U.S. v THOMAS AND PICCIOTTO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,
                      PLAINTIFF
             VS.                             CRIMINAL ACTION
                                             NO. 82-358
WILLIAM THOMAS
      AND
CONCEPCION PICCIOTTO,
                      DEFENDANTS

WASHINGTON, D. C.
TUESDAY, JULY 5, 1983

THE ABOVE-ENTITLED MATTER CAME ON FOR HEARING ON MOTION TO DISMISS, BEFORE THE HONORABLE WILLIAM B. BRYANT, UNITED STATES DISTRICT JUDGE, AT APPROXIMATELY 9:45 A.M.

APPEARANCES:

FOR THE PLAINTIFF:

ERIC MARCY, ESQUIRE

FOR THE DEFENDANT WILLIAM THOMAS:

DAVID WOLL, ESQUIRE

FOR THE DEFENDANT CONCEPCION PICCIOTTO:

TED CHRISTENSEN, ESQUIRE

OFFICIAL COURT REPORTER:

GORDON A. SLODYSKO,

(202) 371-1734

PROCEEDINGS

THE DEPUTY CLERK: CRIMINAL ACTION 82-358, THE UNITED STATES OF AMERICA VS. WILLIAM THOMAS AND CONCEPCION PICCIOTTO. MR. MARCY FOR THE GOVERNMENT; MR, WOLL AND MR. CHRISTENSEN FOR THE DEFENDANTS.
(DEFENDANTS PRESENT)

MR. MARCY: GOOD MORNING, YOUR HONOR.

THE COURT: GOOD MORNING.
MR. WOLL?

MR. WOLL: YES, YOUR HONOR.

THE COURT: I SUPPOSE YOU DON'T HAVE ANYTHING TO ADD TO WHAT YOU TOLD ME LAST TIME, DO YOU?

MR. WOLL: NO, YOUR HONOR. I BASICALLY MADE MY ARGUMENT SEVERAL WEEKS AGO, YOUR HONOR, THAT SLEEPING IS PROTECTED ACTIVITY UNDER THE FIRST AMENDMENT AND UNDER ABNEY AND UNDER THE CCNV CASE, AND THAT THE GOVERNMENT, I FEEL, FAILS WHEN YOU APPLY THE O'BRIEN TEST. WHEN YOU ARE REALLY TALKING JUST ABOUT THE ADDITIONAL ELEMENT OF SLEEPING, THAT CERTAINLY THE GOVERNMENT'S INTERESTS ARE PROTECTED.

IF THERE IS AN UNUSUAL AMOUNT OF STORAGE OF MATERIALS OR IF THERE ARE SHELTERS THAT ARE PUT UP, THAT WOULD BE LIVING ACCOMMODATIONS, AND THEY CAN CERTAINLY ACT ON THAT. BUT IN THE CONTEXT OF WHAT WE HAVE IN THIS CASE, THE FACTS PRESENTED, REALLY, ALL YOU HAVE IS A 24-HOUR VIGIL; THE DEFENDANT SLEEPS IN SOME SORT OF MATERIAL, BUT NO SHELTER. AND I THINK THE

ONLY OTHER EVIDENCE AND TESTIMONY WAS A CART, SOME KIND OF A HANDCART THAT HE HAD PRINTED MATERIALS IN THAT MAY HAVE HAD A PAIR OF PANTS IN THERE OR SOME ARTICLE OF CLOTHING. AND THAT IS ESSENTIALLY IT. SO THAT I FEEL THAT THE GOVERNMENT FAILS CONCERNING THE O'BRIEN TEST; THAT NO SUBSTANTIAL GOVERNMENT INTEREST IS BEING FURTHERED BY NOT ALLOWING SLEEPING IN THE CONTEXT OF THIS CASE.

WE ARE NOT ATTACKING THE STATUTE ITSELF, BUT WE ARE SAYING THAT AS IT APPLIES TO THIS CASE, EITHER THERE IS INSUFFICIENT EVIDENCE OF CAMPING, OR IF IT IS TO BE DETERMINED THAT THIS ACTIVITY WAS CAMPING UNDER THAT STATUTE, THAT THE STATUTE IS UNCONSTITUTIONAL AS IT APPLIES TO THE FACTS OF THIS CASE, AS IT DID -- AS WAS THE HOLDING IN CCNV. THE ADDITIONAL ELEMENT OF SLEEPING, WHICH WAS INCIDENTAL TO A 24-HOUR VIGIL, IN THAT CONTEXT WAS UNCONSTITUTIONAL. AND THAT IS WHAT WE HOLD HERE OR WE SUBMIT SHOULD BE THE HOLDING HERE.

