The opinion of the court was delivered by: TYLER
This is a motion by defendants for various forms of relief growing out of a charge of disorderly conduct punishable under the Laws of the State of New York
as applied to federal reservations pursuant to Title 18, United States Code § 13 ("The Assimilated Crimes Act").
The filing of this disorderly conduct information followed a demonstration by defendants on the morning of June 23, 1965, during the course of which, according to the information allegations, they blocked the doorways and entrances to this court house by chaining some of the doorways and, in some instances, chaining themselves to such entrances, thereby preventing entry and exit to and from this building by litigants, lawyers, court personnel and other persons having business here.
Specifically, defendants seek the following relief: (1) a bill of particulars; (2) discovery and inspection of various photographs; and (3) dismissal of the information in that (a) the arrests effected by the marshals in this case were illegal; (b) the information fails to state facts sufficient to constitute an offense or crime; (c) the offense charged is not one properly cognizable under the Assimilative Crimes Act; and (d) Section 722 of the New York Penal Law is unconstitutional on its face.
The government has consented to give the defendants a bill of particulars and discovery of the photographs requested; thus, these branches of relief are granted upon such consent.
Defendants urge that their arrest on June 23, 1965 by United States marshals was illegal and thus requires a dismissal of the information. Briefly, their legal theory is that since the offenses charged are not properly based upon the Assimilative Crimes Act, the offenses are not crimes against the United States within the meaning of 18 U.S.C. § 3053 and the marshals were without power to act.
The short answer to this argument is that this court finds that under the pleaded facts the assimilation of state law was proper (see discussion at III infra) and the conduct of the defendants thus did constitute an activity against which the federal marshals had authority to act. Further, an illegal arrest would not necessarily require the dismissal of the information. See Wong Sun v. United States, 371 U.S. 471, 491, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The defendants' claim that the information is invalid in that it fails to state sufficient facts is likewise found to be without merit. The Court of Appeals of New York has ruled that an information charging disorderly conduct must be pleaded with "reasonable exactitude", People v. Schultz, 301 N.Y. 495, 497, 95 N.E.2d 815 (1950). The information here handsomely meets this test. It informs defendants of the "when", the "where" and the "how" of the charge. It indicates against whom the alleged obstruction was made and what implementation was used to accomplish that interference. Moreover, as noted above, the government has consented to submit a bill of particulars which presumably will reveal further details underlying the charge.
The defendants next claim that the offense charged is not one cognizable under the Assimilative Crimes Act.
They base their argument on the premise that there is already available to the federal authorities enactments of Congress
which make the alleged activities of the present defendants indictable and that under such circumstances recourse to state law is improper under Williams v. United States, 327 U.S. 711, 66 S. Ct. 778, 90 L. Ed. 962 (1946).
This court finds this argument of defendants to be unconvincing and their reliance on Williams to be misplaced. There the Court said, 327 U.S. at 717, 66 S. Ct. at 781, "the precise acts upon which the conviction depends had been made penal by the laws of Congress * * * and the offense known to * * * [state law] has been defined and prohibited by the Federal Criminal Code."
The Supreme Court was concerned with indiscriminate assimilation of state law so as to enlarge the scope of an existing and precisely defined federal penal statute.
We are faced with no such problem here, for there is no federal statute defining the offense spelled out in Subsection 2 of Section 722 of the New York Penal Law. Although the government, in my view, might properly have selected the alternative legal avenue of 18 U.S.C. § 1507 (picketing or parading near a court house) to support its information,
it was not error to proceed upon the ...