United States v. Wright, Crim. No. 80-296.

• Decision Date: 18 June 1981
• Docket Number: Crim. No. 80-296.
• Citation: 516 F. Supp. 1113
• Parties: UNITED STATES of America v. Joseph WRIGHT, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

516 F. Supp. 1113

UNITED STATES of America v. Joseph WRIGHT, et al.^*

Crim. No. 80-296.

United States District Court, E. D. Pennsylvania.

June 18, 1981.

Walter S. Batty, Jr., Daniel B. Huyett, Stephen V. Wehner, Lynell N. Staton, Asst. U. S. Attys., Philadelphia, Pa., for Government-appellees.

Anna Durbin, Edward Weiss, Donald G. Joel, Philadelphia, Pa., for defendants-appellants.

Before LOUIS H. POLLAK and SHAPIRO, District Judges.

This opinion deals with thirteen appeals from judgments of conviction for criminal contempt, 18 U.S.C. § 401.¹

We sat together to hear arguments on certain issues of law which are common to most of the appeals: In post-argument consultation, we have reached agreement on those issues of law and our views are reflected in this opinion.

We have not, however, joined forces for the consideration and disposition of appellants' respective challenges to the sufficiency of the evidence adduced by the Government against each of them: Each of us will address those issues in separate opinions to follow.

I.

Appellants were charged with criminal contempts, pursuant to 18 U.S.C. § 401, arising from their alleged violation, on June 3, 1980, of Judge Broderick's Order of April 1, 1980, prohibiting certain activity in the vicinity of the Whitman Park Townhouse project in South Philadelphia.² Resident Advisory Board RAB v. Rizzo, 425 F.Supp. 987, 1029 (E.D.Pa.1976) (Order), aff'd as modified, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978).

Having executed a waiver of the right to trial by a district judge, each of the appellants was tried by a federal magistrate. The Government moved in advance of trial to have any sentences imposed limited to a maximum of six months' incarceration and/or a $500 fine. Appellants all demanded jury trials which were denied. The trials were thereupon conducted to the bench.

On appeal to this court, appellants do not argue that they had a constitutional entitlement to a jury trial. Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); In re Scott, 605 F.2d 736, 738 (4th Cir. 1979). But they do assert certain statutory entitlements to a jury trial. Appellants also challenge the jurisdiction of magistrates to conduct trials of contempts, with or without a jury. Further, certain of the appellants contend that, even assuming the magistrates who tried them had jurisdiction, those magistrates should have recused themselves for the reason that they had already tried other persons charged with breach of Judge Broderick's April 1, 1980 Order. Finally, all of the appellants argue that the evidence presented was insufficient to support the verdicts. With certain exceptions relating to the sufficiency of the evidence, these issues are resolved against the appellants. However, we are constrained to reverse all the convictions for the reason that the waivers of district court trial executed by appellants were not in the form expressly mandated by Congress.

Statutory Rights to Jury Trials

Appellants rely on 18 U.S.C. §§ 402 and 3691 in support of their argument that these cases should have been tried to a jury.³ These statutes provide that, when the behavior charged as contumacious also violates a provision of the federal criminal code or state criminal law, the defendant is entitled to a jury trial unless the alleged contempt constitutes

... disobedience of any lawful ... order ... entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.

Before us, then, is the question whether the action giving rise to Judge Broderick's April 1, 1980 Order is described by this exception to the general statutory entitlement to a jury.

It is appellants' position that, on its face, the statute dispenses with a jury only where the United States is a plaintiff, for only then is the suit brought "on behalf of" the United States; here, since the United States (through the Department of Housing and Urban Development) was a defendant, appellants argue that the statutory dispensation did not come into play and hence that juries were required below.

Of course, the dispensing language of the statute does not, in haec verba, require that the United States (or a federal agency) be a party "plaintiff." But "suit or action brought or prosecuted in the name of, or on behalf of, the United States" would seem at a minimum to contemplate that, whatever formal label attaches to the litigating status of the United States, the United States should at some point in the litigation assume a procedural posture functionally equivalent to that of a complaining party. And this common sense parsing of the statute is consistent with what we understand to be the legislative purpose animating the statutory language: That legislative purpose — as it emerges from the legislative history — was to permit non-jury trials where the concern of the United States in seeking, through contempt proceedings, to redress "disobedience of any lawful ... order," was enforcement of the judicially determined public interest as distinguished from enforcement of judicially determined private entitlements.

