Melville v. State

Per Curiam. Appellants, nine Roman Catholic lay people and clergy opposed to the United States’ military involvement in Vietnam, staged a protest on May 17, 1968 at Selective Service Local Board #33, 1010 Frederick Avenue, Catonsville, Maryland. Eight of the appellants entered the Board office at 12:45 p.m. and the ninth individual remained outside as a lookout. Appellant George Mische carried a wire basket with him into the office.

Upon entering the room, Father Philip Berrigan went to a set of file cabinets containing records concerning individuals subject to military induction. Mrs. Mary Ellen Murphy, an employee of Local Board #33, attempted to protect the file drawers but was pushed aside by Father Berrigan, and Berrigan and Mische emptied a total of 378 individual .files into the wire basket. Mrs. Murphy grasped the basket and struggeld with Berrigan and Mische for control of the records, and in the struggle her finger and leg were cut. At the same time appellants Mary Moylan and Thomas Melville forcibly restrained Mrs. Phyllis Morseberger, another employee of the Board, and kept her from protecting the records and from calling for help.

The appellants carried the wire basket full of records out of the building and into a parking lot where they burned the records. Appellants were tried on October 7-10, 1968 in the United States District Court for the District of Maryland by a jury, Chief Judge Roszel C. Thomsen presiding. The jury found appellants guilty of violations of 18 U.S.C. § 1861 , 18 U.S.C. § 2071 (a), and Title 50 App. U.S.C. § 462 (a) , 1 Chief Judge Thomsen sentenced the ap ¹²¹ pellanls to the following terms on each count, the terms to run concurrently: Daniel Berrigan 3 years Philip Berrigan 3 years, 6 months James Darst 2 years John Hogan 2 years Thomas Lewis 3 years, 6 months Marjorie Melville 2 years Thomas Melville 3 years George Mische 3 years Mary Moylan 2 years The convictions and sentences were affirmed on appeal. United States v. Moylan, 417 F. 2d 1002 (4th Cir. 1969). 2 On June 4,1969, the appellants were brought to trial in the Circuit Court for Baltimore County before Judge Kenneth Proctor, sitting without a jury, for robbery, assault and battery and sabotage of Selective Service Records.

In response to a pretrial motion, the lower court found that federal preemption barred the State from trying appellants for sabotage, but found no federal preemption which would prevent the State from trying the appellants for robbery and assault and battery. The case was then submitted upon an agreed statement of facts and the trial judge found appellants guilty of robbery and two counts of assault and battery. Judge Proctor, the trial ¹²² judge, imposed sentences identical to and concurrent with those imposed by Chief Judge Thomsen on the appellants’ convictions in the Federal Court. On appeal to this Court appellants raise four contentions, namely: 1) The appellants’ robbery convictions are improper in that the scheme of federal regulation is so pervasive in the area of Selective Service that the authority of the State of Maryland to prosecute for offenses occurring on property utilized by the Selective Service System has been superseded. 2) The appellants’ robbery and assault and battery convictions should be set aside in that the appellants were placed twice in jeopardy in violation of the common law of Maryland. 3) The appellants’ robbery and assault and battery convictions should be set aside in that the appellants were placed twice in jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution. 4) The appellants’ convictions for assault should be vacated under the doctrine of merger of offenses.

I Appellants’ federal convictions arose out of a broad scope of legislation passed by Congress to proscribe conduct which interferes with the orderly functioning of the Selective Service System. In accordance with the function of the Selective Service System, Local Board #33 operates in Catonsville, Maryland. Appellants contend that the scope of the federal legislation is so broad that the State of Maryland is rendered powerless to prosecute offenses occurring in or upon the premises of Local Board #33. The Supreme Court of the United States in Pennsylvania, v. Nelson, 350 U. S. 497 , stated three of the most widely accepted tests for supersession: ¹²³ “First, ‘ [1] he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.’ Rice v. Santa Fe Elevator Corp., 381 U. S., at 230. % ijs sH “Second, the federal statutes ‘touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject.’ $ $ $ $ “Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program.” 350 U. S., at 501-5 .

The Court cautioned that there should be no attempt to utilize any of the standards as the sole criteria for super-session. “Where, as in the instant case, Congress has not stated specifically whether a federal statute has occupied a field in which the States are otherwise free to legislate, different criteria have furnished touchstones for decision. * * * ‘But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula. Hines v. Davidowitz, 312 U. S. 52, 67 .’ ” 350 U. S., at 501 . In Nelson the Supreme Court struck down a Pennsylvania statute which forbade sedition against the United States.

In Uphaus v. Wyman, 360 U. S. 72 , the Court explained its holding in Nelson: “In Nelson itself we said that the ‘precise holding of the court ... is that the Smith Act . . . which prohibits the knowing advocacy of the ¹²⁴ overthrow of the Government of the United States by force and violence, supersedes the enforcibility of the Pennsylvania Sedition Act which proscribed the same conduct, (italics supplied) 350 U. S., at 499 / ” 360 U. S. at 76 . In Uphaus the Supreme Court upheld the State’s power to prosecute for seditious acts against the State itself. We think that the appellants’ reliance on Pennsylvania v. Nelson to support their claim of supersession is not well taken. As Uphaus v. Wyman, supra, makes clear, the holding in Nelson is a narrow one; simply that a State may not prosecute an individual if there is federal legislation proscribing “identical conduct.” The second standard for supersession set out in Nelson refers to the prohibition as applying to legislation which covers the “same subject.” It is our opinion that the State of Maryland, although prosecuting the appellants for offenses which arose out of the same facts which resulted in the federal convictions, is neither punishing “identical conduct” or legislating the “same subject.” The appellants were convicted in the State court of robbery and assault and battery.

The assault and battery