text:
United States v. Berrigan
482 F.2d 171 (3d Cir. 1973)
United Statesv.Berrigan
United States Court of Appeals, Third CircuitJun 27, 1973
Argued April 26, 1973.
Decided June 27, 1973.
Ramsey Clark, Paul, Weiss, Rifkind, Wharton Garrison, Washington, D.C. and Paul O'Dwyer, O'Dwyer Berstien, New York City, for appellants.
A. William Olson, Asst. Atty. Gen., S. John Cottone, U.S. Atty., Robert L. Keuch, Chief, Appeals and Research Section, Garvin Lee Oliver, Dept. of Justice, Washington, D.C., for appellee.
Appeal from the District Court.
Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
ALDISERT, Circuit Judge.
Father Philip Berrigan and Sister Elizabeth McAlister appeal from judgments of conviction on seven counts of violating 18 U.S.C. § 1791, as augmented by 28 C.F.R. § 6.1, for sending seven letters into and out of Lewisburg Federal Penitentiary "without the knowledge and consent of the warden." (Counts IV-X.)
18 U.S.C. § 1791 provides:
Whoever, contrary to any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce into or upon the grounds of any Federal penal or correctional institution or takes or attempts to take or send therefrom anything whatsoever, shall be imprisoned not more than ten years.
28 C.F.R. § 6.1 provides:
The introduction or attempt to introduce into or upon the grounds of any federal penal or correctional institution or the taking or attempt to take or send therefrom anything whatsoever without the knowledge and consent of the warden or superintendent of such federal penal or correctional institution is prohibited.
Father Berrigan was sentenced to four concurrent terms of two years' imprisonment on Counts IV, VI, VIII and X, all to run concurrently with sentences he was then serving. He is now on parole. Sister McAlister was sentenced to one year on Count V. Sentence was suspended on Counts VII and IX, subject to a three-year probationary period to begin upon release from custody.
Appellants were originally indicted, along with six others, for conspiracy to kidnap Presidential Advisor Henry Kissinger, to destroy the underground heating system in Washington, D.C., and to unlawfully interfere with the Selective Service System by engaging in "draft board raids" (Count I); for unlawfully sending through the mails a letter containing a threat to kidnap Mr. Kissinger ( 18 U.S.C. § 876) (Counts II and III); and for smuggling or attempting to smuggle letters into and out of a federal prison without the knowledge and consent of the warden (Counts IV to X). The jury was unable to agree upon a verdict on Counts I, II and III. Appellants urge that we reverse the convictions on Counts IV to X, or, alternatively, grant a new trial. Appellants have advanced numerous contentions which we will consider seriatim.
Appellants contend that they are the victims of a prosecution which is discriminatory as to them, and, therefore, offensive to the equal protection clause. As to the counts for which they were convicted, they argue that (1) there have been relatively few prosecutions under § 1791, (2) these isolated prosecutions concerned letters directly relating to prison conditions, and (3) none of these cases involved prosecution of a letter writer who was not a prisoner, i. e., the position of Sister McAlister. They also argue that the prosecution of all the counts was conducted for political reasons, because of defendants' efforts to end the use of United States military forces in Southeast Asia and for personal reasons to vindicate the reputation of the late Director of the Federal Bureau of Investigation. Therefore, appellants conclude that the charges against them violate the concept of equal justice required by Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.2d 220 (1886), and reaffirmed in Two Guys v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961). See also United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); and United States v. Robinson, 311 F. Supp. 1063 (W.D.Mo. 1969). These cases teach that although the government is permitted "the conscious exercise of some selectivity" in the enforcement of its criminal laws, Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962), any "systematic discrimination" in enforcement, Robinson, supra, 311 F. Supp. at 1065, or "unjust and illegal discrimination between persons in similar circumstances," Yick Wo, supra, 118 U.S. at 374, 6 S.Ct. at 1073, violates the equal protection clause and renders the prosecution invalid.
Distillation of appellants' discriminatory prosecution arguments yields three separate contentions: (1) that the question of the existence of discriminatory prosecution was a matter for the jury; (2) that appellants produced unmistakable evidence of discriminatory prosecution; and (3) that appellants' attempts to prove discriminatory prosecution were improperly frustrated by the district court.
Observing preliminarily that this court has already held that the burden of proving intentional or purposeful discrimination is placed upon the defendants, United States v. Malinowski, 472 F.2d 850, 860 (3d Cir. 1973), we proceed with our analysis of appellants' contentions.
Appellants sought to introduce evidence of discriminatory prosecution to the jury. After hearing argument on this point, the court decided that "discriminatory prosecution is not a defense to be presented before a jury but is a matter that could have been raised at pretrial on a motion and perhaps can be raised post-trial on a motion, if necessary." Appellants assert that the court erred in so ruling, and rely upon decisions of intermediate state courts in California and New York, People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852 (App.Dept.Sup.Ct. 1960); People v. Utica Daw's Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128 (1962), for the proposition that the defense of discriminatory prosecution should be presented to the jury. Moreover, they urge that the Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 49 (1968), contemplated this result when the Court observed that the right to a jury trial is granted to prevent oppression by the government, and to protect against arbitrary law enforcement. "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge." 391 U.S. at 156, 88 S.Ct. at 1451.
On more than one occasion this court has remarked that the citation of isolated nomenclature from miscellaneous opinions does not rise to the level of black letter law. United States v. Malinowski, supra, 472 F.2d at 854; United States v. Vallejo, 482 F.2d 616 (3 Cir., 1973), (concurring opinion). Hence, the stark fact remains that Duncan, supra, never addressed the issue before us, and the intermediate state court cases are not controlling here. Moreover, appellants' characterization of these state decisions is totally inaccurate. Although in People v. Utica Daw's Drug Co., the Appellate Division of the New York Supreme Court did reverse appellant's conviction because the trial court improperly excluded evidence of discriminatory prosecution, the Supreme Court expressly disapproved the trial court's submission of the discriminatory prosecution issue to the jury. The court recognized the existence of "well nigh insoluble problems if a claim of discriminatory enforcement is left to the jury," and remanded the case with instructions that:
The claim of discriminatory enforcement should not be treated as a defense to the criminal charge, to be tried before the jury and submitted to it for decision, but should be treated as an application to the court for a dismissal or quashing of the prosecution upon constitutional grounds. Insofar as a question of fact may be involved, the court should take the evidence in the absence of the jury and should decide the question itself.
225 N.Y.S.2d at 131-132.
In fact, two years after the New York Supreme Court's decision in Utica Daw's Drug Co., the New York Court of Appeals cited that case for the principle:
A denial of equal protection is not a defense to the criminal prosecution in the ordinary sense in which, when the point is raised, the prosecution has to prove beyond a reasonable doubt that it is not discriminatory. It is in the nature of an injunctive proceeding to bar prosecution of a crime regardless of guilt — which the defendant must establish to the court, not the jury, "by a clear preponderance of the proof." (People v. Utica Daw's Drug Co., 16 A.D.2d 12, 18, 225 N.Y.S. 128, 134, supra).
People v. Walker, 14 N.Y.2d 901, 252 N.Y.S.2d 96, 99, 200 N.E.2d 779, 781 (1964). (Emphasis supplied.)
See also United States v. Robinson, supra, 311 F. Supp. at 1064, where the court rejected defendant's argument that he be permitted to present the defense of discriminatory prosecution to the jury, and the court itself decided this issue.
People v. Harris, supra, is similarly inapposite since the case never treats the issue of whether the defense of discriminatory prosecution should be submitted to the jury.
Indeed, appellants' argument misconceives the proper division of responsibility between judge and jury in a federal criminal proceeding. By both tradition and constitutional mandate the jury is given the responsibility of determining guilt or innocence according to instructions of law delivered by the court. The question of discriminatory prosecution relates not to the guilt or innocence of appellants, but rather addresses itself to a constitutional defect in the institution of the prosecution. Rule 12(b)(2), F.R.Cr.P., provides: "Defenses and objections based on defects in the institution of the prosecution . . . may be raised only by motion before trial." Rule 12(b)(4) provides: "An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct."
The Supreme Court has distinguished between the necessity for a jury determination when the question is the defendant's guilt or innocence, and those preliminary matters concerning the right of the court to conduct the trial. Thus, in reviewing a prosecution for smuggling alcoholic spirits into the United States in violation of federal prohibition laws, Chief Justice Taft observed that "[t]he issue whether the ship was seized within the prescribed limit did not affect the question of the defendants' guilt or innocence," and, therefore, was not properly a jury question. Ford v. United States, 273 U.S. 593, 606, 47 S.Ct. 531, 535, 71 L.Ed. 793 (1927).
See also United States v. H. E. Koontz Creamery, Inc., 232 F. Supp. 312 (D.Md. 1964), where the court held that a motion to dismiss an indictment on the ground of double jeopardy did not warrant a fact finding by a jury. In what Professor Wright has described as a "learned opinion," Wright, Federal Practice and Procedure, § 194, at 414 (1969), the court said:
The motion here presented is preliminary to a trial: it does not affect the moving parties' guilt or innocence; it affects only the trial court's right to hold them for trial. That such a determination (although not in a double jeopardy case) does not require a jury trial is shown by cases such as Ford v. United States, 1927, 273 U.S. 593, 605-606, 47 S.Ct. 531, 71 L.Ed. 793; Dennis v. United States, 1951, 341 U.S. 494, 512-513, 71 S.Ct. 857, 95 L.Ed. 1137; reh. den. 1952, 342 U.S. 842, 72 S.Ct. 20, 96 L.Ed. 636.
232 F. Supp. at 317.
Moreover, the federal substantive law of crimes derives only from statute, whereas federal practice emanates from rules and statutes. In the federal experience there has never been any constitutional requirement that the jury find facts other than those relating to the issue of guilt or innocence. See, e.g., Ford v. United States, supra. Appellants have not cited, nor has our research discovered, any federal statute or rule in support of their present contention.
As a result of the relatively recent "criminal law revolution," extensive hearings, ancillary to the trial itself, have become commonplace in today's criminal proceedings. Pre-trial challenges to indictments, hearings challenging reception of evidence, and elaborate post-conviction hearings, often raise both constitutional questions and issues of fact. What we are experiencing today in the realm of federal criminal procedure had no counterpart in the common law jurisdictions at the time of the adoption of the Constitution. Indeed, the Bill of Rights, the fountainhead of most of these proceedings, was not incorporated into the original draft of the Constitution. Therefore, it cannot be successfully maintained that there was practice and precedent in 1789 suggesting that the resolution of the fact issue presented here was entrusted to a jury.
After consideration of the evidence of discriminatory prosecution adduced at trial and at a special, post-trial evidentiary hearing, the court found that the prosecution did not "fall outside of the proscribed limits of the discretionary control of the executive over the prosecution of criminal cases." United States v. Ahmad, 347 F. Supp. 912, 928 (M.D.Pa. 1972).
Appellants claim that the evidence they presented discloses that some one hundred F.B.I. agents were arrayed outside of a New York City church on April 21, 1970, for the purpose of capturing a brother of the priest appellant, one Daniel Berrigan, who had been convicted on another charge and had failed to appear for sentencing; that thereafter agents surveilled Sister McAlister for the purpose of locating Father Daniel Berrigan, and that this surveillance ceased after his arrest; that the government had a "chagrin and concern over the publicity surrounding Daniel Berrigan's fugitive status;" that by August, 1970, the government had in its possession the critical evidence supporting the convictions now under review; that by Labor Day the government had the letter suggesting a plot to kidnap Dr. Kissinger, yet no investigation was underway commensurate with the charges later made by F.B.I. Director J. Edgar Hoover before a Senate appropriations subcommittee in November, 1970, and the subsequent publicity surrounding these statements.
See United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).
Brief for appellants at 11.
Mr. Hoover's statement before the subcommittee alleged:
Willingness to employ any type of terrorist tactics is becoming increasingly apparent among extremist elements. One example has recently come to light involving an incipient plot on the part of an anarchist group on the east coast, the so-called "East Coast Conspiracy to Save Lives".
This is a militant group self-described as being composed of Catholic priests and nuns, teachers, students and former students who have manifested opposition to the war in Vietnam by acts of violence against Government agencies and private corporations engaged in work relating to U.S. participation in the Vietnam conflict.
The principal leaders of this group are Philip and Daniel Berrigan, Catholic priests who are currently incarcerated in the Federal Correctional Institution at Danbury, Connecticut, for their participation in the destruction of Selective Service records in Baltimore, Maryland, in 1968.
This group plans to blow up underground electrical conduits and steam pipes serving the Washington, D. C., area in order to disrupt Federal Government operations. The plotters are also concocting a scheme to kidnap a highly placed Government official. The name of a White House staff member has been mentioned as a possible victim. If successful, the plotters would demand an end to United States bombing operations in Southeast Asia and the release of all political prisoners as ransom. Intensive investigation is being conducted concerning this matter.
In sum, appellants contend "they were prosecuted for conspiracy and smuggling of letters in [an] attempt to vindicate the reputation of the former Director of the Federal Bureau of Investigation and because of their outspoken views and position of leadership in deeply opposing the war in Viet Nam." We have carefully considered the various contentions and accompanying evidence in support of appellants' argument of discriminatory prosecution. We find no error in their rejection by the district court. There was sufficient evidence supporting a prima facie case of conspiracy to kidnap Dr. Kissinger, to destroy the underground heating system in Washington, and to interfere with the Selective Service System by engaging in draft board raids. A fair reading of the letters involved in this appeal persuades us that they were germane to the matters which form the substance of the prosecution. Appellants contend that the prosecution was contrived as an attempt to rationalize Director Hoover's public statements of November, 1970. This contention implies that no serious investigation of appellants went forward prior to Hoover's statements. At the same time, however, appellants argue, "[b]y the end of August, 1970, the government already had in its possession the critical evidence supporting the convictions now under review." Thus even the most superficial analysis of appellants' basic argument reveals it to be self-contradictory and, therefore, self-destructive.
Without denigrating the importance of the right of a person accused of crime to establish the presence of discriminatory prosecution, central to the issue must be some initial showing that there is a colorable basis for the contention. Appellants attempted at the trial level to isolate the prosecutions under § 1791 from the charges of conspiracy and charges of the overt acts of planning the kidnap of Dr. Kissinger, the disruption of the Selective Service System, and the destruction of the underground heating system in Washington. They renew this attempt here. Were we to accept this approach, we would be applying judicial blinders to the realities of the actual prosecution. There was ample evidence justifying initiation of the prosecution of these appellants:
In the letter forming the basis of Count IV, Government Exhibit 25, Father Berrigan discussed a code for use in the letters. "Sorry as hell that I missed the code — hellova wasteful stupidity on my part. But let's develop an axiom, viz — will check every regular letter of yours for the third word thing — the other is too hard. Do the same with mine — need to perfect the technique, and then too, periodically, there may be a need. Moreover, will get the Harlem address from Pete, and see if I can locate a mail drop while working outside." The priest then suggested to Sister McAlister plans to convince members of the National Guard "(1) that they resign their military status (2) that they make a unit, public resignation (3) that they join the movement. . . . As a capstone, the students can perhaps, be lead (sic) to the idea that occupying buildings, going nose to nose with cops N.G. is passe — bad politics, bad tactics. They should shut down ROTC and begin to zapp Sel. Service in college and University towns. So the statement could address N. Guard students."
In Government Exhibit 48, the Count IX letter, Sister McAlister reported to Father Berrigan:
Eq outlined a plan for an action which would say — escallated (sic) seriousness — we discussed pros and cons for several hours. It needs much more thought careful selection of personnel. To kidnap — in our terminology make a citizen arrest of — someone like Henry Kissinger. Him because of his influence as policy maker yet sans cabinet status, he would therefore not be as much protected as one of the bigger wigs; he is a bachelor which would mean if he were so guarded, he would be anxious to have unguarded moments where he could carry on his private affairs — literally figuratively. To issue a set of demands, e.g. cessation of use of B 52's over N. Vietnam, Laos, Cambodia, release of political prisoners. Hold him for about a week during which big wigs of the liberal ilk would be brought to him — also kidnapped if necessary (which, for the most part it would be) — hold a trial or grand jury affair out of which an indictment would be brought. There is no pretense of these demands being met he would be released after this time with a word that we're non-violent as opposed to you who would let a man be killed — one of your own — so that you could go on killing. The liberals would also be released as would a film of the whole proceedings in which, hopefully, he would be far more honest than he is on his own territory. The impact of such a thing would be phenomenal. . . . Think about it maybe when I see you in Danbury I can get your thoughts as well as fill you in on where the plan lies.
In Government Exhibit 49, the Count X letter, Father Berrigan responded:
About the plan — the first time opens the door to murder — the Tupamaros are finding that out in Uruguay — I hope you are following them last 2 issues of the Guardian). When I refer to murder it is not to prohibit it absolutely (violence against non-violence bag). It is merely to observe that one has set the precedent, and that later on, when govn't resistance to this sort of thing stiffens, men will be killed. More to the point, the project as you outlined it is brilliant, but grandiose. . . . Which is to say that grabbing the gentleman will take a force of perhaps 10 of your best people — guarding him, getting communications out, perhaps moving him 2 or 3 times within the week. Now, in addition, to grab a prosecution of liberals would take dozens more, making the network too wide. . . . Nonetheless, I like the plan and am just trying to weave elements of modesty into it. Why not coordinate it with the one against capitol utilities? — You should talk more thoroughly with the charge about this, or with Little Shane or Big Joe German. To disrupt them, and then grab the Brain Child — this would be escalation enough.
This comes off the top of my head. Why not grab the Brain Child, treat him decently, but tell him nothing of his fate — or tell him his fate hinges on the release of pol. people or cessation of the air strikes in Laos. Then have batteries of movement people — Brain Child blind folded (sic) — engage him on policy. After he has been taught (the consideration of his safety will make him more and more human in his answers) get it filmed and record it. One thing should be implanted in that pea brain — that respectable murderers like himself are no longer inviolable. (This should be done just before release.) And that if he doesn't work to humanize policy, the likes of him will be killed by less scrupulous people. Finally, that political prisoners are the best guarantee of his sweet skin's safety and that he better get them out of jail.
Taken along these lines, you have both a material and personal confrontation with the warmakers. The trick to pull off is to hit them very, very hard without giving them violence to react to, or to justify themselves with.
He can be blindfolded, and participants can wear stocking masks disguise their voices. It could be done and brilliantly.
I would sic Eq on it immediately, but tie it in with the D.C. Fiasco, and keep his imagination under ropes.
Additionally, there was testimony that Philip Berrigan and Joseph Wenderoth entered underground tunnels in Washington, D.C. Boyd Douglas, an informer and courier of these letters, testified that Berrigan discussed with him the destruction of the utility system in Washington, D.C., and admitted that, prior to his arrest, he and Joseph Wenderoth had been in the tunnel system, posing as electrical engineers, and had gained access through the entrance at the Forestal Building. Douglas said that Wenderoth had admitted to the same. One John Millard testified that Wenderoth had discussed with him "a possible protest against the war which would involve a power failure in certain federal buildings."
A dispassionate review of this evidence reveals the appellants as individuals who planned to express a protest against the war in terms outside the parameters of First Amendment protected speech. They fashioned specific plans designed to disrupt the functions of government and enhance their revolutionary cause.
Appellants' scheme was, by its very nature, bizarre in concept and purposefully dramatic. The plan was unusual; indeed, it was unique. There is no historical precedent for the kidnapping of an American Presidential Advisor as a vehicle for demonstrating political or moral opposition to a given war.
The sensational quality of the plan runs counter to the critical ingredients in appellants' discriminatory prosecution argument. Appellants premise their argument on the proposition that smuggling letters out of prison is commonplace — so commonplace that very few prosecutions result therefrom — and, therefore, that this particular prosecution was discriminatory. The short answer to this contention is that the Kissinger kidnap plan and the Washington tunnel sabotage plan were not commonplace. Indeed, they were conceptualized because of their bizarre quality in order to capture the imagination of the nation, if not the world. Under such circumstances, and in light of the evidence presented at trial, the argument that this prosecution was based upon anti-war sentiments is hardly convincing. Prima facie evidence of the conspiracy and the accompanying serious plans totally rebuts this frivolous contention. However idealistic and sincere, the motives of those who would violate federal law are immaterial in a prosecution therefor. United States v. Malinowski, supra, 472 F.2d at 855-856.
Thus, this case is factually distinguishable from United States v. Falk, 479 F.2d 616 (7th Cir. 1973). There, appellant was prosecuted for failure to carry a draft card. He offered to prove that 25,000 Selective Service registrants had dispossessed themselves of their draft cards without being prosecuted, and that his prosecution was therefore discriminatory and intended to chill his anti-war activities. The court, over a strong dissent, held that appellant was entitled to a hearing on his claim. However, in Falk, the offense for which appellant was indicted was certainly commonplace. Clearly, the same cannot be said for the instant case. Secondly, the Falk court found "unrebutted evidence . . . [which] . . . made out at least a prima facie case of improper discrimination in enforcing the law." 479 F.2d at 623. Appellants here, on the other hand, have submitted no convincing evidence of discriminatory prosecution. Indeed, the court in Falk premised the granting of a hearing upon an allegation of "intentional, purposeful discrimination," and the existence of "facts sufficient to raise a reasonable doubt about the prosecutor's purpose." Id. Appellants were given the opportunity both at trial, and at a special, post-trial evidentiary hearing, to present facts tending to demonstrate that the prosecution was discriminatory. They failed to do so.
It is the entire prosecution, and not an examination of its isolated parts, which must command the attention of a court considering the defense of discriminatory prosecution. When all of the circumstances of this prosecution are considered, the prosecution under § 1791 was a justifiable aspect of the entire prosecution, viz., the conspiracy, the overt acts, and the violation of § 1791.
Appellants seem to recognize that they have marshalled little substantive evidence of discriminatory prosecution, and urge that the trial court aborted and frustrated their attempts at proof. Specifically, they complain of objections to their cross-examination of Associate Warden Hendricks, and Assistant United States Attorney Harry A. Nagle, Jr. They also unsuccessfully attempted to make the government's trial prosecutors witnesses, as well as the prosecutor who handled the original indictment. The court sustained the government's objection to any testimony by the attorneys most intimately involved in the prosecution. In addition, the defense subpoenaed all documents in the government's files dealing with the decision to investigate and prosecute the case. A government motion to quash the subpoenas was granted.
The warden was asked whether he knew "that it has always been the firmest and most important federal bureau of prisons' policy never to permit any prisoner to act as a government agent or informant while he was in prison." By this, the appellants sought to prove not only that the policy existed, but that it had been violated in this case, and that deviation from that policy raised an inference of discriminatory treatment. At a posttrial hearing on discriminatory prosecution the defense again sought to prove the same issue through the testimony of the Deputy Director of the Bureau of Prisons. Through Nagle, the appellants sought to show that the government declined to prosecute Boyd Douglas, the government informer. We find no prejudicial error in any of the rulings of the trial court regarding this issue.
Chief Justice (then Circuit Judge) Burger, writing for the court in Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 480 (1967), observed that "[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought." This basic principle of general application is premised on a recognition of the constitutional separation of powers. United States v. Cox, 342 F.2d 167 (5th Cir. 1965). There is a broad body of law recognizing the practical and legal necessity of vesting broad discretion in the government's attorneys with respect to their enforcement of the federal criminal laws.
"It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, supra, 342 F.2d at 171.
See e. g., United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (1920); United States v. Rickenbacker, 309 F.2d 462 (2d Cir. 1963); Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963); Sanders v. Waters, 199 F.2d 317 (10th Cir. 1952); Grell v. United States, 112 F.2d 861 (8th Cir. 1940); United States v. Manno, 118 F. Supp. 511 (N.D.Ill. 1954); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915 (1968); Newman v. United States, 127 U.S.App. D.C. 263, 382 F.2d 479 (1967); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955); Pugach v. Klein, 193 F. Supp. 630 (S.D.N.Y. 1961); and United States v. Brokaw, 60 F. Supp. 100 (S.D.Ill. 1945).
The cases recognize the various factors which influence the executive branch's decision to prosecute.
. . . [Some of the] considerations are the likelihood of conviction, turning on choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing and the relative gravity of the offense. In weighing these factors, the prosecutor must apply responsible standards, based, not on loose assumptions, but, on solid evidence balanced in a scale demanding proof beyond a reasonable doubt to overcome the presumption of innocence . . . Still other factors are the relative importance of the offense compared with the competing demands of other cases on the time and resources of investigation, prosecution and trial. All of these and numerous other intangible and imponderable factors must be carefully weighed and considered by the conscientious United States Attorney in deciding whether or not to prosecute. All of these considerations point up to the wisdom of vesting broad discretion in the United States Attorney.
Pugach v. Klein, supra, 193 F. Supp. at 635.
We find no error in the court's refusal to permit examination of the government lawyers. We agree with the district court's holding that testimony concerning the decision to decline prosecution of Boyd Douglas was completely irrelevant to the issue of whether these appellants were the victims of impressible discrimination. 347 F. Supp. at 930.
In quashing the subpoenas for all government files relating to the decision to investigate and seek indictments in this case, and all files relating to decisions to prosecute any violations of 18 U.S.C. § 1791, the district court held that the appellants failed "to present evidence from which at least an inference of the use of improper standards can be drawn." 347 F. Supp. at 928. The court stated: "It is clear that through these subpoenas defendants are attempting to circumvent a long-accepted intolerance toward judicial inquisition into the process whereby prosecutorial decisions are formulated. United States v. Cox, supra; Spillman v. United States, supra [ 413 F.2d 527 (9th Cir.), cert. denied, 396 U.S. 930, 90 S.Ct. 265, 24 L.Ed.2d 228 (1969)]." 347 F. Supp. at 929.
On appeal, the standard of review is whether the district court abused its discretion. Gevinson v. United States, 358 F.2d 761, 766 (5th Cir.), cert. denied, 385 U.S. 823, 87 S.Ct. 51, 17 L.Ed.2d 60 (1966). It is well established that the executive branch is privileged not to disclose intra-governmental documents reflecting advisory opinion, recommendations and deliberations comprising part of a process by which governmental decisions are formulated. Environmental Protection Agency v. Mink, 410 U.S. 73, 85, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). The privilege is based upon the public policy of encouraging open, frank discussions between subordinate and chief concerning administrative action, and on the constitutional principle of separation of powers. See, e. g., United States v. Cox, supra. Exemption (5) of the Freedom of Information Act, 5 U.S.C. § 552(b)(5), was enacted to reflect this privilege. Ackerly v. Ley, 137 U.S.App.D.C. 133, 420 F.2d 1336, 1340 (1969). See also Environmental Protection Agency v. Mink, supra, 410 U.S. at 86, 93 S.Ct. at 835. With exceptions not relevant here, Rule 16(b), F.R.Cr.P., specifically exempts from discovery, "reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case. . . ." Moreover, Rule 17(c), F.R.Cr.P., provides that the court may quash a subpoena if compliance would be unreasonable or oppressive. The district court acted within the strictures of that rule. These subpoenas were without factual basis, and were aimed at internal government documents relating to the decision-making process.
We agree with the district court that appellants failed to meet their burden of proving a colorable entitlement to the defense of discriminatory prosecution so as to entitle them to the desired testimonial and documentary evidence. See United States v. Dubrow, 201 F. Supp. 101, 104 (D.Mass. 1962); United States v. Charamella, 294 F. Supp. 280 (D.Del. 1968). We specifically hold that there was no abuse of discretion by the district court. In sum, we are persuaded that appellants' argument on discriminatory prosecution, in all respects, is without merit.
Appellants contend that 18 U.S.C. § 1791 constitutes an unconstitutional delegation of legislative power without standards or guidelines in violation of Article 1, Section 1 of the Constitution, and the due process clause, and that it is unconstitutionally vague and overbroad.
