Untitled Document

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 88-3015 & 88-3023
(Cr. Nos. 87-62 & 87-64)

UNITED STATES OF AMERICA,                     Appellee,

         v.

WILLIAM THOMAS and
ELLEN B. THOMAS,                              Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE
STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal pursuant to 28 U.S.C. @ 1291.

Appellants were prosecuted in the District Court pursuant to 16 U.S.C. § 3.

COUNTERSTATEMENT OF THE CASE

Appellants were charged by informations filed on February 18, 1987 with camping in Lafayette Park 1/ on or about December 22, 1986, in violation of the federal regulation at 36 CFR
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1/ Lafayette Park, a roughly seven acre square located across Pennsylvania Avenue from the White House, is a Memorial-core area park -- "a garden park with ... formal landscaping of flowers and trees, with fountains, walks and benches." Clark v. CCNV, 468 U.S. 288, 290 (1984) (quotations and citations omitted).

§ 7.96(i). 2/ Appellants moved to dismiss the informations based on alleged violation of their First Amendment rights to free exercise of religion; the District Court granted the
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2/ The United States Department of the Interior, through the National Park Service, has been assigned responsibility for the management and maintenance of all National Parks. The National Park Service is required to

promote and regulate the use of the ... national parks ... by such means and measures as conform to the fundamental purpose of said parks ..., which purpose is to conserve the scenery and the national an historic objects and the wildlife therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. §1. The Secretary of the Interior is authorized to promulgate rules and regulations for the use and management of these parks in accordance with the purposes for which they were established. 16 U.S.C. §3, la-1.

Pursuant to this authority, the Secretary of the Interior has adopted regulations permitting camping in National Parks only in campgrounds designated for the purpose by the Superintendent of Public Parks. 36 C.F.R. §7.96(i). No campgrounds are -- or ever have been -- designated in the Memorial-core area. "Camping" is defined as

the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities.

Id. The regulation further provides:

The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these
(footnote continued)

motion by Order of April 23, 1987. Following the government's unsuccessful motion to reconsider the April 23 Order (see Order of May 26, 1987, denying Motion to Reconsider), the government appealed the District Court's ruling to this Court, and moved for summary reversal. In an unpublished Memorandum and Order of September 22, 1987, this Court summarily reversed the District Court's judgment and remanded the case for further proceedings (united States of America v. Scott Michael Galindez, and consolidated case, No. 87-3041). Following a bench trial before the Honorable Charles R. Richey on December 15, 1987, the District Court from the bench found the appellants guilty as charged (Tr. 134). 3/

In rendering its judgment, the Court found, based on the testimony before it, that at the time in question each of the appellants had "facilities," such as sleeping bags and/or blankets, both under and over their bodies so as to constitute accommodations for facilitating sleep. The Court further found that, based on the evidence, the appellants each had either been sleeping at the pertinent time, or had used the park for the purpose of making preparations to sleep, or had engaged in both activities, and that they had used the Lafayette Park area as a
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(footnote continued from previous page)
1987. activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaged.

3/ "Tr." refers to the 141 page transcript of trial proceedings In this case on December 15, 1987.

living accommodation within the meaning of the "camping" regulation (Tr. 134-135). In so ruling, the Court expressly noted that, under the explicit language of that regulation, the nature of the activities in which appellants were engaged when they violated the regulation - no matter how laudable or noble those activities might be -- made no difference in the inquiry as to whether their conduct had violated the law (Tr. 135).

On January 28, 1988, appellant William Thomas was sentenced to 60 days imprisonment, and appellant Ellen Thomas was sentenced to 50 days imprisonment and a 25 dollar fine. This appeal followed.

The Government's Evidence

On December 22, 1986, Park Police Officer Peter Ward was assigned to patrol Lafayette Park and the White House Sidewalk. When he came on duty between 10:00 p.m. and 11:00 p.m., he saw the appellants and their co-defendants 4/ near signs that they maintained on the South Side of the sidewalk of Lafayette Park (Tr. 19-20). During the time period from approximately 12:00 Midnight to 2:30 a.m. on December 23, Ward observed the appellants more closely (Tr. 20-21). Both Mr. and Mrs. Thomas were lying down next to each other, on top of what is commonly referred to as a 'space blanket" (Tr. 21). Mr. Thomas was also lying inside of a red sleeping bag; and another sleeping bag had
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4/ Two co-defendants of the appellants, Mr. Stephen Semple and Mr. Philip Joseph, were also tried for and convicted of camping violations in the proceedings below, but have not appealed. A third co-defendant, Michael Galindez, had initially been charged, but was not brought to trial (Tr. 39-40).

been unzipped, spread open, and placed on top of the appellants so as to cover them both (Id.). Ward further testified that during the period of his observations the appellants' heads were covered by their "blankets" -- except for occasional moments when Mrs. Thomas stuck her head out as the Officer passed by (Tr. 22). In the same vicinity as the appellants, within a 10 yard radius of their location, Ward also observed appellants' co-defendants lying apparently asleep (Tr. 21, 25-27).

During the period of the Officer's observations, Mr. Thomas sometimes moved, but indicated no awareness of Ward's presence. 5/ Mrs. Thomas moved whenever Ward passed by and occasionally acknowledged his presence, 6/ but at other times did not appear aware of the officer (Id.). Officer Ward also observed two plastic bags full of unknown items, a small red bag, two stacks of newspapers, and a bicycle in the immediate vicinity of the appellants (Tr. 23). 7/ After observing this scene and this conduct for approximately two and one-half hours, 8/ Ward and another Park Police Officer issued
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5/ Ward did not see Thomas get up or otherwise indicate that he was awake during this period of time (Tr. 22); nor did the Officer recollect hearing Mr. Thomas say anything (Tr. 33-34).

6/ Ward testified that be believed he and Mrs. Thomas might have exchanged "Hello's," at some point (Tr.23). He did not, however, see her sit up; she remained lying down (Tr. 61).

7/ The bicycle was leaning up against one of the Thomases' signs, and the small red bag was within their reach. The two plastic bags were sufficiently close to the appellants that if they had sat up and rolled over, they would have gained access to the bags (Tr. 23).

8/ Ward's continuous observation was interrupted when he went
(footnote continued)

magistrate's violation notices for camping in undesignated areas to the appellants and their co-defendants (Tr. 27-28). When Ward called out to the appellants, Mrs. Thomas lifted her head up and responded (Tr. 29-30, 32). Mr. Thomas responded shortly thereafter, perhaps after being "nudged" by his wife (Tr. 3031).

The Defense Evidence

Richard G. Robbins, Assistant Solicitor for the National Capitol Parks, was subpoenaed and called as a witness by Mr. Thomas. Robbins stated that he had participated in drafting and editing portions of the camping regulation at 36 C.F.R. § 7.96(i), and had supervised the attorney who drafted the remaining portions of the rule (Tr. 74-75). Robbins further testified that his official duties include giving advice to the Regional Director of the National Capital Region of the National Park Service and to the Director of the National Park Service, as well as occasionally advising the general public in connection with his responsibilities for negotiating demonstration permits and giving advice (Tr. 75-76). Robbins stated, however, that he is not authorized to give the public advice and issue opinions that would bind the Solicitor or Secretary of the Interior (Tr. 76)
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(footnote continued from previous page) inside at about 2:05 a.m. to start writing citations. He returned to the appellants' site at approximately 2:26 a.m. (Tr. 33) to find that the appellants' situations had not changed since his departure beyond -- perhaps --that they might have rolled over onto their backs (Tr. 33).

According to Robbins, federal regulations contain neither any prohibition against a continuous vigil in Lafayette Park nor any per se prohibitions against blankets, sleeping, lying on a blanket and sleeping, or using a sleeping bag in the park (Tr. 85-86). Although sleeping per se is not prohibited, Robbins explained, it is one indicia among others that indicate whether a person is using the park as a living accomondaton area -- and thus camping -- within the meaning of the regulations (Tr. 91 92).

In response to Mr. Thomas' questioning, Robbins emphasized that under the regulations, the Park may not be used as a living accommodation area; and that insofar as a person might never leave the Park for, for example, five years, Robbins believed that such a person would be using the Park in that prohibited manner (Tr. 89). Robbins agreed, nevertheless, with Mr. Thomas'
proposition that"

[T]heoretically then, in [Robbing'] opinion, it would be possible for a person to remain in Lafayette Park for five years if they slept intermittently and they carried on all the other activities which would constitute --reasonably constitute living accommodations, such as showering, storing property, doing laundry, taking showers, preparing food -- if a person conducted all of those activities, going to the bathroom out of the Park, and was only sleeping intermittently in the Park, then it would be conceivable that he could maintain a five-year presence without violating the camping regulation? (Emphasis supplied) (Tr. 92).

