United States v. Banks

• Decision Date: 17 December 1973
• Docket Number: No. CR73-5034,CR73-5034
• Citation: 368 F. Supp. 1245
• Parties: UNITED STATES of America, Plaintiff, v. Dennis BANKS et al., Defendants.
• Court: U.S. District Court — District of South Dakota

368 F. Supp. 1245

UNITED STATES of America, Plaintiff, v. Dennis BANKS et al., Defendants.

No. CR73-5034, etc.

United States District Court, D. South Dakota, W. D.

December 17, 1973.

William F. Clayton, Sioux Falls, S. D., R. D. Hurd, Sioux Falls, S. D., David R. Gienapp, Sioux Falls, S. D., Ronald W. Banks, Rapid City, S. D. and Carleton R. Hoy, Sioux Falls, S. D., appeared in behalf of the plaintiff.

Mark L. Amsterdam, William M. Kunstler, Mark Lane, New York City, Kenneth E. Tilsen, St. Paul, Minn., Joseph Beeler, Chicago, Ill. and Douglas Hall, Minneapolis, Minn., appeared in behalf of the defendants.

MEMORANDUM DECISION

NICHOL, Chief Judge.

These cases involve the occupation-siege of the town of Wounded Knee, South Dakota, which took place over a seventy-one day period in the early spring of 1973. The Federal Government brought two indictments against Russell Means and Dennis Banks, whose cases have been consolidated for trial. Having benefitted from the briefing expertise of counsel for both sides, having held an evidentiary hearing, and having heard oral argument, this Court makes the following rulings on defendants' Motion to Dismiss the indictments:

Point I

Defendants' motion to dismiss on the grounds that 18 U.S.C. Sec. 231(a)(3)¹ is unconstitutional on its face and as applied in Counts IV and V is denied.

18 U.S.C. Sec. 231(a)(3) has been upheld as being neither unconstitutionally vague nor overly broad. See United States v. Mechanic, 454 F.2d 849, 853 (8th Cir. 1971), National Mobilization Committee to End War in Vietnam v. Foran, 297 F.Supp. 1, 3-5 (N.D.Ill. 1968), aff'd in 411 F.2d 934 (7th Cir. 1969). Those cases have interpreted Section 231(a) (3) to require "specific intent", which has been alleged in both Counts IV and V, as one of the elements the government must prove. See also United States v. Featherston, 461 F.2d 1119 (5th Cir. 1972), cert. den. 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258 (1972), holding that Section 231(a)(3) is not unconstitutional on its face because the statute requires intent and does not cover mere inadvertent conduct. 461 F.2d 1122.

I disagree with defendants' contention that Section 231(a) (3) constitutes an abridgment of First Amendment activities. Mechanic, supra, 454 F.2d at 852, specifically states that "Section 231(a) (3) has no application to speech, but applies only to violent physical acts." Therefore,

. . . since the statute does not attempt to curtail speech, the defendants may not challenge it as vague or overly broad if their own conduct may be constitutionally prohibited, since ". . . one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional . . ." United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed. 2d 524 and cases cited therein. United States v. Mechanic, supra, 454 F.2d at 853.

There is a difference between prohibiting free expression, which was the concern of the courts in Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and Stamler v. Willis, 415 F.2d 1365 (7th Cir. 1969), and prohibiting certain acts to impede, obstruct or interfere with an official described in the statute, such as the throwing of cherry bombs in Mechanic, or the locating of trenches, bunkers and roadblocks manned by persons armed with guns as alleged in the present indictments. (Of course, our opinion here refers only to the sufficiency of the indictment and draws no conclusion as to the substantive merits of the same.)

We do not feel that by interpreting the statute in a constitutionally permissible light, the court in Mechanic, supra, rewrote 18 U.S.C. Sec. 231(a)(3). See Screws v. United States, 325 U.S. 91, 98, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), and United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Even the decision in Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), cited extensively by defendants, does not state that a court may not construe legislation so as to save it against constitutional attack, but merely holds that the court may not carry this ". . . `to the point of perverting the purpose of a statute . . .' or judicially rewriting it." Scales v. United States as cited in Aptheker, supra, at 515, 84 S.Ct. at 1668. As previously pointed out, the Court of Appeals in Mechanic held that 18 U.S.C. Sec. 231(a) (3) does not purport to reach speech of any kind. It reaches only acts to impede, obstruct, or interfere with law enforcement officers or firemen. Such construction of the statute in no way "perverts its purpose."

