UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA 

         V.                          CRIMINAL NO. 87-62 
                                     JUDGE RICHEY
WILLIAM THOMAS

GOVERNMENT''S RESPONSE TO DEFENDANT 'S MOTIONS

Comes now the United States, by and through its attorney, the United States Attorney for the District of Columbia, and hereby opposes defendant's request for discovery, his motion to dismiss for intentional ex post facto enforcement, his motion to dismiss for malicious prosecution, and his motion to proffer evidence in support of a defense of necessity. As grounds therefor, the government relies on the following discussion, and such other points and authorities as may be cited at the hearing on these issues.

1. Defendant, apparently on behalf of himself, Galindez, Semple, Joseph, and Ellen Thomas, makes numerous discovery requests on the grounds that the requested items are "appropriated and necessary to our defense" (See Attachement A). In fact, none of the items requested are discoverable. Fed. R. Crim. P. 16(c) requires the government to provide, upon request, documents and tangible objects which are ''material to the preparation of [a defendant's] defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." In this case, the issue to be decided at trial is whether, in fact, defendant and others were camping in Lafayette Park in December as charged by the government. In

connection with that charge, the government will provide each defendant with a copy of the police reports and photographs that relate to that incident. The items requested by defendant have no bearing on the factual issues to be resolved in this case, and are not discoverable. The government has no obligation to conduct the massive search that defendant requests.

2. It is not at all clear precisely what is defendant's claim in his motion to dismiss for intentional ex post facto enforcement. Defendant appears to assert that the regulation in question, 36 CFR 7.96 (i), was promulgated strictly for the purpose of "getting convictions" of him. This claim is preposterous and totally unsupported. Defendant also apparently claims that the enactment and application of the regulation deprived him of a right he enjoyed at the time of the offense, in violation of the constitutional prohibition against ex post facto application of the law. Before a statute or regulation can be found to violate the constitution's ex post facto prohibition, however, it must be found to apply retrospectively, that is, to events occurring before its enactment. See, Weaver v. Graham, 450 U.S. 24, 29 (1981); Marshall v. Garrison, 659 F.2d 440, 445 (4th Cir. 1981). In this case, the regulation was in full force and effect at the time defendant committed the offense with which he is charged. More importantly, the regulation deprives defendant of no constitutional right that he enjoyed at the time of the offense. As we discussed in our opposition to defendant's motion to dismiss for lack of offense, the Supreme Court, in Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), has determined that

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the regulation is a constitutionally valid time, place, and manner restriction on First Amendment rights.

3. Defendant claims he is entitled to a jury trial. This claim is unfounded. The maximum penalty on conviction for the charged offense is six months', imprisonment and/or a $500 fine, thus making it a "petty offense". There is no constitutional requirement of a jury trial for a petty offense.

4. Defendant's motion to dismiss for malicious prosecution is similarly unfounded. Defendant claims that he has been singled out for prosecution for impermissible motives, that he is being prosecuted because of his beliefs and convictions. In order to prevail on a claim of selective prosecution, a defendant bears the heavy burden of showing (1) that others similarly situated have not been prosecuted for the same conduct, United States v. Wilson, 639 F.2d 500, 503 (9th Cir. 1981); United States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U.S. 955 (1976); and (2) that the decision to prosecute was "based upon an unjustifiable standard such as race, religion or other arbitrary classification" Oyler v. Boles, 368 U.S. 448, 456 (1961); United States v. Diggs, 198 U.S. App. D.C. 255, 270, 613 F.2d 988, 1003 (1980); United States v. Bell, 165 U.S. App. D.C. 146, 161, 506 F.2d 207, 222 (1974), or was made in a bad faith effort to prevent the defendant's exercise of constitutional rights. United States v. Wallace, 578 F.2d 735, 741 (8th Cir. 1978); United States v. Murdock, 548 F.2d 599, 608 (5th Cir. 1977); United States v. Berrio, 501 F.2d 1207, 1211 (2d Cir.

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1977). With respect to the latter determination, it is presumed that the decision to prosecute rests upon proper motives. See Newman v. United States, 127 U.S. App. D.C. 266, 382 F.2d 479 ( 1967 ) . A trial court' s determination that a claim of selective prosecution is not supported by the record is to be sustained on appeal unless clearly erroneous. United States v. Wilson, supra, 639 F.2d at 503 & n.2.

Defendant offers no basis for his claim that he is being prosecuted because the government disagrees with his purported message, and wishes to silence him by prosecution. These claims are "speculative and unpersuasive," and do not merit serious consideration. See, e.g., White House Vigil v. Clark, 746 F.2d 1518 (D.C. Cir. 1984)

Defendant also seeks to proffer evidence in support of a defense of necessity, claiming that his only option to avoid "threat of death or harm to humanity" was to break the law. This claim is absurd. Whatever defendant's purported message, there were alternate, and arguably more effective, ways of presenting it. Nor was defendant required to break the law to avoid a threat of death or great bodily harm. Defendant's claim of necessity conceivably could be raised in mitigation of sentence, but it is not appropriate or relevant to the factual issues to be resolved at trial.

WHEREFORE, the government respectfully submits that defendant's motions should be denied.

Respectfully submitted,
JOSEPH E. DIGENOVA
UNITED STATES ATTORNEY
/s/ linda s. chapman
LINDA S. CHAPMAN
Assistant United States Attorney

CERTIFICATE OF SERVICE

I HEREBY certify that a copy of the foregoing has been mailed to WIlliam Thomas at 1440 N Street, N.W., Apartment 41O, Washington, D.C. 20005, on this 17th day of April, 1987.

/s/linda s. chapman
LINDA S. CHAPMAN
Assistant United States Attorney
555 4th Street, N.W.
Room 5915
Washington, D.C. 20001
(202) 272-9078