United States v. Baranski

• Decision Date: 29 August 1973
• Docket Number: No. 72-1345.,72-1345.
• Citation: 484 F.2d 556
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Wayne BARANSKI et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 556 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. John Wayne BARANSKI et al., Defendants-Appellants.

No. 72-1345.

United States Court of Appeals, Seventh Circuit.

Argued January 15, 1973.

Decided August 29, 1973.

COPYRIGHT MATERIAL OMITTED

Anthony A. D'Amato, Gerald M. Werksman, Edward B. Arnolds, internat-law, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., William T. Huyck and Gordon B. Nash, Jr., Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.

PELL, Circuit Judge.

On the afternoon of April 29, 1971, accompanied by a reporter whom they had invited to witness a newsworthy event, the four defendants-appellants went to a building in Evanston, Illinois, housing the offices of three draft boards, opened drawers and filing cabinets there, pulled some records, and poured animal blood over them. They waited quietly for the police, whom a board secretary had telephoned, to arrive. When the police came, the defendants stated that they would submit to arrest nonviolently. They then asked if they might pray, received permission, and proceeded to pray and to read aloud from the New Testament. They also distributed a signed letter in which they attempted to justify their actions.

Subsequently, the defendants were charged in a four-count indictment with (1) willful damage to governmental property, 18 U.S.C. § 1361; (2) removal, mutilation, and destruction of records, 18 U.S.C. § 2071; (3) interfering with the administration of the Military Selective Service Act, 50 U.S.C. App. § 462(a);¹ and (4) conspiracy to commit the above offenses, 18 U.S.C. § 371. A jury acquitted the defendants on the three substantive counts but convicted them of violating Section 371, the conspiracy count. Each defendant was sentenced to one year in prison.

At trial, the defendants, three of whom had elected to proceed pro se, argued that they had not acted with an unlawful purpose. Their aim allegedly had been to save lives. They stressed what they considered to have been the educational and symbolic nature of their acts. On appeal, they raise several issues, the resolution of any one of which in their favor would assertedly mandate reversal of the judgments of conviction. Most of these issues concern supposed trial errors.² The defendants' primary contention, however, is that the pertinent portion of 50 U.S.C. App. § 462(a), the violation of which was one of the alleged objectives of the conspiracy, is unconstitutional.³

In considering the contentions of the defendants, we do so on the basis that they are to be accorded the same constitutional protection and fair trial rights possessed by every other individual in our system of justice. Irrespective of the sincerity with which they held their beliefs, and despite their motivation, which reasonably could be construed as having prompted a protest made on behalf of their fellows of the human race against the then current war involvement, the defendants' invasion of a governmental office and the destruction of its records are intolerable and inexcusable in a civilized society. While we deny condonation, we do not deny basic rights which must be protected in an evenhanded manner if a civilized society is to be maintained.

I Standing Issue

We must first determine whether the defendants may challenge their conspiracy conviction on constitutional grounds. The Government argued below and argues here that the defendants may not seek the reversal of the judgments against them because they question the constitutionality of only one of the three unlawful "objects" of the conspiracy, namely, the violation of 50 U.S. C. App. § 462(a). The Government contends that the jury could have reasonably determined that the defendants (a) had conspired to violate either or both of the other two statutes, the constitutionality of which the defendants do not contest, and (b) had not conspired to violate Section 462(a).

Our attention has been directed to no case that is "on all fours" with the present case, and the Government cites only one decision, United States v. Tanner, 471 F.2d 128 (7th Cir. 1972), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L. Ed.2d 220, to support its argument. Tanner in relevant part states:

"In addition, Rice and Chipman challenge Count IV of the indictment a substantive count for failing to allege acts that fall within the `special maritime and territorial jurisdiction of the United States.\' We fail to see how Rice and Chipman have standing to raise this claim since neither were indicted for the substantive offense charged. The offense charged in Count IV affected the trial of these appellants only insofar as it was one of the several unlawful objects alleged in the conspiracy count. However valid appellants\' claim is on this issue, it does not affect their convictions on the conspiracy count so long as any one of the objects of the conspiracy is unchallenged." 471 F.2d at 139-140.