THE COURT: ALL RIGHT. WILL YOU GENTLEMEN COME TO THE BENCH, PLEASE.
(AT THE BENCH)

THE COURT: WHAT AM I SUPPOSED TO DO WITH THESE PEOPLE?

MR. MARCY: I THINK OUR ANSWER IS OBVIOUS, YOUR HONOR. WE WOULD ASK THE COURT TO CONVICT THEM ON THE CHARGES AND THE SENTENCING IS CERTAINLY UP TO YOUR HONOR, BUT IT IS NOT THE FIRST TIME AND IT IS NOT GOING TO BE THE LAST TIME. THERE HAS TO BE SOME IMPACT OF A CRIMINAL VIOLATION. I KNOW

IT IS NOT AN EASY --

THE COURT: YOU SAY IT IS NOT THE FIRST TIME AND NOT THE LAST TIME? IT IS NOT EVER GOING TO BE THE LAST TIME.

MR. MARCY: NO; THAT'S RIGHT. WE DON'T HAVE ANY DISPUTE AGAINST THAT. IT IS JUST THAT THE GOVERNMENT HAS INTERESTS, TOO, AND OTHER PEOPLE HAVE INTERESTS IN THE WHITE HOUSE AND THE FACILITIES AROUND IT, AND --

THE COURT: WHAT INTEREST DO YOU HAVE TO KEEP A MAN FROM SLEEPING ON THE SIDEWALK IN THE MIDDLE OF THE NIGHT, NOBODY IS OUT THERE BUT THE BIRDS?

MR. MARCY: WELL, YOUR HONOR, I THINK THE EVIDENCE ON THIS HAS BEEN IT IS A GREAT DEAL MORE THAN THAT. IT DOES REQUIRE MORE RESOURCES. I MEAN ALL OF THIS HAS BEEN PRETTY MUCH ARGUED THROUGH THE COURT OF APPEALS IN OTHER CASES.

THE COURT: I LISTENED TO THE TAPE, AND THEY LOCKED THE MAN UP FOR GOING TO SLEEP. AND HE SAYS THAT IS PART OF HIS -- HE IS OUT THERE FOREVER, 24 HOURS.

IN THE FACE OF IT, IT'S A PIDDLING CASE; BUT, REALLY IT IS A BEDEVILING CASE.

DO THEY LIMIT THE NUMBER OF DEMONSTRATORS ON THE SIDEWALK NOW?

MR. MARCY: I BELIEVE IF THERE ARE MORE THAN 25, THEY HAVE TO GET A PERMIT FROM THE --

THE COURT: MORE THAN 25.

MR. MARCY: YES. YOU'VE GOT TO GET A PERMIT FROM

THE NATIONAL PARK SERVICE. IF IT IS UNDER 25, THEN YOU CAN DEMONSTRATE WITHOUT A PERMIT.

THE COURT: IF IT IS UNDER 25, THIS IS A PLACE THAT IS SO BIG THAT 25 PEOPLE CAN'T DO ANYTHING.

MR. MARCY: IT DEPENDS WHAT THEY ARE DOING, YOUR HONOR. YOUR HONOR, I THINK THE REGULATIONS MAKE CLEAR -- I THINK WHAT OCCURRED IN THAT AREA LAST NIGHT KIND OF GOES TO SHOW --

THE COURT: WHAT?

MR. MARCY: I THINK JUST THE ACTIVITIES THAT OCCURRED IN THAT AREA LAST NIGHT, ON THE 4TH OF JULY, KIND OF GOES TO SHOW --

THE COURT: WHAT ACTIVITIES?

MR. MARCY: JUST THE 4TH OF JULY DEMONSTRATION, THE FESTIVAL AND EVERYTHING ELSE. I BELIEVE THERE WERE SEVERAL OTHER DEMONSTRATIONS IN LAFAYETTE PARK AND ON THE WHITE HOUSE STEPS FOR MARIJUANA SMOKE-INS AND SMOKE-OUTS AND --

THE COURT: WHAT, LAST NIGHT?

MR. MARCY: YES.

THE COURT: ON THE SIDEWALK?

