United States v. Cassiagnol, No. 12063-12065

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtHAYNSWORTH, , and BOREMAN and BUTZNER, Circuit
Citation420 F.2d 868
PartiesUNITED STATES of America, Appellee, v. Jose CASSIAGNOL, Appellant. UNITED STATES of America, Appellee, v. Bruce W. GRANT, Appellant. UNITED STATES of America, Appellee, v. Emily FRANCO (Jane Doe), Appellant. UNITED STATES of America, Appellee, v. Hampton P. HOWELL, Appellant. UNITED STATES of America, Appellee, v. Norman MAILER, Appellant. UNITED STATES of America, Appellee, v. Peter KIGER, Appellant. UNITED STATES of America, Appellee, v. Jerry RUBIN, Appellant.
Decision Date20 April 1970
Docket Number12252,12086,12659 and 12660.,No. 12063-12065

420 F.2d 868 (1970)

UNITED STATES of America, Appellee,
v.
Jose CASSIAGNOL, Appellant.

UNITED STATES of America, Appellee,
v.
Bruce W. GRANT, Appellant.

UNITED STATES of America, Appellee,
v.
Emily FRANCO (Jane Doe), Appellant.

UNITED STATES of America, Appellee,
v.
Hampton P. HOWELL, Appellant.

UNITED STATES of America, Appellee,
v.
Norman MAILER, Appellant.

UNITED STATES of America, Appellee,
v.
Peter KIGER, Appellant.

UNITED STATES of America, Appellee,
v.
Jerry RUBIN, Appellant.

Nos. 12063-12065, 12086, 12252, 12659 and 12660.

United States Court of Appeals Fourth Circuit.

January 8, 1970.

Certiorari Denied April 20, 1970.


420 F.2d 869
COPYRIGHT MATERIAL OMITTED
420 F.2d 870
Philip J. Hirschkop and Lawrence E. Freedman, Alexandria, Va. (Joseph Forer, Washington, D. C., on brief) for appellants

Theodore George Gilinsky, Atty., Dept. of Justice (Fred M. Vinson, Jr., Asst. Atty. Gen., Beatrice Rosenberg and Paul C. Summitt, Attys., Dept. of Justice, and C. Vernon Spratley, Jr., U. S. Atty., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BUTZNER, Circuit Judges.

Certiorari Denied April 20, 1970. See 90 S.Ct. 1364.

BOREMAN, Circuit Judge:

These seven appellants were arrested for alleged offenses arising out of and in the course of an antiwar demonstration at the Pentagon in Arlington County, Virginia, on the weekend of October 21-22, 1967.

Upon request of the project director of the National Mobilization Committee to End the War in Vietnam for all permits necessary to conduct a massive antiwar demonstration on the weekend of October 21-22, 1967, the regional administrator of the General Services Administration (hereinafter called GSA) arranged for a permit to be issued on October 19, 1967, by the National Park Service, the GSA, the Metropolitan Police Department of the District of Columbia and Arlington County. Under the permit, the demonstration was to begin with an assembly and rally at the Lincoln Memorial on the morning of Saturday, October 21. In the early afternoon, the demonstrators were to march to the North Parking Area of the Pentagon for another rally to begin about 3:00 p. m. and last no more than two hours. Further protest activities, to be terminated not later than midnight on Sunday, October 22, were limited to the "Post-North Parking Rally Activity Area," which was described in the permit as:

"An area within the Pentagon Reservation, to be designated by clear lines erected in advance, bounded roughly by the grassy triangular-shaped area north of the Mall Entrance, including a small portion of the North Parking Area where a sanitary van may be located, with the southernmost boundary being the sidewalk at the north perimeter of the paved Mall Entrance Parking Area at the top of the steps."

