IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CRIMINAL CASE NO. 83-243

UNITED STATES OF AMERICA,

v.

WILLIAM THOMAS AND

CONCEPCION PICCIOTTO,

DEFENDANTS.

WASHINGTON, D. C.

DECEMBER 14, 1983

THE ABOVE-ENTITLED MATTER CAME ON FOR THEHEARING OF ARGUMENT ON 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 GS

THE DEPUTY CLERK: CRIMINAL CASE 83-243, UNITED

STATES OF AMERICA VERSUS WILLIAM THOMAS AND CONCEPCION PICCIOTTO.

MR. SHMANDA FOR THE GOVERNMENT AND MR. DAVID WOLL AND MR. GRABER FOR THE DEFENDANTS.

MR. WOLL: YOUR HONOR, I HAVE NO INFORMATION AS TO THE WHEREABOUTS OF MISS PICCIOTTO.

THE COURT: WE WILL PROCEED WITHOUT HER. THIS IS JUST A MOTION. THE MOTIONS ARE YOUR MOTIONS.

MR. GRABER: YES, YOUR HONOR.

THE COURT: VERY WELL. YOU REALIZE THAT I HAVE l SAT THROUGH THE HEARING, AND I HAVE READ YOUR BRIEFS, AND |l HAVE BEEN THROUGH MANY OF Tl-lESE SAME ISSUES IN OUR EARLIER

PROCEEDINGS. SO I HOPE YOU CAN BE BRIEF.

MR. GRABER: I WILL ENDEAVOR TO DO SO, TO THE UTMOST,

YOUR HONOR.

I AM GOING TO RELY ON MY WRITTEN MOTIONS.

THE COURT: YES.

MR. GRABER: I JUST WANT TO POINT OUT WHAT I FEEL TO BE THE PROBLEM WITH THE CONSTITUTIONAL FIRST AMENDMENT PROBLEM.

THE COURT: LET ME ASK YOU ONE THING, BEFORE WE GET TO THAT. ON YOUR CLAIM RELATING TO THE DELAY IN ARRAIGNMENT

BETWEEN SATURDAY MORNING AND MONDAY MORNING, THE CASES THAT

, YOU CITE RELATE TO THE FOURTH AMENDMENT SUPPRESSION OF EVIDENCE AND THAT. IS THAT, AS IT APPLIES TO THE WHITE HOUSE SIDEWALK AND LAFAYETTE PARK, I FEEL THAT THE REGULATION IS UNCONSTITUTIONAL ON ITS FACE.

IT lS SOMEWHAT SIMILAR TO THE COURT'S ANALYSIS IN THE GRACE CASE, WHERE THEY LOOKED AT THE STATUTE THERE AND SAID: WE FIND THIS STATUTE IS UNCONSTITUTIONAL, AS APPLIED l TO THE SIDEWALK AROUND THE SUPREME COURT.

NOW, THIS CAMPING REGULATION ON MAY VERY WELL BE -AND I WOULD CONCEDE IS -- CONSTITUTIONAL ON ITS FACE, AS APPLIED TO THE RECREATIONAL PARKS IN THE NATION'S CAPITAL.

BUT WHEN WE ARE TALKING ABOUT ITS APPLICATION TO THE WHITE HOUSE SIDEWALK AND LAFAYETTE PARK, IN THAT INSTANCE, IT DEMANDS CLOSER FIRST AMENDMENT SCRUTINY, AND WE WOULD SUBMIT THAT ITS APPLICATION HAS BECOME SO VAGUE THAT MR. THOMAS AND OTHER DEMONSTRATORS REALLY DON'T KNOW WHAT THEY CAN DO AND CANNOT DO, AND IT LEAVES IT OPEN TO SUCH ARBITRARY ENFORCEMENT BY POLICE OFFICER, THAT AT ANY GIVEN TIME THEY CAN ARREST, IF THEY DESIRE TO DO SO, IF THEY SEE THE DEFENDANT SLEEPING.

