.00 fine. The appellants filed a motion requesting a jury trial, which was denied. Subsequently, they pled "not guilty" and signed a consent form agreeing to be tried before a federal magistrate. However, they crossed out that portion of the consent form which stated that any right to a jury trial was waived. The eight appellants in this case were tried by Magistrate Tullio Leomporra, who found all of them guilty of criminal contempt and sentenced them to two years probation.
I. SUFFICIENCY OF EVIDENCE.
I begin my analysis of appellants' arguments with the sufficiency issue because a finding that the government has not produced sufficient evidence would preclude on double jeopardy grounds a retrial of defendant. Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 971, 67 L. Ed. 2d 30 (1980) and Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1 (1978). Because the government has filed a motion stating that it does not oppose the grant of a judgment of acquittal on the basis of insufficiency of evidence as to appellants Jean McQuilkin and Mary Scheffler, I will enter judgments of acquittal in their favor. However, as to the other six appellants, I find that the government's evidence is legally sufficient to sustain their convictions.
The gravamen of appellants' sufficiency argument is that the government did not prove that they had notice or knowledge of Judge Broderick's order and therefore did not prove their willful violation of it. In response, the United States contends that the record shows sufficient evidence, albeit circumstantial, of notice to the appellants to sustain their convictions. First, the government points to the fact that the order was served upon the leaders of neighborhood groups opposing the housing project and that from March 17, 1980, when the TRO was issued, members of the United States Marshal's Office had been at the Whitman site enforcing the order and discussing its provisions with members of the community. Second, the government asserts that the appellants received notice of the injunction via the local newspapers. That is, because the Whitman project was a subject of interest to people of that neighborhood, they probably followed the news account of the controversy and thus were aware of Judge Broderick's April 1, 1980 order. The United States also argues that the community's compliance with the terms of the injunction from March 17, 1980 until June 3, 1980, the day of the arrests, demonstrates a general knowledge of the order on the part of Whitman Park residents.
In addition, the government contends that the record shows that on the day of the arrests a series of announcements concerning the injunction and the possibility of arrest for failure to comply with it were made to the crowd assembled at the construction site by Joseph Gindhart, attorney for the Whitman Area Improvement Council, by the United States Marshal, Edward Schaeffer and by a Philadelphia police officer, Nicholas Cione. It is the government's position that it produced ample circumstantial evidence of appellants' knowledge that they were in violation of the court order. Further, the United States claims that photographs taken on the morning of June 3, 1980, before and after the arrests of people congregated in an area prohibited by the injunction establish that the appellants were in the area and heard the announcements to disperse or be arrested. In addition, the government relies on a videotape taken on June 3, 1980, which shows a group of people, singing "God Bless America," lined up behind the police vans, volunteering to be arrested.
The appellants argue that none of this evidence establishes their notice or knowledge of the injunction. They point out that the government never showed that any of them subscribed to or read the newspapers covering the Whitman controversy and the Court order of April 14, 1980. Citing the testimony of Marshal Schaeffer and Officer Cione, both of whom conceded on cross-examination that they did not know which individuals actually heard their announcements, appellants contend that the evidence does not demonstrate that they received notice as a result of the warnings made to the crowd on June 3, 1980. They also challenge the worth of the photographic evidence, arguing that the photographs were taken at various times during that morning and the testimony concerning the time when photographs were taken was too imprecise to establish that appellants were in the area when the announcements were made.
Further, appellants do not agree that the record discloses that their arrests were voluntary. In their view, the presence of a substantial number of Philadelphia police and United States Marshals coerced people into submitting to arrest. According to appellants, even if they had "volunteered" to be arrested, one could not infer from that a knowledge by those arrested that they were in wilful violation of a court order.
The test for evaluating a claim of insufficient evidence is whether there is substantial evidence, when viewed in the light most favorable to the government, to uphold the conviction. United States v. Palmeri, 630 F.2d 192, 203 (3d Cir. 1980). A criminal conviction will withstand a challenge for insufficiency if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Applying these principles to the instant case, I find that the government's evidence is legally sufficient to sustain Magistrate Leomporra's finding that each of the six remaining appellants knowingly and wilfully violated the April 1, 1980 order issued by Judge Broderick and are thus guilty of criminal contempt.
Because the evidence of record does not show that appellants read or subscribed to any newspapers, one cannot conclude that they received notice of the injunction through reading news accounts. However, the photographs taken at the Whitman construction site on the day of the arrests and offered against appellants at their trial by the government provide circumstantial evidence sufficient to support a finding that appellants received notice of the injunction from announcements made by Marshal Schaeffer and Officer Cione.
The record shows that appellants Helen Moore and Maria Hamilton appear in two photographs, 6-40 and 6-43 (N.T. 1.167-68), depicting a crowd assembled in a prohibited area near the construction site. These photographs were taken respectively at 10:20 a.m. and between 11:00 a.m. and 11:20 a.m. (N.T. 1.22, 1.28). Since Marshal Schaeffer made his announcement to the crowd at about 11:35 a.m. (N.T. 1.89), Magistrate Leomporra reasonably could conclude that appellants Moore and Hamilton had adequate notice that they were violating a court order and would be arrested if they did not leave the area.
Sophia Pierce, another appellant, appears in photographs 6-48, 6-51 and 6-52 (N.T. 1.163); all of which were taken shortly after 11:30 a.m. on the day of the arrest. (N.T. 1.28, 1.50) Photograph 6-48 shows Mrs. Pierce in the prohibited area in a circle of people holding hands. Photographs 6-51 and 6-52 show her in a police van after her arrest. Given this evidence ...