HIS POINT. HE GOT IN MY FACE SEVERAL TIMES, AND I ASKED HIM TO STEP AWAY ON SEVERAL DIFFERENT TIMES.
Q. ALL RIGHT. WAS MR. THOMAS -- YOU ARE NOT REFERRING TO MR. THOMAS AS THE "HE" IN THAT?
A. NO, SIR.
Q. YOU ARE REFERRING TO THE OTHER GENTLEMAN; IS THAT CORRECT?
A. THAT IS CORRECT, SIR.
Q. ALL RIGHT.
MR. SHMANDA: THAT WOULD COMPLETE MY QUESTIONS OF THIS WITNESS, YOUR HONOR. THANK YOU VERY MUCH.
Q. THE ONLY QUESTION I HAVE, SIR, IS:
THE WAY YOU HAVE BEEN INFORMED WITH RESPECT TO THIS REGULATION BY YOUR SUPERVISORS, IS IT FAIR TO SAY THAT YOU VIEW SLEEPING AS THE ESSENCE OF THE CAMPING VIOLATION?
MR. SHMANDA: EXCUSE ME, YOUR HONOR. THE GOVERNMENT WILL OBJECT TO THAT. THAT IS BEYOND THE SCOPE.
THE COURT: WE ARE PLAYING BY A DIFFERENT RULE RIGHT NOW. WE ARE LETTING HIM MAKE THIS WITNESS HIS WITNESS -
MR. SHMANDA: ALL RIGHT. FINE.
THE COURT: (CONTINUING) -- FOR THE PURPOSE OF ELICITING THIS KIND OF INFORMATION IN A BENCH HEARING ON A
BY MR. GRABER: I HAVE NO OTHER QUESTIONS.
MR. WOLL: JUST BRIEFLY, YOUR HONOR.
THE COURT: CERTAINLY, MR. WOLL.
CROSS-EXAMINATION -- BY MR. WOLL:
Q. OFFICER, I AM REPRESENTING MISS PICCIOTTO. DO YOU
NOW HER?
A. YES.
Q. NOW, CONCERNING THIS PARTICULAR INCIDENT YOU ARE
TESTIFYING ABOUT, WAS SHE PRESENT AT THAT TIME; DO YOU RECALL?
A. I COULDN'T SAY WITH ANY CERTAINTY, SIR.
Q. ALL RIGHT.
IN REFERENCE TO YOUR SAYING THAT YOU TAPPED MR. THOMAS ON THE FOOT, WAS IT YOUR PURPOSE TO KEEP HIM AWAKE; WAS THAT WHAT YOU WERE ATTEMPTING TO DO?
A. YES, SIR.
Q. OKAY. AND YOU HAD DONE THIS SEVERAL TIMES PREVIOUSLY THAT MORNING, OR THAT NIGHT?
A. YES, SIR. THROUGHOUT THE NIGHT, I DID, AT LEAST ONCE AN HOUR.
Q. OKAY. NOW, WAS THIS PURSUANT TO SOME INSTRUCTIONS THAT YOU HAD RECEIVED?
A. YES, SIR. MY INSTRUCTIONS ARE TO MAINTAIN - TO MAKE SURE THAT PEOPLE STAY AWAKE.
Q. OKAY.
MR. WOLL: I HAVE NO FURTHER QUESTIONS, YOUR HONOR
THANK YOU.
THE COURT: REDIRECT?
MR. SHMANDA: NOTHING, YOUR HONOR.
THE COURT: THANK YOU, YOUR HONOR.
THE WITNESS: THANK YOU.
MR. SHMANDA: YOUR HONOR, THIS OFFICER WAS CALLED FOR A VERY SPECIFIC PURPOSE. MAY HE BE EXCUSED? I DON'T BELIEVE WE WILL NEED HIM AGAIN, SINCE HE DID NOT PARTICIPATE IN THIS.
THE COURT: OF COURSE.
MR. SHMANDA: THANK YOU, YOUR HONOR.
THE COURT: OF COURSE.
MR. SHMANDA: THANK YOU, OFFICER SHERBA.
THE COURT: DO WE HAVE TIME FOR ONE MORE, OR SHOULD WE SHUT IT DOWN NOW?
MR. SHMANDA: I HAVE THE FEMALE OFFICER THAT I COULD BRING ON.
THE COURT: THAT WOULD BE THROUGH IN FIVE MINUTES?
MR. SHMANDA: YES, I THINK SO.
THE COURT: IF THAT DOESN'T WORK, MR. WOLL -- IT S 3:23 -- WHERE DO YOU HAVE TO GO?
MR. WOLL: TO JUDGE GREENE, YOUR HONOR, JUST ACROSS THE HALL.
THE COURT: WHEN THE TIME COMES, DO YOU THINK YOUR CLIENT WOULD MIND IF MR. GRABER REPRESENTED HER IN YOUR ABSENCE?
MR. WOLL: SHE INDICATES IT IS ALL RIGHT.
THE COURT: VERY WELL.
MR. WOLL: I WILL BE RIGHT BACK.
THE COURT: VERY WELL.
MR. SHMANDA: WHILE WE ARE WAITING, MAY WE HAVE THESE OBJECTS MARKED AS THE NEXT HEARING EXHIBITS ON THE GOVERNMENT'S BEHALF?
WHEREUPON,
JAQUELINE A. ANDERSON WAS CALLED AS A WITNESS, AND, HAVING BEEN
FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED, AS FOLLOWS:
THE DEPUTY CLERK: BE SEATED, PLEASE.
MR. SHMANDA: MAY I PROCEED, YOUR HONOR?
THE COURT: YES.
MR. SHMANDA: THANK YOU.