THE COURT: WELL, SLEEPING ISN'T THE WHOLE STORY;

IS IT?

MR. GRABER: IT IS NOT THE WHOLE STORY.

THE COURT: IT IS SLEEPING WITH PARAPHERNALIA AROUND THAT GIVES AT LEAST THE BASIS FOR PROBABLE CAUSE -- WE DON'T KNOW ABOUT WHETHER THE INDICTMENT SHOULD BE THROWN OUT -PROBABLE CAUSE FOR THAT THIS IS THE PLACE WHERE

THESE PEOPLE ARE LIVING.

BUT THERE ARE INSTANCES IN ONE OF THE DOCUMENTS I ADMITTED AS AN EXHIBIT RELATED TO THE WHITE HOUSE SIDEWALK. THERE WAS AN INCIDENT REPORT RELATING TO A DEMONSTRATOR WHO MERELY HAD A BEDSPREAD OVER HIM AND WAS SLEEPING AND WAS WARNED ABOUT CAMPING.

SO I THINK THE WAY IT IS BEING -

THE COURT: IS HE BEFORE ME NOW?

MR. GRABER: NO, THAT WAS -- I DON'T THINK THERE WAS A PROSECUTION.

THE COURT: SO I DON'T HAVE TO WORRY ABOUT THAT CASE.

MR. GRABER: WELL, EXCEPT IT SHOWS THAT THE POLICE OFFICERS ARE ENFORCING IT IN A WAY -

THE COURT: WELL, WHAT POLICE OFFICERS DO AND WHAT A COURT DOES ON AN INDICTMENT ARE TWO DIFFERENT THINGS.

MR. GRABER: YES, BUT IN A FIRST AMENDMENT ANALYSIS, WHEN A STATUTE IS SO VAGUE THAT IT CAN BE SELECTIVELY APPLIED, OR IT CAN BE ARBITRARILY APPLIED -

THE COURT: THIS IS A CHALLENGE TO THE REGULATION ON ITS FACE.

MR. GRABER: CORRECT.

THE COURT: ALL RIGHT.

MR. GRABER: AND AS APPLIED.

THE COURT: ALL RIGHT.

MR. GRABER: AS APPLIED, I THINK TRIAL IS THE MORE APPROPRIATE FORUM FOR DEVELOPING THAT.

THE COURT: OKAY.

MR. GRABER: I WANT TO POINT OUT THAT THE CCNV 11 CASE IN FOOTNOTE 6 INDICATES -

THE COURT: I AM SORRY. I COUGHED AND DID NOT HEAR THE CASE YOU CITED.

MR. GRABER: CCNV 11.

THE COURT: ALL RIGHT. OKAY.

MR. GRABER: AT FOOTNOTE 6, THE COURT DECLINED TO REACH A FACIAL ANALYSIS FOR VAGUENESS, BECAUSt THEY SAID THERE WITH THE TENTS AND ALL, THAT IS HARD-CORE CAMPING. THEREFORE, UNDER SUPREME COURT PRECEDENT, VAGUENESS CANNOT BE ASSERTED WHERE THE CONDUCT AT ISSUE IS WITHIN THE HARD CORE OF THE STATUTE'S PROHIBITION.

WHEREAS, HERE, WITHOUT A SHELTER AND WITHOUT ANY BEDDING MATERIAL, WE WOULD SUBMIT THAT THE RECORD IS SUFFICIENT TO ATTACK THE STATUTE ON ITS FACE, AND IT DISTINGUISHES THE CASE FROM CCNV 11.

THE COURT: ALL RIGHT.

MR. GRABER: AND THE REST, I WOULD SUBMIT ON THE MOTION, YOUR HONOR.

THE COURT: THANK YOU, MR. GRABER. EXCUSE ME. IS MR. WOLL NEXT?

MR. SHMANDA: I BEG PARDON, YOUR HONOR.

