United States v. Williams (341 U.S. 70)/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice REED, Mr. Justice BURTON, and Mr. Justice CLARK concur, dissenting.

Sections 19 and 20 of the Criminal Code, now 18 U.S.C. §§ 241, 242, are companion sections designed for the protection of great rights won after the Nation's most critical internal conflict. Section 19 covers conspiracies; § 20, substantive offenses. Section 19 protects the 'citizen'; § 20 the 'inhabitant.' The sanction of § 19 extends to 'any right or privilege secured' to the citizen 'by the Constitution or laws of the United States'; the sanction of § 20 to 'any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.'

Mr. Justice Rutledge in Screws v. United States, 325 U.S. 91, 119, 65 S.Ct. 1031, 1044, 89 L.Ed. 1495, wrote that in spite of the difference in wording of §§ 19 and 20 there are 'no differences in the basic rights guarded. Each protects in a different way the rights and privileges secured to individuals by the Constitution.' One would indeed have to strain hard at words to find any difference of substance between 'any right or privilege secured' by the Constitution or laws of the United States (§ 19) and 'any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States' (§ 20). If § 20 embraces a broader range of rights than § 19, it must be because it includes 'immunities' as well as 'rights' and 'privileges' and 'protects' them as well as 'secures' them. When no major difference between §§ 19 and 20 is apparent from the words themselves, it is strange to hear it said that though § 20 extends to rights guaranteed against state action by the Fourteenth Amendment, § 19 is limited to rights which the Federal Government can secure against invasion by private persons. The division of powers between State and Nation is so inherent in our republican form of government and so well established throughout our history that if Congress had desired to draw a distinction along that line, it is hard to imagine that it would not have made its purpose clear in the language used.

It is true that §§ 19 and 20 have different origins. Section 20 came into the law as § 2 of the Act of April 7, 1866, 14 Stat. 27, while § 19 first appeared as § 6 of the Act of May 31, 1870, 16 Stat. 141. We reviewed the history of § 20 in Screws v. United States, 325 U.S. 91, 98-100, 65 S.Ct. 1031, 1033-1034, 89 L.Ed. 1495. The legislative history makes plain that § 20 was an antidiscrimination measure designed to protect Negroes in their newly won rights. It was enacted before the Fourteenth Amendment became effective. But after that date it was reenacted as § 17 of the Act of May 31, 1870, 16 Stat. 144; and in 1874 the prohibition against 'the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States' was introduced. R.S. § 5510. From this history there can be no doubt, as we stated in Screws v. United States, supra, 325 U.S. at page 100, 65 S.Ct. at pages 1034, 1035, and § 20 is 'one of the sanctions to the great rights which the Fourteenth Amendment was designed to secure.' If that be true-if 'rights, privileges, or immunities secured or protected by the Constitution and laws of the United States' as used in § 20 are not restricted to rights which the Federal Government can secure against interference by private persons-it is difficult to understand why 'any right or privilege secured to him by the Constitution or laws of the United States', as used in § 19, is so restricted.

It is true that a part of the purpose of § 19 (which, as I have said, originated as § 6 of the Act of May 31, 1870, 16 Stat. 141) was to give sanction to the right to vote which was guaranteed by the Fifteenth Amendment, recently adopted. That is made plain from the congressional debates. Cong. Globe, Pt. 4, 41st Cong., 2d Sess., pp. 3607 et seq. Yet the rights which § 19 protected were not confined to voting rights; and one who reads the legislative history finds no trace of a suggestion that the broadening of the language of § 19 to include 'any right or privilege secured' by the Constitution or laws of the United States was aimed only at those rights 'secured' by the Federal Government against invasion by private persons.

The distinction now urged has not been noticed by students of the period. Thus Flack, in Adoption of the Fourteenth Amendment (1908) p. 223, wrote, 'The bill as passed by the Houses was signed by the President May 31, 1870, and so became a law, and was, therefore, the first law for the enforcement of the Fourteenth and Fifteenth Amendments.' And see Mr. Justice Roberts in Hague v. C.I.O., 307 U.S. 496, 510, 59 S.Ct. 954, 961, 83 L.Ed. 1423. If the drastic restriction now proposed for § 19 had been part of the architectural scheme for the Act of May 31, 1870, it is difficult to imagine that some trace of the purpose would not have been left in the legislative history. What we find points indeed the other way. Senator Pool of North Carolina, who introduced the section from which § 19 evolved, indicated that it was his purpose to extend the protection of the new provision to the Fourteenth as well as to the Fifteenth Amendment. It has, indeed, long been assumed that § 19 had a coverage broad enough to include all constitutional rights. Thus in United States v. Mosley, 238 U.S. 383, 387, 35 S.Ct. 904, 905, 59 L.Ed. 1365, Mr. Justice Holmes observed that § 19 'dealt with Federal rights, and with all Federal rights.'