DIRECT EXAMINATION -- BY MR. SHMANDA:
Q. MA'AM, WOULD YOU PLEASE JUST INTRODUCE YOURSELF BY GIVING US YOUR FULL NAME AND YOUR OCCUPATION OR PROFESSION?
A. MY NAME IS JAQUELINE A. ANDERSON. I AM EMPLOYED WITH THE U. S. PARK POLICE, THE FIRST DISTRICT.
Q. OFFICER ANDERSON, DIRECTING YOUR ATTENTION, PLEASE, AM'AM, TO THE EARLY MORNING HOURS OF SATURDAY, SEPTEMBER 24, 983, DID YOU HAVE OCCASION TO RESPOND TO THE SIDEWALK IN LAFAYETTE PARK, THE SIDEWALK CLOSEST TO THE WHITE HOUSE?
A. NO, I DID NOT.
Q. DID YOU TAKE PART IN INVENTORYING CERTAIN PROPERTY THAT WAS TAKEN FROM THAT LOCATION?
A. YES, I DID.
Q. WHERE DID YOUR PARTICIPATION TAKE PLACE?
A. IT WAS AT THE BRENTWOOD YARD PROPERTY OFFICE.
Q. ALL RIGHT. DID YOU PREPARE CERTAIN FORMS OF PROPERT THAT YOU ASSISTED IN INVENTORYING?
A. YES, I DID.
Q. COULD I SHOW YOU, PLEASE, MA'AM, AND JUST ASK YOU TO LOOK AT FOR A MOMENT GOVERNMENT'S EXHIBIT NO. 2?
A. ALL RIGHT.
Q. IF YOU WOULD LOOK AT ALL OF THE PAGES, THOSE WRITTEN PAGES?
A. YES, SIR.
Q. OFFICER ANDERSON, DID YOU PREPARE THOSE FORMS?
A. THIS IS MY HANDWRITING. THESE ARE THE PARK POLICE EVIDENCE FORMS. YES, SIR.
Q. OKAY. AND, OFFICER ANDERSON, DOES HEARING EXHIBIT Jo. 2 ACCURATELY AND FAIRLY LIST ALL OF THE PROPERTIES THAT YOU INVENTORIED AT THE BRENTWOOD FACILITY ON THE MORNING OF SEPTEMBER 24, 1983?
A. YES, IT DOES.
Q. OFFICER ANDERSON, WHO ELSE WAS PRESENT WHEN YOU INVENTORIED THE PROPERTY?
A. SERGEANT MALHOYT.
Q. ALL RIGHT.
A. OFFICER HAYNES, AND THE CHIEF PROPERTY CLERK.
Q. YES, MA'AM. AND, AFTER INVENTORYING THE PROPERTY, OFFICER ANDERSON, AND PREPARING THE FORMS, WHAT, IF ANYTHING, DID YOU DO WITH THE PROPERTY?
A. I DON'T UNDERSTAND THE QUESTION.
Q. AFTER YOU DID THE INVENTORY AND PREPARED YOUR FORMS, MY QUESTION TO YOU IS DID YOU DO ANYTHING ELSE WITH RESPECT TO THE PROPERTY?
A. NO.
THE COURT: EXCUSE ME. LET THE RECORD SHOW THAT MR. WOLL IS BACK IN THE COURTROOM.
MR. SHMANDA: THANK YOU, YOUR HONOR.
BY MR. SHMANDA:
Q. FINE. JUST SIT THERE, MA'AM, AND THAT COMPLETES MY QUESTIONS OF THIS WITNESS.
THE COURT: CROSS-EXAMINATION.
CROSS-EXAMINATION -- BY MR. GRABER:
Q. OFFICER ANDERSON, DID YOU SAY THAT YOU DID NOT RESPOND THE SCENE?
A. THAT'S CORRECT. MY YOU WERE JUST AT THE PROPERTY OFFICE LOCATION?
A. I DID NOT COME ON DUTY UNTIL 10:00 O'CLOCK, I BELIEVE, THAT DAY.
THE COURT: YOU HAVE ANSWERED THE QUESTION. YOU WERE NOT AT THE SCENE.
THE WITNESS: I WAS NOT AT THE SCENE.
THE COURT: AND YOU JUST INVENTORIED THE PROPERTY.
THE WITNESS: YES.
THE COURT: OKAY.
BY MR. GRABER:
Q. NOW, WOULD I BE CORRECT THAT IF SOMETHING IS NOT LISTED ON YOUR INVENTORY, THAT ITEM WOULD NOT HAVE BEEN SEIZED? ONLY WHAT IS LISTED HERE IS WHAT WAS SEIZED; IS THAT CORRECT?
A. YES.
MR. GRABER: YOUR HONOR, I WOULD --
THE COURT: DON'T MAKE AN ARGUMENT NOW.
MR. GRABER: NO, I AM NOT, YOUR HONOR. IT WAS MARKED FOR IDENTIFICATION. I THINK IT SHOULD GO INTO THE RECORD, BECAUSE IT LISTS WHAT WAS TAKEN.
THE COURT: I ASSUME HE IS GOING TO MOVE IT INTO THE RECORD.
MR. SHMANDA: SURE. FOR THE BENEFIT OF EVERYBODY, I WOULD AT THIS TIME MOVE TO ADMIT HEARING EXHIBIT NO. 2.
THE COURT: WHAT NUMBER IS IT, EXHIBIT NO. 2?
MR. SHMANDA: YES, YOUR HONOR.
THE COURT: EXHIBIT NO. 2 IS RECEIVED IN EVIDENCE. WHAT ABOUT EXHIBIT NO. 1?
MR. SHMANDA: THAT, TOO, YOUR HONOR.
THE COURT: ALL RIGHT. THAT IS IN EVIDENCE, TOO.
