DEC 14 1984
CLERK, U.S. DISTRICT COURT
DISTRICT OF COLUMBIA
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 84-00385
The defendant is charged in a three-count information. Count I charges that she did "unlawfully climb a tree in Lafayette Park" in violation of Title 36 C.F.R. §§ 50.10(a), 50.5. Count II charges that she did, among other things, "tie . . . a rope . . . to a tree in Lafayette Park" in violation of Title 36 C.F.R. §§ 50.10(c) and 50.5. Count III charges that the defendant camped in Lafayette Park and stored personal belongings there in violation of 36 C.F.R. §§ 50.27 and 50.5.
I have read the stipulation, heard defendant's testimony and the arguments of counsel, and have examined the exhibits offered in evidence.
It is stipulated that defendant was in a tree in Lafayette Park, without apparent interruption from October 3 through October 10, 1984. Her testimony sustains an inference that she was on notice that this was proscribed by law. For example, the police specifically requested her to come down, and she failed to do so. She had some articles of clothing with her in the tree, but did not have items which would constitute the tree as a living accommodation within the meaning of the camping regulation.
The Court has already denied the motion for acquittal. The Supreme Court has only recently sustained against a First Amendment challenge the validity of the regulations relating to activities in Lafayette Park. Clark v. Community for Creative Non-Violence, 104 S. Ct. 3065 (1984).
In support of her defense of necessity, she testified that she believed her choice was between being a clown and a terrorist, the latter course being repugnant to her. The defense of necessity is without merit.
Defendant's able counsel has not briefed the issue he raised at oral argument about the validity as a legislative act of the regulation invoked in the indictment except to cite the decision of the Supreme Court in Chadha v. INS, 103 S. Ct. 2764 (1983). That decision is not controlling here.
Accordingly, the Court finds as to
COUNT I - the defendant is GUILTY.
COUNT II - the defendant is GUILTY.
COUNT III - the defendant is NOT GUILTY.
Defendant may wish to renew her challenge to the validity of the regulations or legislation pursuant to Rule 34 of the Federal Rules of Criminal Procedure by a timely motion.
/S/Louis F Oberderfor____
Date: DECEMBER 14, 1984 UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
vs. : CRIMINAL m. 8 4 _ 0 0 3 8
ELLEN B. THOMAS :
Please be advised that the above entitled action is set for sentencing of Ellen B. Thomas 14440 M Street N.W.
(Name of Defendant) ( Address) :
#410, Washington, D.C. on January 24, 19 85 at 9:30 am~ before Judge Oderdorfer in Courtroom 3 , Floor, United States Courthouse. The defendant named in the preceding sentence and his/her defernse counsel Stephen G. Milliken Esq. 511 E Street N.W. Washington, D.C. 20001 are required to be present.
Notwithstanding the obligation of the D. C. Pretrial Services Agency and/or the Surety to notify the defendant of his/her required appearance in court at sentencing, the Court further has directed that defense counsel also shall take appropriate action to assure the presence of the defendant in court at sentencing.
In addition and in accordance with Rule 32 of the Federal Rules of Criminal Procedure, as amended, defense counsel shall secure a copy of the Presentence Investigation Report (without the Sentencing Recommendation to the Court) from the Probation Officers's Liaison Office in Room 2409 on the second floor of the United States Courthouse between the hours of 8:30 a.m. & 4:00 p.m. daily. The Report shall be available to the defendant at least five days before the sentencing date. In personal recognizance or bond cases, the Report shall be available in the Probation Liaison Office. In custody cases, the defendant may be seen in the cellblock of this courthouse by defense counsel making prior arrangements with the Deputy Clerk named below who will coordinate & assist in arrangements with the U. S. Marshal & the facility of incarceration.
It shall be the duty of defense counsel to have the defendant read the Presentence Investigation Report, discuss the
same with the defendant & in the event of any material factual inaccuracies in the report, immediately advise the Probation Liaison Office in writing. The Probation Officer make any supplemental information available to the sentencing judge along with any corrections of inaccuracies & any other comments the Probation Officer may wish to make. The supplemental information shall be made available to the defendant, his/her attorney and the Government attorney before sentencing.
Immediately after the defendant has had an opportunity to read the Presentence Investigation Report & discuss the same with defense counsel, it shall be the duty of defense counsel to return the Presentence Investigation Report to the Probation Liaison Office. Neither the defendant nor his/her attorney shall be permitted to make any copies of the report.
It shall be the further duty of the defendant and his/her attorney to sign a receipt for the Presentencing Investigation Report on the form provided by the Liaison Office, which shall indicate that the defendant has read the report and discussed same with his/her defense attorney. It shall be the duty of the Liaison Office, to deliver the receipt to the Clerk for filing in the official Court file of the case.
At the time of sentencing the defendant and his counsel shall have an opportunity to comment upon the report. If counsel intends to introduce testimony relating to any alleged material factual inaccuracy contained in the Presentence Investigation Report, counsel shall make to the Court a written proffer of the testimony sought prior to the sentencing date.
The Government shall have access to the Presentence Investigation Report through the Probation Liaison Office, of the Courthouse (Room 2409) to the same extent that the report has been provided to the defendant and defendant's counsel.
FOR THE COURT
By: /s/Sophie Lyman
Deputy Clerk of Court (535- )
cc: Judge's Chambers
U. S. Probation Office,
U. S. Marshal
Assistant U. S. Attorney- Douglas J. Behr, Esq.