Ms. Winnifred Gallant, 9/ called as a witness by Mrs.
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9/ Gallant testified that she knew Mrs. Thomas "from the peace (footnote continued)

Thomas, also testified for the defense. Gallant stated that she shares her home (located at 1440 N. Street, Northwest) with Mrs. Thomas to the extent she needs the facilities (Tr. 96). Gallant described her home as a fourth floor efficiency apartment with a dressing room, bathroom, kitchen, and laundry facilities (Tr. 98, 101). She testified that appellants both have keys to the apartment (Tr. 101), and that other members of the vigil 10/ also have been given access to the apartment (Tr. 98-100). Appellants use the apartment facilities to prepare food (Tr. 101, 102) and receive telephone messages (Tr. 102). Mr. Thomas occasionally does repair work on the apartment; and the telephone at the residence is listed in his name (Id.). Appellants contribute financially towards payment of the telephone bill, 1l/ and bring in most of the food they prepare (Tr. 103). 12/

In his own defense, Mr. Thomas testified that on December 22, 1986, he did not arrive in Lafayette Park until approximately 11:45 p.m., because he had been out of the Park
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(footnote continued from previous page) park anti-nuclear vigil in the park" (Tr. 95), and in the past had frequently joined the appellants on the vigil -- at one time on a daily basis (Tr. 105).

10/ Gallant estimated that such persons number "about ten or twelve from time to time" (Tr. 99).

11/ Gallant also uses the telephone, particularly for outgoing calls (Tr. 102-103).

12/ Gallant also identified photographs of file cabinets containing the Thomases' records of the vigil, which are kept in Gallant's home (Tr. 97, 100), as well as of a trunk containing clothes and other possessions of the appellants (Tr. 100).

ARGUMENT

I. The Evidence Supports the Appellants'
Convictions Under the Camping Regulation

Appellants challenge their convictions primarily on the asserted grounds that the evidence against them was insufficient to support their convictions, and accordingly that their motions for a judgment of acquittal -- made both at the end of the government's case and after the presentation of all the evidence --should have been granted. The principles to be applied by an appellate court in assessing such a challenge are wellestablished. The reviewing court views the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, 15/ and permitting the finder of fact to determine the weight and credibility of the evidence. United States v. Sutton, 801 F.2d 1346, 1358 (D.C. Cir. 1986), citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983); United States v. Fench, 470 F.2d 1234, 1242 (D.C. Cir. 1972).
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(footnote continued from previous page) at 7), and only engage in sleeping that is "unplanned, intermittent, and for short periods" (Appellants' brief at 3); or that appellants "do not work during the day and sleep at night" but instead "speak to people at all hours," sleeping only intermittently, involuntarily, and when sleep "overtakes them and there is no one to talk to" (Appellants.' brief at 24). Neither did any evidence adduced at trial describe or establish the character, extent, or duration of the "vigil" referred to by appellants' in their brief.

15/ No legal distinction exists, moreover, between circumstantial and direct evidence. United States v. Sutton, 801 F.2d at 1358, citing Holland v. United States, 348 U.S. 121, 139-40 (1954).

The Court's inquiry is whether, viewing the evidence from this perspective, the factfinder must necessarily have had a reasonable doubt as to the defendant's guilt. United States v.
Weisz, 718 F.2d 413, 437 (D.C. Cir 1983), citing United States v. Singleton, supra, 702 F.2d at 1162-63. Only if there is no evidence upon which a conclusion of guilt could reasonably be based is the evidence insufficient to permit conviction for the charged offense. See Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir.), cert. denied 331 U.S. 837 (1947).

Application of these principles to the appellants' case leads inescapably to the conclusion that there was ample evidence before the District Court upon which to convict them of the charged camping violations. A violation of the regulation prohibiting camping in Lafayette Park exists when park land is used for living accommodation purposes. See 36 C.F.R. §7.96(i)(1). The regulation expressly sets forth indicia of the use of park land as a living accommodation, specifically including participation in "sleeping activities", or making preparations to sleep by "laying down of bedding for the purpose of sleeping." Id.