MR. WOLL AS YOUR HONOR KNOWS, I HAD SOUGHT TO HAVE MISS PICCIOTTO JOINED IN THESE MOTIONS, AND I WOULD SUBMIT, YOUR HONOR

THE COURT: SHE IS HERE NOW, BY THE WAY, WHICH THE RECORD SHOULD SHOW.

MR. WOLL: YES, SHE IS PRESENT.

THE COURT: ALL RIGHT.

MR. WOLL: I WOULD SUBMIT THAT, THROUGH THE TESTIMONY THAT YOUR HONOR HAS HEARD, I THINK SHE HAS STANDING TO JOIN IN THESE MOTIONS. 6

THERE HAS BEEN TESTIMONY FROM HER THAT SHE HAS BEEN PART OF MR. THOMAS' DEMONSTRATION, AND, ALSO, DIFFERENT POLICE HARASSMENTS THAT HAVE BEEN VISITED ON MR. THOMAS HAVE ALSO BEEN VISITED UPON HER.

ONE OTHER MATTER I WOULD POINT OUT, YOUR HONOR, IS THAT I THINK, IN REFERENCE TO SELECTIVE PROSECUTION, WE DO HAVE THE TESTIMONY FROM MISS PICCIOTTO THAT SHE WAS GIVEN NO WARNING WHATSOEVER ON THIS PARTICULAR ARREST.

THE COURT: IS A WARNING ON THIS

PARTICULAR ARREST

| REQIRED BY LAW? WHAT ABOUT THE

FACT THAT THEY WERE THERE

| FOR MONTHS, AND THE POLICE HAVE

BEEN WAKING THEM UP ALL THE

| TIME?

I MR. GRABER I DON,T BELIEVE THAT

HAS ANY BEARING,

YOUR HONOR, WHAT THEY MAY HAVE DONE

IN THE PAST.

THE COURT: THIS 15 NOT RELEVANT, IN YOUR VIEW?

MR. WOLL: I DON'T THINK SO, YOUR HONOR. WHAT

THEY MAY HAVE DONE IN THE PAST, I DON'T THINK IS -

THE COURT: WELL, THE PAST IS A SEAMLESS WEB. THEY CLAIM IT IS ONE LONG VIGIL, AND, YET, WHEN THEY HAVE BEEN WARNED DURING THE VIGIL, THAT DOES NOT COUNT?

MR. WOLL: WELL, WE DON'T KNOW.

THE COURT: WELL, I HAVE TO -

MR. WOLL: THEY MAY HAVE HEEDED THE WARNING. 1 MEAN WHAT THEY MAY HAVE DONE TWO WEEKS AGO, OR THE DAY BEFORE, OR FOUR WEEKS AGO

THE COURT: WELL, YOU DO NOT UNDERSTAND THIS TO BE AN INDICTMENT FOR SLEEPING; DO YOU? IS THAT WHAT THE INDICTMENT SAYS, OR INFORMATION? IT DOES NOT SAY SLEEPING. SAYS CAMPING. SLEEPING IS ONE OF THE FACTS. IT IS NOT

THE WHOLE STORY.

MR. WOLL: THAT IS CORRECT, YOUR HONOR. BUT I THINK WHAT WE HAVE HERE IS THAT EVERYTHING THAT I CAN GLEAN FROM THE TESTIMONY WE HEARD, PARTICULARLY FROM THE POLICE OFFICERS, IS THAT THEIR POLICY IS TO EITHER KEEP THEM AWAKE OR TELL THEM TO WAKE UP; YOU CAN'T SLEEP; OR TELL THEM: YOU CAN'T CAMP HERE; YOU ARE GOING TO HAVE TO GET OUT OF HERE, OR GET THIS EQUIPMENT OUT OF HERE.

