Williams v. United States

• Citation: 179 F.2d 644
• Decision Date: 10 January 1950
• Docket Number: No. 12906.,12906.
• Parties: WILLIAMS et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

179 F.2d 644 (1950)

WILLIAMS et al. v. UNITED STATES.

No. 12906.

United States Court of Appeals Fifth Circuit.

January 10, 1950.

John D. Marsh, Miami, Fla., A. C. Dressler, Miami, Fla., for appellants.

Leo Meltzer, Sp. Asst. to Atty. Gen., Herbert S. Phillips, U. S. Atty., Tampa, Fla., Fred Botts, Asst. U. S. Atty., Miami, Fla., for appellee.

Before HOLMES, WALLER and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

This appeal from a conviction and sentences to penitentiary imprisonment and fine under Criminal Code, Sec. 19, 18 U.S. C.A. § 51, 1926 Ed. now § 241, for conspiracy to deprive of rights secured by the Constitution and laws of the United States, presents novel, interesting and important questions. Those principally argued are: Does the indictment charge a crime? Does Section 19 as here applied afford legislative due process in defining the crime? Did the charge of the court rightly present the essentials of the crime in refusing to charge that "wilfulness" was an essential? Was a former acquittal of substantive offenses involving the same transactions an adjudication that the acts there charged were not done or counselled, aided or abetted by appellants? Was there error in refusing a mistrial because of newspaper publications during the trial? Was due process denied by the institution of an oppressive prosecution for perjury in the former trial, which intimidated appellants from testifying in this trial? Motions for acquittal were also made by each appellant and overruled.

Very briefly stated the main facts and the course of the prosecution were these: The corporate appellant, Dania Supply Company, doing a lumber business, thought that thefts of lumber were being committed by unknown persons, and in the spring of 1947 it employed the appellant Williams, who headed a detective agency, to work on the case. Williams had working with him the appellants Bombaci and Perry, and also one Giroux, whom he placed on Dania Supply Company's payroll as its employee in the lumber yards to spy on other employees. Yuhas, an office employee of Dania Supply Company, though not an officer, was present during beatings and abuses testified about. Appellant Ford was and is a policeman of the City of Miami, Florida, and was at the request of the County Solicitor for an officer, directed by the Chief of Police to assist in the investigation. Ford was present at some of the beatings, but neither he, nor Yuhas nor Perry did any violence, and according to some of the witnesses for the prosecution remonstrated against it. He did at some time during the proceedings arrest the persons beaten and did take them all except one to the jail and "book" them, and they were kept in jail from Friday night till Monday afternoon, when they were released on bond. It does not appear whether they were ever prosecuted. Since the arrests apparently were based on written confessions extorted from them and repudiated on their release, we assume there was no prosecution. Williams was the head and front of the misconduct, his associates calling him "Chief". He directed what was done and he and Bombaci delivered the blows. Four employees of the corporation were, one by one over a period of three days, brought, not under arrest, into a small building on the corporation's premises, Yuhas being present, interrogated as to any theft, and each denying participation in or knowledge of any, each separately was cursed, threatened, kicked or beaten, required to face a brilliant light and questioned for hours, till in exhaustion each signed what was asked of him, and save one, each was arrested and jailed as above stated. The matter was reported to federal authorities and an indictment found in eight counts, four under Criminal Code Sec. 20, 18 U.S.C.A. Sec. 52 now § 242, charging deprivation of his rights under the Fourteenth Amendment as to each of the four beaten persons, and four counts under Sec. 19, 18 U.S.C.A. Sec. 51, now § 241, charging conspiracy as to each such person's rights. Giroux, the spy, pleaded guilty, turned State's evidence, and received a suspended sentence. The corporation not having been included in this indictment, another similar indictment was found, omitting Giroux and including the corporation as a defendant. This went to trial, and the jury convicted Williams on the counts under Sec. 20, but acquitted the other defendants; and made a mistrial on the counts under Sec. 19 which charged a conspiracy. The defendants (except the corporation) had testified in their own behalf, and they were indicted for perjury. A new indictment was also found, being that now before us, which has four counts under Sec. 19, substantially like the four counts on which the mistrial occurred. On this last indictment each defendant was convicted and sentenced, none of them testifying, and Williams, Bombaci, Perry and Ford appeal.