MR. MARCY: I BELIEVE THEY WERE ON THE SIDEWALK AND OVER IN LAFAYETTE PARK. AND CONGRESSMAN FAUNTROY WAS PUSHING FAMILY, AND OTHER PEOPLE WERE PUSHING OTHER IDEALS.

IT CERTAINLY GOES TO SHOW THAT THE PARK SERVICE IN THESE SITUATIONS KIND OF IS DOING EVERYTHING THEY CAN TO ADMINISTER THAT AREA AS FREELY AS THEY CAN. I MEAN IT IS NOT -- CERTAINLY IS NOT A CASE OF GOVERNMENT SUPPRESSION OF ANYBODY OR ANYTHING OR ANY IDEAL OR ANY FREEDOM. MR. THOMAS CAN GO UP THERE AND DEMONSTRATE TO HIS HEART'S CONTENT, AS LONG AS HE DOESN'T --

MR. WOLL: SLEEP.

THE COURT: AS LONG AS HE DOESN'T GO TO SLEEP?

MR. MARCY: WELL, AS LONG AS HE DOESN'T LIVE UP THERE. I MEAN THAT'S WHAT HE'S DOING. IT IS NOT SLEEPING. SLEEPING IS CERTAINLY AN IMPORTANT PART OF THE REGULATION, BUT I MEAN IT REFERS TO USING THE PLACE AS A LIVING ACCOMMODATION. HE CAN GO UP THERE AND DEMONSTRATE ABOUT TRUTH AND JUSTICE AND DISARMAMENT AND WHATEVER ELSE HE WANTS, AND NOBODY IS GOING TO GET IN HIS WAY. IT IS JUST WHEN HE'S UP THERE FOR EIGHT OR NINE MONTHS AND HE'S LIVING THERE. HE'S GOT FOOD THERE, HE'S GOT SLEEPING BAGS THERE. HE'S GOT LARGE WOODEN CONTAINERS FULL OF PERSONAL STUFF. HE'S GOT THREE PAIRS OF BOOTS. HE'S GOT SIGNS THAT ARE LEANED UP AGAINST THE FENCE THAT COVER 1-18 FEET THAT I AM SURE DURING THE DAY PROVIDE A CERTAIN AMOUNT OF SHELTER TO HIM AND HIS BELONGINGS. THAT'S THE PART THAT IS OBJECTIONABLE, YOUR HONOR. HE CAN GO UP AND DEMONSTRATE TO HIS HEART'S CONTENT, AS LONG AS HE DOESN'T GO TOO FAR.

IF HE IS ACQUITTED IN THIS CASE, OR IN SOME OTHER

CASE WHERE THEY SAY THE STRUCTURE IS A LITTLE TOO BIG, HE IS GOING TO BE BACK THERE WITH A STRUCTURE THAT IS TWO INCHES SMALLER THAN THAT. I MEAN, YOU KNOW, THAT'S THE KIND OF GUY HE IS, I THINK. I THINK THE EVIDENCE HAS SHOWN THAT. AND IT IS A SITUATION WHERE THE PARK SERVICE NEEDS SOME SUPPORT. I MEAN IF THE PERSON HAD CLEARLY VIOLATED A CRIMINAL PROVISION, THE PARK SERVICE CAN'T GO OUT AND GET AN INJUNCTION TO PREVENT HIM FROM DOING THIS. I MEAN THIS IS A CASE WHERE THEY HAVE WARNED HIM REPEATEDLY. THEY GIVE HIM AN OPPORTUNITY; THEY DO -- THERE IS NOTHING ELSE THEY CAN DO, YOUR HONOR, EXCEPT AT A CERTAIN POINT ARREST HIM AND BRING HIM IN HERE.

MR. WOLL: YOUR HONOR, I THINK MR. THOMAS WAS TRYING TO ACT IN GOOD FAITH. HE WAS TRYING TO MAINTAIN THE 24-HOUR VIGIL; HE WAS TRYING TO DO THOSE THINGS --

THE COURT: I CAN UNDERSTAND THAT.

MR. WOLL: -- WHICH WOULD NOT GET HIM INTO TROUBLE AS FAR AS COOKING FOOD OR PREPARING FOOD. HE WASN'T DOING ANY OF THAT BUSINESS.

THE COURT: HE WASN'T MAKING A FIRE ON THE SIDEWALK.

MR. WOLL: AND HE WASN'T MAKING A FIRE ON THE SIDEWALK.

THE COURT: THE REGULATIONS DON'T REQUIRE THAT. THE REGULATIONS SAY CAMP, AND THEN THEY GIVE THAT DEFINITION.