The power to fashion rules governing the movement of contraband as it relates to the federal prison system resides with Congress. Implementation of congressional enactments in this sphere, such as § 1971, is the duty of the Attorney General. In this case, the Attorney General has delegated this power of implementation to individual prison wardens. The crucial flaw in this scheme, appellants suggest, is that this particular statute contains no guidelines or standards to regulate the Attorney General's authority, and, as such, is simply a naked grant of power. Accordingly, appellants rely upon the principle that Congress cannot delegate unfettered discretion to administrative agencies to promulgate regulations enforceable by criminal sanctions, and the corollary that the exercise of administrative ability must be governed by the guidelines provided by Congress.
This same argument was presented to, and rejected by, the Tenth Circuit in Carter v. United States, 333 F.2d 354, 355 (10th Cir. 1964). We accept the holding of that court and the reasoning employed by Chief Judge Murrah:
We know, of course, that Congress may not penalize the violation of an administrative rule or regulation which it has no constitutional power to authorize. See: Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; and Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. It is equally clear, we think, that Congress may penalize the violation of an administrative rule or regulation which it is constitutionally empowered to authorize. See: United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563. In the exercise of its lawmaking function, Congress has committed to the Attorney General the "control and management" of Federal penal and correctional institutions, and has vested him with the duty and authority to "promulgate rules for the government thereof." 18 U.S.C. § 4001. In the performance of his statutory duty, the Attorney General undoubtedly may provide by regulation that nothing shall be brought into or taken out of a Federal penal institution without the knowledge and consent of the warden or superintendent of such institution. And, the regulation does not lose its administrative character simply because Congress has seen fit to make its violation a public offense. See: United States v. Grimaud, ibid; and United States v. Ruckman, D.C., 169 F. Supp. 160. The validity of the regulation is unquestioned here — the power of Congress to penalize its violation is unquestionable.
In United States v. Ruckman, 169 F. Supp. 160, 163-164 (S.D.W.Va. 1959), the court upheld the validity of both § 1791 and the regulation implementing it:
The Attorney General has by regulation prohibited the trafficking of any thing unless the Warden or Superintendent gives consent, a reasonable regulation enabling the men in charge of the various institutions to know what is coming in or going out of their prisons. The regulation clearly limits itself to the authority delegated by the Act of Congress, and it certainly cannot be urged that the Attorney General must personally exercise the discretion of determining what may or may not enter each of our Federal prisons.
See also Fulwood v. Alexander, 267 F. Supp. 92, 94-95 (M.D.Pa. 1967), and United States v. White, 295 F. Supp. 893, 893-894 (M.D.Ga. 1968).
We can rapidly dispose of appellants' second contention that the statute is void for vagueness. Recently, this court discussed in detail the various concepts underlying the constitutional vagueness doctrine. Levy v. Parker, 478 F.2d 772 (3d Cir., 1973). appellants rely on United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468 (3d Cir. 1972), modified and remanded, 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973), suggesting that a statute which is linguistically clear may be rendered unconstitutionally vague because it simply cannot mean what it purports to mean. We are not persuaded that the comparison is appropriate. The regulation in question admits of no ambiguity whatsoever. It gives clear, concise and fair notice of what is prohibited.
Moreover, we are satisfied that both appellants knew of its provisions. When Father Berrigan entered Lewisburg, he signed a visitor and correspondence list which indicated that inmates would not be permitted to write to or receive mail from any person not on the approved list. This document also authorized the warden or his representative to open, read and inspect all mail. Furthermore, a booklet made available to new inmates outlined the correspondence regulations, and warned that "any attempt to `kite' letters out of the institution will be considered a serious infraction and may be subject to prosecution." Sister McAlister signed a visitor's document which contained a statement warning that 18 U.S.C. § 1791 prohibited the taking of anything into or out of the prison without the knowledge and consent of the warden. We reject appellants' vagueness contention as being totally without merit.
Appellants' contention that the statute is overbroad is founded on the general rule that a statute is tainted if the conduct it prohibits includes protected activity as well as criminal conduct. "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). See also United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966). The minor premise proceeds that certain communications cannot constitutionally be excluded from prisons. See, e. g., Jackson v. Godwin, 400 F.2d 529 (3rd Cir. 1968); Rowland v. Jones, 452 F.2d 1005 (8th Cir. 1971); Fortune Society v. McGinnis, 319 F. Supp. 901, 905 (S.D.N.Y. 1970), and other cases upholding a prisoner's right to send and receive various types of correspondence and literature. Because prisoners enjoy the right to send and receive mail, appellants conclude that this statute is overbroad because it makes criminal certain acts protected by the First Amendment.
It hardly deserves extended discussion to observe that appellants' syllogism strains to a conclusion which is invalid and illicit. At issue is not the right of a prisoner to send or receive mail; rather, it is the right of a warden to establish an authorized channel of communications for the sending or receipt of this mail. Assuming, without deciding, that a prisoner has an unqualified right to send and receive all mail, there is no allegation that prisoner Berrigan's right to send or receive mail was denied him. Therefore, as we said in Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676, 681 n. 8 (3d Cir. 1972), there exists a serious question whether appellants have standing to raise the argument that the statute is void for overbreadth because it might be utilized to restrict materials protected by the First Amendment.
Perhaps appellants' argument can best be described as a logical (or, more appropriately, illogical) quadruped because it excludes the additional minor premise that a prisoner's mail was denied him.
Prescinding, however, from this serious question, and addressing ourselves to the merits of appellants' contention, this court has previously held that "imprisonment unavoidably results in the forfeiture of certain rights and privileges commonly exercised in a free society. The loss of these rights has been recognized by the Supreme Court as `a retraction justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). Stated simply, a man in jail is not a free man; the denial of his right to drink fully from the cup of freedom is the very hypothesis of confinement. . . . And, unpleasant as it is to contemplate the physical restrictions of a `settled environment', we must also recognize that even those rights which survive penal confinement may be diluted by peculiar institutional requirements of discipline, safety, and security. To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests." Gittlemacker v. Prasse, 428 F.2d 1, 3-4 (3d Cir. 1970).
The presence of "an important or substantial government interest . . . unrelated to the suppression of free expression" has been held to "justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968). Using the O'Brien test, the district court reasoned;
A letter is essentially neutral, made dangerous or innocuous by its author. Given the potential of a letter — to transmit escape plans, etc. — the warden must know of its contents before passing judgment on its suitability for importation into or exportation from the prison . . . This court concludes that 18 U.S.C. § 1791 meets each of the requisites set down in O'Brien. . . . The interest involved is an "important and substantial" one and unrelated to the suppression of free speech. By definition there is a distinction between "incidental limitations" on speech and its suppression. This statute and case present examples of an incidental limitation, at most, and a limitation no greater than that absolutely required for the furtherance of safe and efficient prison maintenance. This court, therefore, rejects defendants' attack on the constitutionality of 18 U.S.C. § 1791.
United States v. Ahmad, supra, 347 F. Supp. at 919-920.
Therefore, even if the First Amendment issue were properly before us, we would agree with the district court's analysis and its rejection of the contention. See also Nolan v. Fitzpatrick, 451 F.2d 545, 548 (1st Cir. 1971).
Appellants' contentions that the judgments of conviction on Counts V through X must be reversed because the government failed to prove all elements of the crime presents a very serious and difficult question. In these counts they were charged with and convicted of attempts to violate § 1791. Unlike the circumstances attending Father Berrigan's dispatch of the Count IV letter, which occurred prior to any knowledge on the part of the warden, it is undisputed that the prison officials had prior knowledge of letters embraced by these convictions.
On cross-examination, Robert L. Hendricks, Associate Warden of Lewisburg, was asked:
Q. Now, did you know that Douglas was carrying letters in and out while he was on study-release, in and out of the penitentiary — unauthorized letters?
A. After we intercepted the first letter, from that point on I knew that he was.
Hendricks reaffirmed this statement several times during his testimony, eventually admitting that after June 3, 1970, he knew Douglas was carrying letters in and out of the prison. All of the letters involved in Counts V to X were exchanged after June 3.
We begin with the proposition that the Constitution requires proof beyond a reasonable doubt of all elements of an offense in order to sustain a conviction. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). One of the elements of a violation of § 1791 is the absence of "knowledge and consent of the warden or superintendent of [the] federal penal or correctional institution." 28 C.F.R. § 6.1. From this, the defense reasons that if the warden knows of the smuggling, the purpose of the law is satisfied and no crime can exist. The district court rejected this argument holding that "[s]uch an interpretation of the statute is unjustified and inaccurate. . . . The intent of the parties to bypass prison channels and smuggle the letters, combined with action toward that goal is sufficient to complete a punishable offense. . . . The intent of the party committing the offense to deprive the warden of knowledge of such smuggling seems to this court to be the gravamen of the offense." 347 F. Supp. at 920.
In support of its conclusion that intent to commit the offense plus some overt act constituted the crime, irrespective of legal impossibility to commit the crime, the district court relied on New York Penal Law, McKinney's Consolidated Laws c. 40, § 110.10; United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 279 (1962); Hall, General Principles of Criminal Law, 586 (2d Ed. 1960); Perkins, Criminal Law, 489 (1957); and the Model Penal Code, Art. 5, § 501.
The first difficulty we have in accepting this analysis is that it utilized criminal codes which contain provisions having no counterpart in existing federal criminal law. Federal criminal law is purely statutory; there is no federal common law of crimes. Levy v. Parker, supra, 478 F.2d at 796. The Model Penal code provides that a person is guilty of an attempt "if acting with the kind of culpability otherwise required for commission of the crime he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be." The proponents of the code report that "[t]he purpose of paragraph 1(a) is to eliminate legal impossibility as a defense to an attempt charge." Absent such statutory language, courts have held that a person accepting goods which he believed were stolen, but were not actually stolen goods, was not guilty of an attempt to receive stolen goods; that an individual who offered a bribe to a person whom he believed to be a juror, but who was not a juror, could not be said to have attempted to bribe a juror; and, that a hunter who shot a stuffed deer, believing it to be alive, had not attempted to kill a deer out of season. Faced with these holdings, the Model Penal Code proponents suggested that courts were exonerating defendants "in situations where attempt liability most certainly should be imposed." Hence, they felt necessity for the statute.
Wechsler, Jones Korn, The Treatment of Inchoate Crimes In The Model Penal Code Of The American Law Institute: Attempt, Solicitation, And Conspiracy, 61 Colum.L.Rev. 572, 578 (1961).
See, e. g., People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906), where the court said that the following actions do not constitute attempts: voting with the belief that one is under the permissible age when in fact he is not under age; having sexual intercourse with a female with the belief that she is under the age of consent when in fact she is not under the age of consent. The holding of the Jaffe case was approved in People v. Jelke. 1 N.Y.2d 321, 329, 152 N.Y.S.2d 479, 485-486, 135 N.E.2d 213, 218 (1956), where the court likened the situation to "selling oil stock and being surprised to discover that oil was actually in the ground where the accused vendor had represented but not believed it to be."
State v. Taylor, 345 Mo. 325, 133 S.W.2d 336 (1939); State v. Porter, 125 Mont. 503, 242 P.2d 984 (1952). Similarly, attempted bribery may not be based upon an offer of a bribe to an official who cannot render the requested service. State v. Butler, 178 Mo. 272, 77 S.W. 560 (1903). See also State v. Lawrence, 178 Mo. 350, 77 S.W. 497 (1903).
State v. Guffey, 262 S.W.2d 152 (Mo. Ct.App. 1953). See generally Wechsler, Jones Korn, supra note 18. at 578-585.
The National Commission on Reform of Criminal Laws, also recognizing this apparent void in the existing federal criminal code, has proposed a general attempt statute, applicable to every federal offense. Its proposal closely resembles that of the Model Penal Code: "Factual or legal impossibility of committing the crime is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be." § 1001(1). Other measures presently before Congress contain similar provisions. See § 1-2A4(c), Criminal Attempt, Defense Precluded, S. 1, Criminal Justice Codification, Revision and Reform Act of 1973, 93rd Cong., 1973; § 1001(b), Criminal Attempt, Defense Precluded, H.R. 6046; S. 1400, Criminal Code Reform Act of 1973, 93rd Cong., 1973.
Indeed, we are informed that elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with "the overwhelming modern view," and with criminal provisions in such diverse parts as Canada, India and New Zealand.
Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, 360 (1970).
Wechsler, Jones Korn, supra note 18, at 578-579.
Nevertheless, the brute fact remains that present federal criminal statutes do not contain this provision. And for this court to uphold these convictions in the absence of such statutory authority would be to impose criminal liability upon mere intent, where the will is to be taken for the deed, "or, as expressed in the Latin formula appearing in the Year Books, Voluntas reputabitur pro facto."
Sayre, Criminal Attempts, 41 Harv.L. Rev. 821 (1928).
Professor Williams asserts that "[i]t should need no demonstration that a person who commits or attempts to commit what is not a crime in law cannot be convicted of attempting to commit a crime, and it makes no difference that he thinks it is a crime." Professor Hall is equally insistent that to make such conduct a criminal attempt would violate the principle of legality.
G. Williams, Criminal Law, The General Part, 633 (2d Ed. 1961).
J. Hall, General Principles of Criminal Law, 586 (2d Ed. 1960).
We have recently emphasized as "the fundamental of American law [the principle] `that no person can be criminally punished except by judicial process and unless the acts for which he was punished were clearly forbidden . . .' `The codification of definite rules in the law of crimes is considered by many in Western democratic societies as a fundamental requirement of liberal democracy. "They take their stand on the principle that no one shall be punished for anything that is not expressly forbidden by law. Nullum crimen, nulla poena, sine lege. They regard that principle as their great charter of liberty." A. Denning Freedom Under Law 41 (1949).'" Levy v. Parker, supra, 478 F.2d at 791.
Moreover, whatever be the approach taken in those jurisdictions utilizing the common law of crimes, except as modified by statute, e. g., Pennsylvania, the interstices of federal criminal law cannot be filled by resort to common law precedents. It cannot be overemphasized that conduct intended to be prohibited by federal law must be explicitly prohibited by statutory authority.
It becomes necessary, therefore, to turn to the rudiments of the law of attempt. "Some words of definition are necessary. For convenience of usage the following terms shall be used as indicated: Act — the defendant's physical bodily movements; Circumstances or attendant circumstances — the external, objective situation which the substantive law may require be present in addition to the defendant's act before he can be convicted of the substantive crime; Conduct — the act combined with the circumstances regarded by the substantive law as relevant; Consequences or result — an additional occurrence caused by the defendant's act."
Enker, Impossibility In Criminal Attempts — Legality And The Legal Process, 53 Minn.L.Rev. 665 (1969). For a similar analysis, see Sayre, supra note 24, at 838: "[E]very attempt involves three factors: (1) some act on the part of the defendant, (2) the particular consequence which the defendant intended or which formed the object of his act, and (3) the actual consequences which in fact ensued."
We reduce the law of attempt to these basic components because it is a subject that has long attracted the attention of the commentators and legal historians producing a wealth of legal literature. The problems have been called "muchmooted," "intricate and difficult," "one of the most interesting and difficult problems of the criminal law," reflecting "ambivalence as to how far the governing criteria should focus on the dangerousness of the actor's conduct," and exerting "a fascination for legal scholars far beyond their significance in terms of the number of litigated issues."
Beale, Criminal Attempts, 16 Harv.L. Rev. 491 (1903); Hoyles, The Essentials of Crime, 46 Can.L.J. 393, 404 (1910); Cook, Act, Intention and Motive In The Criminal Law, 26 Yale L.J. 645 (1917); Sayre, Criminal Attempts, 41 Harv.L. Rev. 821 (1928); Tulin, The Role of Penalties In Criminal Law, 37 Yale L.J. 1048 (1928); Arnold, Criminal Attempts — The Rise And Fall Of An Abstraction, 40 Yale L.J. 53 (1930); Strahorn, The Effect of Impossibility On Criminal Attempts, 78 U. of Pa.L.Rev. 962 (1930); Curran, Criminal And Non-Criminal Attempts, 19 Geo.L.J. 185, 316 (1931); Derby, Criminal Attempt — A Discussion Of Some New York Cases, 9 N.Y.U.L.Q. 464 (1932); Turner, Attempts To Commit Crimes, 6 Camb.L.J. 230 (1934); Blackburn, Solicitation To Crimes, 40 W.Va.L.Q. 135 (1934); Skilton, The Mental Element In A Criminal Attempt, 3 U.Pitt.L.Rev. 181 (1937); Skilton, The Requisite Act In A Criminal Attempt, 3 U.Pitt.L.Rev. 308 (1937); Hitchler, Criminal Attempts, 43 Dick.L. Rev. 211 (1939); Strahorn, Preparation For Crime As A Criminal Attempt, 1 Wn. Lee L.Rev. 1 (1939); Hall, Criminal Attempt — A Study of Foundations Of Criminal Liability, 49 Yale L.J. 789 (1940); Edwards, Criminal Attempts, 15 Mod.L.Rev. 345 (1952); Keedy, Criminal Attempts At Common Law, 102 U. of Pa.L.Rev. 464 (1954). Perkins, Criminal Attempt And Related Problems, 2 U.C.L.A.L.Rev. 319 (1955).
Strahorn, supra note 29, at 962.
Perkins, supra note 29, at 319.
Keedy, supra note 29, at 464.
Wechsler, Jones Korn, supra note 18, at 574.
Enker, supra note 28, at 665.
Emanating from the many thoughtful observations and the multitude of case law are the following teachings. (1) We must not generalize in the law of attempt. (2) There is a basic distinction between early common law decisions and those beginning in the latter Eighteenth Century. (3) There is a distinction between the holdings in common law jurisdictions and those which have codified the law of attempt. (4) One of the most sophisticated areas of the troublesome law of attempt is that which must command our attention here — legal impossibility of criminal attempt.
Indeed, even a decision to analyze impossibility on the basis of what is generally described as the two categories of factual impossibility and legal impossibility presents serious problems unless conceptual distinctions between the two labels are recognized and respected. Generally speaking factual impossibility is said to occur when extraneous circumstances unknown to the actor or beyond his control prevent consummation of the intended crime. The classic example is the man who puts his hand in the coat pocket of another with the intent to steal his wallet and finds the pocket empty. Regina v. Collins, 9 Cox Crim. Cas. 497 (1864). Generally, the cases which have imposed criminal liability for attempt where factual circumstances precluded commission of the intended crime have emphasized, as a primary requisite, proof of an intent to commit a specific crime.
Legal impossibility is said to occur where the intended acts, even if completed, would not amount to a crime. Thus, legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform a physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime.
Intent as used in this connection must be distinguished from motive, desire and expectation. If C by reason of his hatred of A plans to kill him, but mistaking B for A shoots B, his motive, desire and expectation are to kill A but his intent is to kill B. If a married man forcibly has intercourse with a woman whom he believes to be his wife's twin sister, but who in fact is his wife, he is not guilty of rape because his intent was to have intercourse with the woman he attacked, who was in fact his wife. If A takes an umbrella which he believes to belong to B, but which in fact is his own, he does not have the intent to steal, his intent being to take the umbrella he grasps in his hand, which is his own umbrella. If a man, mistaking a dummy in female dress for a woman, tries to ravish it he does not have the intent to commit rape since the ravishment of an inanimate object cannot be rape. If a man mistakes a stump for his enemy and shoots at it, notwithstanding his desire and expectation to shoot his enemy, his intent is to shoot the object aimed at, which is the stump.
Keedy, supra note 29, at 466-467.
Wharton puts the following case: "Lady Eldon, when traveling with her husband on the Continent, bought what she supposed to be a quantity of French lace, which she hid, concealing it from Lord Eldon in one of the pockets of the coach. The package was brought to light by a custom officer at Dover. The lace turned out to be an English manufactured article, of little value, and of course, not subject to duty. Lady Eldon had bought it at a price vastly above its value, believing it to be genuine. . . ."
Wharton opined that Lady Eldon had the intent to smuggle this lace into England and was guilty of an attempt to smuggle. 1 Wharton, Criminal Law, 304 n. 9 (12th Ed. 1932). Professor Keedy suggests: "The fallacy of this argument is found in the fact that the particular lace which Lady Eldon intended to bring into England was not subject to duty and therefore, although there was the wish to smuggle, there was not the intent to do so." Keedy, Id., at 476-477.
Were intent to break the law the sole criterion to be considered in determining criminal responsibility — and this was the approach utilized by the district court — we could sustain the conviction of appellants on Counts V to X. Clearly, it can be said that Father Berrigan intended to send letters to Sister McAlister, and vice versa. Normally, of course, the exchange of letters is not a federal offense. Where one of the senders is in prison, however, the sending may or may not be a criminal offense. If the letter is sent within normal channels with the consent and knowledge of the warden it is not a criminal offense. Therefore, an attempt to send a letter through normal channels cannot be considered an attempt to violate the law because none of the intended consequences is in fact criminal. If the letter is sent without the knowledge and consent of the warden, it is a criminal offense and so is the attempt because both the intended consequence and the actual consequence are in fact criminal. Here, we are faced with a third situation where there is a motivation, desire and expectation of sending a letter without the knowledge and consent, and the intended act is performed, but unknown to the sender, the transmittal is accomplished with the knowledge and consent of the warden.
Applying the principles of the law of attempt to the instant case, the writing of the letters, and their copying and transmittal by the courier, Boyd Douglas, constituted the Act. This much the government proved. What the government did not prove — and could not prove because it was a legal impossibility — was the "external, objective situation which the substantive law may require to be present," to-wit, absence of knowledge and consent of the warden. Thus, the government failed to prove the " Circumstances or attendant circumstances" vital to the offense. Without such proof, the Consequence or Result did not constitute an offense that violated the federal statute. The warden and the government were aware of the existence of the letters. The courier acted with the consent of the warden. Although there was no entrapment, United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the public authorities were privy to the Act which gave rise to these charges. There are many supporters of the view that irrespective of the absence of a necessary element of the offense prohibited by statute — the "external, objective situation which the substantive law may require be present" — criminal responsibility should attach "if the attendant circumstances were as [the actor] believes them to be." The bills presently before the Congress contain such a provision. But the efforts of the distinguished scholars who drafted these proposals must be kept in perspective; they are recommending changes to fill an apparent void in existing law. They suggest a statutory change which would remove one of the elements of the offense which still must be proved under the present federal statutory law of crimes.
When we analyze the Consequence or Result of the Act and Conduct in this case, we find no barefaced public injuries present, which by the Eighteenth Century weakened the original absolutism of this defense at common law. Emphasizing that the contents of the letters are not germane to this issue, we do not recognize any serious danger to the public welfare to have resulted from these acts.
Nor was there error in the court's charge on entrapment.
See supra at 33.
We are also aware that in those jurisdictions which permit the development of elements of the criminal law by the common law tradition of judicial decision, the courts have been willing to change the law through the centuries from an absolute defense of factual impossibility, to a jurisprudence environment which, though extremely complicated and confused, seems to be watering down, if not eliminating, the defense of factual impossibility. But as we have heretofore indicated, we will not fall into the trap of equating legal with factual impossibility in the law of criminal attempt.
Indeed, though it is not before us, we do evidence some concern that the proposed changes in the federal criminal code seem to fashion a new crime where the critical element to be proved is mens rea simpliciter. We detect the total lack of objective guidelines in the presentation of such proof or a defense. While mens rea is certainly within one's control it is not subject to direct proof; it is proved by circumstantial evidence only. More important, it is not subject to direct refutation. It is the subject of inference and speculation. We perceive the danger of potential abuse where the circumstances admit to very little objective measurement. More important, we are unwilling as a court to legislate by judicial fiat a crime consistent only with thought processes, as this is reminiscent of the German law of the Nazi period "that anything is punishable if it is deserving of punishment according `to the fundamental conceptions of a penal law and sound popular feeling.'" H.L.A. Hart, Law, Liberty and Morality, 12 (1963).
In sum, we distinguish between the federal system, where criminal law is solely statutory, and jurisdiction patter upon the common law. "It is commonplace that federal courts are courts of limited jurisdiction, and that there are no common law offenses against the United States. `The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.' United States v. Hudson, 7 Cranch. 32, 34, 3 L.Ed. 259. `It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms.' Todd v. United States, 158 U.S. 278, 282, 15 S.Ct. 889, 890, 39 L.Ed. 982". Keeble v. United States, 412 U.S. 205, 215, 93 S. Ct. 1993, 1999, 36 L.Ed.2d 844 (1973) Stewart, J., dissenting. We distinguish between the defense of factual impossibility, which is not involved here, United States v. Osborn, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), and legal impossibility, which is. Even were we to concede that factual impossibility of success may not prevent an attempt, there can be no crime of attempt where there is a legal impossibility to commit a crime. Simply stated, attempting to do that which is not a crime is not attempting to commit a crime. Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility. Until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt.
Accord: United States v. Hair, 356 F. Supp. 339 (D.C. 1973).
Accordingly, the convictions on Counts V-X may not stand.
Appellants have raised other contentions which, for the limited purposes remaining, apply only to Father Berrigan's conviction on Count IV. We have concluded that the court did not err in adopting Government Request No. 15, or in failing to include the phrase, out "of a federal penitentiary," when it charged that "defendant Philip Berrigan caused a letter to be sent to Elizabeth McAlister. . . ." Although no defense was presented by defendants, prior to resting they unsuccessfully moved the court to grant immunity, or to require the government to seek immunity, for any defense witnesses who might refuse to give testimony on grounds of self-incrimination when called. The court ruled it had no authority to grant such immunity or to demand that the government seek immunity for defense witnesses. We agree. See United States v. Smith, 436 F.2d 787 (5th Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971); United States v. Lyon, 397 F.2d 505 (7th Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968); Morrison v. United States, 124 U.S.App.D.C. 330, 365 F.2d 521 (1966); Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966).
Finally, we agree that the record discloses that the verdict was not "the product of mental and physical fatigue," United States v. Parks, 411 F.2d 1171, 1173 (1st Cir. 1969), or of "judicial coercion," United States v. Grosso, 358 F.2d 154, 159 (3d Cir. 1966), but rather of true deliberation.
The judgment of conviction of Philip Berrigan on Count IV will be affirmed. The judgments of convictions of Philip Berrigan and Elizabeth McAlister on Counts V through X will be reversed.
[70] ROSENN, Circuit Judge (concurring).
I concur.
I agree there was insufficient evidence of a discriminatory prosecution to warrant vacating these convictions. We must be cognizant not only of the lack of evidence of improper motive but also of the content of the letters for which defendants were prosecuted.
The letter forming the basis for Count IV suggested that students be persuaded to "shut down ROTC and begin to zapp Sel. Service in college and university towns." It also suggested establishing a secret code to be used in future letters. As the majority opinion reveals, Counts IX and X involved letters from Sister McAlister and Father Berrigan, respectively, specifically discussing the idea of kidnapping Henry Kissinger. The important aspect of the convictions under review on this appeal is not that the alleged criminal conspiracy was "bizarre", but that the letters pertaining to it involved the participation of a prisoner in the planning of criminal activity. The prohibition against taking or sending anything into or out of a federal prison without the knowledge or consent of the warden is designed to guard against just this sort of conduct, as well as to prevent contraband from coming in and out of the prisons. Because letters aimed at the perpetration of criminal activity are an evil at which the regulation is aimed, I believe the Government had ample justification for its alleged selectivity in commencing prosecution. It is immaterial that the statute and regulation might not be enforced through prosecutions when prison authorities discover "innocent" letters being smuggled.
I also agree that the convictions of both defendants on Counts V through X should be vacated. The letters involved in these counts were all smuggled after June 3, 1970, i.e., after Warden Hendricks knew of Douglas's activities. I think the regulation of the Attorney General, 28 C.F.R. § 6.1 imports into the statutory attempt offense the essential element of absence of knowledge and consent by the warden.
The regulation provides:
The prohibition, as it applies to attempts, is ambiguous. It can be read to apply when there is an attempt to smuggle a letter with the belief that the warden does not know about it. Reading the regulation in this manner, the focus would be on the defendants' intent. On the other hand, it can be read to make the absence of the warden's consent or knowledge an absolute element of the attempt offense. Lacking any indication of the intent of those who framed the regulation, I feel compelled to follow the maxim that penal statutes are to be narrowly construed. I therefore accept the latter reading and, finding in the evidence no proof that the warden lacked knowledge of the smuggling attempts, agree that the Government failed to sustain its burden of proof on these six counts.


