U.S. v. Lowe

Decision Date24 August 1981
Docket NumberNos. 80-1231,80-1268,s. 80-1231
Citation654 F.2d 562
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Justina LOWE, Catherine Bradbent, et al, Thomas W. Crimmins, Keith Frederickson, Daniel Hewins, Holly Hill, Erik Lorentzon, Kerry MacLane, Franz Meynert, Laura Perz, Lee Ann Platz, Michael Taylor, Fran Williams, Eleanor Wind, Boyd Alcorn, et al, William Bichsel, Nancy Bidgood, Suzanne Cook, Micah Gampel, Nora Leetch, Lyn Magnuson, William Martell, Richard Mercy, Jane Pulsifer, Thomas Rawson, Jerry Seese-Green, Vip Short, Ellen Skinner, John Woods, Ira Zbarsky, Defendants- Appellants. to 80-1281, 80-1283, 80-1284, 80-1286 and 80-1288 to 80-1299.
CourtU.S. Court of Appeals — Ninth Circuit

Irwin H. Schwartz, Federal Public Defender, Seattle, Wash., for Lowe.

Howard Ratner, Seattle, Wash., for Wind.

Thomas Nast, Seattle, Wash., for other defendants.

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

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

Before CHOY and BOOCHEVER, Circuit Judges, and PANNER *, District Judge.

CHOY, Circuit Judge:

I. Introduction

Appellants participated in a pre-arranged entry upon the Naval Submarine Base at Bangor, Washington, to protest the Government's maintenance of the Trident weapons system. Their joint trials, convictions, and respective sentences and probation terms give rise to the several issues in this consolidated appeal. We affirm all the convictions and remand for adjustment of only the sentence imposed upon appellant Lowe.

II. Facts

In October of 1979, appellants (hereinafter also called "defendants") and others who shared in their beliefs staged a demonstration at Bangor. During the demonstration, which was one of a series there, 110 protestors climbed over a boundary fence and were arrested without resistance as they walked toward the base. They were charged by information with violation of 18 U.S.C. § 1382, which prohibits, inter alia, entry upon Navy property for any purpose prohibited by regulation.

Two trials followed: Defendants under age 26, who were subject to the Youth Corrections Act (YCA), were given a jury trial, and those over 26 were given a bench trial. All defendants admitted intentional, non-permissive entry upon the base, and the principal defense attempted at both trials was one based on necessity and international law. The district judge disallowed presentation of this defense as a matter of law.

All defendants were convicted and fined and sentenced variously, apparently depending upon the age and prior record of each. Lowe, sentenced under the YCA, was given an indeterminate sentence of up to six years. Adult offenders were given up to six months, the statutory maximum. Most of the sentences were suspended, and appellants were ordered, as a term of probation, not to come within 250 feet of the base regardless of whether they had permissive use of private property within that 250-foot radius. This probation term prevented them from engaging in otherwise legal anti-Trident activities which were regularly conducted around the perimeter of the base, including distributing leaflets on the adjoining public roadway and attending weekly meetings at "Ground Zero," a gathering place on private property adjacent to the base.

III. Issues

The following issues are presented on appeal:

A. Youth Corrections Act

1. Whether YCA commitment for a longer term than the maximum adult sentence for the same offense is permissible.

2. Whether the offense as applied to Lowe is an infamous one requiring a grand jury indictment, where the potential YCA sentence is for more than one year.

3. Whether Lowe's decision to proceed pro se was knowingly and intelligently made, where the magistrate did not specifically inform her of the potential six-year YCA sentence.

4. Whether YCA commitment was appropriate where the trial court made no express finding of benefit to Lowe.

B. Basis for Sentencing

1. Whether the trial court relied on the erroneous assumption that Wind had been involved in prior criminal trespass activity.

2. Whether Wind's sentencing properly proceeded absent a pre-sentence report.

C. The Necessity Defense

Whether the trial court erred in prohibiting presentation of the defenses of necessity and international law.

D. The Probation Condition

Whether the probation condition prohibiting entry upon public and private property within 250 feet of the base was proper.