(GOVERNMENT HEARING EXHIBITS 1 AND 2 RECEIVED IN EVIDENCE, RESPECTIVELY.)
MR. GRABER: I HAVE NOTHING FURTHER OF THIS OFFICER YOUR HONOR.
THE COURT: REDIRECT?
MR. SHMANDA: NOTHING, YOUR HONOR. THANK YOU.
THE COURT: DO YOU HAVE ANOTHER WITNESS?
MR. SHMANDA: SERGEANT MALHOYT.
WHEREUPON,
JOHN P. MALHOYT WAS CALLED AS A WITNESS, AND, HAVING BEEN FIRST DULY SWORN,
WAS EXAMINED AND TESTIFIED AS FOLLOWS:
THE DEPUTY CLERK: BE SEATED, PLEASE.
THE COURT: YOU MAY PROCEED.
MR. SHMANDA: THANK YOU, YOUR HONOR.
DIRECT EXAMINATION -- BY MR. SHMANDA:
Q. SIR, COULD YOU PLEASE INTRODUCE YOURSELF?
A. MY NAME IS JOHN P. MALHOYT. I AM A SERGEANT ASSIGNED TO THE PATROL BRANCH OF THE UNITED STATES PARK POLICE.
Q. AND COULD YOU PLEASE SPELL YOUR LAST NAME FOR THE REPORTER?
A. YES, SIR. IT IS M-A-L-H-O-Y-T.
Q. OFFICER, MALHOYT -- I AM SORRY -- SERGEANT MALHOYT, DIRECTING YOUR ATTENTION TO THE EARLY MORNING HOURS OF SEPTEMBER 24, 1983, TO THE TIME PERIOD OF APPROXIMATELY SIX O'CLOCK IN THE MORNING, WERE YOU ON DUTY THAT PARTICULAR MORNING?
A. YES, SIR, I WAS.
Q. DID YOU HAVE OCCASION TO RESPOND TO THE LAFAYETTE ARK SIDEWALK AREA, THAT IS, THE SIDEWALK CLOSEST TO THE WHITE HOUSE?
A. YES, SIR, I DID.
Q. AND AT APPROXIMATELY WHAT TIME DID YOU ARRIVE AT THAT LOCATION?
A. BETWEEN 6:30 AND 6:45.
Q. WAS THERE A SPECIFIC REASON WHY YOU WENT TO THAT LOCATION, SERGEANT MALHOYT?
A. YES, SIR. OFFICER HAYNES WHO WAS ASSIGNED TO OUR PATROL BEAT 145 REQUESTED I RESPOND UP THERE.
Q. AND, ONCE YOU RESPONDED THERE, SERGEANT MALHOYT, DID YOU MAKE ANY OBSERVATIONS?
A. YES, SIR, I DID.
Q. COULD YOU PLEASE TELL US WHAT OBSERVATIONS YOU MADE?
A. OFFICER HAYNES DREW MY ATTENTION TO THE FACT THAT MR. THOMAS AND MISS CONCEPCION -- I DON'T KNOW HER LAST NAME -- APPEARED TO HIM TO BE SLEEPING, AND HE ASKED ME TO LOOK AND SEE WHAT I THOUGHT, AND THEY APPEARED TO ME TO BE SLEEPING, ALSO.
Q. WHAT DID YOU SEE IN THAT REGARD, SERGEANT MALHOYT?
A. THEY WERE
Q. WHAT DID YOU ACTUALLY SEE THEM DOING?
A. THEY WERE LAYING ON THE SIDEWALK WITH THEIR EYES CLOSED AND NOT MOVING. THEY APPEARED TO BE SLEEPING TO ME.
Q. AND, AFTER YOU MADE THOSE OBSERVATIONS, SERGEANT MALHOYT, DID YOU TAKE ANY ACTION OR DIRECT THAT ANY ACTION BE TAKEN?
A. I ADVISED OFFICER HAYNES TO PLACE THEM UNDER ARREST.
Q. SO IT WAS ACTUALLY YOU THAT MADE THE DECISION TO PLACE THEM UNDER ARREST?
A. I GUESS IT WOULD FALL ON ME, YES, SIR.
Q. ALL RIGHT, SIR.
NOW, SERGEANT MALHOYT, ONCE THOSE EVENTS TOOK PLACE, DID YOU HAVE AN OPPORTUNITY TO OBSERVE IN AND AROUND THE AREA WHERE YOU OBSERVED THE TWO PEOPLE YOU HAVE TOLD US ABOUT?
A. YES, SIR, I DID.
Q. WHAT DID YOU SEE, IF YOU SAW ANYTHING?
A. THERE WERE NUMEROUS ITEMS OF PROPERTY, SIGNS, PERSON' PROPERTY, CLOTHING, FOOD, BOXES, PAPERS, THINGS THAT MYSELF AND OFFICER JACKSON INVENTORIED AT OUR PROPERTY YARD, AND THAT I SUPERVISED THE REMOVAL OF TO THE PROPERTY YARD, MYSELF, PERSONALLY.
Q. ALL RIGHT. IF WE COULD FOCUS ON THAT LATTER REMARK OF YOURS, DID YOU PERSONALLY SUPERVISE THE GATHERING OF THE PROPERTY FROM THE SCENE?
A. YES, SIR, I DID.
Q. AND WHAT DID YOU DO WITH THE PROPERTY?
A. I SUPERVISED THE PROPERTY BEING LOADED ON A STAKE-BODY TRUCK THAT THE PARK POLICE HAVE AND HAD IT TRANSPORTED TO OUR BRENTWOOD YARD'S PROPERTY OFFICE IN NORTHEAST. I FOLLOW THE TRUCK OVER THERE MYSELF.