1. The indictment in each count charges that the defendants conspired to injure, oppress, threaten and intimidate a named person in the free exercise and enjoyment of rights and privilges secured to him by the Fourteenth Amendment of the Constitution, towit, the right not to be deprived of liberty without due process of law; the right to be secure in his person while in the custody of the State of Florida; and to be immune from illegal assault and battery while in the custody of persons acting under color of the laws of Florida, by persons exercising the authority of the State of Florida; and the right to be tried and punished, if guilty, by due process of law under the laws of Florida. Ford, Williams and Perry were alleged to have, and to have conspired to use, authority under the State of Florida. Details were alleged as to intended assaults, beatings and torture to get confessions, or testimony against others, concerning thefts from Dania Supply Company.

The indictment follows the statute in its generalities, and is sufficient in its specifics to be a good criminal pleading, and if it fails to allege a crime it is because the statute fails validly to create such a one. The failure lies in the application of the statute to the provision of the Fourteenth Amendment, "Nor shall any State deprive any person of life, liberty, or property, without due process of law", because of the extreme vagueness of the quoted clause. Reference is made to the discussions of a similar question touching Sec. 20 in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330, wherein by a closely divided court that statute was upheld because it provided that "wilful" violations only were to be crimes, and that meant that the accused, exercising the power of the State, not only deprived another of a federally secured right, but knew it was such, and wilfully flouted the Constitution and laws of the United States. This indictment does not charge these defendants with "wilfulness", nor does the statute mention it, and the judge refused to give the jury on request charges that "wilfulness" was a necessary element of the case.

2. The Congress and the federal court are themselves faced here with the provision of the Fifth Amendment that "No person shall * * * be deprived of life, liberty, or property, without due process of law", and it is found right in the midst of provisions in the Fifth and Sixth Amendments about federal prosecutions for crime. It is well understood that "due process" applies not only to court procedure, but also to legislation, especially in criminal matters. There are no common law federal crimes, but all are created by statute, though common law words in the statute may take their intended meaning from the common law. Not only must the accusation inform the accused for what he is to be tried, but due process requires that the statute must inform the citizen in advance by a reasonably ascertainable standard what the crime shall be. A judge may not establish the standard, save by reasonable interpretation, after the deed is done, for that is in substance to give the statute life ex post facto, which the Constitution forbids also. All this we understood to be admitted by all the justices in the opinions in the Screws case. The word "wilful" in Sec. 20 was held by the majority to mean that the accused knew that the federal right existed and intentionally and purposely violated it, and his knowledge and wilfulness made him a criminal. This court, so understanding, held in Pullen v. United States, 5 Cir., 164 F.2d 756, that the word wilful, or its equivalent, was indispensable in an indictment under Sec. 20.

Sec. 19 differs much from Sec. 20, though both have to do with federally secured rights. Sec. 20 creates a misdemeanor offense; it speaks of color of law, and of "inhabitant of any State", and of discrimination in punishment on account of alienage or color or race. It punishes acts. Sec. 19 punishes only conspiracy; it makes no reference to Sec. 20, or to color of law, or to State, or to race or color; it adds also a separate and independent crime, the act of two or more persons going in disguise on the highway or premises of another with the bad intent named; and the punishment is that of felony, and ineligibility to hold office. Wilfulness is not mentioned, nor is "intent" in the defining of the crime of conspiracy. It does not protect "inhabitants", but only "any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States". In the conspiracy provision, the Congress had in mind the federal rights and privileges which appertain to citizens as such and not the general rights extended to all persons by the clause of the Fourteenth Amendment. The citizen's rights are specifically stated in the Constitution and statutes, and in them may be found a standard of conduct. Such was the case in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, when the right of the citizen to vote for a Congressman was involved. Ex...