Ordered that at least two (2) days prior to the trial of this case the government make full disclosure to defendant Hoffman of his conversations overheard during the four electronic surveillances of the domestic organizations herein involved, and it is further
Ordered that the existence, nature and contents of any material disclosed pursuant to this Order shall be made available only to counsel of record for the defendant, and that the existence, nature and contents of any material disclosed pursuant to this Order shall not be revealed to any other person unless pursuant to further order of this Court or any other court of competent jurisdiction and it is further
Ordered that the defendant's other requests be and they hereby are denied.
On Motion to Dismiss Indictment
The defendant was indicted for interstate travel with intent to organize, promote, encourage and participate in a riot, 18 U.S.C. § 2101, and for obstructing, impeding and interfering with a law enforcement officer during the commission of a civil disorder, 18 U.S.C. § 231(a)(3).
Specifically, Count I of that two count indictment charges that on or about April 29, 1971 Hoffman did travel in interstate commerce from outside the District of Columbia to the District of Columbia with intent to organize, promote, encourage, participate in and carry on a riot and he thereafter on or about May 3, 1971, in the District of Columbia participated in a riot, to wit, Hoffman, being a part of an assemblage of more than three persons, erected a barricade in a public thoroughfare for the purpose of organizing, promoting, encouraging, participating in and carrying on a riot (§ 2101). Count II charges that on or about May 3, 1971, within the District of Columbia, Hoffman did commit and attempt to commit an act to obstruct, impede and interfere with a member of the Metropolitan Police Department, Washington, D.C., then lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder, which disorder obstructed, delayed and adversely affected commerce, etc., and the conduct and performance of a federally protected function.
On June 30, 1971 the defendant filed a motion to dismiss the indictment for the unconstitutionality of 18 U.S.C. §§ 2101 and 231(a)(3), setting forth examples of legislative history and hypothetical situations which defendant contends would result in unconstitutional applications of those criminal provisions.
In consideration of defendant's motion, points and authorities in support thereof, the government's opposition to that motion, and particularly the cases of Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969); United States v. Matthews, 136 U.S. App. D.C. 196, 419 F.2d 1177 (1969); National Mobilization Committee to End the War in Viet Nam v. Foran, 411 F.2d 934 (7th Cir. 1969); and In re Shead, 302 F. Supp. 560 (N.D. Cal. 1969), aff'd, Carter v. United States, 417 F.2d 384 (9th Cir. 1969), the Court concludes that 18 U.S.C. §§ 2101 and 231(a)(3) are not violative of constitutional guarantees of free speech and assembly nor are they unconstitutional exercises of the commerce power. The Court also concludes that 18 U.S.C. § 2101 does not violate the right of freedom to travel throughout the Union; that § 2101, when viewed with the indictment in this case, does not violate due process by authorizing conviction where the unlawful intent and the prohibited act do not coincide, nor is it an attempt to perpetuate the status of inferiority imposed upon blacks by the system of slavery.
Accordingly, it is this 23rd day of November 1971
Ordered that the defendant's motion to dismiss the indictment for unconstitutionality of 18 U.S.C. §§ 2101 and 231(a)(3) be and it hereby is denied.
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