U.S. v. Seward

• Decision Date: 17 June 1982
• Docket Number: Nos. 79-1711,s. 79-1711
• Parties: 10 Fed. R. Evid. Serv. 1239 UNITED STATES of America, Plaintiff-Appellee, v. Jonathan SEWARD, Hank Fisk, Peter Jamieson, Kim Korthuis, Colleen Malley, Jodi Linn Nadler, Lisa Hankins, Lynn Stratton, William Morgan, Dan C. Chancellor, Connie Gale Hypes, Mark Steven Roche, Dan Auer, Don Krasniewski, Dewayne Albert Ahrendt, and Abby Anthony, Defendants-Appellants. to 79-1726.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1270

687 F.2d 1270

10 Fed. R. Evid. Serv. 1239

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan SEWARD, Hank Fisk, Peter Jamieson, Kim Korthuis Colleen Malley, Jodi Linn Nadler, Lisa Hankins, Lynn Stratton, William Morgan, Dan C. Chancellor, Connie Gale Hypes, Mark Steven Roche, Dan Auer, Don Krasniewski, Dewayne Albert Ahrendt, and Abby Anthony, Defendants-Appellants.

Nos. 79-1711 to 79-1726.

United States Court of Appeals Tenth Circuit.

June 17, 1982.

Rehearing Denied Aug. 11, 1982.

Certiorari Denied Jan. 17, 1983.

See 103 S.Ct. 789

John S. Evangelisti of LaFond & Evangelisti, Denver, Colo. (Jonathan L. Olom, Denver, Colo., Tim Correll, Denver, Colo., Cathlin Donnell of Kelly, Haglund, Garnsey, Kahn & Donnell, Denver, Colo., and Clifford J. Barnard, Boulder, Colo., on the briefs), for defendants-appellants.

Nancy E. Rice, Asst. U. S. Atty., D. Colo., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with her on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, McKAY, LOGAN and SEYMOUR, Circuit Judges.

SETH, Chief Judge.

These are part of a series of eighty-six appeals from convictions for violating 42 U.S.C. §§ 2278a(a) and (b) and 10 C.F.R. §§ 860.3, 860.5(a), and 860.6. Some general background facts are in order.

On April 29, 1979, about 283 people were arrested at three different locations at Rocky Flats Nuclear Plant Site (Rocky Flats) in Jefferson County, Colorado. Rocky Flats is a Department of Energy (DOE) facility located sixteen miles northwest of Denver, and used for the production of nuclear components. Formerly under the jurisdiction and control of the Atomic Energy Commission (AEC) and the Energy Research and Development Administration (ERDA), the plant has been subject to DOE administration since 1977.

Rocky Flats was constructed in 1952 by the AEC and is now housed on a 6,500-acre site owned by DOE. DOE is responsible for the operations; Rocky Flats is operated by Rockwell International (Rockwell), a private contractor. DOE has approximately fifty employees at Rocky Flats, divided among administrative, operational, and construction functions. Rockwell has about 3,100 employees at the plant. All facilities are used for conducting government operations; Rockwell conducts no private research or activity.

The boundaries of this property were established in 1975 through land acquisition by a decree of taking filed in the United States District Court in Colorado. See Appendix A attached. The outer perimeter is surrounded by a barbed wire fence on which no trespassing signs are posted at intervals of 200 to 250 yards, except at corners where the signs are within a few feet of each other.

In addition to fee ownership of certain land, DOE also has easements, pursuant to certain declarations of taking, to the roadway extending from Colorado State Highway 93 to the edge of the western boundary of Rocky Flats (west access road) and to a 100-foot wide strip of land surrounding and including a railroad spur which runs west out of the western portion of the plant and then south to connect with the main line of the Denver and Rio Grande Railway. Testimony at the various trials indicates that the easements and ownership of the sites where these arrests occurred was acquired by DOE and its predecessor agencies in 1975 to add to the buffer zone around the inner facilities of the plant. The land surrounding these easements is owned by the state or by private individuals.

On April 28, 1979, the day before these defendants-appellants were arrested, permission was given by DOE through the Secretary of the Department of Energy for a demonstration to be conducted on Rocky Flats property at the northeastern edge. Ten or more acres inside the outer boundary On April 29 three large groups of people returned to the plant site. Some of the 283 persons arrested subsequently pleaded guilty and were convicted. The remaining defendants were tried by four judges of the United States District Court for the District of Colorado in groups of approximately fifteen to twenty. In all, apparently eighteen trials took place on these charges in the summer of 1979. All defendants were found guilty and were fined various amounts up to the statutory maximum of $1,000.

of the plant were roped off to permit demonstrators a forum to display their opposition to the continued existence of the plant. Specific authorization for this demonstration was in effect from 8:00 a. m. to 6:00 p. m. on April 28th. The demonstration was orderly and peaceable, and no arrests were made.

