U.S. v. Bishop
| Decision Date | 05 May 1977 |
| Docket Number | No. 75-1899,75-1899 |
| Citation | 555 F.2d 771 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Cameron David BISHOP, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Arthur H. Bosworth, II, Denver, Colo. (James L. Treece, U.S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.
Michael E. Tigar, Washington, D.C. (Harold A. Haddon, Louis M. Fischer, Denver, Colo., John Mage and Cameron David Bishop, pro se, with him on the brief), for defendant-appellant.
Before LEWIS, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
The issue is whether a 1950 Presidential proclamation of a national emergency applies to sustain a prosecution for sabotage committed in 1969. Defendant was convicted of three counts of an indictment for sabotage and sentenced to concurrent seven-year terms. We reverse.
The indictment charges that with intent to interfere with, and obstruct, defense activities of the United States the defendant-appellant Bishop wilfully injured and destroyed four high voltage line towers of the Public Service Company of Colorado by use of dynamite. The towers were part of a 230,000 volt grid furnishing electricity to the Denver Metropolitan Area. In the area, and served by the Public Service Company, were contractors, including Coors Porcelain Company, Martin-Marietta Corporation, and Dow Chemical Company, which furnished military equipment to the United States and two military installations of the United States, Lowry Air Force Base and the Rocky Mountain Arsenal. The indictment charged that the towers and the lines supported thereby were war utilities as defined in 18 U.S.C. § 2151.
All of the bombings were in January, 1969. Defendant was convicted of three separate offenses occurring respectively in Jefferson, Arapahoe, and Adams Counties, Colorado. He was acquitted of a similar charge relating to a tower in Denver. The indictment was returned February 14, 1969. Defendant was a fugitive until March, 1975, when he was arrested in Rhode Island and returned to Denver.
Participants in the bombings were Bishop, Steven Knowles, Susan Parker, and Linda Goebel. Parker and Goebel were granted immunity and testified at the trial for the prosecution. The four of them stole dynamite and blasting materials from a Colorado mine. While they were living at a cabin near Idaho Springs, Colorado, Parker and Goebel assisted defendant and Knowles in the preparation of bombs and accompanied them to the towers which were bombed. In a mine tunnel a short distance up a mountain behind the Idaho Springs cabin, agents of the Federal Bureau of Investigation found boxes of dynamite, blasting materials, and other articles. Circumstantial evidence, including fingerprints, connected defendant with the tower bombings. The defendant's intent to wilfully injure the towers was established by the testimony of Parker, Goebel, and two other witnesses. The purpose of the bombings was to create domestic turmoil which would require the government to bring back troops from Vietnam. The evidence is sufficient to sustain the conviction of the defendant.
The indictment charges violations of 18 U.S.C. § 2153(a) which proscribes specified conduct "when the United States is at war, or in times of national emergency as declared by the President or by the Congress * * * ." Count I of the indictment charges a violation of § 2153(a) on "January 20, 1969, on which date there was in force and effect, at all times a state of national emergency proclaimed by the President of the United States." Defendant was convicted on this count and also on Counts II and III which, in language similar to Count I, charged offenses on January 25 and 28, 1969. The indictments do not charge that the United States was then at war. The crucial question relates to the viability in 1969 of a Presidential proclamation declaring a national emergency.
On December 16, 1950, President Truman issued Presidential Proclamation No. 2914. See 15 Fed.Reg. 9029. The proclamation recites that the need for the action taken arises from international situations, specifically events in Korea and communist aggression. It proclaims "the existence of a national emergency" which requires the strengthening of national defenses "to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made through the United Nations and otherwise to bring about lasting peace." The proclamation summons the support of the people. There has been no Presidential termination of the proclamation.
The Federal Sabotage Act, 18 U.S.C. § 2151 et seq., was passed in 1918 during World War I, 40 Stat. 533. As originally enacted, the statute applied only when the United States was at war. In 1940 § 2155 was added to make it a federal crime to sabotage the national defense in times of peace. 54 Stat. 1220. The penalties for peace-time violations under § 2155 are less than the penalties authorized by § 2153(a).
