United States v. Silberman, 76-53-Cr-J-S.

• Decision Date: 09 February 1979
• Docket Number: No. 76-53-Cr-J-S.,76-53-Cr-J-S.
• Citation: 464 F. Supp. 866
• Parties: UNITED STATES of America v. Stephen R. SILBERMAN.
• Court: U.S. District Court — Middle District of Florida

464 F. Supp. 866

UNITED STATES of America v. Stephen R. SILBERMAN.

No. 76-53-Cr-J-S.

United States District Court, M. D. Florida, Jacksonville Division.

February 9, 1979.

COPYRIGHT MATERIAL OMITTED

John J. Daley, Jr., United States Atty.; Thomas E. Morris, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff.

William J. Sheppard, Jacksonville, Fla., for defendant.

OPINION

CHARLES R. SCOTT, Senior District Judge.

Defendant was charged in an information with knowingly and wilfully soliciting business on federal property without a permit, by selling flowers. He was charged with violating 36 C.F.R. § 5.3,¹ as incorporated in 16 U.S.C. § 9a.² Defendant waived a jury trial, and requested special findings, pursuant to Fed.R.Crim.P. 23(c). Most of the facts were stipulated; and closing arguments of counsel were combined with their arguments on defendant's motion for a judgment of acquittal.

The standard for ruling on a judgment of acquittal is the same, regardless of whether a case was tried by a jury or by a court alone, and regardless of whether all of the evidence presented was circumstantial, or whether there was some direct evidence. If, viewing the evidence favorably to the government, reasonable minds could not conclude (1) that the evidence is inconsistent with, and excludes, every reasonable hypothesis of the accused's innocence, and (2) that the evidence supports the hypothesis of the accused's guilt, reasonable doubt necessarily exists. On the other hand, if reasonable minds could so conclude, there are no reasonable doubts. United States v. Herberman, 583 F.2d 222, 231 (5th Cir. 1978); United States v. Palmere, 578 F.2d 105, 106 (5th Cir. 1978); United States v. Lonsdale, 577 F.2d 923, 925 (5th Cir. 1978); United States v. Gandolfo, 577 F.2d 955, 958 (5th Cir. 1978); United States v. Landers, 576 F.2d 94, 96-7 (5th Cir. 1978); United States v. Littrell, 574 F.2d 828, 832 (5th Cir. 1978); United States v. Marable, 574 F.2d 224, 228-29 (5th Cir. 1978); United States v. Alonzo, 571 F.2d 1384, 1387 (5th Cir. 1978); United States v. Boyd, 566 F.2d 929, 935 and n. 13 (5th Cir. 1978); United States v. Carrillo, 565 F.2d 1323, 1325 (5th Cir. 1978); United States v. Hines, 563 F.2d 737, 740 (5th Cir. 1977); United States v. Pinner, 561 F.2d 1203, 1207 (5th Cir. 1977); United States v. Haggins, 545 F.2d 1009, 1011-13 (5th Cir. 1977); United States v. Warner, 441 F.2d 821-25 (5th Cir. 1971), cert. denied 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). That standard applies to each element of an offense with which a defendant is charged, and for which the government carries the burden of proof. United States v. Herberman, 583 F.2d at 231; United States v. Landers, 576 F.2d at 97.

A defendant's request for special findings under Fed.R.Crim.P. 23(c) must be granted and the Court's findings, reasoning, and conclusions must be adequate to enable intelligent appellate review of the basis for the decision. United States v. Pinner, 561 F.2d at 1206; United States v. Johnson, 496 F.2d 1131, 1138 (5th Cir. 1974). In this opinion, the court articulates its findings, reasoning and conclusions, which form the basis for its decision.

Facts

On February 12, 1976, defendant Stephen R. Silberman was present at the Castillo de San Marcos, a national monument under the exclusive jurisdiction of the United States Department of Interior, at St. Augustine, Florida. The Interior Department's National Park Service operates, supervises, and controls the monument. Defendant is a follower of the Hare Krishna religion. Dressed in ordinary street clothes, he approached two National Park Service rangers who were also dressed in civilian clothes. He handed them a carnation and requested a donation. The donation was stated to be for some good purpose, such as fighting drug abuse, about which he said God or Krishna was concerned.

When one of the agents declined to donate, identified himself as a park ranger, and indicated that he was going to issue defendant a citation, defendant attempted to retrieve the flower. Instead, he was issued a citation.

The International Society for Krishna Consciousness, Inc. (`ISKCON'), is an international nonprofit religious organization which espouses the religious and missionary views of Krishna Consciousness, a branch of Hinduism. Krishna Consciousness believes in the absolute supremacy of a single deity, Krishna. ISKCON maintains temples and schools in cities throughout the United States and the world, including New Orleans, Dallas, Los Angeles, San Francisco, Montreal, New York City, Miami, Chicago, Paris, Singapore, Tokyo, India, and Evanston, Illinois.

