U.S. v. Douglass

• Decision Date: 04 August 1978
• Docket Number: No. 78-1034,78-1034
• Citation: 579 F.2d 545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James W. DOUGLASS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 545

579 F.2d 545

UNITED STATES of America, Plaintiff-Appellee, v. James W. DOUGLASS, Defendant-Appellant.

No. 78-1034.

United States Court of Appeals Ninth Circuit.

Aug. 4, 1978.

William J. Bender, Seattle, Wash., for defendant-appellant.

Jerry Diskin, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before TRASK and SNEED, Circuit Judges, and SKOPIL, ^* District Judge.

SNEED, Circuit Judge:

This case arises out of protests against the construction and use by the United States of the Trident class nuclear submarine. These protests involved activities concentrated in and about the Naval Submarine Base, Bangor, Bremerton, Washington. The appellant was convicted of violating the second paragraph of 18 U.S.C. § 1382 ¹ because of certain conduct by him on July 21, 1977. He appeals contending (1) that he did not reenter that portion of the reservation with respect to which the United States, acting through the commanding officer, had the exclusive right of use; (2) that 18 U.S.C. § 1382 as applied to him is unconstitutional in several respects; (3) that 18 U.S.C. § 1382 is overbroad in its reach and because of its unconstitutionality, as it might be applied to others, cannot provide the basis of appellant's conviction, and (4) that his conviction should be set aside because he is the victim of impermissible selective prosecution.

We reject these contentions and affirm the conviction.

I.

FACTS.

The facts that are relevant to this appeal are as follows. On July 4, 1977, appellant Douglass crossed a fence of the base and entered that portion of the base situated therein to participate along with others in a "picnic" intended as a form of civil disobedience. To accomplish the warning required by 18 U.S.C. § 1382, the Commanding Officer at Bangor, on July 5, 1977 issued, and appellant received, a "bar letter" ordering him not to reenter, "or to be found within the limits of" the base. (R.T. 34). On July 20, following the arrest of three individuals, appellant again entered military property to inquire about their status. He was warned at that time that he had been barred and would be arrested if he should reenter. The next day appellant and others were seen near the old Main Gate of the base. A number of protesters entered the property to leaflet workers. Appellant remained an onlooker apart from the others. Upon seeing their arrest, however, appellant entered military property, headed for a phone booth used by the public for the purpose of calling attorneys and reporters about the incident, and was arrested upon entering the booth. The booth was located behind a clearly marked white boundary line, but was outside the fence of the base and on the street side of the guard house. At his trial before a magistrate, appellant testified that he was aware that he was entering government property. He was found guilty and sentenced to five days imprisonment.

II.

Exclusive Right of Use.

Violation of 18 U.S.C. § 1382 requires (1) reentry of a reservation, post, etc. by the accused (2) after having been removed or ordered not to reenter (3) by the commanding officer or person in command or charge thereof. It is obvious that appellant's conduct constituted a violation if it can be said that his crossing the white line to use the phone booth constituted a reentry of the base. We hold that it did.

Appellant argues that, without regard to such rights as the First Amendment affords, the area that he traversed between the white line and the phone booth was not a part of the base because the United States did not have the requisite ownership and possession of the area to enable it to exclude the appellant. See United States v. Holmes, 414 F.Supp. 831, 838 (D.Md.1976); United States v. Watson, 80 F.Supp. 649 (E.D.Va.1948). To support this contention the appellant points to the stipulated facts of this case which, Inter alia, make clear that the area in question was not within a so-called "security" or "controlled" area of the base and that the public used the phone booth, the limited number of parking stalls, and the walks which were within the white line but outside the perimeter fence.

This is not enough. The appellant at no time has challenged the title of the United States to the area in question. Moreover, no easement residing in the public with respect to this area, arising either by grant or by reservation, has been shown to exist. Nor does the record reflect any relinquishment of control over the area by the base personnel. (R.T. 43, 60). In addition, the boundary of the reservation is well marked by the white line, the location and meaning of which was well known to the appellant. Mere toleration of certain uses by the public designed for their convenience does not result in the loss of the right to exclusive use. Under these circumstances the requisite ownership and possession of the United States has been established. See United States v. Packard, 236 F.Supp. 585 (N.D.Cal.1964). It follows, therefore, that the appellant violated 18 U.S.C. § 1382.

III.

Vagueness.

To avoid the consequences of this conclusion, appellant makes several constitutional arguments. The first, already impliedly refuted by our analysis to this point, is that 18 U.S.C. § 1382 is void for vagueness. We hold that it satisfies the general test set forth in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), Viz., whether a person "of common intelligence must necessarily guess at (the law's) meaning and (would) differ as to its application . . . ."

The statute is neither long nor complex; it incorporates no imprecise common law phrases. See, e. g., Jordan v. De George, 341 U.S. 223, 230-32, 71 S.Ct. 703, 95 L.Ed. 886 (1951). The possibility that close questions, such as whether a communication was a valid order not to reenter or properly given by the commanding officer, can arise does not make the statute unconstitutionally vague. "Impossible standards of specificity are not required." Id. at 231, 71 S.Ct. at 708. Finally, as already indicated, the appellant acknowledged during the trial a full and complete understanding of the meaning of the statute under which he was prosecuted.

IV.

First Amendment Rights of Appellant.

Appellant's primary contention fashioned to overturn his conviction is that, in crossing the white line marking the boundary of the reservation and walking to the phone booth to telephone the press and attorneys regarding the earlier arrest of his companions in protest, he was engaged in activity protected by the First Amendment, which he was as free to pursue in that place as he would have been had he done so on a public street. His primary authority is Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) in which a conviction under 18 U.S.C. § 1382 for "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas" was overturned by a per curiam opinion without oral argument. The Supreme Court in Flower considered New Braunfels Avenue "no different from all other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leaflete(e)rs . . . ." Greer v. Spock, 424 U.S. 828, 835, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976).

To avail himself of Flower the appellant must establish that his reentry actions should be treated as was leafleteering and that the area within which he reentered should be treated as was New Braunfels Avenue. Appellant more nearly succeeds as to the former than he does as to the latter. Although the magistrate at the trial found that the appellant was not engaged in "activity protected under the First Amendment," we are prepared to assume, without so deciding, that appellant was engaged in conduct that was "intertwined with expression and association." Cox v. Louisiana, 379 U.S. 536, 563, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). We hold, however, that the area in which the appellant reentered was not the equivalent of New Braunfels Avenue.

In a series of cases, the Supreme Court has recognized the concept of a "public forum," an area where the government cannot regulate speech-related conduct except in narrow non-discriminatory ways shown to be essential in serving significant governmental interests. See generally L. Tribe, American Constitutional Law, 688-93 (1978); H. Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1. A hierarchy of forums emerges from the cases. At one extreme and most protected from any form of regulation are areas such as public streets, such as New Braunfels Avenue, and parks, traditionally recognized as centers for the public communication of ideas. ² Less protected are facilities such as libraries and schools, where the government has the power to limit speech to maintain the order required to carry on the purpose of those institutions. ³ Least shielded from regulation are public institutions which do not perform speech-related functions at all such as hospitals, jails or military bases. ⁴ Here the government is free to exclude even peaceful speech and assembly which interferes in any way with the functioning of those organizations. The basic thrust of these cases is to limit regulation to that which proscribes expression that is "basically incompatible with the normal activity of a particular place at a particular time." Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). Cf. Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

The controlling authority with respect to regulation of speech on a military base is Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) in which it was recognized that a ...