Starting a business is one of the hardest things a person can do, but there are times in life when a person must overcome even greater obstacles, such as serious life-or-death issues that dwarf any other concerns. We talked with two entrepreneurs who overcame such obstacles--and started businesses to boot.
Don Katz, 29, founder of the Symposium Wine Bar in Irvine, California, is an entrepreneurial success using any definition of the word. With an extensive educational and experiential background in restaurant management, Katz was moving steadily forward in his career--until 2001, when he was struck with spinal meningitis. After awakening from a coma, he was blind, and doctors were unsure if he'd ever walk again. Six months later, he left the hospital, and with continued physical therapy, Katz is back on his feet.
In 2003, while brainstorming ideas of what to do next, Katz thought of blind taste tests for wine and figured he could make a go of a wine-themed business. The business he founded in November 2004, which offers tastings and seminars and also sells wine, gourmet chocolates, cheeses and more, specifically appeals to new wine connoisseurs who want to taste wine in a non-intimidating atmosphere. And thanks to his heightened senses of taste and smell, he's able to describe the wine in interesting and accessible ways--like "honey almond notes with a creamy finish." Says Katz, who expects 2005 sales to hit $400,000, "You can make a lot of plans, and things can change overnight--it's just one day at a time."
Someone who likely agrees with that statement is Gary Doan, founder of Intradyn, an Eagan, Minnesota, software firm specializing in data protection and archiving for small to midsize businesses. A serial entrepreneur in the technology industry, Doan, 53, was diagnosed with hepatitis C in 1993. In 1998, doctors told him the disease would eventually cause liver failure. "I took a few years off to plan my next venture and to wait to get a transplant," he says. When he got one in 2001, it signaled a new beginning for Doan: "I walked out eight days later and have been healthy ever since."
Armed with his new lease on life, Doan launched Intradyn that same year, hoping to fill a need he saw in the market. And that vision paid off, as he projects 2005 sales in the seven figures. "I think you have to stay focused and [stay] in a positive light," says Doan. "Even though the odds were against me, I didn't pay attention to them. I never for one minute thought I couldn't do it."