Point II

Point two of defendants' Motion to Dismiss alleges that the Major Crimes Act, 18 U.S.C. § 1153, under which the defendants were charged, is unconstitutional as violative of the Fifth Amendment. On the basis of the decision of the Court of Appeals for the Eighth Circuit in Kills Crow v. United States, 451 F.2d 323 (8th Cir. 1971), cert. denied 405 U.S. 999, 92 S.Ct. 1262, 31 L.Ed.2d 467 (1972), this portion of defendants' motion is denied.

Point III

Defendants' motion to dismiss Count VI is granted on the grounds that the charge in said count does not fall within the scope of 18 U.S.C. Sec. 81.²

Count VI charges that the defendants ". . . did wilfully, knowingly, unlawfully and maliciously, set fire to and burn motor vehicles . . .". For "motor vehicle" to be included within 18 U.S.C. Sec. 81, it would have to be classified as machinery. Such a classification would raise grave constitutional questions as to the vagueness of 18 U.S. C. Sec. 81. See e. g. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), holding vagrancy ordinance void for vagueness; Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 29 L. Ed.2d 214 (1971), holding local assembly ordinance in violation of due process standard of vagueness; United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954), upholding Federal Regulation of Lobbying Act but stating the requirement of definiteness in a criminal statute to be that a person of ordinary intelligence must be given fair notice that his contemplated conduct is forbidden by the statute; and Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926), holding an Oklahoma wage law void for uncertainty.

The term "machinery" as used within 18 U.S.C. Sec. 81 cannot be taken so out of the context of its surrounding words to include "motor vehicle." To do so would ignore the longstanding principle of statutory construction of ejusdem generis (see United States v. Freeman, 473 F.2d 7 (8th Cir. 1973)), and endanger the constitutionality of the Act on its face. We therefore dismiss Count VI of the indictment.

Point IV

Defendants' motion to dismiss several counts of the indictment on the grounds that they do not charge anything which constitutes an offense is denied except as to Count VI. (See discussion on Count VI in Point III of this memorandum of law).

Counts IV & V — By alleging that defendants prepared and located trenches, bunkers and roadblocks which were manned by persons armed with guns, Counts IV and V are sufficient to charge an offense. 18 U.S.C. Sec. 231(a) (3) makes no requirement of direct physical contact with the federal officers, but rather applies to anyone who commits or even attempts to commit any act to obstruct, impede or interfere with any fireman or law enforcement official. Actual interference is not required; intent to interfere is. (See discussion in Point I.)

Count VII — In their well-written and persuasive brief, defendants make a good case for the proposition that Molotov Cocktails were not intended to be included under 26 U.S.C. Sec. 5861 of the National Firearms Act, and that Count VII therefore fails to charge a criminal offense. As well as giving a detailed analysis of Congressional intent behind the statute, defendants present three salient issues on this point.

1. In court argument, defendants cited the fact that a 1970 statute, 18 U.S.C. Sec. 844, The Explosive Control Act, makes it a federal offense to possess or use Molotov Cocktails. It is a logical conclusion that the 1968 firearms act does not extend to Molotov Cocktails, or there would have been no need for their specific inclusion in the later Act.

2. Defendants in their brief argue that for an item to come within The National Firearms Act, it must be inherently within the Act on the basis of its objective characteristics and that the intent of the user is irrelevant. See United States v. Schofer, 310 F.Supp. 1292, 1297 (E.D.N.Y., 1970), United States v. Posnjak, 457 F.2d 1110, 1116 (2d Cir. 1970). (But see also United States v. Oba, 448 F.2d 892 (9th Cir. 1971), which allowed intent to bring an item into the coverage of the Act.)

Defendants contend that a Molotov Cocktail cannot come within the Act since only by looking to a user's intent can such an item become a "destructive device." They claim that there are legitimate uses for glass containers filled with flammable liquid and stopped up with cloth in the neck either as storage containers or lanterns; and thus, the fully completed Molotov Cocktail, as well as its components, would not objectively be within the Act. Defendants cite the D.C. Court Reform Act (P.L. 91-358, U.S.Code Congressional and Administrative News 91st Congress, 2d Sess., 1970, p. 707) which provides the following exemption:

MOLOTOV COCKTAILS AND OTHER EXPLOSIVE DEVICES

Sec. 15A(a) No person shall within the District of Columbia manufacture, transfer, use, possess, or transport a molotov cocktail. As used in this subsection, the term `molotov cocktail' means (1) a breakable container containing flammable liquid and having a wick or a similar device capable of being ignited, or (2) any

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