In 1952, realization that the long delayed signing of a peace treaty with Japan would invalidate various war and emergency statutes at a time when the country was engaged in the Korean conflict resulted in the Emergency Powers Continuation Act, 66 Stat. 54, which temporarily extended the viability of certain statutes, including the war-time penalties for violations of the Sabotage Act. After three additional short extensions, Congress in 1953 added § 2157 to the Sabotage Act. The amendment extended the applicability of the Act "until six months after the termination of the national emergency proclaimed by the President on December 16, 1950," unless sooner terminated by Congress. In 1954 the Act was amended, 68 Stat. 1216, 1217, to make § 2153 applicable "in times of national emergency as declared by the President or by the Congress" as well as in times of war.
In overruling defendant's motion to dismiss the indictment, the district court held that the 1950 proclamation was valid, had not been terminated, and was viable in 1969. At the trial the defendant offered, and the court rejected, the testimony of Prof. Adrian S. Fisher who as legal adviser of the State Department participated in the preparation of the 1950 proclamation. The offer of proof was in the form of extensive examination of Prof. Fisher on the stand out of the presence of the jury. In sum his testimony, if received, would have been that the facts underlying the 1950 proclamation "have ceased to exist."
Defendant argues that the continued existence of the proclamation is an element of the crime and, hence, a fact for determination by the jury. We disagree. Section 2153(a) says that the proscribed acts are forbidden "in times of national emergency." The reference is to the applicability of the statute. It is not one of the elements of the offense. Congress may predicate the operation of a statute upon a Presidential determination of a national emergency. See e. g. Jolley v. Immigration and Naturalization Service, 5 Cir., 441 F.2d 1245, 1254, cert. denied 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262, and Nielsen v. Secretary of Treasury, 137 U.S.App.D.C. 345, 424 F.2d 833, 837, both of which were concerned with the 1950 proclamation.
Defendant argues that § 2151, the definition section of the Sabotage Act, and § 2153 are void for vagueness. The vague terms are said to be "defense activities," "reason to believe," "national emergency," "preparing for," "war material," and "war premises." United States v. Achtenberg, 8 Cir., 459 F.2d 91, 95, cert. denied 409 U.S. 932, 93 S.Ct. 229, 34 L.Ed.2d 187, was concerned with the same statutory provisions we have mentioned and held that the act is sufficiently clear to give fair notice to a normally intelligent person. We agree.
The fundamental issue is whether the 1950 proclamation may be used to apply the anti-sabotage provisions of § 2153(a) to offenses committed in 1969. Power of the President to declare a national emergency "should be implied from the aggregate of his powers under the Constitution." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 866, 96 L.Ed. 1153. The use of this power by Presidents is detailed in Gibson, The President's Inherent Emergency Powers, 12 Fed.B.J. 107. Although the power to proclaim is recognized, the power to terminate has evoked much discussion. The government contends that the duration of a given emergency is left exclusively to Presidential determination.
In recent years Congress has become concerned with Presidential emergency proclamations. The history and extent of the problem are comprehensively presented in S.Rep. No. 549, 93d Cong. 1st Sess. In its foreword the report notes the continued existence of our Presidentially declared national emergencies which give force to 470 provisions of Federal law. Ibid. at (III).
The 94th Congress gave further consideration to the matter. In its report on the bill which became the National Emergencies Act, Act of September 14, 1976, 90 Stat. 1255, the Senate Committee on Government Operations said, 3 U.S.Code Cong. & Adm.News '76, pp. 2288, 2295:
The 1976 National Emergencies Act terminates all existing emergency proclamations two years after the effective date of the act. Procedures are set up for review, and termination, of emergencies declared in the future. Section 202(d) of the Act, 90 Stat. at 1257, provides that:
"Any national emergency declared by the President in accordance with this title, and not otherwise previously terminated, shall terminate on...
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