Q. RIGHT.
MR. SHMANDA: MAY I HAVE GOVERNMENT'S EXHIBIT NO. 2, PLEASE?
BY MR. SHMANDA:
Q. LOOKING AT GOVERNMENT'S EXHIBIT NO. 2 FOR A MOMENT, PLEASE, SERGEANT MALHOYT --
A. THANK YOU.
Q. (CONTINUING) -- IF YOU WOULD LOOK AT ALL OF THOSE PAGES?
A. YES, SIR.
Q. SERGEANT MALHOYT, HAVING HAD AN OPPORTUNITY TO REVIEW EACH OF THE SEVERAL PAGES OF GOVERNMENT'S EXHIBIT NO. 2, HOW DOES THAT COMPARE, OR NOT COMPARE, WITH THE ITEMS THAT YOU SUPERVISED THE SEIZURE OF FROM THE AREA IN AND AROUND FROM WHERE MR. THOMAS AND MISS PICCIOTTO WERE ARRESTED ON THE
SIDEWALK ON SEPTEMBER 24, 1983?
A. IT APPEARS TO BE PRETTY COMPLETE, BASED ON MY RECOLLECTION OF WHAT WAS PRESENT BOTH ON THE SCENE AND AT THE INVENTORY, WHEN I CONDUCTED THE INVENTORY.
Q. THANK YOU VERY MUCH, SERGEANT MALHOYT. YOU JUST SIT THERE, PLEASE.
MR. SHAMANDA: NO FURTHER QUESTIONS, YOUR HONOR.
THE COURT: YOU MAY INQUIRE.
MR. GRABER: THANK YOU, YOUR HONOR.
CROSS-EXAMINATION -- BY MR. GRABER:
Q. SERGEANT MALHOYT, ARE NOT PARK POLICE OFFICERS, ACCORDING TO PROCEDURES FORMULATED BY YOUR SUPERVISOR, SUPPOSE TO FIRST WARN DEMONSTRATORS THAT THEY ARE CAMPING AND ASK THEM TO MOVE BEFORE ACTUALLY ARRESTING A DEMONSTRATOR FOR CAMPING?
A. THAT IS CORRECT. I WOULD LIKE TO OFFER AN EXPLANATION ON THAT.
THE COURT: WHEN THE TIME COMES ON REDIRECT, YOU WILL HAVE AN OPPORTUNITY. JUST ANSWER THE QUESTIONS.
THE WITNESS: YES, SIR.
BY MR. GRABER:
Q. NOW, IN THIS CASE THAT WARNING WAS NOT GIVEN; ISN'T THAT TRUE?
A. THAT IS CORRECT. IT WAS NOT.
A. NOW, YOU TESTIFIED THAT MR. THOMAS AND MISS PICCIOTTO
WERE LAYING DOWN. WERE THEIR UPPER TORSOS LEANING IN A SITTING-UP POSITION?
A. I DON'T RECALL.
Q. DOES THAT MEAN THEY MAY HAVE?
A. THEY MAY HAVE, AND THEY MAY NOT HAVE BEEN.
Q. DID YOU SEE ANY BEDDING MATERIALS WHEN YOU OBSERVED THE SCENE?
A. MAY
Q. CERTAINLY, YOU MAY.
A. THANK YOU.
Q. WELL, LET ME ASK YOU IF THAT -
A. I WOULD LIKE TO REFRESH MY MEMORY.
THE COURT: THE ANSWER IS YOU DO NOT HAVE ANY INDEPENDENT RECOLLECTION?
A. NO.
MR. SHMANDA: MAY HE REFRESH HIS RECOLLECTION?
THE COURT: OF COURSE.
THE WITNESS: ON THE THIRD PAGE THERE IS LISTED TWO RAINCOATS, ITEMS 11 ON THE THIRD PAGE; ITEM 12 IS THREE SWEATERS; 13 IS A SHIRT --
BY MR. GRABER:
Q. I AM ASKING ABOUT BEDDING MATERIALS.
A. THESE ITEMS THAT I AM DESCRIBING CAN BE USED AS BEDDING, DEPENDING ON THE INDIVIDUAL'S DESIRES.
THE COURT : ALL YOU ARE SAYING IS THAT WHAT YOU SEE ARE RAINCOATS, SWEATERS, AND SHIRTS. WHETHER THAT IS BEDDING MATERIALS --
THE WITNESS: IT CAN BE USED AS BEDDING MATERIALS.
THE COURT: (CONTINUING) -- IS A MATTER OF OPINION.
THE WITNESS: YES, SIR.
THE COURT: ALL RIGHT. SO YOU RECALL SEEING RAINCOATS, SWEATERS AND A SHIRT?
THE WITNESS: RIGHT, IN ADDITION TO A NYLON TARP --
THE COURT: ALL RIGHT.
THE WITNESS: (CONTINUING) -- ON THE FOURTH PAGE, AND I GUESS ON THE SIXTH OR SEVENTH PAGE THERE ARE PLASTIC COVERINGS. THESE ITEMS CAN BE USED, DEPENDING ON THE PERSON'S NEEDS --
THE COURT: I UNDERSTAND THAT.
THE WITNESS: (CONTINUING) -- AS BEDDING. AS FAR AS --
THE COURT: WHAT THE QUESTION WAS: WHAT DO YOU SEE THERE?
THE WITNESS: I SAW THOSE ITEMS.
THE COURT: YOU SAW THOSE ITEMS?
THE WITNESS: YES, SIR.
THE COURT: ALL RIGHT.
BY MR. GRABER:
Q. NOW, DO YOU HAVE ANY INDEPENDENT RECOLLECTION OF SEEING ANY OF THOSE ITEMS COVERING MR. THOMAS?
A. NO, SIR. I DO NOT.
Q. DO YOU HAVE ORDERS FROM YOUR SUPERVISORS THAT PEOPLE MAINTAINING DEMONSTRATIONS IN LAFAYETTE PARK ARE TO BE KEPT AWAKE AT NIGHT OR WARNED THAT THEY MAY BE CAMPING?
