United States v. Tijerina

• Decision Date: 23 June 1969
• Docket Number: No. 3-68,4-68.,3-68
• Citation: 412 F.2d 661
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reies Lopez TIJERINA and Jerry Noll, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

412 F.2d 661 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Reies Lopez TIJERINA and Jerry Noll, Defendants-Appellants.

Nos. 3-68, 4-68.

United States Court of Appeals Tenth Circuit.

June 23, 1969.

John Quinn, U. S. Atty., (John A. Babington, Asst. U. S. Atty., was with him on the brief) for plaintiff-appellee.

Irving M. King, Chicago, Ill., (Morton Stavis, Newark, N. J., William Kunstler, New York City, Albert Gonzales, Santa Fe, N. M., and Beverly Axelrod, San Francisco, Cal., were with him on the brief) for defendants-appellants.

Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

After a trial to the court without a jury, Tijerina and Noll were convicted of criminal contempt and each was sentenced to serve thirty days in jail and to pay a fine of $500. We held the case in abeyance to await the decision of the United States Supreme Court in Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 on the right of an accused in a contempt proceedings to a jury trial. The Frank decision, announced May 19, 1969, held that, if the "actual penalty is one which may be imposed upon those convicted of otherwise petty offenses," a jury trial is not required. Here the penalties were within the prescribed limit. See 18 U.S.C. § 1(3).

These proceedings are an outgrowth of the prosecution of Tijerina, Noll, and three others in the United States District Court for the District of New Mexico for federal offenses. See our decision in United States v. Tijerina, 10 Cir., 407 F.2d 349. In the disposition of that case "the court and the parties were concerned with pretrial publicity and the impanelling of an impartial jury." Ibid. at 354. On October 17, 1967, a hearing was held with counsel present for all parties. The problem of pretrial publicity was discussed. Previously defense counsel had suggested that the court should make an order restricting extrajudicial statements. The court stated its intent to make such an order. Counsel for Tijerina then directed attention to a convention of the Federation of Free City States which would be held in a few days. Later the court furnished counsel with copies of the order which it proposed. It made no exception of the convention. No counsel made any objection and the order was entered. It covered the attorneys, the defendants, and the witnesses and forbade them to "make or issue any public statement, written or oral, either at a public meeting or occasion or for public reporting or dissemination in any fashion regarding the jury or jurors in this case, prospective or selected, the merits of the case, the evidence, actual or anticipated, the witnesses or rulings of the Court."¹ The order was by Judge Bratton who later presided over the criminal trial.

On October 21 and 22, 1967, the annual convention of Alianza Federal de los Pueblos Libres² was held in Albuquerque. Both Tijerina and Noll made speeches at the convention. On the basis of statements then made, the United States Attorney filed an application for an order requiring Tijerina and Noll to show cause why they should not be adjudged in contempt. See Rule 42(b), F. R.Crim.P., and 18 U.S.C. § 401(3). The application was made after the criminal case had gone to the jury. Judge Bratton issued an order to show cause before Judge Ewing T. Kerr, a United States District Judge for the District of Wyoming, who thereafter presided over the contempt proceedings. After a full evidentiary hearing, Judge Kerr made findings of fact and conclusions of law and held both Tijerina and Noll in contempt.

Tijerina and Noll attack the findings of the trial court that the statements with which they are charged were made at a public meeting. They insist that the convention was private and was attended only by members of Alianza and their invited guests. Estimates of the number present varied from 200 to 600. The only claimed restriction on those entering was identification by guards at the doors and payment of the required fee. Two police officers in plain clothes paid the $3.00 charge and entered. Two newspaper reporters and a radio newscaster entered upon identifying themselves. The auditorium was set up with a TV camera and a loudspeaker system. The finding that the meeting was public has substantial support in the record and is not clearly erroneous.

