472 F.2d 340 (7th Cir. 1972), 18295, United States v. Dellinger

Docket Nº:18295.
Citation:472 F.2d 340
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David T. DELLINGER et al., Defendants-Appellants.
Case Date:November 21, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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472 F.2d 340 (7th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

David T. DELLINGER et al., Defendants-Appellants.

No. 18295.

United States Court of Appeals, Seventh Circuit.

November 21, 1972

Argued Feb. 8, 1972.

Certiorari Denied March 5, 1973.

See 93 S.Ct. 1443.

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Arthur Kinoy, Helene E. Schwartz, Doris Peterson, Center for Constitutional Rights, New York City, William W. Brackett, Chicago, Ill., Stuart S. Ball, Jr., Newark, N. J., William M. Kunstler, Center for Constitutional Rights, New York City, Thomas M. Haney, Thomas P. Sullivan, Chicago, Ill., Morton Stavis, Center for Constitutional Rights, New York City, Leonard I. Weinglass, Newark, N. J., for defendants-appellants.

James R. Thompson, U. S. Atty., Jeffrey Cole, James Breen, Royal Martin, Jr., Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Alan S. Ganz, Chicago, Ill., for amicus curia.

Before FAIRCHILD, CUMMINGS and PELL, Circuit Judges.

FAIRCHILD, Circuit Judge.

These are appeals from convictions of violation of the 1968 federal Anti-riot Act. 1 The charges arose out of events in Chicago during the last week of August, 1968, during the national convention of the Democratic party. There were several violent encounters between the city police and other persons in the streets and parks. The degree of responsibility of the five present appellants and the intent with which they acted are the focal issues.

The appellants are David Dellinger, Rennie Davis, Tom Hayden, Abbie Hoffman, and Jerry Rubin. They, along with Bobby Seale, were charged with making certain speeches for the purposes of inciting, organizing, promoting, and encouraging a riot, after having traveled in interstate commerce to Chicago with intent to do so. Codefendants Froines and Weiner were charged with teaching the use of an incendiary device in violation of another federal statute, and all eight were charged with conspiracy among themselves and with others to commit offenses under these statutes. All eight stood trial, 2 except that a mistrial was declared, during the trial, as to Mr. Seale. 3 The appellants were each convicted on the respective substantive counts. Froines and Weiner were acquitted on the substantive count against them, and they and appellants were acquitted on the conspiracy count.

Dellinger, Davis and Hayden were associated with an organization called National Mobilization Committee to End the War in Vietnam (often referred to as "Mobe"). Hoffman and Rubin had organized, in late 1967, Youth International Party, Y.I.P. (often referred to as Yippie, or the Yippies).

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Mobe was an "umbrella" organization composed of various protest groups and its purpose was to sponsor demonstrations against the military activities of the United States in Vietnam, and racism, poverty, and injustice in the United States. Starting in early 1968, plans were formed for protest demonstrations in Chicago during the Democratic convention. Contact was made from time to time with Chicago city officials. David Dellinger was one of a number of co-chairmen of Mobe, others identified in the record being Professor Sidney Peck, Western Reserve University, Professor Donald Kalish, University of California at Los Angeles, Msgr. Charles O. Rice, Pittsburgh, and Rev. Ralph Abernathy, Southern Christian Leadership Conference, Atlanta. Rennie Davis, aged 28, was Mobe's Project Director for these activities and set up an office in Chicago.

Yippie was a less formal organization, under the leadership of Hoffman, Rubin and a number of others. One announced interest was to protest American conventional life style as well as military involvement in Vietnam. Yippie planned to hold a "Festival of Life" in Chicago parks during convention week. As expressed in one circular, the festival would be ". . . a six-day music-film-theatre-anti-draft youth festival which will express the new youth culture and will demonstrate to the world the continuing conflict between the life of youth and the death of the military-political system."

Although Mobe and Yippie were separate organizations, their leaders came together at several meetings early in 1968 where activity for convention week at Chicago was planned. There was a considerable degree of community of effort during the week itself.