The Academy of Finland has today decided to grant funding to 101 research projects under the key project funding scheme "Forging ahead with Research". The funds for this scheme were allocated to the Academy of Finland through the Government Programme with a view to strengthening the quality and impact of research and promoting active collaboration with end-users and beneficiaries of research results. The funding, 30 million euros in total, is especially geared towards early-career researchers whose projects have been highly rated in previous peer reviews.
Projects that included novel, exciting and innovative ideas for research utilisation were the most successful in the call, which was open in connection with the Academy of Finland's April 2016 call. Most of the funding was granted to projects representing the following fields: clinical medicine, environmental sciences, pharmacy, meteorology and atmospheric sciences, and software engineering.
The funded projects propose a variety of ways of making the best possible use of research results. For example, funding was granted to a project on fisheries management that aims to produce a modelling tool for ecosystem-based fish-stock evaluation and to promote sustainable fishing. Funding was also granted to a project studying the challenges faced by entrepreneurs in Finnish small and medium-sized enterprises when retiring and transferring their business. The aim of the project is to increase retirement awareness, optimise entrepreneur retirement and, ultimately, secure employment in the companies of ageing entrepreneurs. Another funded project is aimed at developing a web-based research service for mathematics learning apps and game-based assessment.
In the field of health research, the Academy granted funding to, for example, a project improving drug affinity and effectivity, a project developing more personalised and analytical healthcare and health measurement methodology, and a project producing a model for effective prevention of dementia. Several of the projects funded in the field of health research aim to improve cancer diagnostics and develop more personalised forms of cancer treatment.
"We're very pleased with the high level of the applications. It's good to see that the applicants were interested in so many different areas of research utilisation. Though the call was open-themed, the researchers were very interested in the same areas that are included as priorities in the Government Programme. But there were, of course, many innovative projects in other interesting areas as well. For instance, funding was granted to research into the utilisation potential of a new concept for ultrasensitive measurements of electromagnetic radiation and to a project exploring the use of a novel photodiode concept in medical imaging and security applications," says Riitta Maijala, Vice President for Research at the Academy of Finland.