The statutes at issue derive from Section 21 of the Clayton Act. See Revisor's Note to § 3691. The creation of the statutory right to a jury trial in criminal contempt cases was a response to Congress' belief — in the second decade of this century — that district judges were, at the behest of powerful private litigants, allowing the formidable federal judicial contempt power to be the instrument of private law enforcement to the detriment of weaker parties, most especially labor unions. Congress appears to have concluded that a jury, empanelled to try a contempt, would act as a buffer between a weaker defendant and,

say, a corporation, rich and powerful, which moves to obtain a blanket injunction at midnight, broad as the canopy of heaven in its terms, and then oppressing the poor, humble laborer.

48 Cong.Rec. 8779 (1912).⁴

Accordingly, the Clayton Act provided for a right to a jury in the trial of contempts also constituting federal or state crimes in the trial of which a right to a jury would have obtained.⁵ However, the protective, but more cumbersome, jury trial procedure was dispensed with where the underlying action was on behalf of the United States; under such circumstances, Congress felt, the United States should be enabled to proceed expeditiously "to enforce its judgments," especially when putting into effect decrees of dissolution in antitrust cases. 48 Cong.Rec. 8778, 8779. The presence of the United States as a party litigant⁶ was seen as (a) precluding any substantial likelihood of the abuses to which the legislation was addressed, and (b) requiring, in aid of the public interest, a more summary disposition of contempt proceedings than jury trials would generally permit. With these considerations in mind, it is appropriate to examine the role played by the United States in the litigation before Judge Broderick which culminated in the Order of April 1, 1980.

The RAB litigation, instituted in 1971, was brought by persons eligible for low-income public housing in Philadelphia. The dispute centered on the proposed location of low-income housing at Whitman Park in South Philadelphia — a site that had been cleared for the anticipated construction in 1959. RAB, 564 F.2d at 129-30. Those sued included the City of Philadelphia, Mayor Frank Rizzo,⁷ and others who sought to prevent the construction of the integrated housing project in the predominantly white neighborhood, RAB, 510 F.Supp. 793 at 797 (E.D.Pa.1980).

The United States first appeared in this litigation when the Department of Housing and Urban Development (HUD) was joined as third-party defendant by defendant Whitman Area Improvement Council (WAIC), a local community group opposed to the construction of the Whitman project. RAB, 564 F.2d at 130, n.1; 425 F.Supp. at 994. HUD had, by that time, given tentative approval in 1957 for the project, approved funds for development in the same year, approved designs in 1959, and through 1975 spent over six and one-half million dollars to have the project executed. RAB, 425 F.Supp. at 995-96. After extensive discovery, HUD was formally joined as a defendant by plaintiffs. Id. at 995.

Through the nine years of the RAB litigation, HUD has consistently urged the construction of the site, over vigorous opposition of the other defendants; HUD has moved to obviate the potentially inhibiting effect of various state and city regulations; and as amicus curiae HUD joined plaintiffs in urging affirmance on appeal of Judge Broderick's Memorandum and Order at 425 F.Supp. 987; see, RAB, 564 F.2d 121, 129, 130, n.1, and 139-40 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); indeed, HUD joined plaintiffs in petitioning Judge Broderick for the April 1, 1980 Order itself, in a further attempt to have the project completed. The latest example of the identity of interests between the United States and plaintiffs is found in Judge Broderick's December 19, 1980 Memorandum in No. 71-1575: There, plaintiffs and HUD petitioned for a clarification of the April 1, 1980 Order, to make patent that certain types of obstreperous behavior in the project's vicinity were prohibited. Again, the United States conducted itself as a party with interests virtually indistinguishable from those of the formal plaintiffs, and diametrically opposed to those of the active defendants such as WAIC.

In short, the United States, through HUD, has played so substantial and so formal⁸ a role, and one which has for so long been so closely aligned with that of the plaintiffs, that the RAB litigation is an action "brought ... on behalf of, the United States," within the meaning of 18 U.S.C. § 3691.⁹

We do not think that Toner v. C.I.R., 629 F.2d 899...