WHAT BOTHERS ME IS WHETHER OR NOT THE DEFINITION IS A REASONABLE DEFINITION WHEN HE WAS ARRESTED.

MR. WOLL: BUT HE WAS ARRESTED FOR SLEEPING. THAT IS WHAT THE POLICE OFFICER TESTIFIED. AND HOW IS HE GOING TO MAINTAIN A 24-HOUR VIGIL IF YOU CAN'T SLEEP?

THE COURT: WHAT DID THEY TAKE OFF THE SIDEWALK BESIDES HIM?

MR. MARCY: I BELIEVE THERE IS AN INVENTORY THAT HAS BEEN ADMITTED IN EVIDENCE, YOUR HONOR, THAT LISTS 24 SIGNS AND THREE PAIRS OF BOOTS, AND WATER JUGS AND A TEAPOT AND CUPS AND TWO SLEEPING BAGS AND SOME GROUND COVER, PLASTIC GROUND COVER.

MR. WOLL: HE HAD SOME SORT OF A PLASTIC COVER THAT HE WAS LYING ON. I THINK MS. PICCIOTTO WAS IN A SLEEPING BAG. THERE WERE SOME SANDWICHES THAT WERE ALREADY MADE. I MEAN CERTAINLY IF PEOPLE ARE GOING TO BE MAINTAINING A 24-HOUR VIGIL, AT LEAST THEY CAN HAVE FOOD THAT IS ALREADY PREPARED, AT LEAST TO EAT OCCASIONALLY DURING THE 24-HOUR VIGIL. THEY WEREN'T PREPARING FOOD. THEY WEREN'T, AS YOU SAY, BUILDING ANY FIRES. THEY DIDN'T SET UP ANY TYPE OF A TENT OR ANY TYPE OF A SHELTER. THEY WERE TRYING TO MAINTAIN A 24-HOUR VIGIL AND ONLY DOING THOSE THINGS WHICH WERE ABSOLUTELY NECESSARY IN ORDER TO MAINTAIN THE 24-HOUR VIGIL. AND THAT IS EXACTLY WHAT ABNEY TALKS ABOUT. THAT IS WHAT CCNV TALKS ABOUT: THAT IT HAS VERY LITTLE IMPACT ON THE USE OF THE AREA -- MINIMAL. WHAT IMPACT THERE IS INCIDENTAL TO MAINTAINING A 24-HOUR VIGIL.

AND THE POLICE OFFICER, IT WAS CLEAR TO HIM THAT HE WAS ACTING BECAUSE HE FELT THEY WERE ASLEEP; THAT THIS WAS THE ACTIVITY THAT PUT THEM IN VIOLATION. AND I'M SURE THEY STILL FEEL THAT WAY.

THE COURT: IF I FOLLOW THE GOVERNMENT AND FIND HIM GUILTY, WHAT AM I SUPPOSED TO DO WITH HIM? HE DOESN'T HAVE ANY MONEY. IF I PUT HIM ON PROBATION, HE'S GOING TO BE RIGHT OUT THERE DOING THE SAME THING. THE CRIMINAL PENALTY ISN'T ENOUGH TO DETER HIM, POINT 1.

POINT 2, I HAVE A HARD TIME SLEEPING PUTTING HIM IN JAIL, ACTUALLY, FOR WHAT HE DID. HE IS SUCH A -- I KIND OF TEND TO AGREE WITH HIM. HE IS SUCH A MINIMAL HARM TO ANYBODY IN THE WORLD. THE WORST CRIMINAL, PUT HIM IN JAIL.

MR. MARCY: YOUR HONOR, HE IS NOT A MINIMAL HARM. IN THE PERIOD OF HIS BEING UP THERE -- HE HAS BEEN THERE SINCE I BELIEVE JUNE OF THE PREVIOUS YEAR. DURING THAT PERIOD OF TIME, THERE ARE CHARGES PENDING THAT HE DESTROYED ONE OF THESE HUGE SIGNS, HE BURNED IT, CAUSING FOUR OR FIVE THOUSAND DOLLARS WORTH OF DAMAGE TO ONE OF THE PILLARS OUTSIDE OF THE WHITE HOUSE. THERE WAS SOME CONCERN, AT LEAST, THAT WHEN HE SET THE STRUCTURE ON FIRE, THAT HE WAS INSIDE OF IT AND MIGHT BE TRY- ING TO KILL HIMSELF OR SOMETHING. BUT I MEAN IT'S NOT LIKE THERE HAS NOT BEEN A DANGER TO HIMSELF OR TO OTHER PEOPLE DURING THAT PERIOD OF TIME. I MEAN IT IS NOT -- DURING THAT PERIOD OF TIME -- I FORGET HIS NAME, THE INDIVIDUAL WHO WAS KILLED AT

THE WASHINGTON MONUMENT. THERE WAS THAT INCIDENT. YOU KNOW, IT IS CERTAINLY A FACTUAL SITUATION THAT GIVES THE PARK SERVICE PAUSE AND CONCERN.

