United States v. Turchick

• Decision Date: 04 November 1971
• Docket Number: No. 71-1007.,71-1007.
• Citation: 451 F.2d 333
• Parties: UNITED STATES of America, Appellee, v. Charles Larry TURCHICK and William Leo Tilton, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

451 F.2d 333 (1971)

UNITED STATES of America, Appellee, v. Charles Larry TURCHICK and William Leo Tilton, Appellants.

No. 71-1007.

United States Court of Appeals, Eighth Circuit.

October 19, 1971.

Rehearing Denied November 4, 1971.

Kenneth E. Tilsen, St. Paul, Minn., for appellants.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.

Before LAY, HEANEY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

Charles Larry Turchick, William Leo Tilton, and Clifton Ulen, protestors against American involvement in the Vietnam conflict, broke into the Selective Service headquarters of Local Board 21 located in Alexandria, Douglas County, Minnesota. Agents of the Federal Bureau of Investigation, acting on the basis of information supplied by an informer or informers, arrested the trio in the draft board office shortly after the break-in. All three were indicted for knowingly attempting to interfere with or hinder by force or violence the administration of the Selective Service Act of 1967, in violation of 50 U.S.C. App. § 462(a).¹

On the eve of the trial, Ulen indicated his intent to plead guilty to the charge, and his case was severed from that of the other two defendants. Turchick and Tilton were jointly tried, convicted by a jury and sentenced to serve five years.

In this appeal, appellants Turchick and Tilton urge as their principal grounds for reversal (a) that the evidence was insufficient to sustain their conviction, and (b) that the trial court committed prejudicial error in overruling appellants' motions to discover the identity of the person or persons who provided the government with the information that led to appellants' arrest.

We first consider the government's proof of the elements contained in the indictment. FBI agents, having received advance notice of appellants' actions, placed them and the Alexandria draft board office under surveillance on July 10, 1970. The testimony, which is undisputed, showed that appellants Turchick and Tilton, along with Ulen, climbed to the roof of the building housing the draft board office and then gained entrance to the interior of the building by cutting a screen and opening the window behind the screen. The three then cut out a glass window in the doorway to the draft board office and entered the office at approximately 12:25 a. m. on July 11, 1970. Ten minutes later, FBI agents arrested the three. At that time they carried no identification papers on their person and refused to identify themselves to the arresting officers. They had brought the following items into the draft board office: pliers, prybar, hammer, screwdrivers, pocketknife, glasscutter, micro-flame torch with cylinders of oxygen and butane, an Army field pack, roll of plastic garbage bag liners, wire ties for liners and a can of black paint, as well as other miscellaneous items. The arresting officers found three file cabinet drawers ajar. The evidence introduced at trial showed that some papers from the desk drawers had been disturbed. They had neither removed nor had they destroyed any draft board files.

The executive secretary of the draft board, having been previously informed of a possible break-in, removed certain records from the office, as well as taking off the identification tabs from the face of the file cabinet drawers. Appellants argue here, as they did in the trial court, that since the evidence showed no destruction of the records in the draft board office, the government had failed to establish an essential element of the charge contained in the indictment— that they attempted to interfere with or hinder the administration of the Selective Service Law by removing and destroying the official records of the Douglas County Draft Board. Appellants contend that the record indicates other possible reasons for their entry into the Selective Service headquarters, such as: (a) The defendants called the FBI in order to get arrested and publicize their views; (b) the defendants were interested in getting the names of everyone eligible for the draft in one particular area in order to contact those persons and deal with them in depth; (c) the defendants were laying the groundwork for a sit-in in the local draft board; or (d) the defendants were attempting to engage in a general protest against the conduct of the Vietnam War and the Selective Service System.

