U.S. v. Briggs, 73-2027

Citation514 F.2d 794
Decision Date13 June 1975
Docket NumberNo. 73-2027,73-2027
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John K. BRIGGS et al., Defendants, Robert Wayne Beverly and John C. Chambers, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

James Reif, Center for Constitutional Rights, New York City, for defendants-appellants.

William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Richard S. Stolker, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, DYER and GEE, Circuit Judges.

GODBOLD, Circuit Judge:

Appellants were named as "unindicted conspirators" in an indictment by a federal grand jury charging a highly publicized conspiracy. In this case they challenge the power of the grand jury to charge them with criminal conduct in this manner without indicting them. We conclude that the grand jury exceeded its power and authority and that its action was a denial of due process to appellants.

I. The facts.

Following political demonstrations and disruptions at the Republican Party National Convention at Miami, Florida, on August 21-24, 1972, a federal grand jury sitting in the Northern District of Florida undertook an investigation into the disturbances and their causes. The grand jury's probe led it to believe in the existence of a plot to achieve riot and the widespread use of various implements of violence. On October 18, 1972, the grand jury issued a five-count indictment. We set out in the margin the pertinent parts of Count One, 1 which charged a conspiracy to violate various federal statutes in violation of 18 U.S.C. § 371, a felony offense. The statutes were:

18 U.S.C. § 2101: organizing, promoting, encouraging and participating in a riot.

18 U.S.C. § 844(i): malicious destruction of property by means of explosives.

18 U.S.C. § 844(h): use of explosives to commit federal felonies.

26 U.S.C. § 5861(d): possession of unregistered firearms.

26 U.S.C. § 5861(c): possession of non-tax paid firearms.

The alleged conspirators included ten named persons plus others not named. Of the ten persons named, seven were made defendants and three were not. The latter three, although accused of participation in the criminal conspiracy, were denominated in the indictment as "unindicted co-conspirators." Of the persons not named some were alleged to be known and others unknown.

Prior to the trial of the seven named defendants, two of the three named but unindicted persons, Robert Wayne Beverly and John Victor Chambers, filed a petition in the United States District Court for the Northern District of Florida, seeking entry of an order expunging the references to them in Count One of the indictment. The United States Attorney appeared and contested the application. The named defendants did not object to expunction of references to Beverly and Chambers. The District Judge denied the petition without opinion or statement of reasons. 2 The petitioners appealed. Pending appeal and following a month-long trial before a jury, 3 the indicted conspirators were acquitted.

The issue for decision appears to be of first impression at the appellate level. 4

II. Justiciability, standing and mootness.

We hold that there is a case or controversy, that the appellants have standing, and that the acquittal of the persons named as defendants does not moot the case. The government's position to the contrary on each of these points is founded upon its argument that since the appellants were not indicted, and particularly since those named as defendants were acquitted, the formal branding of appellants as alleged felons and as participants in a distasteful conspiracy is a mere chimera, neither substantial nor injurious. This is at least disingenuous.

Beverly and Chambers complain of injury to their good names and reputations and impairment of their ability to obtain employment. The courts have recognized in many contexts that these are substantial and legally cognizable interests entitled to constitutional protection against official governmental action that debases them. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), concerned validity of a Wisconsin statute providing for posting of public notices labelling persons as excessive drinkers. The Court characterized "a person's good name, reputation, honor, or integrity" as protected interests and said:

It would be naive not to recognize that such "posting" or characterization of Id. at 435-36, 91 S.Ct. at 509, 27 L.Ed.2d at 518. The Court observed that to some persons posting under the statute might be merely the mark of an illness, but to others it was "a stigma, an official branding of a person," the imposition of a "degrading" and "unsavory" label. Id. at 437, 91 S.Ct. at 510, 27 L.Ed.2d at 519.

an individual will expose him to public embarrassment and ridicule.

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court recognized that a teacher's "interest in liberty" would be adversely affected if the state, in declining to rehire him, made "any charge against him that might seriously damage his standing and associations in his community." 5

The public ignominy of being accused of crime is one of the factors underlying the Sixth Amendment right to speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 221, 87 S.Ct. 988, 18 L.Ed.2d 1, 7 (1967). In Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), the interest of appellant that was recognized was that he not be publicly branded as a criminal without a trial through the means of a state-created "Commission of Inquiry."