A. ONE OF OUR OBLIGATIONS IS TO INSURE THAT THE PEOPLE THAT ARE IN THE PARK ARE NOT ILL OR DEAD, AND ONE OF THE WAYS IN WHICH YOU DO THIS IS IF YOU ARE ON YOUR BEAT, PATROLLING YOUR BEAT, AND YOU SEE SOMEONE WHO APPEARS TO BE SLEEPING, YOU CHECK ON THEM TO MAKE SURE THEY ARE NOT DEAD, OR ILL. AND ONE WAY TO DO THAT IS TO WAKE THEM UP, IF THEY ARE SLEEPING SO THAT THEY CAN GIVE YOU A RESPONSE.
Q. SO WHEN OFFICERS INQUIRE OF MR. THOMAS WHETHER HE IS AWAKE, IT IS ONLY TO DETERMINE IF HE IS DEAD OR NOT, AND IT HAS NOTHING TO DO WITH THE ENFORCEMENT OF THE CAMPING REGULATION?
A. I WOULD SAFELY ASSUME IT WOULD ALSO INCLUDE ENFORCING THE CAMPING REGULATION. HE IS WELL AWARE OF THE REGULATION.
THE COURT: THAT IS A DIFFERENT QUESTION.
THE WITNESS: I AM SORRY, YOUR HONOR.
THE COURT: YOU HAD AN ORIGINAL QUESTION ABOUT INSTRUCTIONS ABOUT SLEEPING.
BY MR. GRABER:
Q. WITH RESPECT TO THE CAMPING REGULATION, DO YOU HAVE ANY INSTRUCTIONS FROM YOUR SUPERVISORS WITH REGARD TO DEMONSTRATORS SLEEPING IN LAFAYETTE PARK?
A. IT'S NOT ALLOWED. IT IS IN VIOLATION OF THE CAMPING REGULATION.
THE COURT: YOU DO HAVE INSTRUCTIONS?
THE WITNESS: WE DO HAVE INSTRUCTIONS, YES, SIR.
THE COURT: AND THE NEXT QUESTION IS: WHAT ARE THOSE INSTRUCTIONS?
THE WITNESS: THERE ARE NUMEROUS INSTRUCTIONS, AND I WILL BE GLAD TO COME IN WITH THE WRITTEN INSTRUCTIONS AT ANY TIME. I DON'T HAVE THEM WITH ME AT THIS TIME.
THE COURT: WHAT DO YOU --
THE WITNESS: WE HAVE WRITTEN --
THE COURT: WHAT DO YOU UNDERSTAND, WITHOUT THEM BEFORE YOU, TO BE YOUR INSTRUCTIONS?
THE WITNESS: MY UNDERSTANDING FROM THE CODE OF FEDERAL REGULATIONS, CHAPTER 50, IS THAT YOU ARE NOT ALLOWED TO CAMP IN THE PARK. THAT MEANS TO USE THE PARK SYSTEM AS AN ABODE, UNLESS AUTHORIZED BY THE SUPERINTENDENT. THERE ARE CERTAIN AREAS WHERE THAT IS PROHIBITED, ONE OF WHICH IS LAFAYETTE PARK.
BY MR. GRABER:
Q. AND SLEEPING IS PROHIBITED?
A. SLEEPING IS PROHIBITED.
Q. YOU MENTIONED THAT THERE WERE PAPERS SEIZED. DO YOU KNOW WHETHER THOSE WERE LEAFLETS OR NOT, PAMPHLETS?
A. THERE WERE NUMEROUS ITEMS, SIR. EVERYTHING THAT WE SEIZED IS LISTED HERE.
A. I AM ASKING: DO YOU HAVE ANY INDEPENDENT RECOLLECTION OF YOUR OWN WHETHER ANY OF THOSE PAPERS SEIZED WERE LEAFLETS?
A. WOULD HAVE TO GO THROUGH THE LIST AGAIN, SIR.
THE COURT: THE QUESTION IS WHETHER YOU HAVE AN INDEPENDENT RECOLLECTION.
THE WITNESS: I DON'T. I WOULD HAVE REFRESH MY MEMORY, SIR.
BY MR. GRABER:
Q. NOW, DO I UNDERSTAND CORRECTLY THAT YOU WERE ON THE SCENE WHEN THE PROPERTY WAS TAKEN BY PARK POLICE OFFICERS?
A. THAT'S CORRECT.
Q. DID YOU MAKE ANY EFFORT TO DETERMINE WHICH SPECIFIC ITEM OF PROPERTY MIGHT BELONG TO WHICH SPECIFIC DEFENDANT?
A. NO, SIR, WE DID NOT.
MR. GRABER: THANK YOU. I HAVE NO FURTHER QUESTIONS OF THIS WITNESS.
THE COURT: MR. WOLL.
CROSS-EXAMINATION -- BY MR. WOLL:
Q. SERGEANT, LET ME ASK YOU:
HAVE YOU PARTICIPATED IN PRIOR ARRESTS OF PEOPLE SLEEPING IN THESE AREAS?
A. NO, SIR, I HAVE NOT, PERSONALLY.
Q. OKAY. LET ME ASK YOU: ON THIS PARTICULAR DATE, DO YOU RECALL WHAT TIME YOU CAME ON DUTY?
A. YES, SIR, I DO.
Q. WHAT TIME WAS THAT?
A. 0600 HOURS.
Q. SO THAT WHEN YOU RESPONDED, I THINK YOU SAID THE TIME THAT YOU RESPONDED TO THE SCENE WAS SOMEWHERE BETWEEN 6:30 AND 6:45.