GSA Rules and Regulations Governing Public Buildings and Grounds under the charge and control of GSA promulgated pursuant to 40 U.S.C. § 3181 were posted in all main entrances of the Pentagon and in the lots throughout the

420 F.2d 871
Pentagon grounds, including the North and South parking areas. The posted GSA regulations included a provision which prohibited, among other things, "unwarranted loitering * * * or assembly" and "unseemly or disorderly conduct on property."2

Beginning some thirty minutes before the permit was due to expire (expiration occurred at midnight, October 22), the following announcement was repeatedly made to the demonstrators by public address system:

"Attention all demonstrators:
"The demonstration in which you are participating ends at midnight. The two-day permit which was agreed to by the leaders of the demonstration and the General Services Administration expires at that time.
"All demonstrators must depart from the Pentagon grounds by midnight. All persons who wish to leave voluntarily can board buses on the mall. These buses will go to the Memorial Bridge. Those who wish to take the buses should move to the West end of the sidewalk. Those demonstrators who do not leave voluntarily by midnight will be arrested and taken to a federal detention center.
"All demonstrators are urged to abide by the permit."

While some 34 demonstrators accepted the offer of transportation back to the District of Columbia, about 245 elected to remain in the area in violation of the permit. Prisoner vans were brought into place and arrests commenced shortly after midnight.

Four appellants — Kiger, Howell, Franco and Rubin — were charged with and convicted of offenses relating to their refusal to leave the Pentagon grounds upon the expiration of the permit. Kiger was tried before the United States Commissioner on November 3, 1967, convicted of "unseemly and disorderly conduct," and sentenced to thirty days in jail. The district court affirmed on appeal. Howell, Franco and Rubin were convicted of "loitering and assembling in an unwarranted manner." Howell was tried by the district court without a jury on November 10, 1967, found guilty, and sentenced to thirty days in jail and fined fifty dollars. Franco was tried in the district court with a jury on December 6, 1967, found guilty, and sentenced to thirty days in jail. Rubin was tried by the United States Commissioner on March 6, 1968, found guilty, and sentenced to thirty days in jail. The district court affirmed Rubin's conviction on appeal.

The other three appellants — Cassiagnol, Grant and Mailer — were convicted of "unseemly and disorderly conduct" during the time of the demonstration in crossing over and through an established line of United States marshals into a restricted area and then refusing to remove themselves from such area when ordered to do so. Mailer entered a plea of nolo contendere before the United States Commissioner on October 22, 1967, was found guilty and fined fifty dollars and sentenced to thirty days in jail (with 25 days suspended). The district court affirmed Mailer's conviction, indicating that Mailer could withdraw his nolo contendere plea and have a trial de novo in the district court if he so desired, but the plea was not withdrawn. Cassiagnol and Grant were simultaneously tried on November 9, 1967, in the district court (Cassiagnol by jury and Grant by the court). Each was found guilty and sentenced to twenty days in jail.

Due to the fact that all seven appellants contest the constitutionality of the GSA regulation and the statute which delegates authority to the Administrator of the General Services Administration to promulgate all "needful rules and regulations" for the management of all government property under the charge and control of GSA, these cases were consolidated for appeal.

420 F.2d 872

Appellants present three issues for review by this court: (1) Is the GSA regulation under which appellants were convicted unconstitutional due to vagueness or overbreadth; (2) Is the statute delegating authority to the Administrator of GSA to promulgate such regulations an unconstitutional delegation of legislative authority; and (3) Were the appellants deprived of a fair trial and thereby due process of law due to prejudgment of the cases and hostile and prejudicial conduct of the trial judge.

Appellants make a two-pronged attack upon the GSA regulation prohibiting "unwarranted loitering * * * or assembly" and "unseemly or disorderly conduct" while on government property.3 They contend: that the regulation is unconstitutional because it is so vague that it fails to give men of common intelligence fair notice that their contemplated conduct is forbidden; and, that the language is so broad that it acts as an impermissible restraint upon First Amendment freedoms. We reject these contentions.

Adopting the principle that one should not be punished for conduct which he could not have reasonably understood to be criminal, the Supreme Court has consistently held that a penal statute cannot be so vague as to fail to apprise one of normal intelligence that contemplated conduct is violative of statute. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

In Harriss, supra, 347 U.S. at 617, 74 S.Ct. at 812, the Court said:

"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute."

Similarly, in Lanzetta, supra, 306 U.S. at 453, 59 S.Ct. at 619, the Court declared:

"* * * A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

Nor can a statute be so overly broad as to improperly prohibit the enjoyment of constitutional rights. Thus, as was held by the Supreme Court in Winters v. New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948):

"It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment."

In N. A. A. C. P. v. Button, 371 U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed. 2d 405 (1963), the Court declared:

"The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon an unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application."

Some cases have held disorderly conduct statutes constitutionally defective even though their breadth had been narrowed by construction on the part of the state court. Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed.

420 F.2d 873
1131 (1949); Landry v. Daley, 280 F. Supp. 968...

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  • Don't Tear It Down, Inc. v. Pennsylvania Ave. Development Corp., No. 79-2330
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 2, 1980
    ...Co., 206 U.S. 370, 384-385, 27 S.Ct. 742, 745-746, 51 L.Ed. 1098, 1103 (1907) (delegation to the President); United States v. Cassiagnol, 420 F.2d 868, 876-877 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970) (delegation to Government Services 74 Hancock v. Trai......
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    ...509, 510--511 (9th Cir. 1970); United States v. Barbour, supra, 137 U.S.App.D.C. at 118, 420 F.2d at 1321; United States v. Cassiagnol, 420 F.2d 868, 879 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970); United States v. Klass, 166 F.2d 373, 376 (3d Cir. 1948); ......
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    ...415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Blasecki v. City of Durham, 456 F.2d 87 (4th Cir. 1972); United States v. Cassiagnol, 420 F.2d 868 (4th Cir. 1970); Grove Press, Inc. v. Evans, 306 F.Supp. 1084 VII A. DR 7-107(A) APPLIES ONLY TO PROSECUTING ATTORNEYS A final question is r......
  • United States v. Bukowski, No. 17378.
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    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 15, 1970
    ...267 F.2d 345, 349-350 (7th Cir. 1959); accord, United States v. Ah Kee Eng, 241 F.2d 157, 161 (2d Cir. 1957); United States v. Cassiagnol, 420 F.2d 868, 878-879 (4th Cir. 1970), certiorari denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654; Blumberg v. United States, 222 F.2d 496, 501 (5t......
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78 cases
  • Don't Tear It Down, Inc. v. Pennsylvania Ave. Development Corp., No. 79-2330
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 2, 1980
    ...Co., 206 U.S. 370, 384-385, 27 S.Ct. 742, 745-746, 51 L.Ed. 1098, 1103 (1907) (delegation to the President); United States v. Cassiagnol, 420 F.2d 868, 876-877 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970) (delegation to Government Services 74 Hancock v. Trai......
  • U.S. v. Liddy, No. 73--1565
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 8, 1974
    ...509, 510--511 (9th Cir. 1970); United States v. Barbour, supra, 137 U.S.App.D.C. at 118, 420 F.2d at 1321; United States v. Cassiagnol, 420 F.2d 868, 879 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654 (1970); United States v. Klass, 166 F.2d 373, 376 (3d Cir. 1948); ......
  • Hirschkop v. Virginia State Bar, Civ. A. No. 74-0243-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 30, 1976
    ...415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Blasecki v. City of Durham, 456 F.2d 87 (4th Cir. 1972); United States v. Cassiagnol, 420 F.2d 868 (4th Cir. 1970); Grove Press, Inc. v. Evans, 306 F.Supp. 1084 VII A. DR 7-107(A) APPLIES ONLY TO PROSECUTING ATTORNEYS A final question is r......
  • United States v. Bukowski, No. 17378.
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    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 15, 1970
    ...267 F.2d 345, 349-350 (7th Cir. 1959); accord, United States v. Ah Kee Eng, 241 F.2d 157, 161 (2d Cir. 1957); United States v. Cassiagnol, 420 F.2d 868, 878-879 (4th Cir. 1970), certiorari denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654; Blumberg v. United States, 222 F.2d 496, 501 (5t......
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