In Application of American Society for Testing and Materials, 231 F.Supp. 686 (E.D.Pa.1964), the court acted to protect the name and reputation of a named but unindicted conspirator in an antitrust action. The American Society (ASTM) was a nonprofit corporation comprised of persons drawn from major industries of the United States, having as one of its purposes the standardization of specifications and methods of testing various materials, and headed by persons described by the court as "dedicated, selfless scientists." In the same series of litigation the court acted to also protect the name of a business concern that was another named but indicted conspirator. Application of Turner and Newall, Ltd., 231 F.Supp. 728 (E.D.Pa., 1964). 6

The legally protected right in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), was that of a charitable organization "to carry on its work, free from defamatory statements of the kind discussed." 341 U.S. at 140-141, 71 S.Ct. at 632, 95 L.Ed. at 837 (designation of an organization as communist by the Attorney General of the United States).

Appellants complain also of injury to their economic interests. One's right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the "liberty" and "property" concepts of the Fifth Amendment. Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377, 1388 (1959) (denial of security clearance for access to classified information resulting in loss of job and inability to find other employment); with respect to public employment, cf. Board of Regents v. Roth, supra, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). It would be unrealistic to deny that an accusation, even if unfounded, that one has committed a serious felony may impinge upon employment opportunities.

In the present case the District Judge recognized the injury to appellants' interests. Addressing government counsel at the hearing on appellants' application he said:

There are two points involved. One is their right to be heard and beyond that is the basic right they assert. What these people, what these cases are really saying is just this. How would you or how would I or how would any around this room like to have the Grand Jury come in and name us as a co-conspirator and yet Beverly and Chambers were not subjected to the burdens of trial and the risk of conviction, as were the persons named as defendants. They do not, however, seek to protect their reputations against these hazards but rather against the opprobrium resulting from being publicly and officially charged by an investigatory body of high dignity with having committed serious crimes. 7 In addition to being serious, the offenses charged were given wide notoriety and were peculiarly offensive. An alleged conspiracy to disrupt the national nominating convention of a major political party strikes at the core of democratic institutions.

not indict us and give us no chance to be heard, and these cases do get into pretty serious areas in that respect.

The government defies common sense with its theory that one's interests are not adversely affected to any extent by being publicly branded as a felon so long as he is not named as a defendant for trial. We reject as frivolous the contention that if appellants have suffered injury it is at the hands of only the news media to whom they should repair for relief. Coupled with these two arguments by the government is a third, which can be described as "innocence by association," that is, that the judgment of acquittal of the seven named defendants both exonerated the appellants and repaired any injury they may have suffered. Certainly the judgment did not in a legal sense exonerate Beverly and Chambers, who were not on trial and had no access to the forum. It does not bar later indictments against them. It is mere speculation to say that in a practical sense the vindication of the named defendants rubs off on the appellants and ameliorates their injury. The acquittal of a named defendant is not wholly curative of the reputational injury suffered by having been charged and...

To continue reading

Request your trial
105 cases
  • Davis v. United States
    • United States
    • U.S. District Court — District of Kansas
    • 25 Marzo 1976
    ...F.2d 766 (5th Cir. 1967). See also Greene v. McElroy, supra, 360 U.S. at 492, 79 S.Ct. at 1411, 3 L.Ed.2d at 1388; United States v. Briggs, 514 F.2d 794, 798 (5 Cir. 1975). In Davis v. Toledo Metropolitan Housing Authority, 311 F.Supp. 795 (N.D.Ohio 1970), an applicant for public housing wa......
  • United States v. DePalma
    • United States
    • U.S. District Court — Southern District of New York
    • 25 Agosto 1978
    ...to exercise this power with regard to the instant motion. Defendant DePalma relies upon the Fifth Circuit case of United States v. Briggs, 514 F.2d 794 (5th Cir. 1975), for the proposition that a grand jury lacks the authority to accuse persons of a crime without naming them as defendants: ......
  • U.S. v. Christian
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 30 Septiembre 1981
    ...using presentments has disappeared in the federal system and is not provided for in F.R.Crim.P. Rules 6 and 7." United States v. Briggs, 514 F.2d 794, 803 n.14 (5th Cir. 1975). This reading of the Rules is strengthened by the Notes of the Advisory Committee to Rule 7, which provide Presentm......
  • U.S. v. Beasley
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 5 Septiembre 1975
    ...(5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63 (1971). We note this court's recent decision in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975), holding that a grand jury exceeded its power and authority in naming unindicted coconspirators in an indictment.12 The ev......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT