Wilkins v. United States

• Decision Date: 22 June 1967
• Docket Number: No. 23289.,23289.
• Parties: Collie Leroy WILKINS, Jr., and Eugene Thomas, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 552 (1967)

Collie Leroy WILKINS, Jr., and Eugene Thomas, Appellants, v. UNITED STATES of America, Appellee.

No. 23289.

United States Court of Appeals Fifth Circuit.

April 27, 1967.

Rehearing and Rehearing Denied June 22, 1967.

COPYRIGHT MATERIAL OMITTED

Arthur J. Hanes, Fred Blanton, Birmingham, Ala., for appellants.

John Doar, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Ben Hardeman, U. S. Atty., Montgomery, Ala., J. O. Sentell, Asst. U. S. Atty., David L. Norman, Louis M. Kauder, Alvin Hirshen, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before COLEMAN and DYER, Circuit Judges, and ESTES, District Judge.

Rehearing and Rehearing En Banc Denied June 22, 1967.

COLEMAN, Circuit Judge:

In the United States District Court for the Middle District of Alabama, these appellants were convicted of and sentenced to the maximum term of imprisonment for a violation of section 241, Title 18, United States Code, which makes it a criminal offense to conspire against rights of citizens secured to them by the Constitution or laws of the United States.¹ We affirm.

The guilt or innocence of the appellants was submitted to the jury on an indictment which, after amendment by deletion during the charge to the jury, read as follows:

"Commencing on or about March 1, 1965 and continuing to on or about March 26, 1965, WILLIAM ORVILLE EATON,² COLLIE LEROY WILKINS, JR., and EUGENE THOMAS, within the Middle District of Alabama, conspired together, with each other and with other persons to the Grand Jury unknown, to injure, oppress, threaten and intimidate citizens of the United States in the vicinity of Selma and Montgomery, Alabama in the exercise and enjoyment of certain rights and privileges secured to them by the Constitution and laws of the United States, and because of their having exercised such rights as follows:

* * * * * *

(4) The right to participate in a protest march from Selma to Montgomery, Alabama, to present a petition to the Governor of Alabama in Montgomery, and to participate in the carrying out of a proposed plan for such march pursuant to an order entered on March 17, 1965, by the United States District Court for the Middle District of Alabama, in the case of Williams v. Wallace, Civil Action Number 2181-N 240 F.Supp. 100.

* * * * * *

It was part of the plan and purpose of the conspiracy that the defendants would harass, threaten, pursue and assault citizens of the United States in the area of Selma and Montgomery, Alabama, who were participating in or had participated in, or who were lending or had lent their support to a demonstration march from Selma to Montgomery, Alabama, pursuant to the plan referred to above, that was approved by the order of the United States District Court for the Middle District of Alabama on March 17, 1965.

In violation of Section 241 of Title 18 United States Code."

The numbered sections eliminated by the Court read as follows:

(1) The right to publicly protest unlawful deprivation of the right of Negro citizens of Alabama to register to vote and to vote for candidates for federal office.

(2) The right to encourage and assist Negro citizens of Alabama in the exercise of their right to register to vote and to vote for candidates for federal office.

(3) The right to peaceably assemble, publicly protest, and petition the Governor of the State of Alabama for redress of grievances on behalf of Alabama.

(5) The right to travel to and from the State of Alabama and to use interstate highways and other instrumentalities of interstate commerce in and through Alabama.

In his charge to the jury the Court discusses these excisions as follows:

"You will only be concerned with the fourth paragraph, as numbered in this indictment — because of their having exercised the right to participate in a protest march — and I am going to, for your assistance, without obliterating, mark out the other four that are enumerated in the indictment, leaving only the fourth right that the Government in its indictment says the conspiracy was formed to oppress, threaten, and intimidate citizens in the exercise of, and this right is — to participate in a protest march from Selma to Montgomery, to present a petition to the Governor in Montgomery, and to participate in the carrying out of a proposed plan for such march pursuant to an order that had been entered on March 17, 1965, by the United States District Court in the Middle District of Alabama. The indictment says, further, that it was a part of the plan and purpose of the conspiracy that the defendants would harass, threaten, pursue, and assault citizens of the United States in the area of Selma and Montgomery, Alabama, who were participating in, or had participated in, or who were lending or had lent their support to a demonstration march from Selma to Montgomery pursuant to the plan that was just referred to, and which march had been approved by the court."

