United States v. Shafer

• Decision Date: 29 March 1974
• Docket Number: No. CR 74-165.,CR 74-165.
• Citation: 384 F. Supp. 496
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence A. SHAFER et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

384 F. Supp. 496

UNITED STATES of America, Plaintiff, v. Lawrence A. SHAFER et al., Defendants.

No. CR 74-165.

United States District Court, N. D. Ohio, E. D.

March 29, 1974.

Robert Murphy, Paul Lawrence, John Hoyle, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Bernard Stuplinski, C. D. Lambros, Cleveland, Ohio, E. K. Wright, Dover, Ohio, Jack Schulman, Michael Diamant, Cleveland, Ohio, for defendants.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Defendants have moved this Court for a judgment of acquittal, pursuant to the provisions of Federal Rule of Criminal Procedure 29(a). For the reasons discussed below, the motion is granted as to each of the eight defendants.

I. STANDARD FOR DECIDING RULE 29(a) MOTIONS.

Rule 29(a) states that, "The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses."

Such a motion "furnishes defendants with necessary protection against conviction on inadequate proof". United States v. Melillo, 275 F.Supp. 314, 318 (E.D.N.Y.1967). When made, as here, at the close of the government's case, a Rule 29(a) motion for acquittal implements "the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense." Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893, 895 (1963). When, as in the instant case, the evidence submitted by the government is "insufficient to sustain a conviction," the court is required by Rule 29(a) to enter a judgment of acquittal.

Since the verdict in a criminal case can be sustained only when there is "relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt," that the accused are guilty of each necessary element of the crime charged, Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), the issue in a Rule 29(a) motion is not whether there is any evidence in support of the government's claims. Rather, "If the evidence is such that reasonable jurymen must necessarily have . . . a doubt, the judge must require acquittal." Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229 (1947), cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The trial judge must determine whether there is sufficient evidence before the court, from which reasonable jurors might properly conclude guilt beyond a reasonable doubt.

This standard is applied to each and every element of the offense charged, without reference to the credibility of witnesses. Thus, a Rule 29(a) motion should be granted when it is clear, at the close of the government's case, that evidence which would justify a jury in finding any single element of the offense charged beyond a reasonable doubt is lacking.

It is clear that the evidence offered by the government is insufficient to support a finding that any of the defendants were possessed of the requisite "willfullness" required by 18 U.S.C. § 242, as discussed below, beyond a reasonable doubt. Accordingly, a judgment of acquittal by the court is necessary and appropriate.

II. FACTUAL CONTEXT.

The evidence offered by the government establishes the following facts:

In May, 1970, Kent State University had a student enrollment of approximately twenty thousand. On Friday, May 1st, at 12:00 noon a rally was held on the campus commons to protest former President Nixon's announcement of the incursion of American Troops into Cambodia. Approximately 500 students and faculty attended this rally which was peaceful in nature and without incident. A similar rally was subsequently scheduled for noon on Monday, May 4th.

Friday night there were several disruptive incidents off-campus in the town of Kent itself. There was some vandalism but no serious personal injury. The Mayor of Kent requested the assistance of the National Guard. Elements of the 145th Infantry and 107th Armored Cavalry were alerted. Both of these units had been in an active duty status since April 29, 1970 because of an unrelated Teamster strike. Troops began entering the city of Kent in the evening of May 2, 1970.

At approximately 8:30 p. m. on May 2nd, the campus R.O.T.C. building was set afire and firemen were forcefully prevented from putting out the fire. The building was subsequently destroyed and the next few hours were marked by sporadic confrontations between students and law enforcement officers. National Guardsmen proceeded to the scene and their arrival was met by students hurling stones at the troop convoy. The next 36 hours, until the morning of May 4th, followed the established pattern of activity; the campus was quiet by day and restless at night.