There is no decision, prior to that of the Court of Appeals in this case, which is opposed to that view. Fourteenth Amendment rights have sometimes been asserted under § 19 and denied by the Court. That was true in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. But the denial had nothing to do with the issues in the present case. The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals. See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. The Cruikshank case, like others, involved wrongful action by individuals who did not act for a state nor under color of state authority. As the Court in the Cruikshank case said, 'The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it * *  * add anything to the rights which one citizen has under the Constitution against another.' 92 U.S. pp. 554-555, 23 L.Ed. 588. There is implicit in this holding, as Mr. Justice Rutledge observed in the Screws case, supra, 325 U.S. at page 125, note 22, 65 S.Ct. at page 1047, 89 L.Ed. 1495, that wrongful action by state officials would bring the case within § 19. For the Court in the Cruikshank case stated, 'The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.'

Section 19 has in fact been applied to the protection of rights under the Fourteenth Amendment. See United States v. Hall, 26 Fed.Cas. page 79, No. 15,282; United States v. Mall, 26 Fed.Cas. page 1147, No. 15, 712; Ex parte Riggins, C.C., 134 F. 404, writ dismissed, 199 U.S. 547, 26 S.Ct. 147, 50 L.Ed. 303. Those attempts which failed did so not because § 19 was construed to have too narrow a scope, but because the action complained of was individual action, not state action. See, e.g., United States v. Powell, C.C., 151 F. 648, affirmed, 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653; Powe v. United States, 5 Cir., 109 F.2d 147.

While it is true, as Mr. Justice Rutledge stated in the Screws case, that there is no difference between §§ 19 and 20 so far as the 'basic rights guarded' are concerned, the coverage of the two sections is not coterminous. The difference is not merely in the fact that § 19 covers conspiracies and § 20 substantive offenses. Section 20 extends only to those who act 'under color' of law, while § 19 reaches 'two or more persons' who conspire to injure any citizen in the enjoyment of any right or privilege secured to him by the Constitution, etc. The reach of § 20 over deprivations of rights protected from invasion by private persons is therefore in this one respect less than that of § 19. But that is no comfort to respondents in the present case. It certainly cannot be doubted that state officers, or those acting under color of state law, who conspire to wring confessions from an accused by force and violence, are included in 'two or more persons' within the meaning of § 19. As we hold in No. 365, Williams v. United States, 71 S.Ct. 576, decided this day, such an act deprives the accused of the kind of trial which the Fourteenth Amendment guarantees. He is therefore denied the enjoyment of that right, within the meaning of § 19.

In Screws v. United States, supra, we relieved § 20 of the risk of unconstitutionality by reason of vagueness. We held that 'a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.' 325 U.S. p. 103, 65 S.Ct. at page 1036, 89 L.Ed. 1495. The same analysis does like service here, as evidenced both by the construction of § 19 and the charge to the jury in this case.

A conspiracy by definition is a criminal agreement for a specific venture. It is 'a partnership in crime.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 858, 84 L.Ed. 1129. As stated by Mr. Justice Holmes in Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 251, 63 L.Ed. 561, an 'intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.' The trial court in its charge to the jury followed the ruling in the Screws case and gave precise application to this concept in avoidance of any claim of unconstitutionality of § 19 on the grounds of vagueness. The court, after explaining to the jury what rights, enumerated in the indictment, were guaranteed under the Fourteenth Amendment, gave numerous charges on the element of intent. The following is typical:

'In order to convict under this indictment, it is necessary for the jury to find that the defendants had in mind the specific purpose of depriving the complaining witnesses of those rights guaranteed them under the Fourteenth Amendment to the Constitution of the United States, which are enumerated in the indictment, while acting under color of the laws of the State of Florida.

'The proof, if any, of a general intent to do the complaining witnesses a wrong is not sufficient, but a specific intent to deprive them of a Constitutional right, as the object of the conspiracy, if any, is a burden the law casts upon the Government. In considering whether the defendants had such specific intent, you may take into consideration all the circumstances of the case in the light of the evidence as it has been developed.' In view of the nature of the conspiracy and charge to the jury in the instant case, it would be incongruous to strike § 19 down on the grounds of vagueness and yet sustain § 20 as we did in the Screws case.

The defense of res judicata is based on the acquittal of five of the respondents for violation of § 20-the substantive offense. It is argued that there is no evidence that the five conspired except insofar as the unlawful agreement can be inferred from their having participated in some way in the substantive crime. It is further argued that acquittal on the substantive counts was a determination that the five had nothing to do with the commission of the substantive offense. The conclusion therefore is that their conviction of the conspiracy entailed a relitigation, in violation of the principles of Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, of the factual issues involved in the prior trial.

The argument, however, is too facile for the facts.

First. The substantive crime was one of aiding and abetting. That offense has 'a broader application' than conspiracy. 'It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy.' Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919. Respondents may have conspired to do the act without actually aiding in its commission. In other words, the crimes are different.

Second. In the Sealfon case the jury's acquittal of the first offense necessarily constituted a rejection of the only evidence presented at the second trial and upon which conviction of the record offense depended. That was not true here. The acquittals on the substantive charges by no means established that the jury rejected all the evidence against the defendants. For example, the acquittals of the substantive offense may have been on the ground that the evidence showed no giving of actual aid to Williams when he obtained the confessions by force and violence. The evidence, though insufficient to show that the five participated in the execution of the project, could nonetheless make overwhelmingly clear that they were members of the conspiracy that conceived it.

The links that tied respondents to the conspiracy are therefore not necessarily those that the jury rejected in the earlier trial. Accordingly the rule of Sealfon v. United States, supra, has no application.