Whatever the reason, the affirmative allegations of these sections 1, 2, 3, 5 containing averments as to federal elections and traveling in interstate commerce were withdrawn from the consideration of the jury.

The Court order alluded to in the indictment, but not copied therein, will be set forth in the margin.³ It will be noted that the order does not mention protests, petitions, or federal elections. It mentions only the march and the plans for the march.

The opinion of the Court preliminary to the order, 240 F.Supp. 102, stated that the plaintiffs "seek to have this Court guarantee their right to assemble and demonstrate peaceably for the purpose of redressing their grievances concerning the right to register to vote in the State of Alabama without unlawful interferences". The Court further stated, "Under Alabama law, registration is prerequisite to voting in any election including federal elections".

On its face, Williams v. Wallace, supra, was a typical Fourteenth Amendment proceeding. It sought to enjoin State action. There were no defendants other than the governor and other named officials of the State of Alabama and Dallas County. The Court order was directed only against these officials, "their successors in office, agents, representatives, employees, and other persons in active concert and participation with them". State interference with the right to make the march according to prescribed plan was prohibited; state police protection was commanded. No private citizens were named as defendants or mentioned in the injunction. Yet, the right to qualify to vote in federal elections, undeniably a right of national citizenship, was an essential ingredient of the proceedings.

There is no contention that these appellants in any way acted with the knowledge of, approval of, or in concert with any state authority. Appellants contend that, if they violated the court order, redress should be in the form of contempt proceedings. Obviously, this has received little consideration, if any, because appellants were not parties to nor included in the order.

Although the court order on which the prosecution was based was essentially Fourteenth Amendment action against state officials, the Government in its brief (page 27) stipulates:

"We do not deal with consideration of rights under the Fourteenth Amendment and the requirement or the immateriality of some degree of State action. The asserted federal right here derives from an explicit federal court order, specific in terms of time, place, and purpose. The right of which we speak is no less protected from private interference than it is from official interference".

In its supplemental brief, filed in response to a request from the Court, the Government reiterates its original position, as follows:

"The right to enjoy the benefits of the federal court order entered by Judge Johnson is derived from Article III of the Constitution and exists without regard to the Fourteenth Amendment. That being so, we urged in the original brief that, like other distinctly national rights, privileges, and immunities, it is protected from interference by conspiracies of private persons, whether or not state officers are involved in the conspiracy. We adhere to that view".

I

The essential facts supporting the guilty verdict, shown by the testimony of eyewitnesses, will now be summarized.

The Court order was entered March 17, 1965. The march commenced in Selma on March 21. It ended at the State Capitol in Montgomery on March 25. On March 21 the Ku Klux Klan of America, Inc., held a rally at Crampton Bowl in Montgomery and conducted a public parade in that City, the announced purpose of which stated in the request for a parade permit was "to protest an order issued by a Federal Court allowing a five day demonstration march from Selma, Alabama, to Montgomery, Alabama". That these appellants attended the protest rally and participated in the parade was established by an abundance of proof.

The jury was specifically instructed that appellants had a right to attend the protest meeting and to participate in the parade. Nevertheless, the evidence was highly relevant as to their actual notice of the existence of a court order. It was relevant as to the intent of the appellants when they traveled, as will later be set forth, to Montgomery and Selma on March 25. It would justify a jury finding that as early as March 21 these appellants had begun acting in concert in opposition the march.

On March 25, the day the march was scheduled to arrive, and did arrive, at the Capitol in Montgomery, a government informer, posing as a member of the Ku Klux Klan, whose FBI connection was then unknown to these appellants, received a telephone call from Eugene Thomas advising that he Thomas had to join a group of Klansmen and go to Montgomery that day. Immediately thereafter, a Klan official telephoned the informer to go to Montgomery, stating that this instruction came from the Imperial Office of the Klan. The informer then contacted an agent of the Federal...