In this case the government introduced eye-witness testimony from a Park Police Officer that appellants were within the confines of Lafayette Park, lying on, in, and under blankets and sleeping bags, with their heads covered up underneath the blankets, for at least the time period between 12:00 p.m. and 2:30 a.m. on the date in question. Although Mrs. Thomas was

apparently awake and indicated her awareness of the Officer's presence during part of this time, she did not significantly alter her position of repose upon and within bedding materials,
nor did she make any motion indicating an intention to get up (See Tr. 22-23, 61). Mr. Thomas was -- at least to all appearances -- asleep and unaware during the period of police observation (Tr. 22, 33-34). The fact that appellants had laid bedding materials down upon the ground in order to lie down on and under them was uncontested (See Tr. 110).

This direct evidence, combined with the inferences that may reasonably be drawn therefrom, is fully sufficient to support the camping convictions in this case. To begin with, if a person places a "space blanket" and/or sleeping bag upon the ground, lies down on or in it, covers himself or herself with a blanket or sleeping bag for additional warmth, and proceeds to lie there in a prone position with his or her entire body and head beneath the "covers", there is a strong inference that the person has laid down bedding materials for the purpose of sleeping.

When a person so positioned seems unaware of the presence or approach of, or fails to respond to, others in his immediate vicinity -- even intermittently -- a reasonable inference may be drawn that the person has succeeded in engaging in the activity of sleep, or is at least attempting to do so. These inferences are particularly strong if the associated conduct or activity transpires during the hours normally used for sleeping, such as

between midnight and 2:30 in the morning. The inferences are further strengthened in circumstances where others in the person's immediate vicinity have also apparently laid bedding materials down upon the ground and gone to sleep.

Thus, the prosecution introduced direct evidence of facts from which the factfinder could permissibly infer that indicia of using park land for living accommodation purposes were present in appellants' cases, i.e., either sleeping (as in the case of William Thomas) or at very least making preparations to sleep by laying down bedding for the purpose of sleeping (as in the cases of both appellants). This evidence, viewed in the light most favorable to the government, was sufficient to sustain appellants' convictions. 16/

The fact that the defense introduced testimony which, if credited, arguably contradicted the prosecution's evidence of camping violations is irrelevant to the question of evidentiary sufficiency before this Court. Determination of the credibility of witnesses is, of course, the proper function of the factfinder in the trial court, and not the appellate Court upon its review. See Jackson v. Virginia, supra, 443 U.S. at 318-l9. In the face of the prosecution evidence, therefore, the court below had no obligation to credit the defense testimony that Mr. Thomas uses blankets and sleeping bags strictly for warmth and
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16/ We also note that there was some evidence of an additional indicator of prohibited camping, i.e. the storage of personal property on park land (see Tr. 23).

not for purposes of sleeping, l7/ as to the extent of appellants' sleep on the evening in question or generally as to the limited extent of their activities to accommodate their living in the park, or as to the extent and nature of their use of Winnifred Gallant's home.

That the District Court could reasonably have credited this testimony, and arguably could have based thereon an acquittal of the appellants, is of no moment at this stage of the litigation. In order to meet the standard of sufficiency, the government's evidence need not "foreclose every conceivable premise inconsistent with guilt." United States v. Weisz, 718 F.2d at 438, quoting United States v. Carter, 522 F.2d 666, 682 (D.C. Cir. 1975); Curley v. United States, 160 F.2d at 237. Notwithstanding the contradictory testimony of defense witnesses, it is enough to sustain appellants' convictions that the government's evidence, if credited, directly or inferentially proved appellants' guilt; for

[i]f the evidence reasonably permits a verdict of acquittal or a verdict of quilt, the decision is for the [factfinder] to make. Id; see also United States v. Sutton, supra, 801 F.2d at 1358.

There was plainly evidence in the record based on which the court could reasonably have concluded that appellants made
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17/ In fact, appellants' contentions that they use these articles to keep warm and not to sleep amount to little more than a game of semantics. The primary purpose of sleeping bags and blankets when used as bedding materials is generally to provide warmth for a sleeping individual. The purposes of keeping warm and facilitating sleep, we submit, cannot realistically be kept distinct when a tired individual lies down and pulls up the "covers" on a chilly evening.

preparations to sleep by laying down bedding for that specific purpose and proceeded either to sleep or attempt to sleep for some significant period of time, and thus were guilty beyond a
reasonable doubt of "camping" in the sense of using the Park as a living accommodation area.