MR. WOLL: YOUR HONOR, THE DEFENDANT GAVE ME AN AFFIDAVIT THIS MORNING. HE IS STILL MAINTAINING A 24-HOUR VIGIL UP THERE, AND HE IS INDICATING THAT A POLICE OFFICER HAD HIM UNDER SURVEILLANCE DAY AND NIGHT, KICKING HIM TO MAKE SURE THAT HE DOESN'T FALL ASLEEP. HE IS TRYING TO DO ONLY THOSE THINGS WHICH WOULD MEAN THAT HE IS HOLDING A 24-HOUR VIGIL. HE DOESN'T HAVE ANY -- I DON'T EVEN THINK HE HAS A SLEEPING BAG NOW. HE WAS SLEEPING, HE SAID, ON TOP OF A SIGN THAT WAS ON THE GROUND, AND THAT WAS IT. OF COURSE, THIS IS SUMMERTIME. BUT I MEAN THE PARK SERVICE IS DEAD SET ON ANY TYPE OF SLEEPING ACTIVITY, THEY ARE GOING TO HARASS THEM. AND HOW CAN YOU MAINTAIN A 24-HOUR VIGIL IF YOU CAN'T SLEEP? AND THAT IS AN INFRINGEMENT OF HIS FIRST AMENDMENT RIGHT.

I JUST DON'T SEE WHERE ANY STRONG GOVERNMENTAL INTEREST IS BEING SUPPORTED BY NOT ALLOWING THE MAN TO SLEEP INCIDENTAL TO A 24-HOUR VIGIL.

IF HE PUTS UP A STRUCTURE, YOU CAN ARREST HIM. IF HE STARTS BUILDING A FIRE, YOU CAN ARREST HIM. IF HE DOES ANYTHING MORE THAN JUST WHAT IS MINIMAL FOR MAINTAINING A 24- HOUR VIGIL, YOU CAN ARREST HIM.

MR. MARCY: YOUR HONOR, I THINK IT IS A LITTLE PREMATURE TO START WORRYING ABOUT THE SENTENCING OPTIONS IN

THIS CASE. I MEAN TODAY, AS I UNDERSTAND IT, WE ARE HERE ON A FINDING OF GUILT OR INNOCENCE OF THE CHARGES WITH WHICH THEY ARE CHARGED ON DECEMBER 7TH.

THE COURT: I THINK HE VIOLATED THE STATUTE, AND I DON'T THINK THAT PORTION OF THE STATUTE CAN BE ATTACKED ON CONSTITUTIONAL GROUNDS. I THINK HE SET UP SHOP OUT THERE A LITTLE BEYOND JUST A VIGIL. IN THIS PARTICULAR CASE, I THINK HE DID. I THINK HE DID. MY PROBLEM IS WHAT TO DO WITH HIM, REALLY. MY PROBLEM IS WHAT TO DO WITH HIM.

I DON'T MIND IF -- IT WOULD BE A HARDER CASE FOR ME IF THEY ARRESTED HIM FOR LYING ON THE GROUND OUT THERE ON TOP OF A SLEEPING BAG OR HALF-WAY IN A SLEEPING BAG. THAT WOULD BE A HARDER CASE FOR ME. BUT MY PROBLEM IS REALLY WHAT TO DO WITH HIM.

MR. CHRISTENSEN: YOUR HONOR, WITH RESPECT TO MY CLIENT, THERE WAS NO EVIDENCE IN THE RECORD THAT SHE WAS SLEEP- ING WHEN THEY ARRESTED HER.

MR. MARCY: YOUR HONOR, I BELIEVE SGT. BRADLEY TESTIFIED THAI SHE WAS IN THE SLEEPING BAG AND BOTH OF THEM WERE SLEEPING WHEN HE CAME UP. MY RECOLLECTION OF IT.