Q. YES, SIR, AND I HAVE TO REFRESH MY MEMORY BY REVIEWING THE RADIO TAPES TO DETERMINE THE EXACT TIME.
Q. BUT IT WAS APPROXIMATELY IN THAT AREA?
A. YES, SIR.
Q. AND AT THAT TIME, THAT WAS THE FIRST TIME THAT MORNING THAT YOU HAD SEEN MR. THOMAS AND MISS PICCIOTTO?
A. THAT'S CORRECT, SIR.
Q. ALL RIGHT. AND YOU WERE ADVISED AS TO THE SITUATION BY OFFICER HAYNES; IS THAT CORRECT?
A. YES, SIR, IT IS.
Q. ALL RIGHT. DO YOU RECALL HOW CLOSE YOU GOT TO THE TWO PEOPLE?
A. MAYBE HALF A DOZEN FEET, SIX FEET.
Q. OKAY. NOW, DO YOU RECALL ANYTHING ABOUT THE POSITION OF MISS PICCIOTTO? DO YOU HAVE ANY RECOLLECTION OF WHERE SHE WAS?
A. NO, SIR, I DON'T. I DON'T KNOW WHETHER THEY WERE LAYING FLAT ON THE GROUND, PROPPED UP AGAINST THE SIGNS, OR WHAT.
A. BUT YOU HAVE A RECOLLECTION OF THEM BEING ASLEEP?
A. THEY GAVE THAT APPEARANCE, SIR. THEY WERE NOT MOVING THEY HAD THEIR EYES CLOSED.
Q. ALL RIGHT. ALL RIGHT. NOW, DID YOU, YOURSELF, TOUCH MISS PICCIOTTO?
A. AT WHAT TIME, SIR?
A. WHEN YOU SAW HER ASLEEP?
A. NO, SIR, I DID NOT.
Q. DID YOU SEE WHETHER OR NOT OFFICER HAYNES TOUCHED HER?
A. HE MAY HAVE. I DON'T RECALL.
Q. YOU DO NOT RECALL?
A. NO.
Q. DO YOU REMEMBER THEM AWAKENING OR OPENING THEIR EYES?
A. YES, SIR, THEY DID.
Q. DO YOU REMEMBER HOW THAT CAME ABOUT: THAT THEY OPENED THEIR EYES? DO YOU HAVE ANY RECOLLECTION?
A. THAT WAS UPON OFFICER HAYNES AWAKENING THEM.
Q. WELL, DO YOU REMEMBER HOW HE DID THAT? DO YOU HAVE A RECOLLECTION OF THAT?
A. NO. NO, SIR.
Q. ALL RIGHT. NOW, LET ME ASK YOU: HAVE YOU ATTEMPTED TO AWAKEN PEOPLE BEFORE THAT WERE SLEEPING IN THE LAFAYETTE PARK AREA?
A. I DON'T SPECIFICALLY REMEMBER DOING THAT. I MAY HAVE ON OCCASIONS IN THE PAST, BUT I DON'T SPECIFICALLY REMEMBER ANY INSTANCES WHERE I HAVE DONE THAT.
Q. IN THE PAST, NOW, BEFORE THIS PARTICULAR DATE, SEPTEMBER 24TH, DO YOU RECALL MAKING A HABIT OF, OR YOUR PRACTICE WOULD BE THAT, IF YOU SAW PEOPLE SLEEPING, YOU WOULD ATTEMPT TO AWAKEN THEM AND TELL THEM THAT THAT WAS A VIOLATION, AND THEY WOULD HAVE TO NOT GO BACK TO SLEEP?
A. IT IS A PARK POLICE PRACTICE TO WARN PEOPLE AND TRY TO GAIN VOLUNTARY COMPLIANCE WITH THE RULES AND REGULATION IN THE CODE OF FEDERAL REGULATIONS, SIR.
Q. OKAY.
MR. WOLL: I HAVE NO FURTHER QUESTIONS.
REDIRECT EXAMINATION -- BY MR. SHMANDA:
Q. YOU INDICATED, SERGEANT, IN YOUR RESPONSES TO THE FIRST DEFENSE COUNSEL'S QUESTIONS, MR. GRABER, THAT IN THIS PARTICULAR CASE THERE WAS NO WARNING OR VOLUNTARY REQUEST.
A. THAT IS CORRECT.
Q. DO YOU REMEMBER THAT?
A. YES.
Q. WAS THERE ANY SPECIFIC REASON WHY THERE WAS NOT SUCH A REQUEST OR WARNING IN THIS PARTICULAR CASE, SERGEANT MALHOYT?
YES, SIR, THERE WAS.
Q. COULD YOU PLEASE RELATE WHAT THAT WAS?
A. I HAVE PERSONAL KNOWLEDGE OF MR. THOMAS AND THE LADY HAVING BEEN WARNED BY THE OFFICERS ASSIGNED TO ME ON MY SQUAD ON PREVIOUS OCCASIONS AS TO THE REGULATIONS IN THE CODE OF FEDERAL REGULATIONS AS THEY PERTAIN TO CAMPING. AND IT IS MY CONSIDERED OPINION THAT THEY ARE WELL INFORMED OF THAT, AND, WHEN I AM WORKING, NO MORE WARNINGS WILL BE GIVEN.
Q. SERGEANT, JUST ONE FINAL QUESTION TO CLARIFY A POINT ON YOUR CROSS-EXAMINATION AND AN INQUIRY FROM THE JUDGE, AS WELL.
ARE THERE SPECIFIC, WRITTEN GUIDELINES ON PRACTICES OR IS THE WRITTEN MATERIAL THAT YOU SAID YOU WOULD BE GLAD TO BRING DOWN THE CODE OF FEDERAL REGULATIONS? I AM NOT QUITE SURE ON THAT POINT.