Here at Waverley, we believe that spiritual transformation takes place best in the context of an authentic, caring community. We believe that God has designed us all to thrive when we have the opportunity to "do life" together with others. He never intended that we go it alone. Our Community Groups exist to help you become a closely knit part of the Waverley family through a group that strives to reflect what we read in Acts 2:42-46.
We would encourage you to be part of a Community Group, becoming close friends with others, learning together from the Bible, caring for one another, and developing a heart for those in need within and outside the church. To be part of a Community Group, get started by clicking the link below.
12/19/2018–We are currently looking for people who may be interested in leading a Community group. If you are interested please contact us and we can discuss your involvement.
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text:
Lerwick and Northmavine – days 3 and 4
Women spinning and carding. Images from the Shetland Archives
Tuesday was my final day in Lerwick and I returned to the Textile Museum which was originally the Shetland Textile Working Museum established by the Guild of Spinners, Weavers and Dyers. It was Bess Jamieson of Pointataing, Walls, who first collected historic Shetland textiles and commissioned faithfully produced replicas of certain styles and garments, caring and preserving them. I particularly wanted to see @maverick_knitter, Helen Robertson's piece, Life Boy as I knew I would me 'meeting' her later.
Life Boy by Helen Robertson
The following day, when Robertson and I walked and talked together, she told me that the project was inspired by the Press Gangs who, from 1800, took men forcibly away to sea. This left the women to manage family and land without them. Sometimes, they were unable to say goodbye, did not know where they would be going, and understood that the chances of death by disease were higher in the navy than when they were home.
Impressment was the enforced seizure by government of men to work in the army or navy which was carried out by press gangs who were paid to bring in men. It was detested by everyone and was popularly considered to be an unjust system.
From an article by Kim Burns (as part of her dissertation), University of the Highlands and Islands
The Old Tolbooth from canmore.org.uk
Earlier that morning, I passed by the 18th century Old Tolbooth (32 Commerical Street) which used to be where they locked the men up while they were waiting for the boats to come. Although Robertson didn't consciously remember it, this building, which was the head quarters for the Red Cross when she was young, is now the Royal National Lifeboats Institute station and she later discovered that she had a photo of it in a research book with a life belt hanging outside!
From deconstructed sails I made big pieces of yarn and knitted a life belt. I did short rows in the round – a big piece of work, the size of a proper life belt. With Shetland oo (wool) and an old handline (a rope used for fishing without a rod), I knitted an infinity knot. It was the time that the European migrants were coming and there were lifebelts washing up. For me, it was all about the imbalance of power, the life and death thing, still touching wis every day.
Helen Robertson, from our chat
Da Lightsome Buoy sculpture. Photo Shetland Arts
The Old Tolbooth is seconds away from the Esplanade and the harbour (where the Seabird Tour boats around Noss leave). The Jo Chapman sculpture Da Lightsome Buoy (2016) is nearby. Commissioned by the Pelagic Sculpture Partnership comprising of Shetland Catch, Shetland Fish Producers' Organisation, Lerwick Port Authority and LHD in association with Shetland Arts, it celebrates Shetland's long association with the pelagic (midwater trawls that have a cone-shaped body and a closed 'cod-end' that hold their catch) fishing industry.
The design ideas were influenced by a series of workshops, meetings, events, and the sharing of stories, photos and memories by the many people Jo met during her stay here.
Lerwick Port Authority
Heavy and solid-looking with a hole at one end, it is made of cast bronze and so has that dusky-turquoise look. The illustrations are of the female fish gutters and the fishermen, two gender divided groups, the historical and the new ways of processing the herring, withquotes and poetry in the dialect from local people. It honours those who have died and who still labour in the industry today. The women who gutted the fish would sail around the British Isles and gut the fish in harbours such as Lowestoft and Edinburgh's Newhaven. It was hard, mucky work and their hands were raw from the cold and the waters. There is more information on my blog about the herring gutters and the songs they sang.
Lerwick. Photo by Liza Green
The Böd at Gremista, where the Textile Museum is located, is at the edge of the town. I imagined myself walking on from there, northwards, via the Point of Scatland and Green Head.
The sewage works are close, so it wasn't always a sweetly scented wander, but the seals on the rocks at Scottie Holm and the Rova Head lighthouse (UK Lighthose tour blog here) on Easter Rova Head made up for it, their pathetic eyes and cats-whiskers so at odds with their on-land bulk. I watched them slip slide into the sea and glide away so smoothly into the Bressay Sound, raising their heads like little periscopes to see what was going on back at shore.
Voe, Shetland. Photo Liza Green
Fethaland, the very northernmost tip of Northmavine, Shetland. Photo Liza Green
The next day I was set to visit Northmavine (say Nortmayven with an emphasis on the 'Nor' and 'ay') in the north west where Helen Robertson lives with her family on a croft on the west coast of Sullom Voe (small bay or creek). 45 minutes by road, I took the number 21 bus to Brae. It's a scenic route which skirts the Hill of Skurron (143m), travels along the Loch of Voe and through the town of the same name, where there used to be a whaling station operated by the Norwegian Whaling Company from 1904 until 1924. Then it branches by the side of the Olna Firth to Brae. Brae means slope or brow of a hill, and is just over an hour and half's walk (according to google maps) to Sullom.
Helen Robertson's beautiful lace window, Crugga, a derelict croft house on Northmavine. It's knitted in fine silver and uses the 'braand iron' , 'tree of life' and 'candlelight' patterns
Near Sullom is a ruined house where Robertson placed her fine silver lace curtain. It was part of her Hentilagets Project. The name of the project comes from the scraps of oo (or fleece) from sheep's necks and backs that would snag on dykes and fences. In the past, these were gathered and spun to make beautiful lace garments. We walked and then sat on a grassy knoll, a girsie broo, and looked at the windmill while she told me about her work.
Crugga, looking north. Photo Heen Robertson
a uniquely thoughtful aesthetic which celebrates, commemorates and reflects upon Shetland's history and heritage
Kate Davies on Helen Robertson
Chef James Martin visits Helen Robertson's brother at his Transitions Turriefield in Sandness, Unst which grows healthy, fresh, chemical=free fruit and veg to supply the Isles.
Monolithic rocks and arch off Eshaness, the west of Northmavine, Shetland. Photo Liza Green
Please note that my visit is a virtual one because I was unable to go due to the corona virus lockdown. I cannot, therefore, vouch for any of the trips which I have mentioned or linked to.
Sullom a filmpoem by Roseanne Watt with music by Eamonn Watt
May 6, 2020 June 1, 2020 Helen Robertson, Jo Chapman, Northmavine, seals, Shetland, Shetland Textiles Museum
Published by tamsing
I walk, explore, and love to give and teach Shiatsu. tamsinlgrainger@gmail.com	View all posts by tamsing
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text:
IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar:	Mrs Dorothee de Sampayo Garrido-Nijgh
Order of:	17 November 1999
Zejnil DELALIC, Zdravko MUCIC (aka "PAVO"), Hazim DELIC
and Esad LANDZO (aka "ZENGA")
SCHEDULING ORDER
Office of the Prosecutor:
Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Mr Rodney Dixon
Counsel for the Defence:
Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Ms Cynthia Sinatra and Mr Peter Murphy for Esad Landžo
THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal");
NOTING the "Defendant Esad Landžo's Notice of Appeal", filed on 1 December 1998, wherein he sets out his grounds of appeal including, inter alia, that his right to a fair and expeditious trial pursuant to Articles 20 and 21 of the Statute of the International Tribunal "were violated when verdict and sentence were rendered by a Trial Chamber whose presiding Judge was permitted to sleep through much of the proceedings" ("Fourth Ground of Appeal");
NOTING the "Order on the Second Motion to Preserve and Provide Evidence", issued on the 15 June 1999, in which the Appeals Chamber ordered, inter alia, that viewing of videotapes of proceedings produced by Camera 3 in Courtroom 1 and Camera 3 in Courtroom III during the trial of Esad Landžo ("Appellant") be permitted subject to a number of conditions, and that the Appellant file a notice providing details of the dates and times of those passages on the videotapes upon which he will rely ("Particulars") on or before 13 September 1999;
NOTING the "Order on the Appellant Esad Landžo's Second Motion for an Extension of time to File Brief", issued on 15 June 1999 in which the Appeals Chamber granted leave to the Appellant to file a supplementary appellant brief in relation to the Fourth Ground of Appeal ("Supplementary Brief") on or before Monday 13 September 1999
NOTING the "Order on Motion by Esad Landžo for Extension of Time to File Supplementary Brief", issued on 29 July 1999 in which the Appeals Chamber extended the time within which the Appellant was required to file the Particulars and the Supplementary Brief to 15 October 1999 and ordered that the Office of the Prosecutor ("Prosecution") file a notice indicating and justifying the amount of time it will require to (i) view the videotapes to which the Appellant has been granted access, and (ii) file a response to the Appellant's Supplementary Brief ("Prosecution Notice") on or before 21 October 1999;
NOTING the "Order on Esad Landžo's Emergency Motion for Guidance Regarding the Filing of Particulars", issued on 12 October 1999, in which the obligations of the Appellant to file the Particulars and the Supplementary Brief and the obligation of the Office of the Prosecution to file the Prosecution Notice were suspended until further order;
NOTING the letter to the Deputy-Registrar from counsel for the Appellant, filed November 10 1999, in which counsel advised that the final list of these particulars will be available on 15 November, and
PURSUANT to Rules 112 and 113 of the Rules of Procedure and Evidence,
HEREBY ORDERS
1.	That the Appellant file the Particulars on or before 5 pm on Friday 19 November 1999.
2.	That the Appellant file the Supplementary Brief on or before 5 pm on 6 December 1999.
3.	That the Prosecution file the Prosecution Notice on or before 5 pm on 13 December 1999.
Done in English and French, the English version being authoritative.
Pre-Appeal Judge
Done this seventeenth day of November 1999
At The Hague,
[Seal of the Tribunal]