AND THAT IS THE WAY THEY HAVE BEEN PROCEEDING, BUT, FOR SOME REASON, SERGEANT MALHOYT, ON THIS PARTICULAR OCCASION TOOK l: UPON HIMSELF TO CHANGE THAI POLICY AND DECIDE THAT

HE WAS NOT GOING TO GIVE THEM ANY WARNING. I THINK THAT GOES

TO THE AREA OF SELECTIVE PRoSECUTION

THE COURT: ALL RIGHT. THANK YOU. MR. SHMANDA.

MR. SHMANDA: YES, YOUR HONOR. I WILL BE VERY BRIEF, ALSO, YOUR HONOR.

THE COURT: PLEASE.

MR. SHMANDA: THANK YOU, YOUR HONOR.

I WOULD SAY THAT THE THESIS OF THE GOVERNMENT'S ANSWER ON THE CONSTITUTIONAL ATTACKS IS CONTAINED IN THE PARAGRAPH l AT THE BOTTOM OF PAGE 7 OF OUR MAJOR OPPOSITION PLEADING. |IF I COULD JUST QUOTE THAT, YOUR HONOR, THAT WOULD BE MY COMMENT. | THE COURT: SURELY. l MR. SHMANDA: "CLEARLY, DEFENDANTS MAY, UNDER |THE REGULATIONS, DEMONSTRATE 24 HOURS A DAY, IF THEY CHOOSE. |WHAT THEY CANNOT DO, AND WHAT THE REGULATIONS PROHIBIT, IS |USE OF THE WHITE HOUSE SIDEWALK AS A LIVING ACCOMMODATION. |WHEN THEY CHOOSE TO USE THIS SPECIFIC LOCALE FOR LIVING-ACCOMMODATI0N PURPOSES, RATHER THAN TO EXPRESS A MESSAGE, THEIR ACTlVITES FALL UNDER THOSE PROSCRIBED BY THE REGULATION AND OUTSIDE THE SCOPE OF THE FOURTH AMENDMENT."

THAT BASICALLY IS THE GOVERNMENT'S POSITION IN THIS

ASK, YOUR HONOR.

THE COURT: MODIFIED BY THIS: IF THE GOVERNMENT

HOSE TO GIVE THEM A PERMIT

MR. SHMANDA: CORRECT.

THE COURT: (CONTINUING) -- TO CAMP THERE, THEY

COULD. THE STATUTE DOES NOT TIE THE GOVERNMENT'S HANDS. IT

GIVES THE GOVERNMENT DISCRETION ABOUT WHEN, AND UNDER WHAT

CIRCUMSTANCES, IT WILL PERMIT PEOPLE TO CAMP.

MR. SHMANDA: THE SUPERINTENDENT OF THE PARKS, UNDER

THE REGULATIONS, AS I UNDERSTAND THEM, YOUR HONOR, HAS THE

POWER TO ISSUE PERMITS.

THE COURT: AND HAS DONE SO.

MR. SHMANDA: AND HAS DONE SO IN THE PAST. AND,

OF COURSE, AGAIN, THE INDIVIDUALS -

THE COURT: AND THERE IS NO EVIDENCE THAT THESE

PLAINTIFFS APPLIED FOR A PERMIT.

MR. SHMANDA: NO, YOUR HONOR.

THE COURT: DEFENDANTS -- EXCUSE ME.

MR. SHMANDA: NO, YOUR HONOR, THERE 15 NONE. AND,

AGAIN, WE DO NOT DOUBT, PERHAPS, THE SINCERITY OF MR. THOMAS

AND HIS COMPANION'S VIEWS ON NUCLEAR REARMAMENT, OR DISARMAMENT

THAT IS NOT AT ISSUE HERE, YOUR HONOR.

THE COURT: LET ME ASK YOU A COUPLE OF THINGS.

l MR. SHMANDA: YES, SIR.

l THE COURT: DO YOU KNOW WHETHER THE VIETNAM GROUP

THAT THEY WERE TALKING ABOUT WERE CAMPING, ALLEGEDLY -- ACCORDING

TO THEIR INFORMATION, WAS CAMPING DOWN ON THE MALL?

l MR. SHMANDA: I DO NOT, YOUR HONOR.