The evidence is therefore sufficient to support the challenged convictions. 18/

II. The Regulation That Prohibits
Camping is Not Unconstitutionally
Vague As Applied to the Appellants. 19/

Appellants' also contend that their convictions should be overturned because the camping regulation is unconstitutionally
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18/ It is of no significance here that Park Service Assistant Solicitor Robbins agreed that "theoretically" it would be "possible for a person to remain in Lafayette Park for five years if they slept intermittently and they carried on all the other activities which would constitute -- reasonably constitute living accommodations, such as showering, storing property, doing laundry, taking showers, preparing food -- if a person conducted all of those activities, going to the bathroom out of the Park, and was only sleeping intermittently in the Park, then it would be conceivable that he could maintain a five-year presence without violating the camping regulation." This hypothetical did not include the information that the involved person engaged in conduct expressly identified as indicia of camping in the regulation, i.e. making preparation for sleep by laying down bedding material for the purpose of sleep, nor did it establish any necessary agreement between Thomas in posing the hypothetical and Robbins in responding to it as to precisely what is meant by "sleeping intermittently".

19/ It is not clear that the appellants' "unconstitutionally vague as applied" argument was ever raised in the District Court. Although some of Mr. Thomas' arguments and the substance of some of his questions posed to trial witnesses in the Court below suggest the contention, appellate counsel has found no explicit reference to this issue in the record of proceedings before the District Court. Consequently, the constitutional issue does not appear to be properly before this Court on appeal. District of Columbia v. Air Florida, 750 F.2d 1027, 1084-85 (D.C. Cir. 1984); Miller v. Avirom, 384 F.2d 319, 321-22 (D.C. Cir. 1967).

vague "as applied" in this case. Significantly, appellants do not raise a constitutional challenge to the regulation as vague on its face, nor could they do so with any hope of success in light of the Supreme Court's decision upholding the validity of this regulation against constitutional attack in Clark v. CCNV, 468 U.S. 288 (1984). 20/ Appellants' "constitutional" argument is unmeritorious.

The doctrine of unconstitutional vagueness is predicated on the notion that, to comport with principles of due process established by the Constitution's Fifth Amendment, a legal prohibition must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. See City of Mesquite v. Aladdin's Castle, Inc.
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20/ In Clark, the Supreme Court upheld the camping regulation against a facial attack on constitutional grounds, holding that the regulation represented a valid time, place, and manner restriction upon First Amendment activity, as applied to a demonstration in which the Center for Creative Non-Violence (CCNV) sought to have demonstrators sleep in tents in Lafayette Park and on the Mall to illustrate the plight of the homeless. The decision of this Court, which was before the Supreme Court for review, had expressly rejected a vagueness challenge to the camping regulation because the CCNV's conduct was "clearly proscribed by the regulations." Community for Creative Non-Violence v. Watt, 703 F.2d 586, 591 n.6 (D.C. Cir. 1983). Although the Supreme Court did not expressly discuss the vagueness issue in its opinion, it did take cognizance of the fact that a void-for-vagueness argument had been raised below. 486 U.S. at 292. Therefore, the Court's decision upholding the regulation against constitutional attack is, at least, an implicit determination that the regulation at issue here was not vague as applied to the Clark v. CCNV case, and is thus not unconstitutionally vague on its face. See Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982)(Successful challenge to legal prohibition as unconstitutionally vague on its face must demonstrate that law is impermissibly vague in all its applications).

102 S. Ct. 1070, 1075 (1982). Statutory or regulatory 21/ vagueness violates due process requirements because

[v]ague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972)(footnotes omitted).

It cannot seriously be questioned here that the regulation at issue gave appellants fair warning that their conduct was prohibited. The camping regulation prohibits the use of park land for "living accommodation purposes,'" expressly defined to include "sleeping activities" and "making preparations to sleep" by such conduct as "the laying down of bedding for the purpose of sleep." Appellants in this case were found to be lying prone, with accoutrements -- such as blankets and sleeping bags -- used and positioned so as to indicate that appellants had made specific preparations for, and intentionally embarked upon, sleeping activities of some significant duration. It is absurd to suggest that appellants did not have fair warning that they were violating a regulation prohibiting conduct which expressly includes "laying down of bedding for the purpose of sleep" when
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21/ The constitutional analysis applicable to allegedly vague statutory prohibitions applies with equal force to regulations. See Big Mama Rag v. United States, 631 F.2d 1030 (D.C. Cir
1980).

they laid a "space blanket" upon the ground and laid down on top of it, enveloped themselves in sleeping bags, and proceeded to lie there in apparent repose. 22/

Just as clearly, this record is not one that reflects enforcement of the regulation at the "whim" of law enforcement officers or in the exercise of "unbridled discretion" on their parts. To the contrary, the officer who cited appellants for the camping violations at issue here based his action on the presence of factors specified in the regulation as indicia of prohibited camping -- most importantly, engagement in "sleeping activities"' and bedding materials laid upon the ground in apparent preparation for sleep.