text:
Louisiana Democratic Governor Defeats Trump-Backed Challenger
Reuters November 17, 2019, 7:30 am 18k Views 5 Votes 5 Comments
Louisiana Governor John Bel Edwards speaks during a news conference in Baton Rouge, Louisiana, U.S. July 10, 2016. REUTERS/Jonathan Bachman
(Reuters) – Louisiana Governor John Bel Edwards, a conservative Democrat, won a second term in office on Saturday, defeating a Republican opponent who had closely aligned himself with President Donald Trump.
The outcome is widely seen as the latest barometer on the value of Trump's endorsement for Republican candidates ahead the 2020 elections.
Edwards, an observant Roman Catholic who opposes abortion, won a run-off election by a 51% to 49% margin over Eddie Rispone, a construction entrepreneur described by Trump as "pro-family, pro-life, pro-Second Amendment and 100 percent pro-America."
Edwards is the Deep South's only Democratic governor, and campaigned on his state's strengthening economy.
In a Tweet early on Saturday morning, Trump urged Louisiana voters to vote for Rispone, saying he will lower their taxes and the cost of auto insurance, which is the highest in the United States, while protecting their gun rights.
Louisiana, 3 hours left, get out and Vote for @EddieRispone for Governor. Lower taxes and much more!
"He will be a great governor!" Trump wrote in an earlier Tweet.
Other recent elections have offered mixed readings.
In Kentucky's gubernatorial election, Democratic challenger Andy Beshear defeated Republican Governor Matt Bevin despite the president's full-throated Bevin endorsement. In Mississippi earlier this month, Republicans easily kept control of the statehouse, thanks in part to Trump's support.
In a victory speech to supporters, Edwards said he had spoken to Rispone by phone.
"We both agreed that the time for campaigning is over and now our shared love for Louisiana is always more important than the partisan differences that sometimes divide us," Edward said.
In conceding the election, Rispone said he was disappointed in the result.
"We have nothing to be ashamed of," he told supporters.
Rispone thanked Trump for campaigning for him in the state.
"He (Trump) came down here three times specifically to try to help us," he said, to cheers from the crowd.
Louisiana has enjoyed a net increase of 21,000 jobs under Edward's watch, while the unemployment rate dropped from 6% to 4%.
"You didn't just vote for me; you voted for four more years of putting Louisiana first," he told supporters.
Rispone had depicted himself as a political outsider with business acumen who is setting his sights on rewriting the state constitution in order to reform the state's tax code.
Edwards topped Rispone by a large margin in a six-candidate primary last month, but failed to secure the 50 percent needed to win a second term outright.
Thanks go out to ANOTHER bozo who likes hiding the comments of others.
"Makes one wonder why the blue areas are the last to report in full." Sherri
If you have any evidence of improprieties carried out in this or any other election, then you are duty bound to report them to the authorities. I suspect, though, that you are just blowing hot air – again.
In Kentucky, Bevin's approval rating was 34% to 53% disapproval. In Louisiana, Bel Edwards' approval was 52%to 34% disapproval. The satisfaction of the voters matters. Neither was an indication of a Trump endorsement of Bevin or Rispone. If you don't live in the state, uncertain WHY you care who the residents select.
Just like Kentucky, all GOP wins but the Gov. Makes one wonder why the blue areas are the last to report in full.
US Opinions Unchanged After First Week of Impeachment TV
Poll: Buttigieg Surges Ahead of Democratic Rivals in Iowa


