United States v. Matthews

Decision Date10 November 1969
Docket NumberNo. 22310.,22310.
Citation419 F.2d 1177
PartiesUNITED STATES of America v. Charles MATTHEWS, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. John A. McGuinn, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert S. Bennett, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Carl S. Rauh, Asst. U. S. Atty., were on the brief, for appellee.

Mr. Thomas A. Flannery, U. S. Atty., also entered an appearance for appellee.

Before WRIGHT, McGOWAN and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

Indicted for burglary in the second degree, petit larceny, and engaging in a riot (22 D.C.Code §§ 1801(b), 2202, and 1122(b) (1967)), appellant was acquitted by a jury in the District Court of the first such offense, but found guilty of the other two. Given consecutive sentences of three and six months, respectively, for petit larceny and riot, appellant challenges in this court only the conviction for riot.1 We affirm.

I

The witnesses for the Government were five police officers who, at about eight o'clock on the evening of April 5, 1968, were on duty near Eddie's Liquor Store at 8th and I Streets in the southeast section of Washington.2 Officer Harrison testified that that store had been broken into, its windows smashed, and several people could be seen inside gathering up merchandise. Appellant, so said the officer, was one of them; and the officer arrested him as he was coming out of the store carrying a large brown paper bag full of bottles of liquor.

Harrison, and the other four officers, testified at length about the setting in which this incident occurred. Many people were assembled in the streets and on the sidewalks, out of control and creating conditions of chaos. There was looting going on on all sides, incident to the burning and smashing of business establishments. The police were the objects of verbal abuse and physical attack in the form of thrown bottles. The situation was, in short, that which widely prevailed in the District of Columbia on the night following the assassination of Dr. Martin Luther King, Jr., and which eventually resulted in the summoning to the aid of the police of nearly 14,000 military personnel.

Appellant was the sole witness for the defense. He did not dispute the description given by the policemen of the tumult and disorder. He admitted he was in the vicinity of Eddie's Liquor Store at the time, but denied that he was inside the store itself. He said that he was in the area looking for his wife, and that he came upon the liquor in a bag resting among a lot of other bottles in a yard adjoining the store. His version of what then happened is:

"I picked the bag up. All the looting was happening around. I just picked the bag up and kept walking. I didn\'t want to be caught in the store."

He said that he was arrested a few minutes later as he was walking up the street towards the house of a friend.

At the close of the Government's case, appellant moved for a directed verdict of acquittal on the ground that the identification evidence against him was too weak. This motion was denied, and the issue is not pressed here. At the close of the entire case, there was a colloquy between court and counsel about the instructions to be given. The court indicated his purpose to use, in connection with the riot charge, a form of charge which had been devised specially in the District Court to be used in the riot cases. Defense counsel had been furnished with the text of this charge, and when asked whether he had any objection to it, he raised a question as to whether there was any evidence showing that appellant was "encouraging the riot or in any way furthering it." The court responded to the effect that there was evidence that appellant had "entered the store and participated in that looting"; and that the court regarded this as evidence of encouraging the riot.

This prompted defense counsel to ask the court how it would view the matter if the jury found the fact to be that appellant picked up the liquor outside the store, as he testified he had. The court replied that it "would be willing to instruct the jury * * * that if they find that appellant did not engage in the looting of the store but merely picked up an indiscriminate package that was in the yard and walked on, that they cannot find him guilty of rioting." The prosecutor, upon inquiry from the court, said that he would have no objection to such an instruction. At that point the court recessed until the following morning.

Upon the reconvening of court the next day, the trial judge, prior to charging the jury, informed counsel that he had been reflecting on his comments of the previous afternoon, and had concluded that they were wrong. The judge remarked that appellant's own testimony would bear the construction that he knew the liquor he seized was a product of the looting which was a central feature of the general disorders, and that "if the jury were to determine that appellant knew this was looted goods, his picking it up and carrying it appears to the Court to be sufficient to hold him as having taken an affirmative act in furtherance of the acts of an assemblage engaged in tumultuous and violent conduct." The court went on to say that it proposed to stand on the charge as theretofore formulated, leaving it to the jury to decide whether appellant's conduct came within the reach of the statute as so construed.3 Defense counsel thereupon entered an objection to the failure to charge that, if the jury believed appellant not to have been within the store, it must acquit him of riot. After the instructions were given, he professed satisfaction with them except in this one respect.4

When appellant came before the court for sentencing, his counsel moved to dismiss the riot count of the indictment on the ground of the invalidity of the statute for vagueness within the ban of the Due Process Clause. This argument was essentially the same as that made to the District Judge in another pending case, United States v. Jeffries, 45 F.R.D. 110, 114 (D.D.C.1968); and the court indicated that its ruling in that case would be determinative. Not long thereafter the court entered an order of denial, accompanied by the memorandum opinion it had issued in the interim in Jeffries.

II

We deal first with the broad constitutional challenge to the statute which is mounted on this appeal. Appellant's formulation of that attack does not assert an inherent lack of power in the Congress to address itself in criminal terms to the phenomenon of riotous conduct.5 It insists, rather, that Congress has gone about its business in this instance in so imprecise and clumsy a manner as to collide with the due process concept of undue vagueness.

The elements of that concept are differentiable. One is that the legislative proscription may, as a matter of rhetoric, be so fuzzy or opaque as unfairly (a) to provide the accused with inadequate advance notice of what conduct on his part will expose him to criminal sanctions, or (b) to enable the jury to convict him without itself having a very clear idea of just what he was supposed not to do. The other central aspect of the vagueness doctrine is the concern that the legislature, in seeking to make some acts illegal, will sweep too broadly in its definitional efforts and thereby bring within its net constitutionally protected activity which, although legally immune in theory, will in fact be deterred by the prospect of criminal prosecution.6

Appellant relies upon both. He argues that the Congressional employment of words like "public disturbance," "tumultuous and violent conduct," "grave danger of damage or injury," and "engages in," only serve to obscure, rather than to illuminate, Congressional purposes. These words do not, so it is said, provide anything like a reasonably clear signal of the shoal waters of criminality, and that trying to steer by beacons as dim as these is hazardous in the extreme. The individual who is made to do so is thus at a loss to know by what standard he should measure his own acts, or whether the same standard will be brought to bear upon those acts by judge and jury. The consequence too often may be that he will decide it is safer not to act at all and thereby forego the exercise of rights and privileges guaranteed him by the Constitution, particularly the First Amendment with its political freedoms of speech, assembly, and petition.

Appellant here relies heavily on a group of state cases, see, e. g., Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), in arguing that the D.C. anti-riot statute fails to pass muster under either of the twin aspects of the vagueness criterion.7 The Government has cited a number of cases, of which United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), is perhaps the most significant, which suggest that this statute is neither unintelligible nor overly expansive.

Neither of appellant's expressed concerns raises, in our view, a threat of constitutional deprivation sufficient to warrant this court's setting the work of Congress wholly at naught. As with any new statute which has not had the benefit of construction by the courts, there may be problems of interpretation. At least two considerations, however, make the potentially grey areas of this statute acceptably narrow. First, the language of the statute contains several specific strictures, each of which a person must disobey in order to be subject to its penalties. A person must not only willfully associate himself...

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