On the morning of May 4th approximately 2,000 students gathered in the vicinity of the victory bell on the commons. An order to disperse went unheeded and tear gas proved ineffective in dispersing the students. The National Guardsmen then advanced on the students with fixed bayonets and loaded weapons. The students were driven up "blanket hill," past Taylor Hall, and on to the Prentice Hall parking lot and the practice football field. Elements of the Guard continued to advance and subsequently took a position on the practice football field. While there the troops were subjected to a barrage of rocks and a stream of verbal abuse. At one point, several guardsmen assumed a "kneeling" position, pointed their rifles, but did not discharge them. This tends to negate any inference that the guardsmen planned or intended to "punish" the students in the crowd, particularly since the rock throwing and verbal abuse reached a crescendo at this point in time.

Shortly thereafter the Guardsmen on the practice football field retraced their steps and began to return up the hill towards Taylor Hall. This movement was begun in a tactical formation, but, possibly, because of individual fatigue and the severity of the terrain the formation, in part, degenerated into a ragged line. Students began to fill in behind the Guard and follow them up the hill. Some rock throwing continued during this period. As the Guardsmen reached the top of the hill, some, including defendants, turned about and fired their weapons in the direction of the students who were initially at their rear, but who now were facing them. No order to fire was given nor was there any verbal warning given to the students prior to the fusillade.

From the evidence it would appear that at least 54 shots were fired by approximately 29 Guardsmen. Probably, as indicated by the government's evidence, a single shot immediately preceded the main volley, and may have led to the later shots. The total elapsed time of the actual firing was approximately thirteen seconds. Some of the Guardsmen fired at specific students while others merely fired into or over the crowd. There appears to have been no communication among the guardsmen immediately prior to the shooting. As a result of the shooting, four students were killed and nine were wounded.

The government has presented no evidence bearing directly on the intentions of those Guardsmen, including defendants, who fired their weapons. The evidence offered by the government strongly suggests that the Guardsmen fired for any of a number of reasons, including the mistaken belief that an order to fire had been given, the fear that they were being fired upon, a desire to convince the mob to cease the barrage of rock-throwing, and general confusion.

Thus, while reasonable jurors might infer that the guardsmen fired for the purpose of violating the Constitutional rights of the students, the government has offered no evidence which would make that inference any more likely than several others, none of which would support a finding that the requirements of § 242 have been satisfied. In a criminal case such as this, where the jurors must find each of the elements of the offense charged beyond a reasonable doubt, the government must do more than offer several possible inferences of equal weight, for, in such a situation, the jurors cannot reasonably be free of doubt as to the correct inference to be drawn from the evidence.

There is no evidence from which the jury could conclude beyond a reasonable doubt that the defendants acted with premeditation, prior consultation with each other, or any actively formulated intention to punish or otherwise deprive any students of their constitutional rights.

III. "WILLFULLNESS" UNDER 18 U.S.C. § 242.

In any prosecution under Title 18, § 242, U.S.C., several elements must be established by the government: (1) that the defendants' acts must have deprived someone of a right secured or protected by the Constitution or laws of the United States; (2) that the defendants' illegal acts must have been committed under color of law; (3) that the person deprived of his rights must have been an inhabitant of a State Territory, or District; and (4) that the defendants must have acted willfully. United States v. Senak, 477 F.2d 304, 306 (7th Cir. 1973); see also United States v. Jackson, 235 F.2d 925, 927 (8th Cir. 1956).

Only the last element is in genuine dispute in this case, accepting all of the evidence offered by the government as credible. The role of "willfullness" in this statute is crucial, based on the controlling interpretation articulated by the Supreme Court in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

In Screws, the predecessor of § 242, § 20 of Title 18, was under strong constitutional attack for "vagueness." The plurality opinion, by Mr. Justice Douglas, admitted, "The serious character of that challenge" (325 U.S. at 96, 65 S.Ct. at 1033), noting that the "general rule" of "specific intent" in criminal prosecutions would be insufficient to sustain this statute. This "general rule"...