The meeting was held in the Civic Auditorium of Albuquerque. At the request of local police officers and without the knowledge of those in charge of the convention or of either Tijerina or Noll, auditorium personnel installed a tape recorder to record the proceedings. The machine failed to work on the first day but did on the second. The statement charged to Noll and one of the statements charged to Tijerina were preserved on the tape. The argument is that the recording was an unreasonable search and seizure in violation of the Fourth Amendment. We are not persuaded. Reliance on the electronic surveillance cases is misplaced. Unauthorized electronic eavesdropping upon private conversations is a search and seizure which violates the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Desist v. United States, 394 U. S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; cf. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462. We are concerned here with statements made at a public meeting to which reporters were admitted. Our attention is directed to no decision holding that the use of mechanical recordings of public proceedings violates the Fourth Amendment. The tapes are a means of corroborating the recollections of those present. We see no constitutional distinction between the receipt of testimony of those present and the admission of the tapes which recorded what was said.

Appellant Tijerina objects to the receipt of testimony by a newspaper reporter, Beier, of statements made by Tijerina on the first day of the convention when the tape recorder was not functioning. Tijerina spoke in Spanish. Beier does not speak or understand Spanish. Martinez, a police officer who spoke Spanish, sat next to Beier and translated certain portions of the speech for Beier who made notes of the gist of what the officer told him. After the speech, Beier read his notes to a Spanish-speaking reporter, Herrera, who confirmed the notes as containing the statements which he, Herrera, heard Tijerina make. Herrera so testified at the trial. On the same day as the speech, Beier discussed in English with Tijerina his remarks regarding Judge Bratton. Beier did not show Tijerina the notes but questioned him about "his mentioning Judge Bratton and Judge Bratton's order." Tijerina made no denial and said that "it wasn't for discussion for the press."

The argument now made is that the hearsay objection to Beier's testimony should have been sustained. In our opinion the testimony was not inadmissible hearsay. We have held that "testimony is not hearsay when it is to prove only that a statement was made and not the truth of the statement." Creaghe v. Iowa Home Mutual Casualty Company, 10 Cir., 323 F.2d 981, 984. See also Aikins v. United States, 10 Cir., 282 F.2d 53, 57, and Standard Oil Company v. Standard Oil Company, 10 Cir., 252 F.2d 65, 75, 76 A.L.R.2d 600. The testimony of Beier was offered to prove what Tijerina had said and the only question of credibility related to the credibility of Beier. We are concerned with the fact, not the truth, of the statement. Beier was thoroughly cross-examined by defense counsel. The court chose to believe him. The argument that officer Martinez spoke idiomatic New Mexican Spanish while Tijerina used "pure" Spanish is unpersuasive. Tijerina was speaking in Spanish to a large assembly of Spanish-speaking New Mexicans. The fact that Beier got his information through an interpreter goes only to the weight of the evidence. We believe that Beier's testimony was properly received.

The next argument is that the statements charged do not violate the order as a matter of law. The trial court specifically found three statements violative of the order. One made by Tijerina on the opening day of the Alianza convention was:

"U. S. District Judge Howard C. Bratton last week issued an order against any of the defendants, witnesses and lawyers not to talk about the case outside of the courtroom. If Judge Bratton asks me I\'ll tell him I told the witnesses what to say and what to do. I may get arrested. This is fine. It\'s all right with me because I don\'t want Judge Bratton to judge this case."

The statement of Tijerina on the following day was:

"For example, the trial of Reies is coming up and Reies Tijerina is going to be judged the 6th of November and that is an important issue. We know that the Judge has taken the power in his own hands. We know that the Judge is using the law to take vengeance and drink blood and humiliate our race. In this case we can advise the Negro pueblo of what is going on and they can come out and march around the court house. This is their business."

The statement of Noll is much longer. After referring to the events at the Echo Amphitheater and asserting that the United States had declared that he and his codefendants "are criminals and that it was going to try us and put us to death," he said:

"War with the U. S. is imminent, for during the last week of August, I caused to be sent to the self-styled President of the United States of America, an ultimatum which he received August 31st. This ultimatum, in essence, declared that if and when the alleged cases in the U. S. imposed force relative to the events at Echo Ampitheater and Tierra Amarilla should commence for trial, a state of war should exist as of that date between the Kingdom of the Indies and the United States of America. According to the newspaper, the tentative date for the war to commence is November 6th, but I think they are going to try to postpone it. Therefore, prepare yourselves for war. I suggest

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