The events which are of principal concern in this case occurred in the southern portion of Lincoln Park, and in and near Grant Park. Lincoln Park, in which Yippie held its festival, lies along Chicago's Lake Michigan shore, and extends northward from 1600 North. Grant Park is also on the lake front, and extends from about 100 North to 1200 South. Michigan Avenue runs north and south along the west edge of Grant Park, and the downtown "Loop" area of Chicago is west of Michigan. The Conrad Hilton Hotel was a focal point during convention week because of the significant individuals and party committees and groups residing and headquartered there. The Hilton is on the west side of Michigan Avenue, and extends from Balbo Avenue (or East 7th Street) at the north, to East 8th Street at the south. Convention sessions were held at the International Amphitheatre at 43rd and Halsted Streets, many blocks south and some blocks west of the Hilton, a little more than five miles away, over all. The Amphitheatre was the announced objective of a protest march which did not take place.

Count I of the indictment charged that defendants and others conspired not only to travel in and use the facilities of interstate commerce with the intent to incite, organize, promote and encourage a riot, but also to participate in and carry on a riot, to commit acts of violence in furtherance of a riot, and to aid and abet persons in such activities, as well as to commit offenses under 18 U.S.C. § 231 (a)(1) and (3). 4 It alleged a number of overt acts to effect the objects of the conspiracy besides the speeches alleged in the various substantive counts. By reason of the verdict of acquittal of Count I, we are no longer concerned with its allegations, nor with the proof offered thereunder, except as such proof tends to establish intent or some other requisite of the much more narrow substantive counts.

Each appellant was charged in one count with traveling in interstate commerce

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from outside of Illinois to Chicago, with intent to incite, organize, promote and encourage a riot, and thereafter, on or about specified dates and at specified locations, with speaking "to an assemblage of persons for the purposes of inciting, organizing, promoting and encouraging a riot." The speech or speeches charged were, against Dellinger in Count II, August 28 at Grant Park; against Davis in Count III, August 1 at 30 West Chicago Avenue. August 9 at the Mobe office (407 S. Dearborn Street), August 18 at 1012 North Noble Street, and August 26 at Grant Park; against Hayden in Count IV, August 26 at Lincoln Park, and August 28 at Grant Park; against Hoffman in Count V, August 26 at Lincoln Park, August 27 at Lincoln Park, and August 29 at Grant Park; and against Rubin in Count IV, August 25 at Lincoln Park, August 26 at Lincoln Park, and August 27 at Lincoln Park.

Violent encounters between the city police and other persons occurred in and near Lincoln Park late in the nights of Sunday, Monday, and Tuesday, August 25, 26, and 27, after the police ordered the people in the park to leave in accordance with the 11:00 P.M. park closing ordinance. The other major violent incident occurred on the evening of Wednesday, August 28th on Michigan Avenue near the Hilton Hotel. The crowd involved there had come from an afternoon rally in Grant Park. The relevant events during the week are summarized as follows:

Sunday, August 25:

The Yippies conducted a rock concert in the afternoon in Lincoln Park. Estimates of the number of people ran up to 4,000. There were two minor brushes with the police. During the afternoon Davis and Hayden led a march of several hundred to the Hilton, where a moving picket line was maintained without incident. About 9:00 P.M. there was a confrontation in Lincoln Park between a group of police officers and a group of other persons. The details are in conflict, but it appears that an exhortation by Rubin to attack the police was the basis for the August 25th speech charged against him in Count VI.

About 10:30 P.M., two police officers, assigned to follow Davis and Hayden, and who had followed them into Lincoln Park, discovered two men, allegedly Hayden and Wolfe Lowenthal, letting air out of the tires of the officers' car. A crowd gathered and the officers elected not to make an arrest at that time, but the arrest of Hayden was made the following afternoon.

Sometime after 11:00 P.M., the police announced that the park was closed. Later, a line of police officers moved from east to west through the park, forcing the remaining crowd out of the park. There was testimony that the police struck people with their nightsticks, both within and outside of the park.

Monday, August 26:

After the arrest of Hayden, Davis led a protest march of about 1,000 people from Lincoln Park to the police station at 11th and State (two blocks west and three blocks south of the Hilton). After making various chants at the police station, the march proceeded east on 11th to Michigan Avenue and then north along the west edge of Grant Park. A block south of the Hilton, there is a little hill in the park...

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