Flow Dynamics and Automation Inc.
Cascade Industrial and Hydraulic LLC.
440 Gees Mill Business Ct.
AKC / Production Products, Inc.
JH Bennett & Co., Inc.
2420 Oak Industrial Dr. N.E.
Barker Air & Hydraulics, Inc.
Barker Fluid Power Prod., Inc.
1006 W. Old Andrew Johnson Hwy.
Addamegh for Industrial Solutions Trading Est.


Love of Learning - Swan Christian Education Association Inc.
Swan Christian Education Association Inc.
There are a few things in life that I love unconditionally. I love God, I love my family and I love learning. One of the great privileges of working in education is that we come face to face with learning every day – or we try! Young children have an insatiable hunger for learning. They are driven by a natural curiosity to find out, to explore, to want to learn.
The challenge for many of us is to hold on to this love of learning when we get older. Art Costa writes: "Unfortunately, some adults are content with what they already believe and know. Their child-like curiosity has been extinguished. They are reluctant to discover the wisdom of others. They do not know how or when to leverage a love and lust of learning. As a result they follow a path of little value and minimal opportunity." What I love about the teaching profession is that it allows and encourages us to remain lifelong learners.
We are also running a series of professional learning events at the SCEA Institute in Midland as outlined below. You can book a place on any of these courses by sending an email to institute@scea.wa.edu.au. If there is sufficient demand, we can rerun these events in future.
The American author, Brian Herbert, wrote: "The capacity to learn is a gift; the ability to learn is a skill; the willingness to learn is a choice." What are you doing to continue to use your gift of learning?
© 2019 Swan Christian Education Association Inc.
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© 2019 Swan Christian Education Association Inc.. Website by Bam Creative .