A basic tenet of ISKCON is an obligatory, evangelical religious ritual known as `sankirtan'. Followers, or devotees, are required to approach people in public places, distributing religious literature and small tokens or gifts, disseminating information, and soliciting donations. Sankirtan has three purposes: (1) to spread the religious information which the Hare Krishna religion deems to be the truth; (2) to proselytize and attract new members; and (3) to generate funds to support the religious activities of the movement. Sankirtan activity propels ISKCON's followers into city streets, tourist areas, airports, state fairs, rest stops along expressways, and urban convention centers. As a result, ISKCON has been involved in numerous litigation concerning sankirtan efforts in those places. ISKCON v. Rochford, 585 F.2d 263 (7th Cir. 1978), aff'g in part and vac'g in part 425 F.Supp. 734 (N.D.Ill.1977) (Chicago airports); ISKCON v. New Orleans, 347 F.Supp. 945 (E.D.La.1972) (Vieu Carre area); ISKCON v. Conlisk, 374 F.Supp. 1010 (N.D.Ill.1973) (Chicago streets); ISKCON v. New York Port Authority, 425 F.Supp. 681 (S.D.N.Y.1977) (three New York airports); ISKCON v. Engelhardt, 425 F.Supp. 176 (W.D.Mo.1977) (Kansas City International Airport); ISKCON v. Griffin, 437 F.Supp. 666 (W.D.Pa.1977) (Greater Pittsburgh International Airport); ISKCON v. Hays, 438 F.Supp. 1077 (S.D.Fla. 1977) (expressway rest stops); ISKCON v. Evans, 440 F.Supp. 414 (S.D.Ohio 1977) (Ohio State Fair); Liberman v. Schesventer, 447 F.Supp. 1355 (M.D.Fla.1978) (St. Augustine Fort); ISKCON v. McAvey, 450 F.Supp. 1265 (S.D.N.Y.1978) (New York World Trade Center); ISKCON v. Collins, 452 F.Supp. 1007 (S.D.Tex.1977) (Houston Airport); ISKCON v. Wolke, 453 F.Supp. 869 (E.D.Wisc.1978) (Milwaukee Airport); ISKCON v. Kearnes, 454 F.Supp. 116 (E.D. Calif.1978) (Sacramento streets); ISKCON v. Bowen, 456 F.Supp. 437 (S.D.Ind.1978) (Indiana State Fair); ISKCON v. Schrader, 461 F.Supp. 714 (N.D.Tex.1978) (Dallas convention center); ISKCON v. Lentini, 461 F.Supp. 49 (E.D.La.1978) (New Orleans airport); ISKCON v. State Fair of Tex., 461 F.Supp. 719 (N.D.Tex.1978) (Texas State Fair). Cf. ISKCON v. Reber, 454 F.Supp. 1385 (C.D.Calif.1978) (sidewalks of private street).

The overall question in this case is whether defendant is guilty of violating the Army regulation that prohibits engaging in or soliciting any business in park areas without a permit. Defendant affirmatively pleads that he is not guilty because he was engaging in the exercise of his religion which is protected by the First Amendment. The government argues, however, that defendant's conduct was not the protected exercise of religious belief, but a purely commercial activity in violation of the regulation. Additionally, the government, by its information charging defendant with violating the Army regulation, takes the position that that regulation prohibits defendant's conduct. In order to reach a decision on the primary question in this case, raised respectively by the government's information and defendant's motion for a judgment of acquittal, the Court must (1) characterize the nature of defendant's conduct, and (2) construe the regulation which he is charged with violating.

Law

1. Character of Defendant's Conduct

Indispensable to determining whether the free exercise clause³ of the First Amendment protects defendant's conduct is discerning the nature of that conduct. On the one hand, despite the fact that it may include distribution, sales, and solicitations, the exercise and practice of religious belief is a freedom guaranteed by the First Amendment. On the other hand, purely commercial activity does not enjoy the same kind of protection.

Situations will arise where it will be difficult to determine whether a particular activity is religious or purely commercial. The distinction at times is vital. . . . "The state can prohibit the use of streets for the distribution of purely commercial leaflets, even though such leaflets may have a `civic appeal, or a moral platitude' appended. . . . They may not prohibit the distribution of handbills in the pursuit of a clearly religious activity merely because the handbills invite the purchase of books for the improved understanding of the religion or because the handbill seeks in a lawful fashion to promote the raising of funds for religious purposes." But the mere fact that the religious literature is "sold" by itinerant preachers rather than "donated" does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project. The constitutional rights of those spreading their religious beliefs through the spoken and printed word are not to be gauged by standards governing retailers or wholesalers of books. The right to use the press for expressing one's views is not to be measured by the protection afforded commercial handbills. It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge. It is plain that a religious organization needs funds to remain a going concern. But an itinerant evangelist however misguided or intolerant he may be, does not become a mere book agent by selling the Bible or religious tracts to help defray his expenses or to sustain him.

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