A. THE CODE OF FEDERAL REGULATIONS IS VERY CLEAR. ALSO THERE HAVE BEEN NUMEROUS MEMORANDA BY SUPERIORS, THE SUBSTATION COMMANDER, THE ASSISTANT COMMANDER, ABOUT THE PARTICULAR PROBLEMS WE HAVE OF DEMONSTRATORS AND AMENDMENTS TO THE CODE, AND THEY ARE READILY AVAILABLE.
Q. ALL RIGHT.
MR. SHMANDA: THAT WOULD COMPLETE MY QUESTIONS OF THIS WITNESS, YOUR HONOR.
MR. GRABER: NO OTHER QUESTIONS, YOUR HONOR.
THE COURT: SERGEANT, YOU SAID, "WHEN I AM WORKING, MO WARNINGS WILL BE GIVEN."
TO WHOM WOULD NO WARNINGS BE GIVEN?
THE WITNESS: TO MR. THOMAS AND MISS -- I AM SORRY. I DON'T KNOW HOW TO PRONOUNCE HER LAST NAME.
THE COURT: TO NEITHER OF THESE DEFENDANTS?
THE WITNESS: NEITHER OF THESE --
THE COURT: AND THAT IS BECAUSE THEY HAVE BEEN ALREADY WARNED?
THE WITNESS: THEY HAVE BEEN WARNED NUMEROUS TIMES, YOUR HONOR.
THE COURT: IT IS NOT BECAUSE YOU DON'T GIVE WARNINGS.
THE WITNESS: NO, SIR.
THE COURT: IT IS BECAUSE THEY HAVE ALREADY BEEN WARNED.
THE WITNESS: IT IS OUR POLICY TO WARN PEOPLE AND TRY TO GAIN COMPLIANCE, AND WE DO THAT IN ALL CASES.
THE COURT: AND THAT IS YOUR POLICY?
THE WITNESS: YES, SIR.
THE COURT: OKAY. THANK YOU. YOU MAY BE EXCUSED.
THE WITNESS: THANK YOU.
MR. SHMANDA: THAT IS ALL I HAVE, YOUR HONOR.
THE COURT: ARE THOSE THE ONLY OFFICERS?
MR. SHAMANDA: YES, SIR.
THE COURT: ALL RIGHT. NOW, ON MONDAY MORNING, WE WILL I HAVE OFFICER HAYNES BACK?
MR. SHMANDA: YES, SIR.
THE COURT: AND THEN WHAT ELSE DO YOU ALL HAVE IN MIND?
MR. GRABER: I WAS GOING TO PUT MR. THOMAS ON. WE COULD DO THAT NOW, IF THERE IS TIME, OR ON MONDAY, WHATEVER.
THE COURT: WELL, LET'S DO IT ON MONDAY.
MR. GRABER: I HAD SOME EXHIBITS I GAVE TO THE CLERK TO MARK.
THE COURT: WILL THERE BE ANY OTHER LIVE WITNESSES, BESIDES MR. THOMAS?
MR. WOLL: YES, YOUR HONOR, MISS PICCIOTTO.
THE COURT: AND THAT IS ALL?
MR. GRABER: POSSIBLY WINNIE GALLANT.
THE COURT: LET'S DO ALL THAT ON MONDAY MORNING, OR AS MUCH AS WE CAN. WHAT WE CAN'T GET DONE ON MONDAY MORNING WE WILL DO ON TUESDAY MORNING, AND COME PREPARED MONDAY WITH YOUR CALENDARS, AND I WILL HAVE MINE STRAIGHTENED OUT, AND WE WILL SEE IF WE CAN'T PICK A TRIAL DATE.
MR. SHMANDA: YOUR HONOR, I HAD AN OPPORTUNITY TO LOOK AT MY PERSONAL SCHEDULE, AND AT 10:00 O'CLOCK I HAVE SENTENCING BEFORE JUDGE CORCORAN, WHICH WAS AFTER A JURY TRAIL. IT WAS NOT A PLEA. SO I DID WANT TO ATTEND THAT SENTENCING.
THE COURT: MONDAY MORNING?
MR. SHMANDA: MONDAY MORNING AT 10:00.
THE COURT: WE CAN START AT 9:00 AND JUST TAKE A SHORT BREAK.
VERY WELL, GENTLEMEN.
(WHEREUPON, AT 4:20 O'CLOCK P. M., THE COURT ADJOURNED
TO RECOVENE ON MONDAY, DECEMBER 12, 1983, AT 9:00 O'CLOCK A.M.)
I N D E X
WITNESSESDIRECT CROSS REDIRECT RECROSS
DAVID HAYNES 4256 (GRABER)
WALTER SHERBA 6871 (GRABER)
73 (WOLL)
JAQUELINE A. ANDERSON7577 (GRABER)
JOHN P. MALHOYT 7983 (GRABER)
88 (WOLL)
E X H I B I T S
GOVERNMENT'SFOR IDENT. IN EVIDENCE
1 45 79
2 79
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
CRIMINAL CASE NO. 83-243<
WILLIAM THOMAS AND
CONCEPCION PICCIOTTO,)
DEFENDANTS. )
WASHINGTON, D. C.
DECEMBER 12, 1983
THE ABOVE-ENTITLED MATTER CAME ON FOR THE HEARING OF MOTIONS BEFORE THE HONORABLE LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE, AT APPROXIMATELY 9:00 O'CLOCK A. M., PURSUANT TO ADJOURNMENT.