MR. CHRISTENSEN: YOUR HONOR HAS GOT A BETTER RECOLLECTION. YOU HEARD THE TAPES.

MR. WOLL: WELL, I WOULD JOIN IN THAT ARGUMENT, AS WELL, YOUR HONOR, IN BEHALF OF MR. THOMAS. INSUFFICIENT EVIDENCE OF SLEEPING.

THE COURT: WELL -- THIS CASE YOU CAN TAKE SOMEWHERE ELSE. I DON'T KNOW WHAT TO DO WITH THESE PEOPLE.

YOU DON'T WANT TO PUT THEM IN JAIL, HUH?

MR. MARCY: WE ARE GOING TO ASK FOR THAT, YOUR HONOR, JUST BECAUSE THERE APPEARS TO BE NO OTHER -- NOTHING ELSE.

THE COURT: FOR HOW LONG? WHAT IS THE MAXIMUM PERIOD OF TIME?

MR. MARCY:SIX MONTHS. IF YOUR HONOR WOULD LIKE TO SEND THEM TO SACRAMENTO TO DEMONSTRATE IN FRONT OF THE STATE CAPITOL OUT THERE, WE WOULDN'T HAVE ANY STRONG OBJECTION.

THE COURT: LET ME ASK YOU THIS QUESTION: HAVE THEY BEEN ON THE SIDEWALK EVER SINCE THEY LEFT HERE?

MR. WOLL: EVER SINCE THEY LEFT HERE?

THE COURT: YES. I MEAN ARE THEY STILL OUT THERE ON THE SIDEWALK?

MR. WOLL: YES.

THE COURT: AND THEY HAVEN'T BEEN ARRESTED SINCE?

MR. WOLL: WELL, WHAT THOMAS IS SAYING IS THAT HE HAS REVIVED HIS 24-HOUR PROTEST. HE IS DOING IT RIGHT NOW. AND HE HAS BEEN CONSTANTLY HARASSED BY THE PARK POLICE. THEY COME UP AND, YOU KNOW, PROD HIM, TELL HIM TO SIT UP AND DON'T LIE DOWN AND DON'T SLEEP AND --

THE COURT: BUT HE DOESN'T HAVE ANY EQUIPMENT OUT THERE ON THE SIDEWALK?

MR. WOLL: NO. HE IS TRYING TO -- YOU KNOW, TRYING

NOT TO GET ARRESTED BY MAKING IT LIVING ACCOMMODATIONS. HE IS JUST TRYING TO MAINTAIN A 24-HOUR VIGIL. AND THAT'S WHAT HE WAS TRYING TO DO BACK IN DECEMBER, BECAUSE HE HAD BEEN ARRESTED IN JUNE FOR DOING THE SAME THING. SO HE WAS TRYING TO LIMIT HIS ACTIVITIES SO THAT HE WOULDN'T BE ARRESTED.

THE COURT: I SUPPOSE I HAVE TO PUT HIM ON PROBATION AND PROVIDING THAT HE DOESN'T DO WHAT HE DID IN THIS CASE, SET UP A ONE-ROOM -- WHAT DID HE HAVE? A ONE-ROOM APARTMENT OUT THERE ON THE STREET, OR SOMETHING?

MR. WOLL: I DON'T THINK THE RECORD SHOWS THAT.

MR. MARCY: MAGISTRATE BURNETT DID THE SAME THING. THEY WERE ON PROBATION WHEN THIS PARTICULAR INCIDENT OCCURRED; AND ALSO WHEN THE STRUCTURE INCIDENT OCCURRED, THEY WERE ON PROBATION, PRE-TRIAL RELEASE.

YOUR HONOR, I DON'T THINK WE ARE REALLY AT A GOOD POSITION RIGHT NOW TO TALK ABOUT SENTENCING. IT IS MY UNDER- STANDING THE PRESENTENCE REPORT HASN'T BEEN FINISHED, AND WE ARE KIND OF --

MR. CHRISTENSEN: YOUR HONOR IS ALSO AWARE --

THE COURT: YOU SAY THE PRESENTENCE REPORT HASN'T BEEN FINISHED? DIDN'T I HAVE ONE?

MR. WOLL: YOU MUST HAVE. WE HAVE A SENTENCING DAY AFTER TOMORROW, YOUR HONOR.

MR. MARCY: I'M SORRY. I WAS UNAWARE THAT IT HAD BEEN COMPLETED.

Transcript Continued

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