UNITED STATES OF AMERICA :

v. :

WILLIAM THOMAS
CONCEPCION PICCIOTTO
ELLEN BENJAMIN, also known
as ELLEN THOMAS
DAVID B. MANNING
ANTHONY NELSON
WAYNE THOMAS, also known as
WILLIAM THOMAS

ROBERT A. DORROUGH

The United States of America, by its attorney, the United States Attorney for the District of Columbia, hereby opposes the defendants' motion to sever defendants. In support of its Opposition, the Government relies on the following points and authorities and such other points and authorities which may be raised at a hearing on this motion.

The defendants were arrested after they all were observed to be sleeping along with personal belongings in the area of the South sidewalk of Lafayette Park on June 6, 1984 at about 6:15 a.m. A large quantity of signs and personal property was seized from the area where the defendants had been sleeping.

Federal Rule of Criminal Procedure 8(b) permits the joinder of defendants in the same information if they are alleged to have participated in the same act or transaction, or the same series Of acts or transactions constituting an offense or offenses. When two or more defendants jointly commit a criminal offense, there is a strong interest in a joint trial. See United States v. Bruner, 657 F.2d 1278, 1289-91 (D.C. Cir. 1981). The presumption in favor of a joint trial results from the benefits to the courts from disposing of cases jointly where possible. The possibility of such a benefit should appear in the indictment or in representations by the Government prior to trial. Examples of the benefits of a joint trial include overlapping of issues, witnesses, and other evidence. United States v. Jackson, 562 F.2d 789, 794-795 (D.C. Cir. 1977).

Joinder serves to expedite the administration of justice, reduce the congestion of court dockets, and conserves the resources of courts, witnesses, prosecutors, and jurors. It is particularly appropriate here. The Government believes that a substantial part of the property seized may be jointly owned by several of the defendants. In addition, virtually all of the witnesses who would be Called against each defendant individually would be testifying against the others about the same series of events. To the extent that some of the defendants may have "stored" fewer items of property than the other defendants and may not have been engaging in the illegal conduct with the same purpose as others does not take away from the fact that all defendants were engaged in virtually the same activity, at the same time and in the same place. To sever their cases on the basis suggested by defendant Manning would merely lend credence to the suggestion (which we dispute) that the Government (and by logical extension, the courts) treats those who claim to be "demonstrating" differently than those who may violate the law for other reasons. By the same token, those who complain about the possibility that "other crimes. evidence may be introduced against some but not all defendants merely enhances the argument of those defendants who claim not to be "regulars" at the camping site.

Those who allege that they would be prejudiced by the unequal quantum of evidence to be introduced against them and by the antagonistic defenses they expect at trial have provided no factual proffer to support their assertions. The claim that the Government must establish that there was a conspiracy between the defendants in order to join them for trial is a misapprehension of joinder. It is the overlapping of proof arising from participation in the same acts or transactions [emphasis supplied] that is the reason for joinder of defendants. United States v. Perry, 731 F.2d 985 (D.C. Cir. 1984), relied on by defendant Picciotto, presented a different question -- the propriety of joinder of two counts when one of the two defendants participated in but was not charged with respect to one of the two transactions. The Court may, of course, monitor the presentation of evidence throughout the trial to guard against any undue prejudice to individual defendants arising out of a joint trial.

WHEREFORE, the Government submits that the defendants' motion for severance should be denied.

Respectfully submitted,

JOSEPH E. DIGENOVA
UNITED STATES ATTORNEY

By: /s/Pamela B. Stuart
Pamela B. Stuart
Assistant United States Attorney

I HEREBY CERTIFY that copies of the Government's Opposition to the defendants' motions to sever, for a bill of particulars, to dismiss the information, and to suppress evidence have been served by first class mail with postage pre-paid upon counsel for the defendants, Stephen Milliken, Esquire, 511 E Street, N.W., Washington, D.C. 20001 (for Ellen Thomas), Robert Debaradinis, Esquire, 1534 16^th Street, N.W., Washington, D.C. (for William Thomas), Phyllis B. Tatik, Esquire, Georgetown Law Center, 605 G Street, N.W., Third Floor, Washington, D.C. 20001 (for Concepcion Picciotto), Mark Venuti, Esquire, 2001 S Street, N.W., Suite 630, Washington, D.C. 20009 (for Anthony Nelson and Wayne Thomas, also known as William Thomas), Richard Seligman, Esquire, 2001 S Street, N.W., Washington, D.C. 20009 (for David Manning), and Melvin Dildine, Esquire, 419 7^th Street, N.W., Suite 200, Washington, D.C. 20004 (for Robert Dorrough) this 28^th day of August, 1984.

__/s/Pamela B. Stuart__

PAMELA B. STUART
Assistant United States Attorney
Room 3836
U.S. Courthouse

UNITED STATES OF AMERICA :

Criminal No. 84-255
Judge Joyce Hens Green
Motions Hearing and Trial:9/17/84

WAYNE THOMAS :
ELLEN B. THOMAS
ROBERT DORROUGH :
WILLIAM THOMAS
DAVID MANNING :
CONCEPCION PICCIOTTO
ANTHONY NELSON :

ORDER

This matter having come before the Court on Defendant's Motion to Dismiss

Information for Destruction of Evidence and the Court having considered the Motion and Memorandum in Support Thereof, and the Government's Opposition, Now, this _____ day of ________________________, 1984, IT IS HEREBY ORDERED:

Defendant's Motion to Dismiss is GRANTED.

/s/ Judge Joyce Hens Green

UNITED STATES DISTRICT JUDGE

Respectfully submitted,

__/s/Stephen G. Milliken
STEPHEN G. MILLIKEN
Milliken & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
(202)393-7676