THE COURT: YOU DON'T KNOW ANYTHING ABOUT THAT?

MR. SHMANDA: I DO NOT.

THE COURT: OKAY.

MR. SHMANDA: I ONLY KNOW THAT AS AN INTERESTED VETERAN, MYSELF, AND HAVING VISITED THE MALL SEVERAL TIMES. I WAS NEVER THERE AT NIGHT, YOUR HONOR.

THE COURT: WELL, I DON'T THINK YOU OUGHT TO TESTIFY

MR. SHMANDA: NO, BUT, I, MYSELF, DID SEE -

THE COURT: WELL, DON'T.

NOW, WHAT ABOUT THE JURY-TRIAL PROBLEM?

MR. SHMANDA: YES. WELL, YOUR HONOR, WE -

THE COURT: ASSUME THAT MR. THOMAS WAS ENTITLED

TO A JURY TRIAL, AS I RULED, IN THE CASE WHERE HE HAD IN HIS

POSSESSION, AND WAS CHARGED ON ACCOUNT OF HIS POSSESSION, OF

AN INSTRUMENT OF EXPRESSION -

MR. SHMANDA: YES, SIR.

THE COURT: (CONTINUING) -- THE FORFEITURE OF WHICH WAS IN ADDITION TO PUNISHMENT WHICH COULD HAVE BEEN, OR CAN

BE, SIX MONTHS.

MR. SHMANDA: YES, SIR.

THE COURT: AND, THEREFORE, IN MY VIEW, IT BROUGHT HIM WITHIN THE AMBIT OF THE NINTH CIRCUIT YOSEMITE CASE.

MR. SHMANDA: YES, SIR.

THE COURT: CAN YOU DISTINGUISH THIS CASE FROM THAT ONE, FROM THAT POINT OF VIEW?

MR. SHMANDA: IT SEEMS TO ME, YOUR HONOR, THERE

CAN BE A BASIC DlSTlNCTION IN TERMS OF, IN THE SIDEWALK CASE |

THAT YOUR HONOR TRIED, AND AFFORDED MR. THOMAS A JURY TRIAL

THE COURT: THAT WAS A STRUCTURE CASE.

MR. SHMANDA: A STRUCTURE CASE, YES, YOUR HONOR.

THE PROHIBITED CONDUCT SEEMED TO COLLIDE SQUARELY, OR AT LEAST

ARGUABLY, WITH FIRST AMENDMENT CONSIDERATIONS.

IN THIS PARTICULAR INSTANCE, YOUR HONOR, THE ONLY

ISSUE IS: WAS HE CAMPING, WHICH WE WILL NOT KNOW FOR SURE,

YOUR HONOR, UNTIL WE HAVE THE BENEFIT OF THE SUPREME COURT'S

DECISION ON THE APPEAL THAT WAS TAKEN FROM THE COURT OF APPEAL

DECISION.

THE COURT: I UNDERSTAND THAT.

MR. SHMANDA: BUT I RATHER SUSPECT, YOUR HONOR

AND I DON'T KNOW -- THAT WE ARE GOING TO HAVE AN OPINION FROM

SUPREME COURT THAT I THINK IS GOING TO APPROACH WHAT JUDGE

SCALIA WROTE: THAT RARELY CAN

THE COURT: WELL, YOU HAVE MORE INSIGHT INTO WHAT

THE SUPREME COURT IS GOING TO DO THAN I DO.

MR. SHMANDA: BUT MY POINT WAS, YOUR HONOR

THE COURT: WHAT DOES THAT HAVE TO DO WITH A JURY

TRIAL?

MR. SHMANDA: WELL, ONLY THAT THEY ARE GOING TO

SAY THAT THIS IS NOT A FIRST AMENDMENT MATTER.

1-HE COURT: OKAY.