Their furtive entry into the draft board office, carrying the means to remove or destroy draft board records, furnished the jury with an appropriate basis upon which to find the defendants guilty as charged in the indictment. In United States v. Porter, 441 F.2d 1204 (8th Cir. 1971), Judge Lay, speaking for this court, noted:

Intent can seldom be shown by actual testimony reflecting a defendant\'s state of mind. The cases are legion that intent may properly be inferred from all the facts and circumstances surrounding the transactions. 441 F.2d at 1210

We hold the evidence sufficient to sustain the conviction.

We next turn to appellants' contentions relating to disclosure of informants. The record demonstrates that prior to the commencement of the trial the government declared its intention of not calling its informer or informers to testify in the case. The trial court rejected all efforts of appellants to learn the identity of the informer or informers. Appellants speculate that either their codefendant Ulen or associates of theirs who are charged with similar crimes for breaking into other Selective Service offices in the State of Minnesota on the same date and who collaborated with them in the defense of the instant case, had served the government as informers. Based on these propositions, they argue: (a) that the informer could have furnished valuable evidence to show that appellants did not intend to remove or destroy draft board records, or (b) that such informer might have been privy to confidential information between attorney and client to the extent that appellants' Sixth Amendment rights to effective counsel was vitiated in these proceedings.

In its brief, the government asserted that it had not used information received from its informer in derogation of appellants' Sixth Amendment rights.² Counsel for the government has supplemented this representation by an affidavit submitted to this court in camera. This court is satisfied that appellants' Sixth Amendment rights have not been breached.

The question of whether or not the name of any informer should have been disclosed to provide appellants with a material witness presents a more difficult problem. Our decision on this issue is controlled by Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L. Ed.2d 639 (1957). In that case, involving a narcotics violation, the informer, identified only as John Doe, participated with the defendant in the allegedly unlawful possession and transportation of heroin. Appellant there argued the necessity of disclosure due to the possible materiality of the informer's testimony on the question of unlawful intent. The Court reversed the conviction. In doing so, it recognized the government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law, and that the purpose of the privilege is the "* * * furtherance and protection of the public interest in effective law enforcement." 353 U.S. at 59, 77 S. Ct. at 627. The Court further noted that there is a special limitation on the applicability of the privilege arising from the fundamental requirement of fairness. It said:

Where the disclosure of an informer\'s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. 353 U.S. at 60-61, 77 S.Ct. at 628

Relying on the above language, appellants make the following argument for requiring disclosure of the identity of the informer: The informer, if he was a participant in any of the events relative to the invasion of the Alexandria draft board office, would possess information concerning intent—whether appellants sought to remove or destroy records of the Selective Service System or whether they intended to confine their activities to peaceful protest after entry.

As we have already noted, although appellants used force in entering the draft board office, they claim several alternatives of peaceable protest in explaining the possible ultimate purpose for their entry. Using these suggestions as a springboard, appellants submit that the informer, if available as a witness, might testify that appellants broke into the Alexandria office of the draft board without any purpose of destroying or carrying away the records therein.

The problem with this litany is that such testimony, if presented, falls short of absolving defendants from violating the statute in question which proscribes conduct of those "who shall knowingly hinder or interfere or attempt to do so in any way, by force or violation or otherwise, with the administration of this Act. * * *" 50 U.S.C. App. § 462(a). In this appeal we need not decide whether peaceful protest alone conducted within the office of a draft board violates the law, but we think it clear from the text of the Act that forceful breaking into such an office followed by peaceful protest through occupation of such office does not fall outside the prohibition of this statute. See United States v. Eberhardt, 417 F.2d 1009, 1013 (4th Cir. 1969), cert. denied, 397 U.S. 909, 90 S.Ct. 907, 25 L.Ed.2d 90 (1970); United States v. Chase, 309 F.Supp. 430 (N.D. Ill.), vacated on other grounds, 435 F.2d 1059 (7th Cir. 1970).

Appellants' statement of need is far different from that shown in Roviaro where the Court noted:

So far as Petitioner knew, he and John Doe

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