United States v. Floyd
| Decision Date | 31 May 1973 |
| Docket Number | No. 72-1741 to 72-1752.,72-1741 to 72-1752. |
| Citation | 477 F.2d 217 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jon Randolph FLOYD et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., on the brief), for appellee.
Stephen Jones, Enid, Okl. (Eric J. Groves, Oklahoma City, Okl., and Charles F. Cox, Norman, Okl., on the brief), for appellants.
Melvin L. Wulf and John H. F. Shattuck, New York City, for American Civil Liberties Union Foundation, amicus curiae.
Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
The appellants were convicted of going upon Tinker Air Force Base military reservation for the purpose of violating a lawful regulation prohibiting their entry without the permission of the commanding officer in violation of 18 U.S.C.A. § 1382. Section 1382 carries a fine of not more than $500 or imprisonment of not more than six months, or both.
On May 4, 1972 the appellants and 75 to 200 others gathered at Gate Two at Tinker Air Force Base in Oklahoma City, Oklahoma to protest the war in Vietnam. A group of between 30 and 40 people crossed the "white line" signifying entrance to the base. They were met by Lt. Col. George Malone who read them the following statement:
The Appellant Flower then read a statement to Col. Malone. The group was asked to leave; instead, they sat down in the middle of the street and refused to leave. They were next placed on a bus and taken to Security Police Head-quarters where they were photographed.
Tinker Air Force Base is one of the nation's largest military installations, with thousands of civilian employees. Reports had been received by the Base Commander several days before the gathering that a demonstration against the Vietnam War was going to be held on the base.
Some of the appellants plead guilty; others were tried by the Magistrate. These 12 appellants were tried by the U. S. District Court.
Air Force Regulation 125-37 was promulgated on July 27, 1964 by then Air Force Chief of Staff General Curtis E. LeMay. It established procedures to protect Air Force physical resources. Regulation 125-37 was revised and supplemented several times thereafter. On May 3, 1972 Col. John C. Holley, then Commander of Tinker Air Force Base, supplemented AFR 125-37 by the promulgation of OCAMA-TAFB Supplement 2 which effectively precluded the demonstrators from entrance because they did not qualify as "visitors". See United States v. Vaughan, 475 F.2d 1262 (10th Cir. 1973). The appellants were convicted under § 1382 of violating Supplement 2.1
The appellants contend that: (1) the trial court erred in denying them a jury trial; (2) Supplement 2 is void and violates the due process clause; (3) the trial court penalized them for standing trial; and (4) the trial court erred in overruling their motion for judgment of acquittal.
The appellants contend that they were entitled to a trial by jury because of the seriousness with which a violation of § 1382 is regarded by the community. The District Court ruled against them in United States v. Floyd, 345 F.Supp. 283 (W.D.Okla.1972), holding that a violation of § 1382 is a petty offense which does not entitle the defendants to a jury trial, and further that Article III, Section 2, Clause 3 and the Sixth Amendment of the United States Constitution do not extend to petty offenses. A petty offense is defined in 18 U.S.C.A. § 1(3) as: "Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both . . ." If an offense is malum in se it may be serious enough to require a jury trial even though it qualifies as a petty offense. District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The offense here is malum prohibitum. Congress has not been silent on this subject as the appellants suggest. It has intended that there be no jury trial for a petty offense. 18 U.S.C.A. § 1(3). If the offense is a petty offense within 18 U.S.C.A. § 1(3) and is not otherwise a serious offense under prior U.S. Supreme Court decisions then a jury trial is not required. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). The reasoning of the District Court is sound. The evidence supports its holding. See United States v. Floyd, supra. The violation of Section 1382 here involved constitutes a petty offense not requiring a trial by jury.
The appellants allege that TAFB-OCAMA Supplement 2 to AFR 125-37 is void because it was never lawfully adopted. They also contend that Supplement 2 violates the due process clause because it established only policies which cannot be criminally violated and that it is void for vagueness because it failed to announce the acts it forbids.
The appellants argue that Supplement 2 is void because it was not promulgated in compliance with the Federal Register Act, 44 U.S.C.A. § 1501 et seq. and the Administrative Procedure Act, 5 U.S.C.A. § 500 et seq.
We hold that there is no merit in this argument. Both are, in effect, "notice" statutes intended to protect persons who have no actual notice from in any manner being adversely affected. It is unrealistic to contend that "closed base" commanders charged with the obligation of protecting the national security thereon, cannot adopt regulations effective immediately, even if only orally communicated to the base security personnel, so long as such regulations are thereafter communicated to one who wishes to enter upon the base. Neither the Federal Register Act nor the A.P.A. require publication of Supplement 2 on the facts of this case. In recognition of the needs involving national security, we recently held that once one is within an area where base security is imposed, a search may be conducted without probable cause, and without consent. United States v. Vaughn, supra.
The appellants contend that Supplement 2 is void because it was issued in direct violation of the controlling regulation it supplements, AFR 125-37. Paragraph 2 of AFR 125-37 provides in part as follows:
Paragraph 42 of 125-37 announces mandatory steps which must be taken for subordinate regulations to have legal effect. The requirements in paragraph 4 generally pertain to prosecutions of offenses arising under 50 U.S.C.A. § 797 and the offense of re-entry after removal under 18 U.S.C.A. § 1382. The appellants were not charged with the crime which the regulation defines. It is within the sole discretion of the commanding officer of a "closed base" to promulgate rational regulations excluding people from the military installation in the interest of the national security. He has practically exclusive and extensive power to exclude persons from the base in the interest of good order and military discipline. Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971).
The 4th Circuit recently held in Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973), that where military reservations are open to the public it is now clear that civilians have an unqualified right to enter these public areas to exercise their constitutional right to freedom of expression. Where the area is open to the public the base commander has no discretion but has a ministerial duty to allow leafletting. However, when the military reservation is a "closed base",3 the base commander at Tinker had the authority to determine the degree of control over personnel entering or leaving the base. Para. 6b, AFR 125-37, 27 July 1964.
The appellants challenge whether posting a sign outside the confines of Tinker Air Force Base sufficiently conveys actual notice of Supplement 2. The large sign reads as follows:
WARNING
(Sec. 21, Internal Securities Act of 1950: 50 U.S.C. 797)
To be sure, the sign does not convey actual notice of the entire content of Supplement 2. It was not, however, the only notice that the appellants had that Tinker Air Force Base was a controlled entry installation. They were warned by the sign, the five security guards, and the fence around the installation. In any event there can be no question that the sign and the security guards gave the appellants actual notice that they could enter only with the permission of the base commander. The...
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