United States v. Featherston, 71-2385

Decision Date11 July 1972
Docket Number71-2687.,No. 71-2385,71-2385
Citation461 F.2d 1119
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alfred FEATHERSTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles RILEY, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Louis R. Beller (court appointed), Philip Carlton, Jr., Miami Beach, Fla., for defendant-appellant Featherston.

Steven D. Robinson, Miami, Fla., amicus curiae.

James Matthews, Miami, Fla. (court appointed), for defendant-appellant Riley.

Robert W. Rust, U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied in No. 71-2385 July 11, 1972.

BELL, Circuit Judge:

In these appeals, consolidated for opinion purposes, Alfred Featherston and Charles Riley challenge their convictions for teaching the use or making of explosives or incendiary devices, in violation of 18 U.S.C.A. § 231(a) (1).1 There are several assignments of error but the primary contention in each appeal is that § 231(a) (1) is either unconstitutional on its face because of overbreadth and vagueness, or in the alternative, unconstitutional as applied to appellants because the government allegedly failed to show a clear and present danger as mandated by the First Amendment. We find no merit in the appeals and therefore affirm the convictions.

Appellants were leaders in an organization known as Black Afro Militant Movement, or BAMM, operating in the Miami, Florida area. At a meeting of this group on May 27, 1970, Riley, with the assistance and under the supervision of Featherston, gave instructions to the members in attendance on how to make and assemble explosive and incendiary devices. The stated purpose of this demonstration was to prepare the members of BAMM, for "the coming revolution." As a result of this activity, appellants were indicted for violating 18 U.S.C.A. § 231(a) (1). They were tried to separate juries and these appeals followed their conviction.2

I

Appellants' vagueness argument is directed at the language "knowing or having reason to know" as used in § 231(a) (1). It is their contention that this language creates criminal liability in terms so broad and vague that men of common intelligence must guess at its meaning and application.

This same argument was rejected by the Seventh Circuit in National Mobilization Committee to End the War in Vietnam v. Foran, 7 Cir., 1969, 411 F.2d 934. There the court construed the language of the statute to require an intent that the use, application, and making of incendiary devices be employed in the furtherance of a civil disorder. The court concluded that "The requirement of intent of course `narrows the scope of the enactment by exempting innocent or inadvertent conduct from its proscription.'" 411 F.2d at 937. Appellants urge us to reject this interpretation of § 231(a) (1). However, we do not perceive that such a result is required by the Constitution nor permitted by Supreme Court precedent.

In Gorin v. United States, 1940, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488, the Supreme Court upheld the constitutionality of the Espionage Act of 1917, the provisions of which are now incorporated into 18 U.S.C.A. § 793. The statute before the court in Gorin employed the language "with intent or reason to believe," and was challenged on due process grounds for overbreadth and vagueness. In response to this argument the Supreme Court stated:

"We find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring `intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.\' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established." 312 U.S. at 27-28, 61 S.Ct. at 433-434.

We are thus led to the conclusion that § 231(a) (1) is not unconstitutional on its face. The language is substantially the same as that sanctioned by the Supreme Court in Gorin, and we hold that it is sufficiently definite to apprise men of common intelligence of its meaning and application.3

We note also that in both cases the district court instructed the jury that in order to convict the defendants, they must find that at the time and place in question, the defendants knew and intended the incendiary devices to be unlawfully employed for use in, or in furtherance of, a civil disorder. Thus we find no constitutional infirmity arising from the interpretation and application of the statutory language to these appellants.

In sum, the statute does not cover mere inadvertent conduct. It requires those prosecuted to have acted with intent or knowledge that the information disseminated would be used in the furtherance of a civil disorder.

II.

The First Amendment argument is two-fold. First, the contention is that since the statutory language does not require knowledge or intent, it permits prosecution for the dissemination of ideas without a showing of clear and present danger. In view of our decision that the statute as construed here and in the district court does require a showing of knowledge or intent, this contention is rejected.

Second, it is urged, despite our holding in regard to the language of § 231(a) (1), that the statute was unconstitutionally applied because the government failed to prove the happening or pendency of a particular civil disorder and thus failed to show a clear and present danger justifying an interference with activity protected by the First Amendment. We find this argument unpersuasive.

The words "clear and present danger" do not require that the government await the fruition of planned illegal conduct of such nature as is here involved. As stated in Dennis v. United States, 1950, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137:

"The words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the government is required." 341 U.S. at 509, 71 S.Ct. at 867.

Here the evidence showed a cohesive organized group, lead by Featherston and aided by Riley, engaged in preparation for "the coming revolution." This group included a force regularly trained in explosives and incendiary devices, standing ready to strike transportation and communication facilities and law enforcement operations at a moments notice.4 Taken within this factual setting, we hold that there was a sufficient showing of clear and present danger to justify governmental intervention and the prosecution of appellants for teaching the use and manufacture of explosives and incendiary devices, as provided in § 231(a) (1).

The argument that Congress exceeded its power under the Commerce Clause in enacting § 231(a) (1) fails to rise to the level of a substantial constitutional question and is rejected. See Heart of Atlanta Motel, Inc. v. United States, 1964, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258. We similarly find no merit in the assignments of error having to do with the indictments, the sufficiency and admissibility of evidence, and the court's voir dire examination of the jury under Rule 24(a), Federal Rules of Criminal Procedure. All assignments of error have been considered. We find no reversible error.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of...

To continue reading

Request your trial
22 cases
  • New England Accessories Trade Ass'n v. Tierney
    • United States
    • U.S. District Court — District of Maine
    • 7 Diciembre 1981
    ...429, 433, 434, 85 L.Ed. 488 (1941); Selzman v. United States, 268 U.S. 466, 45 S.Ct. 574, 69 L.Ed. 1054 (1925); United States v. Featherston, 461 F.2d 1119, 1121-22 (5th Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258 (1972). This Court concludes that the "reasonably should ......
  • Casbah, Inc. v. Thone
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 9 Julio 1981
    ...supra, 497 F.Supp. at 294, citing Selzman v. United States, 268 U.S. 466, 45 S.Ct. 574, 69 L.Ed. 1054 (1925); United States v. Featherston, 461 F.2d 1119 (5th Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258 (1972). Appellants' fourth amendment argument requires only cursory ......
  • Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.
    • United States
    • U.S. District Court — District of Kansas
    • 18 Septiembre 1981
    ...the courts when challenged. See, e. g., Selzman v. United States, 268 U.S. 466, 45 S.Ct. 574, 69 L.Ed. 1054 (1925); United States v. Featherston, 461 F.2d 1119 (5th Cir.), cert. denied 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258 (1972); Delaware Accessories Trade Assn. v. Gebelein, 497 F.Sup......
  • U.S. v. Saffo
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 18 Septiembre 2000
    ...in 18 U.S.C. § 841(d)(2) sets up a standard of negligence or recklessness that is different from knowledge); United States v. Featherston, 461 F.2d 1119, 1121-1122 (5th Cir. 1972) (upholding "knowing or having reason to know" standard in 18 U.S.C. § 231(a)(1), and citing Gorin, 312 U.S. at ......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT