United States v. Charles Matthews ( 1969 )

McGOWAN, Circuit Judge:

Indicted for burglary in the second degree, petit larceny, and engaging in a riot (22 D.C.Code §§ 1801(b), 2202, and 1122(b) (1967)), appellant was acquitted by a jury in the District Court of the first such offense, but found guilty of the other two. Given consecutive sentences of three and six months, respectively, for petit larceny and riot, appellant challenges in this court only the conviction for riot.¹ We affirm.

I

The witnesses for the Government were five police officers who, at about eight o’clock on the evening of April 5, 1968, were on duty near Eddie’s Liquor Store at 8th and I Streets in the southeast section of Washington.² Officer Harrison testified that that store had been broken into, its windows smashed, and several people could be seen inside gathering up merchandise. Appellant, so said the officer, was one of them; and the officer arrested him as he was coming out of the store carrying a large brown paper bag full of bottles of liquor.

Harrison, and the other four officers, testified at length about the setting in which this incident occurred. Many people were assembled in the streets and on the sidewalks, out of control and creating conditions of chaos. There was looting going on on all sides, incident to the burning and smashing of business establishments. The police were the objects of verbal abuse and physical attack in the form of thrown bottles. The situation was, in short, that which widely prevailed in the District of Columbia on the night following the assassination of Dr. Martin Luther King, Jr., and which eventually resulted in the summoning to the aid of the police of nearly 14,000 military personnel.

Appellant was the sole witness for the defense. He did not dispute the description given by the policemen of the tumult and disorder. He admitted he was in the vicinity of Eddie’s Liquor Store at the time, but denied that he was inside the store itself. He said that he was in the area looking for his wife, and that he came upon the liquor in a bag resting among a lot of other bottles in a yard adjoining the store. His version of what then happened is:

“I picked the bag up. All the looting was happening around. I just picked the bag up and kept walking. I didn’t want to be caught in the store.”

He said that he was arrested a few minutes later as he was walking up the street towards the house of a friend.

At the close of the Government’s case, appellant moved for a directed verdict of acquittal on the ground that the identification evidence against him was too weak. This motion was denied, and the issue is not pressed here. At the close of the entire case, there was a colloquy between court and counsel about the instructions to be given. The court indicated his purpose to. use, in connection with the riot charge, a form of charge which had been devised specially in the District Court to be used in the riot cases. Defense counsel had been furnished with the text of this charge, and when asked whether he had any objection to it, he raised a question as to whether there was any evidence showing that appellant was “encouraging the riot or in any way furthering it.” The court responded to the effect that there was evidence that appellant had “entered [the store] and participated in that looting”; and that the court regarded this as evidence of encouraging the riot.

This prompted defense counsel to ask the court how it would view the matter if the jury found the fact to be that appellant picked up the liquor outside the store, as he testified he had. The court replied that it “would be willing to instruct [the jury] * * * that if they find that [appellant] did not engage in the looting of the store but merely picked up an indiscriminate package that was in the yard and walked on, that they cannot find him guilty of rioting.” The prosecutor, upon inquiry from the court, said that he would have no objection to such an instruction. At that point the court recessed until the following morning.

Upon the reconvening of court the next day, the trial judge, prior to charging the jury, informed counsel that he had been reflecting on his comments of the previous afternoon, and had concluded that they were wrong. The judge remarked that appellant’s own testimony would bear the construction that he knew the liquor he seized was a product of the looting which was a central feature of the general disorders, and that “if the jury were to determine that [appellant] knew this was looted goods, his picking it up and carrying it appears to the Court to be sufficient to hold him as having taken an affirmative act in furtherance of the acts of an assemblage engaged in tumultuous and violent conduct.” The court went on to say that it proposed to stand on the charge as theretofore formulated, leaving it to the jury to decide whether appellant’s conduct came within the reach of the statute as so construed.³ Defense counsel thereupon entered an objection to the failure to charge that, if the jury believed appellant not to have been within the store, it must acquit him of riot. After the instructions were given, he professed satisfaction with them except in this one respect.⁴

When appellant came before the court for sentencing, his counsel moved to dismiss the riot count of the indictment on the ground of the invalidity of the statute for vagueness within the ban of the Due Process Clause. This argument was essentially the same as that made to the District Judge in another pending case, United States v. Jeffries, 45 F.R.D. 110, 114 (D.D.C.1968); and the court indicated that its ruling in that case would be determinative. Not long thereafter the court entered an order of denial, accompanied by the memorandum opinion it had issued in the interim in Jeffries.

II

We deal first with the broad constitutional challenge to the statute which is mounted on this appeal. Appellant’s formulation of that attack does not assert an inherent lack of power in the Congress to address itself in criminal terms to the phenomenon of riotous conduct.⁵ It insists, rather, that Congress has gone about its business in this instance in so imprecise and clumsy a manner as to collide with the due process concept of undue vagueness.

The elements of that concept are differentiable. One is that the legislative proscription may, as a matter of rhetoric, be so fuzzy or opaque as unfairly (a) to provide the accused with inadequate advance notice of what conduct on his part will expose him to criminal sanctions, or (b) to enable the jury to convict him without itself having a very clear idea of just what he was supposed not to do. The other central aspect of the vagueness doctrine is the concern that the legislature, in seeking to make some acts illegal, will sweep too broadly in its definitional efforts and thereby bring within its net constitutionally protected activity which, although legally immune in theory, will in fact be deterred by the prospect of criminal prosecution.⁶

Appellant relies upon both. He argues that the Congressional employment of words like “public disturbance,” “tumultuous and violent conduct,” “grave danger of damage or injury,” and “engages in,” only serve to obscure, rather than to illuminate, Congressional purposes. These words do not, so it is said, provide anything like a reasonably clear signal of the shoal waters of criminality, and that trying to steer by beacons as dim as these is hazardous in the extreme. The individual who is made to do so is thus at a loss to know by what standard he should measure his own acts, or whether the same standard will be brought to bear upon those acts by judge and jury. The consequence too often may be that he will decide it is safer not to act at all and thereby forego the exercise of rights and privileges guaranteed him by the Constitution, particularly the First Amendment with its political freedoms of speech, assembly, and petition.

Appellant here relies heavily on a group of state cases, see, e. g., Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), in arguing that the D.C. anti-riot statute fails to pass muster under either of the twin aspects of the vagueness criterion.⁷ The Government has cited a number of cases, of which United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), is perhaps the most significant, which suggest that this statute is neither unintelligible nor overly expansive.

Neither of appellant’s expressed concerns raises, in our view, a threat of constitutional deprivation sufficient to warrant this court’s setting the work of Congress wholly at naught. As with any new statute which has not had the benefit of construction by the courts, there may be problems of interpretation. At least two considerations, however, make the potentially grey areas of this statute acceptably narrow. First, the language of the statute contains several specific strictures, each of which a person must disobey in order to be subject to its penalties. A person must not only vñllfully associate himself with an assemblage involving at least five people, but that group must be causing or threatening tumult and violence in such fashion as to create “grave danger of damage or injury to property or persons.” The legislative history of this provision expresses clearly the Congressional purpose which underlay it, namely, that a statute be passed to enable the law enforcement authorities to handle future riotous situations in the District of Columbia similar to those which had afflicted cities such as Newark and Detroit the summer before.⁸ There is scant room, therefore, for mistaking the conduct contemplated by the statute when the words in question are read in that context.

We think that the operative words of this statute carry no greater burden of ambiguity than is the lot of language generally. The combination in which they occur, and the context in which they came into being, are powerfully suggestive, even to the least sophisticated, of an aura of reprehensibility. It requires no uniquely sharpened social perceptions to know what one should — and what one should not — do when confronted with the incendiary conditions in the streets which were the patent concern of Congress.

In this respect, United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963), is especially instructive. In National Dairy the Supreme Court held that Section 3 of the Robinson-Patman Act, prohibiting, upon pain of criminal punishment, the setting of “unreasonably low prices for the purpose of destroying competition or eliminating a competitor,” was not unconstitutional as applied to “below cost” sales without a legitimate commercial objective and with a specific intent to destroy competition. This was so, said the Court, because, despite the generality of the terms used no businessman tempted by a prospect of predatory price-cutting could fail to know in his bones what Congress was getting at, and “could * * * reasonably understand that his contemplated conduct is proscribed.”

Although the statute here was of necessity aimed at a less sophisticated audience than those who ponder the antitrust laws, the subject matter of the statute is also less complex or unfamiliar. There are few citizens indeed who do not know a public riot when they see one, or who would not understand at least the general objective of the restraints upon personal conduct Congress prescribed to be observed upon such a confrontation. The Congressional focus was, it is clear from the legislative history, upon mindless, insensate violence and destruction unredeemed by any social value and serving no legitimate need for political expression.⁹ We do not see, any more than did the District Court, any necessity for striking this statute down on its face, either because this legislative concern — and the restraints it entailed — could not conceivably have been adequately visible, or because the purposes of the statute might hypothetically be sought to be twisted to encompass another case than the one before us.

Ill

The other ground of reversal urged upon us by appellant is couched in terms of a claim that the District Court erroneously failed to direct a verdict of acquittal. The argument in support of this point follows a course of asserting first that the jury’s acquittal of appellant on the burglary charge establishes that the jury accepted appellant’s version of the facts rather than Officer Harrison’s, and that it was, on this premise, error for the court to interpret the statute as permitting the jury to bring in a verdict of guilt.

We note preliminarily that appellant did not ask the trial court to keep the case from the jury and to direct a verdict. He sought, rather, an admonition of the jury to the effect that, if it did take appellant’s testimony to be true, it should acquit him of the riot count. But, absent an instruction of that kind, it is ordinarily impossible to make any assumptions as to precisely how the jury viewed the facts. What lies behind a jury’s general verdict of guilty or not guilty is something not given to ordinary mortals to know; and, as the Government argues with some force, the first leg of appellant’s argument on this score is unavailing.

This still leaves, however, the question of. whether the trial court should have given the requested instruction; and that question, as the trial court itself observed in noting appellant’s objection, “is a close one.” It turns upon the propriety of a construction of the statute which finds in it a Congressional purpose to regard one as willfully engaging in a riot who openly seizes and endeavors to carry away property which he knows to be accessible to him only by reason of the current destruction and looting. Appellant suggests to us that such conduct is, at most, amenable to paragraph (c) of Section 1122 (“Whoever willfully incites or urges other persons to engage in a riot * * *”), and reminds us that appellant was not charged under that paragraph. He further argues that, with paragraph (c) so unavailable, riot as defined in paragraph (a) cannot possibly justify an equation of appellant’s assumed behavior with the “tumultuous and violent conduct” creating “grave danger of damage or injury to property or persons” comprising that definition.

The District Court in its charge to the jury defined “damage or injury to property” as including “either actual physical damage to property or the taking of another’s property without the consent of the owner”; and we do not understand appellant to question this proposition. Appellant, by his own admission, must therefore be taken to have engaged in conduct involving damage or injury to property. But this, says appellant, is the larcenous conduct for which he is to be punished as provided in the larceny statute; it is not the “violent and tumultuous” conduct identified in Section 1122 (a) as an essential element of riot.

The theory of the District Court was that one may “engage in” violent or tumultuous conduct by knowingly and intentionally aiding or encouraging it “by acts, gestures or words”; and that the jury could find such willful engagement here from the tendency of appellant’s conduct to enlarge, and to perpetuate, the atmosphere of violence and tumult all about him. The court came eventually to embrace a concept of a larcenous act which, because of the peculiar dangers it creates by reason of the special circumstances under which it is done, results in an extra dimension of criminality which Congress may be thought to have marked out for punishment over and above that provided by larceny alone.¹⁰

We cannot say that this is an untenable divination of the Congressional purpose vis-a-vis one situated as was appellant by reference to his own testimony, or that the Congressional purpose as so applied transcends constitutional limits. If Congress had said in so many words, “Looting, of both a primary and a secondary nature, is an invariable and inevitable aspect of the kind of public disturbances with which we are concerned, and such disturbances are likely to be intensified and prolonged by any act which promotes or encourages such looting. Therefore, any person who, upon encountering a riot, openly seizes goods he knows to have been looted or accessible to him only by virtue of the disturbance, will be deemed to have aided, encouraged and furthered the riot and, by so doing, to have engaged in it,” there would be no question of the Congressional power to make that conduct criminal, nor any mistaking of its purpose to do so. We think it not beyond the capacities of ordinary men to understand that Congress, by the statute in question, intended to comprehend this contingency.

Of the scene in the vicinity of Eddie’s Liquor Store on the night in question, Officer Connally testified that “Everybody was running up and down the street carrying articles. * * * There was immediate chaos. Everybody was going wild. * * * ” This testimony seems to us quite relevant to the issue before us. It eloquently confirms what we must assume Congressmen to know in common with other men, that is to say, a public riot is a phenomenon which feeds on itself and for which the cooling influence is the cessation of all activity which tempts others to swell the throng and to engage in similar acts.

There are here, as in other areas of human life, greater and lesser degrees of culpability, in fact if not in law. The rioter who smashes the store windows or breaks in the door is no doubt more blameworthy than the man who moves to get his share of the liberated goods because other people seem to be doing the same thing. But even this move contributes to the tumult and promotes new violence. It attracts people to the scene who have no business there. It harasses the police, and very likely diverts them from more compelling claims upon their efforts. It, inescapably it seems to us, identifies the individual with the climate of violence and turmoil and makes him, in any realistic sense, a part of it. The public disturbance with which this statute deals is undoubtedly compounded of unlawful conduct variously deriving from purposeful destructiveness and foolish greed. That the latter does not offer as ugly a face does not mean that the two do not interact upon each other and make a common, albeit perhaps unequal, contribution to the evil against which the statute is aimed.

Appellant was, by his own testimony, more than a mere bystander. He may, as he contends and as we assume for this purpose, have been less than a smasher of windows and an invader of private premises. But his contribution to the miasma of violence and destruction, which lowered abruptly over the District of Columbia on April 5, 1968, and took several days to lift, is sufficiently substantial to warrant the conclusion that Congress may be taken to have conceived of him as “engaging in” the riot and to have warned him in advance that he would be dealt with as something more than a petty thief.

No one can say on this record that the District Court was insensitive to the considerations pointing to a different result. In our judgment, the product of its more mature reflection is an accurate reading of the statute, and the statute as so read is not in conflict with the Constitution. The District Court did not, accordingly, err in refusing the requested instruction.¹¹

Affirmed.

APPENDIX

The essential elements of this offense again must each be proved by the Government beyond a reasonable doubt. They are basically three: That there was a public disturbance within the District of Columbia which by tumultuous and violent conduct or the threat thereof created grave danger of damage or injury to property or persons. That there was an assemblage of five or more persons including the Defendant engaged in the public disturbance. And that the Defendant and at least four other members of the assemblage wilfully engaged in the public disturbance.

Now, first, what is a public disturbance involving tumultuous and violent conduct or the threat thereof which creates grave danger of damage or injury to property or persons? The conduct involved must be something more than mere loud noise-making or minor breaches of the peace. The offense requires a condition that has aroused or is apt to arouse public alarm or public apprehension where it is occurring. It involves frightening group behavior. Tumultuous and violent conduct will usually be accompanied by the use of actual force or violence against property or persons. At the very least it must be such conduct as has a clear and apparent tendency to cause force or violence to erupt and thus create a grave danger of damage or injury to property or persons.

By damage or injury to property I include either actual physical damage to property or the taking of another’s property without the consent of the owner. The term, “grave danger,” means something more than the possibility of danger or a minor difficulty. The danger may be actually present or threatened. It must definitely be clearly serious and if not occurring immediately then it must be very imminent.

Now, what is meant by an assemblage engaged in such a disturbance? This term in the context of a riot connotes an angry or aroused crowd or gathering. The assemblage must number at least five persons including the Defendant. It may, of course, be larger. In determining whether there was an assemblage, you may take into account only what was taking place in the general vicinity where the Defendant is claimed to have engaged in the public disturbance. You may consider only the acts, shouts and noise of individuals engaged in tumultuous and violent conduct within the general awareness of the Defendant, that is, the activities which on the evidence you find he could reasonably have been expected to see or to hear at or about the time he engaged in the public disturbance if, in fact, you determine he did so engage.

It is not necessary for the members of the assemblage to have acted pursuant to an agreement or plan, either made in advance or made at the time, or for the members to concentrate their conduct on a single piece of property or one or more particular persons. The Defendant does not have to personally know or be acquainted with the other members of the assemblage. The other members of the assemblage need not be identified by name or their precise number established by the evidence.

You may consider all the facts and circumstances shown by the evidence and determine from the evidence as a whole whether or not there existed an assemblage of five or more perons engaged in a public disturbance involving tumultuous and violent conduct or the threat thereof which created grave danger of damage or injury to property or persons.

And third, what is meant in law by the requirement that the Defendant and the other members of the assemblage must have engaged in such a disturbance wil-fully? This means that the Defendant and at least four members of the assemblage participated in the public disturbance on purpose, that is, that each knowingly and intentionally engaged in tumultuous and violent conduct consciously, voluntarily and not inadvertently or accidentally.

It is sufficient to establish wilfulness on the part of the Defendant or any other member of an assemblage if you find from all the evidence that by acts, gestures or words he knowingly and intentionally aided or encouraged the tumultuous or violent conduct involving grave danger to property or persons. Wilfulness may be inferred. A person is presumed to have knowingly done and intended the natural consequences of his acts. The mere accidental presence of the Defendant among persons engaged in such a public disturbance, however, without more, does not establish wilful conduct or involvement.

The offense of engaging in a riot is a separate and different offense than burglary two or petty larceny. You should, as already indicated, give separate consideration and render separate verdicts with respect to the Defendant’s guilt or innocence of each of the offenses charged in each of the three counts. However, in determining whether the Defendant is guilty or not guilty of the offense of engaging in a riot, you may consider all relevant evidence which was introduced during the trial, including evidence, if you find there is any, relating to the Defendant’s participation in the offense of burglary two and/or petty larceny.

1 . After sentence was pronounced, the District Court released appellant upon personal recognizance pending appeal, and also informed appellant that, if his conviction was sustained upon appeal, the court would, given a satisfactory performance by appellant in the interim, reexamine the sentence with a view to seeing whether its purposes could be served without a requirement of actual incarceration.

2 . The Government’s proof also included stipulations that (1) at 5:30 P.M. on April 5, 1968, Mayor Washington had declared a curfew to be effective from that hour until 6:30 A.M., and (2) the proprietors of the store would, if called by the Government, testify that they had closed the store at 3:00 P.M. on April ■ 5, 1968, and had authorized no one to be in it at 8:00 P.M. that evening.

3 . THE COURT: I am going to charge them that it is sufficient to establish ■wilfulness on the part of the Defendant if you find from all the evidence that by acts, gestures or words he knowingly and intentionally aided or encouraged the tumultuous or violent conduct involving grave danger to property or persons. And I think the question for the jury is whether or not someone who comes into a looting situation and it can be argued picks up goods that he knows is looted goods, and proceeds down the street with it, in the general atmosphere of the moment, cannot be found to have aided or encouraged the condition that the statute condemns.

This is not a case where someone came along the next day and picked up the looted goods, or even later that night after things had quieted down. But he picked it up and he picked up goods that he couldn’t put in his pocket. His mere carrying would add, it seems to the Court— at least it could be argued — would add to the tumultuous and violent conduct.

4 . The charge in its entirety as to the crime of engaging in a riot is set forth an an appendix to this opinion.

5 . Indeed, it would be difficult for appellant to press such a point seriously in light of the long history of common law and statutory proscription of riots in the states. For a collection of the state laws on riot, see Hearing Before Subcommittee No. 4 of the Committee on the District of Columbia, on H.R. 12328, H.R. 12605, H.R. 12721, and H.R. 12557, Oct. 4, 1967, Appendix 35-64. Nor does appellant express opposition to the fact that in this statute, unlike the requirements of common law and in the early state statutes, there is no necessity for a conspiracy or purposeful joining together to be proved in order to have a riot occur. This recognition of the spontaneity of many recent riots is crucial in making punishable the acts which Congress intended to prohibit.

6 . See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).

7 . Appellant also relies on one federal case where a state anti-riot statute was declared unconstitutional. See International Longshoremen’s & Warehousemen’s Union v. Ackerman, 82 F.Supp. 65 (D. Hawaii 1948), rev’d, 187 F.2d 860 (9th Cir. 1951). But see Heard v. Rizzo, 281 F.Supp. 720 (E.D.Pa.), aff’d per curiam, 392 U.S. 646, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968); Landry v. Daley, 280 F. Supp. 938. (N.D.Ill.1967), appeal dismissed sub nom., Landry v. Boyle, 393 U.S. 220, 89 S.Ct. 455, 21 L.Ed.2d 392 (1968).

8 . See S.Rep. No. 912, 90th Cong., 1st Sess. 25-26 (1967); see also Hearing Before Subcommittee No. 4 of the Committee on the District of Columbia, on H.B. 12328, H.R. 12605, H.R. 12721, H.B. 12557, Oct. 4, 1967.

9 . Appellant would have us believe that the Congressional intent was not so clear, and that not only riots of the Newark and Detroit type, but also demonstrations such as the October 21, 1967, anti-Viet Nam War march, were also a prime object of the legislative interest. But the isolated remark of one Congressman does not constitute any authority for the proposition that Congress as a whole intended to jeopardize the validity of the statute by making it trespass on protected First Amendment rights. See Statement of Hon. William L. Scott, a Representative in Congress from the State of Virginia, Hearing Before Subcommittee No. 4 of the Committee on the District of Columbia, on H.R. 12328, HR. 12605, HR. 12721, and H.R. 12557, Oct. 4, 1967, at p. 6. Rather, one need only examine the great weight of the testimony before the Congress to see that the statute was conceived of as directed to disorders unrelated to political demonstrations.

10 . The District Court took note in its memorandum opinion that all indictments returned in the District of Columbia for engaging in a riot had included a count for independently unlawful conduct, and that it was the latter which was uniformly relied upon as proving the willful engagement in the riot itself.

11 . The dissenting opinion hypothesizes a number of cases involving purely passive observers, and appears to believe that, in order to put such non-participants beyond the reach of the statute, appellant must be regarded as one himself. But, by his own testimony, he is not; and what we hold — and all we hold' — is that one who knowingly participates in the looting phase of a riot can, without constitutional transgression, be comprehended by Congress within those identified by the statute as engaging in the proscribed “violent and tumultuous conduct.” The illegal dispersion and misappropriation of merchandise, which is a central feature of the particular kind of rioting to which Congress expressly addressed itself, does not become looting on one side of the broken door or window, and something else on the other. Appellant’s own testimony pretends to no innocence in this respect, but he now seeks to make of this accident of location a basis for saying that his larceny must be viewed as something apart from the riot. The trial court’s instructions explicitly admonished the jury that appellant’s engagement in the riot must be found to be knowing and intentional. Appellant’s own testimony was such as to support such an inference. It is, thus, difficult to see how our opinion can accurately be characterized as excising from the statute the element of willfulness.