A P P E A R A N C E S
( THE SAME AS HERETOFORE NOTED. )
P R O C E E D I N G S
THE DEPUTY CLERK: CRIMINAL CASE NO. 83-243, THE CASE OF WILLIAM THOMAS AND CONCEPCION PICCIOTTO.
COUNSEL FOR THE GOVERNMENT, TED SHMANDA; AND COUNSEL FOP THE DEFENDANT NO. 1, SEBASTIAN GRABER; COUNSEL FOR DEFENDANT NO. 2, DAVID C. WOLL.
THE COURT: GOOD MORNING.
MR. SHMANDA: GOOD MORNING, YOUR HONOR.
MR. WOLL: GOOD MORNING, YOUR HONOR.
MR. GRABER: GOOD MORNING, YOUR HONOR.
THE COURT: MR. GRABER, YOU WISHED TO ADDUCE SOME EVIDENCE THIS MORNING?
MR. GRABER: YES, YOUR HONOR.
THE COURT: CAN YOU BRIEFLY OUTLINE YOUR PROGRAM?
MR. GRABER: YES, YOUR HONOR. FIRST, WE WOULD LIKE MY TO INTRODUCE SOME STIPULATIONS TO AVOID HAVING TO CALL BACK SOME OF THE OFFICERS.
MR. SHMANDA PROVIDED ME THIS MORNING WITH A DOCUMENT RELEVANT TO THE SUBPOENA DUCKS TECUM THAT WE SERVED ON OFFICER HAYNES, AND WE WOULD LIKE TO ENTER INTO THE RECORD STIPULATION THAT EXPLAIN THE MEANING OF THE DOCUMENT.
PERHAPS AT THIS TIME IT SHOULD BE MARKED AS A DEFENDANT' EXHIBIT. IT WOULD BE DEFENDANT'S EXHIBIT NO. 11, I BELIEVE.
THE COURT: I AM GLAD TO HAVE THAT, BUT I JUST WONDERED IF YOU COULD OUTLINE WHAT YOUR PLAN IS FOR THE REST OF YOUR DEFENSE ON THESE MOTIONS.
MR. GRABER: YES, SIR.
THE COURT: FOR THE REST OF YOUR MOTIONS.
MR. GRABER: WE WOULD PUT ON MR. THOMAS AND MISS PICCIOTTO, AND THERE IS ONE OTHER WITNESS, WINNIE GALLANT, WHO IS NOT HERE TODAY.
SHE HAS PROVIDED AN AFFIDAVIT, BUT, IF THE HEARING CARRIES OVER, SHE WOULD BE AVAILABLE FOR ANY OTHER DATE TO TESTIFY. SHE IS JUST OUT OF TOWN TODAY ON BUSINESS. THE TESTIMONY WOULD BE IN RESPECT TO SELECTIVE ENFORCEMENT AND OTHER ASPECTS OF THE FIRST AMENDMENT MOTIONS THAT WE FILED.
THE COURT: ALL RIGHT.
THE DEPUTY CLERK: DEFENDANT'S EXHIBIT NO. 11 MARKED FOR IDENTIFICATION.
MR. GRABER: MR. SHMANDA, DO YOU WANT TO EXPLAIN THIS, OR SHOULD I GO AHEAD?
THE COURT: YOU WILL HAVE TO ADDRESS HIM THROUGH ME, MR. GRABER, PLEASE.
MR. GRABER: EXCUSE ME, YOUR HONOR.
THE COURT: DO YOU HAVE SOMETHING, MR. SHMANDA?
MR. SHMANDA: DO I HAVE ANYTHING, YOUR HONOR?
THE COURT: DO YOU HAVE SOMETHING THAT YOU WANTEDTO SAY?
MR. SHMANDA: WELL, JUST SO YOUR HONOR IS CLEAR ON THE STIPULATION, DEFENDANT'S EXHIBIT NO. 11, NOW MARKED FOR IDENTIFICATION, YOUR HONOR, THESE ARE TAKEN FROM THE OFFICIAL RECORDS OF THE PARK POLICE, AND THEY SHOW THAT, SO FAR AS THE PARK POLICE IS CONCERNED, THE TIME OF THE ARREST OF BOTH DEFENDANTS ON SATURDAY MORNING, SEPTEMBER 24, 1983, WAS 6:30 A. M.
THAT THE TIME THAT THEY ARRIVED AT THE POLICE STATION TO START THE BOOKING AND THEIR PAPER PROCEDURES WAS 7:13.
AND THE TIME OF RELEASE, THAT IS, THE RELEASE OF MR. THOMAS FROM WHERE HE WAS AT THE POLICE STATION TO BE TRANSPORTED TO THE CENTRAL BLOCK IN SUPERIOR COURT, WAS 11:40 A. M. THAT IS IN THE CASE OF MR. THOMAS.
THE FIGURES ARE THE SAME FOR MISS PICCIOTTO, WITH THE EXCEPTION THAT THE TIME THAT HER BOOKING OFFICIALLY BEGAN IS TWO MINUTES LATER, 7:15.
SO PERHAPS WE SHOULD JUST MARK THAT AS AN EXHIBIT.
MR. WOLL: YES, YOUR HONOR. I ASK THAT THAT BE MARKED AS A SECOND EXHIBIT.
MR. GRABER: ALSO, YOUR HONOR, MR. SHMANDA HAD INDICATED TO US, AND WE WOULD ASK THAT A STIPULATION BE ENTERED, THAT THERE WERE NO OTHER INMANTES IN THE PARK POLICE CELLBLOCK SUBSTATION AT THE TIME; AND, FURTHER, THAT THE CUTOFF TIME IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA ON SATURDAY SEPTEMBER 24, 1983, FOR PURPOSES OF HOLDING AN ARRAIGNMENT, WAS 11:30 A. M.
THE COURT: ALL RIGHT.
Continued...