We are not persuaded that, on the basis of this brief paragraph, we must abort defendants' constitutional claims. In Tanner, Count IV charged a substantive violation of 18 U.S.C. § 1363, and the conspiracy count charged a conspiracy to commit actions in violation of 18 U.S.C. §§ 837, 1363, 1364, 1952, 2275, 81, and 1992. See United States v. Tanner, 279 F.Supp. 457, 463 n.1 (N.D.Ill.1967). The challenge to Count IV in Tanner did not go to the constitutionality of § 1363 nor was the section per se otherwise challenged. The contention which this court ultimately accepted in reversing as to Count IV was that factually there had been no violation of the statute inasmuch as the damaged dock and vessel were not at the time upon a body of water which would accord federal jurisdiction, although such jurisdiction had been alleged in the count. The particular holding in Tanner involves, therefore, nothing more than the well-established law that conspirators need not accomplish the violation of the laws with which they are charged with conspiring to violate. 15A C.J.S. Conspiracy § 44, at 753 (1967). This is a far cry from saying that a person can properly be charged with conspiring to commit a violation of an unconstitutional statute, the foundation stone of the crime.

Also, unlike Rice and Chipman in Tanner, the defendants here were named in all the substantive counts referred to in Count IV, the conspiracy charge. Because the jury returned a general verdict on that count, we cannot know which of the three statutes the violations of which were the "objects" of the conspiracy the jury relied on in convicting the defendants. The trial court had instructed the jury that actions taken to attain any of the three alleged objects would suffice for conviction. We do not assume that the learned trial judge had any intention to footnote this instruction by a proviso: "even though one of the objects was the violation of a statute unenforceable because of unconstitutionality."

Although the defendants do not challenge the constitutionality of Sections 1361 and 2071, their failure in this respect does not amount to a concession that they were guilty of conspiring to violate the statutes which the jury found they had not violated substantively. It is hornbook law that a conspiracy to commit a crime is a different offense from the commission of the crime which is the object of the conspiracy. However, the defendants point out in connection with the triple object of the conspiracy count that the "jury may have reasonably concluded on the basis of the evidence at trial that the defendants neither conspired to damage or attempt to damage government records in excess of $100, nor conspired to remove, mutilate, obliterate or destroy government records, nor conspired to use means of force or violence to hinder the administration of the Selective Service system." The simple fact is that we cannot say with any certainty which of the three objects was crucial to the jury's determination.

We are not unmindful of general statements in the cases to the effect that proof of conspiracy to violate any one of several statutes alleged in the indictment will support a conviction. See, e. g., United States v. Mack, 112 F.2d 290 (2d Cir. 1940). While we do experience some conceptual difficulties with this general statement, recognizing again that the offense of conspiracy is separate from the statutory offenses constituting the objects of the conspiracy and assuming arguendo the correctness of the general statement, we do not find the principle applicable in the particular factual situation here involved because of our inability to state the basis of the jury's determination. We decline to speculate on such a matter.

To the extent that an isolated statement that there is "no failure of proof in the fact that one of its objects alleged as unlawful may not have been so," Moss v. United States, 132 F.2d 875, 878 (6th Cir. 1943), appears to be inconsistent with the result we have reached, we cannot accept the implication as being applicable here, and, if it is, we cannot accept it as good law.

The controlling matter here, in our opinion, is not the proof upon which the jury might have convicted under the conspiracy count but rather the proof upon which the jury did convict. Chief Justice Hughes put the matter well in an analogous situation in Stromberg v. California, 283 U.S. 359, 367-368, 51 S. Ct. 532, 535, 75 L.Ed. 1117 (1931):

"The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon

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