United States v. Guest

• Decision Date: 29 December 1964
• Docket Number: Crim. No. 2232.
• Citation: 246 F. Supp. 475
• Parties: UNITED STATES of America v. Herbert GUEST, James Spergeon Lackey, Cecil William Myers, Denver Willis Phillips, Joseph Howard Sims, and George Hampton Turner.
• Court: U.S. District Court — Middle District of Georgia

246 F. Supp. 475

UNITED STATES of America v. Herbert GUEST, James Spergeon Lackey, Cecil William Myers, Denver Willis Phillips, Joseph Howard Sims, and George Hampton Turner.

Crim. No. 2232.

United States District Court M. D. Georgia, Athens Division.

December 29, 1964.

St. John Barrett, Dept. of Justice, Washington, D. C., Floyd M. Buford, U. S. Atty., Macon, Ga., for plaintiff.

Robert B. Thompson, Gainesville, Ga., Nickolas P. Chivilis, James E. Hudson, Athens, Ga., for defendants.

BOOTLE, District Judge.

For decision now are the defendants' motions to dismiss the indictment on the ground that it does not charge an offense under the laws of the United States. A study of the question thus raised necessitates reference to some significant historical facts and a careful consideration of a few important Constitutional principles.

First, it must be noted that our Federal Government is a Government of limited powers, limited in number though not in degree. It can pinpoint its birth on the calendar. There was the ineffectual attempt under the Articles of Confederation. Then, there was the gloriously successful genesis under the Constitution. While the Federal Government is supreme in its sphere, its sphere is circumscribed. Its every power stems from a written instrument, the Constitution, or does not exist. It is that Constitution and the laws made in pursuance thereof that constitute the supreme law of the land.

Secondly, it must be remembered that federal courts are courts of limited jurisdiction. This necessarily follows from the fact that the Federal Government, under which these courts are created, is a Government of limited powers. The federal courts have only such powers, only such jurisdiction as is conferred upon them by valid acts of Congress. There is no such thing as federal common law criminal jurisdiction. When a prosecution is brought against any person in a federal court, that person is entitled to ask under what valid act of Congress he is charged. The defendants so inquire by these motions to dismiss.

Thirdly, we should remember that any statute seeking to proscribe human conduct, making criminal that which but for the statute would be unpunishable in the court where such statute is sought to be enforced, must specifically describe the conduct denounced. This is elementary in the concept of due process of law, a principle applicable to the Federal Government under the Fifth Amendment, as well as to the States under the Fourteenth.

What is being said here is not new. On many occasions courts have measured indictments like this one¹ against the principles above mentioned. There has not been found any authoritative decision which this court can construe as going so far as to hold this indictment valid.² On the contrary, both of the two courts whose decisions are binding upon this court have fairly recently rendered decisions which this court construes as clearly invalidating this indictment.

The statute upon which the Government relies originated as Section 6 of the Act of May 31, 1870, 16 Stat. 140. It subsequently and successively became known as Section 5508 of the Revised Statutes of 1874-1878, Section 19 of the Criminal Code of 1909, and 18 U.S.C.A. § 51, 1926 edition, and is presently 18 U.S.C.A. § 241, 1948 edition, which reads as follows:

"Conspiracy against rights of citizens.

"If two or more persons conspire to injure, oppress, threaten, or intimidate 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, or because of his having so exercised the same; or

"If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured —

"They shall be fined not more than $5,000 or imprisoned not more than ten years, or both."

Now nearly ninety five years old, this statute has been construed by the courts on several occasions. We now have it upon the authority of the court of appeals for the Fifth Circuit, and upon the authority of the Supreme Court that this statute was never intended by the Congress to embrace, and therefore does not embrace, the Fourteenth Amendment rights. Williams v. United States, 179 F.2d 644 (5th Cir. 1950); Powe v. United States, 109 F.2d 147 (5th Cir. 1940); United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758 (1951). The precise holding of the court of appeals on this point in the Williams case in a clear, analytical and forceful opinion by Judge Sibley, concurred in by Judge Waller, Judge Holmes dissenting, was:

"In the conspiracy provision section 241 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 parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L.Ed. 274, like the Classic case, involved the right of a citizen to vote; the Fifteenth and not the Fourteenth Amendment was rested upon. We are of the opinion that this provision of Sec. 19 section 241 was not intended to include rights under the due process clause of the Fourteenth Amendment secured not to citizens only, but to everyone."

That holding of the court of appeals was affirmed by the Supreme Court in an equally clear and convincing opinion by Mr. Justice Frankfurter, who wrote,

"we agree that § 241 * * * does not reach the conduct laid as an offense in the prosecution here. This is not because we deny the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment; nor is it because we fully accept the course of reasoning of the court below. We base our decision on the history of § 241, its text and context, the statutory framework in which it stands, its practical and judicial application — controlling elements in construing a federal criminal provision that affects the wise adjustment between State responsibility and national control of essentially local affairs. The elements all converge in one direction. They lead us to hold that § 241 only covers conduct which interferes with rights arising from the substantive powers of the Federal Government."

In the Williams case both the court of appeals and Supreme Court made a detailed study of § 241 and also of its companion statute, § 242, which consecutively has been section 2 of the Act of April 9, 1866, 14 Stat. 27, section 17 of the Act of May 31, 1870, 16 Stat. 144, section 5510 of the Revised Statutes of 1874-1878, section 20 of the Criminal Code of 1909, 35 Stat. 1092, 18 U.S.C.A. § 52, 1925 edition, and now 18 U.S.C.A. § 242, 1948 edition. Attached to the opinion of the Supreme Court is a comparative table showing the successive phraseology of these two statutes.

The differences in these two Code sections are succinctly pointed out by Judge Sibley, 179 F.2d at page 647, as follows:

"Sec. 19 now 241 differs much from Sec. 20 now 242, though both have to do with federally secured rights. Sec. 20 now 242 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 now 241 punishes only conspiracy; it makes no reference to Sec. 20 now 242, 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.'"

And the Supreme Court concluded:

"All the evidence points to the same conclusion: that § 241 applies only to interference with rights which arise from the relation of the victim and the Federal Government, and not to interference by State officers with rights which the Federal Government merely guarantees from abridgement by the States." 341 U.S. p. 81, 71 S.Ct. p. 587.

Actually, the court of appeals and the Supreme Court went further in the Williams case than we are called upon to go in this case because the indictment in the Williams case charged that the defendants acted under color of State law, thus incorporating the sometimes magical words from § 242. Nevertheless, the § 242 one year misdemeanor could not thus be converted into a § 241 ten year felony. The Court said:

"the validity of a conviction under § 241 depends on the scope of that section, which cannot be expanded by the draftsman of an indictment."

The indictment in the case at bar contains not the slightest suggestion of State action, the color of law ingredient necessary under § 242.³ It would be hard to imagine that Congress intended that these two sections of the same Act of 1870 apply to and cover the same rights because as Judge Sibley wrote:

"It would certainly be strange that in the same Act of 1870 the Congress should punish the consummated deprivation of rights by such acts as are here charged only when wilfully done, and only as a misdemeanor under 242; but should punish as a ten year felony with deprivation of the power to hold federal office, the bare conspiring to do such a thing though not wilfully, and with nothing more in fact done."

The inclusion of the element of conspiracy in § 241 would hardly account for an increase of nine years...