IV. Discussion

A. Youth Corrections Act

Since the trial and sentencing of Lowe, this court has decided in United States v. Amidon, 627 F.2d 1023 (9th Cir. 1980), that the YCA was not intended to impose longer sentences upon youthful misdemeanants than would be available for adults convicted of the same offense, regardless of the rehabilitative purpose of such an extended sentence. Counsel for Lowe and the Government concede that Amidon is controlling in this case and that Lowe's six-year sentence must be set aside. We agree. Because the record does not clearly indicate what sentence the trial judge would have imposed had he known the six-year YCA sentence was unavailable, we remand for resentencing. The six-year sentence being hereby set aside, the questions of whether an indictment was required and whether the decision to proceed pro se was made with full understanding of the potential six-year sentence are moot.

Lowe also contends that a YCA sentence may not be imposed without an explicit finding that the defendant will benefit from YCA treatment. We decline to speculate as to whether the trial judge will again find a YCA sentence appropriate in Lowe's case given the proscription in Amidon against extending YCA sentences beyond the maximum adult term. Accordingly, we do not decide the question of whether a benefit finding is necessary in YCA cases.

B. Basis for Sentencing

Wind argues that her sentence was premised on erroneous information and that she was prejudiced by the absence of a pre-sentence report. The record indicates that the trial judge imposed prison terms upon defendants with a history of prior fence-climbing. Those who had never before engaged in such activity were given suspended sentences and probation. Wind was given a 45-day sentence of imprisonment. She claims that the trial judge erroneously considered her prior arrest for crossing the fence at Bangor, since the charge stemming from that incident was dismissed. 1 Wind claims the trial judge was mistaken when he gave her the same type of sentence as those defendants who had prior convictions.

Wind, who represented herself below, informed the trial judge that she had climbed the fence at Bangor before. She also told him that the charge was dismissed. The record shows that Wind had full opportunity to explain her prior activity at Bangor. 2

The trial judge has broad discretion in sentencing decisions. See United States v. Wylie, 625 F.2d 1371 (9th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981). While Wind argues that the judge mistakenly believed her prior conduct was criminal, this is not clear from the record. The judge knew the charge against Wind was dismissed. The judge could have considered her prior protest activity as indicative of the depth of Wind's commitment and the likelihood of a repeat offense. The deterrent effect of a short prison term may have seemed necessary to reduce this likelihood. Thus, the prior conduct, even if it was not found criminal, could legitimately have been considered in the sentencing decision. Cf. United States v. Morgan, 595 F.2d 1134, 1135-1137 (9th Cir. 1979) (sentencing judge may consider wide range of information, including underlying facts relating to prior acquittals). Absent any indication that the trial judge used the fact of Wind's prior activity for an impermissible purpose, or that he was otherwise misinformed, we have no basis for vacating the sentence. Cf. Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (sentence upheld where there was no affirmative evidence that the sentencing judge relied upon false information).

In addition, Wind contends that the trial judge would not have been misled by her prior arrest if a pre-sentence report had been made. She further contends that her failure to request a pre-sentence report should not be held against her because she was a pro se defendant. Because we find no evidence of reliance on erroneous information, and because Wind does not suggest any other way in which a pre-sentence report would have changed the sentence imposed, we need not reach the question of whether the trial court properly relied upon Wind's waiver of a pre-sentence report. We hold that Wind's sentence was within the discretion of the trial court. The sentence is hereby affirmed.

C. The Necessity Defense

Defendants stipulated to the facts of the offense. Their only defense was that their actions were justified because the Trident system would lead to the devastation of civilization and because the system constituted aggressive warfare in violation of international law. Thus, under the common law principle of necessity, defendants argued that their unlawful actions were necessary to prevent a greater, imminent harm.

Defendants submitted this defense in trial briefs and made an offer of proof as to the facts they hoped to prove in support of the defense. The trial court disallowed the defense as a matter of law and refused to receive supporting evidence which would have included expert testimony on the dangers of nuclear proliferation. Those tried to a jury were not allowed to argue the necessity defense to the jury.

In a similar case arising out of earlier Trident protests, this court rejected the defense of necessity. United States v. May, 622 F.2d 1000 (9th Cir.) cert. denied, --- U.S. ----, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980). This court in May found no direct harm to the protestors...

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