United States v. Albertini

830 F.2d 985 (1987)

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Nature of the Case

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Facts

He appealed the conviction, and on July 22, 1983, the court held that the military had transformed Hickam into a temporary public forum during the open house and that it thus could not exclude even the holder of a bar letter from peaceful expressive activity. In December 1983, about 18 months before the Supreme Court reversed D's case, D's lawyer wrote the Pearl Harbor commander to inform him that D intended to exercise his first amendment rights under his recent court decision by distributing peace materials at the next Navy 'visit ship' open house. D got a letter barring him again. D went to the gate and introduced himself to a base policeman and handed him a copy of the court's decision. D was told by the sentry at the gate that he would be arrested if he passed through the gate. D and his companions accordingly altered their plans and decided to leaflet on the sidewalk outside the fenced-in portion of the base, in front of the sentry control shack which was adjacent to the traffic control podium. The military police soon asked them to leave that area, saying they were still on military property, even though they were outside the fenced portion of the base. No visible marker delineated the boundary of the base property. D alone was arrested while he and his companions waited for an officer who had offered to draw the property line in chalk on the pavement. These incidents repeated themselves over with prosecutions. D was arrested on Feb. 4, March 3 and April 7, 1984. The government petitioned the Supreme Court for certiorari in the first case on April 3, 1984, between the dates of the March 3 and April 7 demonstrations. The Supreme Court granted certiorari on December 3, 1984. The Court reversed the decision in June 1985, holding: (1) that a military base is not a public forum, and that Hickam did not become such a forum on Armed Forces Day merely because the public had been invited and ideas were being communicated; and (2) that even if Hickam constituted a public forum on the day of the open house, D's receipt of a bar letter distinguished him from the general public and provided a reasonable ground for excluding him from the base. Six months later, in December 1985, the government re-calendared D's trial for the three 1984 offenses. D's motion to dismiss the amended information was again denied. In July 1986, a jury found D not guilty as to the February 4 incident, but guilty of violating 18 U.S.C. § 1382 as to the March 3 and April 7 counts. He was sentenced to two consecutive six-month prison terms, which were suspended, two concurrent five-year probation terms and 200 hours of community service involving physical, not mental, activity. D appealed arguing that due process prevents the retroactive application of the Supreme Court’s reversal of the first case.