FILED
SEP 14, 1984
JAMES F. DAVEY, Clerk

UNITED STATES OF AMERICA

v.

WILLIAM THOMAS
ELLEN BENJAMIN, a/k/a Ellen Thomas
ROBERT A. DORROUGH
WILLIAM THOMAS
DAVID B. MANNING
CONCEPCION PICCIOTTO
ANTHONY J. NELSON

The government requests that this case be tried by the Court and not by a jury. The government argues that this matter does not constitute the type of serious crime for which a jury trial is required, see Baldwin v. New York, 399 U.S. 66 (1970), but rather falls within the category of a petty crime that, under the circumstances, should be tried by the Court. See District of Columbia v. Clawans, 300 U.S. 617 (1937); District of Columbia v. Colts, 282 U.S. 63 (1930). The defendants contend that this case involves serious constitutional questions that mandate a trial by Jury.

As a general matter a defendant charged with a petty crime is not entitled to a jury trial. A jury trial is required, however, where a criminal charge is punishable by a penalty of imprisonment for more than six months. Baldwin v. New York, 399 U.S. 66 (1970). In those cases where the penalty is six months or less, a crime will not be considered petty if other "special circumstances" are present. See District of Columbia v. Clawans, 300 U.S. 617; District of Columbia v. Colts, 282 U.S. 63; United States v. Thomas, 574 F. Supp. 197, 198-99 (D.D.C. 1983).

In the instant case the regulation that the defendants have allegedly violated provides for a penalty of up to six months. 36 C.F.R. § 50.5 (1984). A proper determination of the government's motion, therefore, must hinge upon whether or not the "nature of the offense" committed here, under the circumstances, constitutes a serious crime. See Colts, 282 U.S. at 73.

In United States v. Thomas, defendant William Thomas was charged with violating Interior Department regulations prohibiting structures on sidewalks. Thomas was granted a jury trial because, in the court's view, the potential first amendment implications created the necessary "special circumstances":

The defendant claims that the alleged "structure" was a symbol which nonviolently expressed his views on a critical public issue. The factfinder must determine, among other issues of fact, whether defendant's missile is a structure as defined in the regulation, or is something else. If the factfinder rules against defendant on that element and the other elements of the offense, that decision could have a chilling effect on a variety of future protest activities by defendant and others. This is a serious collateral effect, which may distinguish the crime charged here from the petty.

More directly, incarceration would both detain defendant and, for its duration, silence his protest. In a sense, the defendant's alleged conduct has two elements: one proscribed and one constitutionally protected. Confinement as punishment for the proscribed element would spill over onto the constitutionally protected element. The risk to the constitutionally protected conduct inherent in the sanction imposable for the proscribed conduct escalates the crime from the petty to one for which a jury trial should be available to a defendant who demands one.

Thomas, 574 F. Supp. at 198-99 (footnotes omitted). In a subsequent case also involving Thomas, however, the same court denied a jury trial, noting that the constitutional implications of the earlier case were no longer present. Significantly, this latter case involved identical circumstances to the present case. In the court's view, the "defendant's camping in Lafayette Park

without a permit [was] not the kind of expression that is

involved in . . . displaying a mock missile in protest against

the arm's race. Therefore, interruption by incarceration and

forfeiture is not an additional sanction requiring a trial."

United States v. Thomas, Criminal No. 83-00186 (Oberdorfer, J.,

Memorandum of Dec. 22, 1983).

The distinction drawn by Judge Oberdorfer is clearly supported by the Supreme Court's recent ruling in Clark v. Community for Creative Non-Violence, U.S., 104 S. Ct. 3065 (1984). There the Court declined to hold that camping in Lafayette Park constituted protected first amendment speech. The activity involved in the instant case is far closer to that involved in Clark than that at issue in the first Thomas case heard by Judge Oberdorfer. The defendants, therefore, have not articulated the type of constitutional concern that could potentially create an "additional sanctions. Accordingly, the penalty involved here is not sufficiently serious to warrant a jury trial.

It is this 14th day of September 1984,

ORDERED that the government's motion is granted and the defendants will be tried by the Court.

/s/JOYCE HENS GREEN

United States District Judge