Just recently, leaked images of the expected Nokia D1C was sighted in a phone laboratory in China. The reports and sketches of the images revealed a two variant of the Nokia D1C. One is a mid range phone having a 2GB RAM and a 5 inch Full HD display, while the other is a high end smartphone having a 3GB RAM and a 5 inch 1080p display, with a front fingerprint scanner. According to some right soutces, HMD Global is expected to come up with four new Nokia models in 2017. In this post you will get to see the Nokia D1C Specifications, Nokia D1C Price in India and the expected launch date of Nokia D1C in India.
The expected Nokia D1C is an average phone, and it comes along with the latest Android operating system, which is the Android v7.0 Nougat. The wonderful device has an octa core processor running at 1.5GHz and 5.5 inch screen display with a resolution of 1920 x 1080 pixel. Other features that comes along with the display are Full HD IPS display sensors like Accelerometer, Proximity Sensor, Ambient Light Sensor and Gyroscope.
The device will be powered by a 3000mAh battery. It has a front camera of 13MP with digital zoom video recording and video resolution of 1920×1080 @ 30 FPS. The Nokia D1C also supports LTE + GSM. You will see the full specifications of the Nokia D1C below as you read on.
The expected price of Nokia D1C in India starts from Rs. 10,000 and it can be purchased from most online stores and market places.
The expected launch date of Nokia D1C in India is said to be on the 1st of March, 2017.
The Nokia D1C is a device that worth the price tag set on it. Go get yours as soon as it comes to your nearby town and city in India.


text:
Gli Avedøre Monarchs sono una squadra di football americano di Hvidovre, in Danimarca, fondata nel 1998; hanno vinto 3 titoli nazionali tackle a 11, 1 titolo nazionale tackle a 9, 7 titoli nazionali flag e 2 Champions Bowl.

Dettaglio stagioni

Tackle football

Tornei

Tornei nazionali

Campionato

=Kvalifikations Ligaen/1. division=

Fonti: Enciclopedia del Football - A cura di Roberto Mezzetti

=2. division=

Fonti: Enciclopedia del Football - A cura di Roberto Mezzetti

=Danmarksserien=

Fonti: Enciclopedia del Football - A cura di Roberto Mezzetti

Tornei internazionali

European Football League (1986-2013)

Fonti: Enciclopedia del Football - A cura di Roberto Mezzetti

Flag football

Tornei

Tornei internazionali

Champions Bowl

Fonti: Enciclopedia del Football - A cura di Roberto Mezzetti

Riepilogo fasi finali disputate

Palmarès
 3 Mermaid Bowl (2002, 2003, 2004)
 2 Elming Bowl (2019, 2022)
 2 Champions Bowl (2008, 2009)
 7 Dannebrog Bowl (2004, 2005, 2006, 2008, 2009, 2011, 2012)

Note

Collegamenti esterni

redpajama_set_name: RedPajamaWikipedia