Holdridge v. United States

• Decision Date: 31 August 1960
• Docket Number: No. 16380.,16380.
• Citation: 282 F.2d 302
• Parties: Hi HOLDRIDGE, a/k/a Hiram Holdridge, Larry Shumm and Neil Delmar Haworth, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F.2d 302 (1960)

Hi HOLDRIDGE, a/k/a Hiram Holdridge, Larry Shumm and Neil Delmar Haworth, Appellants, v. UNITED STATES of America, Appellee.

No. 16380.

United States Court of Appeals Eighth Circuit.

August 31, 1960.

COPYRIGHT MATERIAL OMITTED

Francis Heisler, Carmel, Cal., for appellants.

Ronald D. Raitt, Asst. U. S. Atty., Omaha, Neb., for appellee.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

Two Informations charged these three appellants with violating Title 18 U.S.C. § 1382¹ in that they re-entered and were found within Mead Ordnance Depot, Mead, Nebraska, a military reservation, after having been removed from it and ordered not to re-enter.² The cases were consolidated for trial. The jury found the defendants guilty and each received a fine and sentence.

It appears without controversy that the property in question was a military reservation enclosed, partially at least, by a fence, and with an East Gate and a North Gate; that Holdridge and Shumm on July 10, 1959, were warned by the military authorities that it was federal property under the jurisdiction of the Air Force and that they were not to enter; that nevertheless they crossed the fence on that day; that each was then given a writing which bore his name and stated that he was "being removed as a trespasser * * * and ordered not to re-enter" without appropriate permission; that each was removed without difficulty; that each immediately effected re-entry by crossing the fence again; and that the same warning, entry, removal and written notice and order took place on July 16, 1959, with respect to defendant Haworth.

Holdridge, 19 years of age at the time of the trial, is the son of a Methodist minister, was prominent in activities of his local church, and had undertaken some studies in preparation for the ministry. Shumm, also 19, had completed his freshman year in college and is one who, as he testified, felt the entry "was necessary and that our convictions led us to do it". Haworth, a "birthright Quaker", is a college graduate and active in church and peace organizations.

During the trial the defense, upon objection, was not permitted to introduce evidence concerning the purpose of the defendants' re-entry. There separate offers of proof were made. These proposed evidence showing in substance that the defendants as individuals were trained and believed in a peaceful life; that they are religiously motivated persons who are against violence; that they are opposed to war and preparation for war; that, because of such motivation, they felt compelled to bring their thoughts of the immorality of war, and in particular of nuclear war, to the attention of the military authorities and of those persons engaged in building the missile base in the hope that they might be persuaded to cease its construction; that, if called upon, they would claim exemption from military service as conscientious objectors; that thermonuclear explosions are harmful to all people of the world; and that it was not their intent to trespass but to exercise their rights to ascertain whether this government property was being used constitutionally and legally.

On this appeal the defense claims: (1) lack of proof of venue; (2) lack of proof of the government's exclusive right of possession of the site; (3) the government's intended nuclear and therefore improper use of the site, and the right of the defendants as citizens and as persons in the posture of cestuis que trustent to prevent such use; (4) materiality of the defendants' motives and purposes in effecting re-entry; (5) violation of the freedoms of speech, religion and assembly guaranteed by the First Amendment; and (6) errors with respect to instructions.

Venue. Article III, Section 2, of the United States Constitution provides that the trial of a crime "shall be held in the State where * * * committed". The Sixth Amendment guarantees an accused "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Correct venue in criminal cases, therefore, is a matter of constitutional right and questions of venue "are not merely matters of formal legal procedure" but raise "deep issues of public policy". United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236; United States v. Cores, 356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d 873; Rule 18, Fed. Rules Crim.Proc., 18 U.S.C. Accordingly, it has been held by this court and others that venue, unless properly waived, is an essential part of the government's case in a criminal prosecution and must be established by adequate proof the burden of which is on the government.³ However, venue need not be proved by direct evidence. It may be established, as any other fact, by the evidence as a whole or by circumstantial evidence.⁴ This court has even said that it is not an integral part of a criminal offense and thus need not be proved beyond a reasonable doubt. Dean v. United States, 8 Cir., 246 F.2d 335, 338; see Blair v. United States, 8 Cir., 32 F.2d 130, 132. Thus, while there are some cases where failure to connect named streets with a particular city has been held to constitute a lack of necessary proof of venue,⁵ the courts in other street cases have held that on the record as a whole a jury could properly find that venue has been established.⁶ This result has been reached, in particular, where an adequate and informative map has been employed and identified and the situs of the alleged crime has been connected with it. Morehouse v. United States, 8 Cir., 96 F.2d 468, 469-470, and Blair v. United States, supra, where this court said, at page 132 of 32 F.2d:

"Venue * * * may be shown by indicating, or pointing out the locus in quo, on a map identified as a correct map of a county, or of any particular section of the trial court\'s jurisdiction".

We hold that the objection here as to venue is not well taken. While the Informations, of course, are not evidence, the charges they embrace clearly fix the claimed incursions on military property at Mead, Nebraska. Inasmuch as the entire State of Nebraska constitutes one judicial district, 28 U.S.C.A. § 107, there is thus no question as to the proper allegation of venue in each Information. The matter then becomes one of proof. Government's Exhibit 2, which was admitted in evidence without objection, asserts, in so many words, that it is a "Project Ownership" type of map for Saunders County, Nebraska, and that the "Location of the Project" is 9 miles southeast of Wahoo. It refers to the "Nebraska Ordnance Plant Military Reservation" and contains a small but unmistakable outline of the State of Nebraska, with Omaha and Lincoln located and with the "Project Site" clearly placed within the confines of the State. It also contains a plat of a number of sections but this portion makes no mention of the state. In addition, there is on the exhibit a smaller scale "Vicinity Map" showing certain counties, townships and ranges, the cities of Omaha and Lincoln, and the Project Site, west and a little south of Omaha, in Saunders County. This exhibit plus the testimony of the Chief of the Real Estate Division, U. S. Army Engineers at Omaha, that he was familiar with the property known as the Nebraska Ordnance Plant or Mead Ordnance Depot at Mead, Nebraska; plus Government's Exhibit 1, duly admitted, consisting of Nebraska federal court condemnation judgments for real estate located in Saunders County, Nebraska; plus connection by the same witness of Section 8 and the North Half of Section 17, Township 14 North, Range 9 East, Saunders County, Nebraska, as constituting the missile site in question, viz., "certain properties on the Nebraska Ordnance Plant", transferred "to the Department of the Air Force for a period of five years beginning 27 January, 1959", and as covered, in part at least, together with other property, by the judgments constituting Exhibit 1, and his identification of Exhibit 2 with the same property; plus the testimony of the Executive Officer, Offutt Air Force Base, Nebraska, identifying the location of the missile site on Mead Ordnance Plant as a shaded area on Exhibit 2; plus the testimony of the Provost Marshal as to his post on the missile site at Mead, Nebraska, on the days of the claimed offenses; plus the testimony of two Air Force Officers as to their presence at the missile site "at Mead" and "at Mead, Nebraska", respectively, on the days in question, all make it abundantly clear that Nebraska venue was given adequate evidentiary support. This case presents facts just as strong as those of the Dean, Morehouse and Blair cases, supra, where venue had been upheld by this court in the face of challenge and where, in the two cases last cited, map technique of the kind employed here was present.

Exclusive possession of the property. This argument rests upon the fact that prior to the federal condemnations certain county roads traversed what later became the missile site. The points made by the defense are (a) that there is no proof that the public right to use these roads was taken over in the condemnation proceedings and (b) that the place of entry was at the so-called East Gate placed across one of these roads. The government, in response, asserts that the public use was abolished and that in any event the entries made by the defendants were not through the gate but were over the fence at points not on the road.

The condemnation proceedings here involved made use of what is now 40 U.S. C.A. § 258a to 258e, which authorizes the taking of possession and title in advance of final judgment. § 258a requires that the government's declaration of taking contain, among other things, "a statement of the estate or interest in said lands taken for said public use". Each of the several Judgments on Declaration of Taking comprising Exhibit 1 finds as a fact that the statement as to the estate taken was...