In the district court the various trial groups were denominated by alphabetical letters. On appeal to this court, one or more defendants from trial groups A through F, I, and J through P have perfected the total of eighty-six appeals. The defendants in Group A, treated herein, were arrested at the east access road to the Rocky Flats plant.

The east access road to Rocky Flats runs from the inner facility of the plant east to the junction with Indiana Avenue, which runs north-south parallel to the eastern boundary of Rocky Flats. See Appendix A attached. This boundary is marked with a barbed wire fence on which no trespassing signs had been posted on April 25, 1979, some 20 to 25 feet west of Indiana Avenue. A solid white line is painted across the east access road at the edge (according to most testimony) of the federal boundary and the right-of-way of Indiana Avenue. (According to the government surveyor, however, this white line is actually 48 feet inside the boundary of the federal property.) On April 29 there were also temporary rope and sawhorse barricades strung across the white line to designate the boundary.

United States Deputy Marshal Louis DeAnde was in charge of three deputies and various Rocky Flats security force personnel at the east access gate. About noon on April 29, a group of approximately 60 people assembled on the east side of Indiana Avenue across from the entrance to the east access road. At 12:45 most of the group crossed to the west side of the highway where Ron Newby, a Rocky Flats security operations officer, read the first warning that the group was about to trespass on federal property and would be subject to arrest. The warning was made by the use of an electronic bullhorn.

The demonstrators continued to walk across the white line, through the temporary barricades and the first line of the Rocky Flats security guards. The security men dropped back to form a second line, at which time Marshal DeAnde gave a second warning.

The demonstrators then sat down or lay across the roadway approximately 20 to 30 feet west of the barricade. Marshal DeAnde repeated his warning and advised that those who did not wish to be arrested could leave. The demonstrators were then each individually warned they would be arrested if they did not leave. Those choosing not to leave were arrested, turned over to Rocky Flats security personnel, and escorted to a waiting bus. Each demonstrator was patted down, photographed with the arresting officer or security force person, and loaded onto the bus.

After defendants had been arrested and placed on buses, they were transported to a temporary site for processing. As each defendant was unloaded, he or she was photographed by a deputy marshal. Finally, the last deputy marshal handed each arrestee a summons and information.

Numerous motions to dismiss were filed by all defendants. On May 31, 1979, argument was heard at the omnibus hearing on the various grounds alleged in these motions. All defendants were deemed by the court to have joined in the motions of all The government filed a motion in limine seeking to prohibit defendants from presenting at trial the common-law defenses of duress or justification, encompassing defenses of necessity, self-defense, defense of others and defense of property. At the May 31 omnibus hearing, the trial court directed defense counsel to submit written offers of proof in advance of trial with regard to these types of defenses. Several such offers were filed by both trial groups and individual (occasionally pro se) defendants. The arguments are similar and show that various witnesses would have testified to the effects of radiation, risks of accidental leakage, soil contamination in the land surrounding Rocky Flats, and lack of viable political alternatives.

other defendants unless a defendant expressly asked that a motion not apply to him or her. For purposes of appellate review we consider all of these grounds alleged for dismissal as applicable to all defendants. All motions were denied.

All of the trial judges joined in an order of June 7, 1979, setting the ground rules for the admissibility of certain defense evidence. In specifying the very narrow grounds under which such defenses could be established, the order stated:

"(U)nless there be an appropriate offer of proof, there will be no jury voir dire, there will be no opening statement, there will be no testimony, there will be no instructions and there will be no final argument as to a justification defense. Unless these strict requirements can be met, the cases will be tried for jury determination of whether defendants intentionally and wilfully trespassed on Rocky Flats property in violation of applicable federal law."

The restrictions on the introduction of evidence are summarized as follows:

1. No evidence will be received offered to prove either the morality or immorality of nuclear weapons or nuclear power.

2. No evidence will be received offered to establish good or bad motive on the part of defendants.

3. No evidence will be received offered in support of or in opposition to the wisdom of any political question or any government policy.

4. No evidence will be received offered to show the correctness or incorrectness of or the advisability or inadvisability of any legislative act or any executive action insofar as that evidence...