decided: October 12, 1982; As Amended November 12, 1982.
Appeal from the United States District Court for the Eastern Distirct of Pennsylvania.
Aldisert, Weis and Becker, Circuit Judges.
This court is no stranger to the controversy surrounding the Whitman Park Townhouse Project in Philadelphia. This time we review the validity of contempt convictions tried by a federal magistrate and affirmed by the district court. We reject contentions that the magistrate lacked jurisdiction, the defendants were entitled to a jury trial, and the injunction they disobeyed was overbroad. After carefully reviewing the record, we conclude that the evidence was insufficient as to one defendant, but adequate to support the convictions of the two other defendants who appealed.
Although a low-income housing project in the Whitman area of South Philadelphia had been planned as early as 1956, neighborhood opposition prevented it from being built for many years. In 1976, the United States District Court directed the municipal and federal authorities to "immediately take all necessary steps" for the construction of the dwellings. Resident Advisory Board 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).
After neighborhood residents began interfering with construction, the district court issued a temporary restraining order on March 14, 1980, followed by a permanent injunction on April 1, 1980. The court order enjoins the Whitman Area Improvement Council, the Whitman Council, Inc., and "all other persons acting in concert with them or otherwise participating in their aid," from obstructing work on the townhouses. It also forbids picketing and protesting at the site, subject to certain time, place and manner exceptions.
On the morning of June 3, 1980, a large crowd gathered at a prohibited area of the construction site and blocked the gates. The United States Marshal came to the scene and, at about 11:35 a.m., announced over a bull horn that the people on the street were violating the court order. He warned them that they would be arrested unless they left the area.
After a majority of the demonstrators refused to disperse, the Marshal called for police vans. As they arrived, people queued up to enter. Meanwhile, a Philadelphia police officer used the bull horn to announce repeatedly, "If you are not going to be arrested, please clear the street." Some of the people walked away; others remained and filed into the vans. More than 50 of the demonstrators volunteered for arrest in this fashion.
Those arrested were charged with criminal contempt for violating the injunction. 18 U.S.C. § 401. The district court referred the numerous cases to the U.S. Magistrates for the district, "provided that the potential penalties for such contempts do not exceed misdemeanors, as defined in 18 U.S.C. § 1." The three defendants were joined for trial along with other alleged demonstrators, and the magistrate granted a motion by the government to limit sentence to six months' imprisonment or a $500 fine. After the magistrate explained their right to a trial before a district judge, the defendants signed a waiver consenting "to be tried and to have the charges against me disposed of before a United States Magistrate."
The magistrate denied the defendants' demand for a jury, conducted a bench trial, and made detailed findings of fact. He found eight defendants guilty, including appellants Gedraitis, Moore and Johnson, and sentenced them to two years probation. The district court affirmed six of the convictions. United States v. Gedraitis, 520 F. Supp. 84 (E.D. Pa. 1981). In this court the defendants challenge the denial of a jury trial, the magistrate's jurisdiction, the constitutionality of the injunction, and the sufficiency of the evidence.
The defendants assert statutory entitlements to a jury trial. Under 18 U.S.C. §§ 402 and 3691, a person charged with willfully disobeying an order of a district court by an act which is also a criminal offense under federal or state law may demand a trial by jury.*fn1 Neither section applies, however, to contempts committed in disobedience of an order entered in "any ...