MR. SHMANDA: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. DO YOU WANT TO RESPOND ON THE JURY-TRIAL QUESTION?

MR. GRABER: YOUR HONOR -

THE COURT: DO YOU STILL DEMAND A JURY TRIAL?

MR. GRABER: YES, YOUR HONOR, AND WE FEEL THAT THE FIRST AMENDMENT IMPLICATIONS ARE SIMILAR TO THE STRUCTURES CASE, AND, IN THE COURT'S DISCRETION, WE WOULD HOPE THE COURT WOULD HONOR OUR REQUEST AND ALLOW US A JURY TRIAL IN THIS MATTER.

THE COURT: ALL RIGHT. I WILL GIVE YOU ALL A WRITTEN ORDER, BUT LET'S SET THE TRIAL NOW. I HAVE A TRIAL BEGINNING THE 9TH OF JANUARY THAT IS GOING TO BLOCK ME OUT FOR THE REST OF THE TIME. I WOULD LIKE TO SQUEEZE THIS IN, IN THE FIRST WEEK OF JANUARY, IF COUNSEL ARE AVAILABLE. l MR. SHMANDA: THE GOVERNMENT WOULD BE AVAILABLE l ANY TIME THE COURT WANTS TO TRY THE CASE, YOUR HONOR. THE COURT: ALL RIGHT. AND I COULD DO IT, BEGINNING AT 2:00 O'CLOCK ON TUESDAY, THE THIRD OF JANUARY. MAYBE WE COULD GET THE JURY TOGETHER THEN AND TRY THE CASE THE NEXT DAY, IF WE HAVE A JURY.

l MR. GRABER: TWO O'CLOCK, YOUR HONOR?

l THE COURT: TWO O'CLOCK ON THE THIRD.

l MR. GRABER: YOUR HONOR, I DON'T HAVE MY CALENDAR WITH ME. I BELIEVE THAT IS ALL RIGHT.

THE COURT: WHY DON'T YOU CONFIRM IT TO THE DEPUTY CLERK? YOU HAD BETTER DO IT TO MY CHAMBERS, WITH MR. COOPER.

MR. THOMAS AND MISS PICCIOTTO -- I AM SORRY NOT TO BE ABLE TO SAY IT CORRECTLY.

MR. THOMAS: "PICCIOTTO."

THE COURT: THANK YOU.

I HAVE SET THE TRIAL OF THIS CASE FOR 2:00 O'CLOCK ON TUESDAY, JANUARY 3, 1984, AND I REMIND YOU THAT YOU HAVE A DUTY TO BE HERE AT THAT TIME. YOUR FAILURE TO APPEAR COULD EXPOSE YOU TO A SEPARATE FEDERAL CHARGE OF BAIL-JUMPING.

NOW, WHILE THIS MOTION BUSINESS HAS BEEN GOING ON, I HAVE BEEN A LITTLE LOOSE ABOUT WHETHER YOU ARE HERE OR NOT, AND WHETHER YOU ARE HERE ON TIME OR NOT, BECAUSE THIS IS A RELATIVELY INFORMAL PROCESS.

BUT WHEN WE HAVE A TRIAL, AND PARTICULARLY IF IT IS A JURY TRIAL, IT IS ESSENTIAL THAT YOU BE HERE AT ALL TIMES ON TIME. IF THAT REQUIRES YOU TO BE HERE AHEAD OF TIME, THEN BE HERE AHEAD OF TIME. BUT YOU DISRUPT AND INCONVENIENCE A WHOLE LOT OF PEOPLE IF YOU ARE NOT HERE PROMPTLY, PARTICULARLY IF WE ARE HAVING A JURY TRIAL.

THANK YOU.

(WHEREUPON, AT 9:27 O'CLOCK A. M., THE COURT ADJOURNED, TO RECONVENE AT 2:00 O'CLOCK P. M., ON JANUARY 3, 1984.) Continued...

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