Moreover, it could hardly be more clear that appellants' conduct constituted camping within the terms of the regulation in the sense that they participated in the prohibited conduct in a context where "it reasonably appear[ed], in light of all the circumstances, that the participants, in conducting the activities, [were] in fact using the area as a living accommodation." Appellants were not, as their brief suggests, convicted of violating the camping regulation merely because they
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22/ Appellants' contention that they did not have fair warning of the camping regulation to their activities on or about December 22 is also contradicted by the fact, of which we submit this Court may take judicial notice, that they had received citations for camping under similar circumstances on March 22, 26, 27, and 29, 1986. See Record on Appeal in William Thomas and Ellen B. Thomas v. United States of America, Nos. 88-3034 and 88-3035 (scheduled for Oral Argument on November 8, 1988).

used blankets and sleeping bags to keep warm on a winter night or because they inadvertently fell asleep. Rather, appellants positioned and used "bedding" materials in a manner plainly suggesting a conscious attempt to facilitate sleep. They positioned themselves so as to invite sleep; and they did so in the vicinity of several other individuals who were also ensconced in bedding material and apparently asleep. More importantly, they engaged in this conduct during the early morning hours generally devoted to sleep by most members of our society. Plainly, it would have appeared to a person of ordinary intelligence that in light of all the circumstances the Thomases were using the Park for living accommodations at the time in question. Under these circumstances, a test of use of parkland for living accommodations is easily applicable and represents a clearly comprehensible, even if arguably somewhat imprecise, normative standard which does not exhibit the flaws of unconstitutional vagueness. See Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Smith v. Goguen, 415 U.S. 566, 578 (1974).

Contrary to the appellants' contentions, it is entirely irrelevant to this analysis that there is no evidence they utilized any structure such as a tent, used the Park restroom, bathed, or prepared food at their vigil. The clear language of the regulation defines prohibited camping to consist of using the park for living accommodations in the sense of engaging in such activities or participating in "sleeping activities. or laying

down bedding to prepare for sleep. Notwithstanding appellants' attempt to recast the regulation according to their own strained interpretation of the law, 23/ the absence of any of these activities does not save the appellants' conduct from falling within the explicit prohibitions of the regulation.

Nor is it pertinent to the vagueness inquiry that appellants may use another residence for many of the activities defined under the regulation to constitute use for living accommodation purposes. Nothing in the regulation nor in logic precludes the possibility that individuals may use more than one location for living accommodations. The language of the camping regulation plainly applies to temporary and occasional uses of the park for living accommodations, and is not limited to activity indicating exclusive use of park land for such purposes.

In short, the statute is neither vague nor uncertain in the least insofar as it prohibits the conduct in which the prosecution showed and the Court found the appellants had
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23/ Appellants appear to assert, for example, that they reasonably understood the definition of sleeping activities constituting prohibited camping to be limited to sleeping within a structure, such as a tent. (See Appellants' Brief at 9, 12, 15, 23). This construction is apparently based upon an entirely out-of-context reading of portions of this Court's opinion in CCNV v. Watt, and the Supreme Court's subsequent decision in the same case in Clark v. CCNV. Since the facts of that case concerned application of the camping regulation to individuals sleeping in tents, the reviewing courts did not need to go any further than to observe that, both under the Park Service reading of its regulations and in reality, sleeping within the shelter of a tent plainly crossed the threshold of prohibited camping. Such observations in the context of the CCNV case, however, neither intimate that the regulation prohibits sleeping exclusively when it occurs under a tent-like structure, nor obscure the express language of the regulation itself, providing a broader definition of camping.

engaged. In the final analysis appellants' "constitutional" argument amounts to little more than an attempt to recast their evidentiary sufficiency argument in constitutional terms. The only conceivable uncertainty as to the application of the camping regulation to appellants' conduct would arise if appellants had not been lying on, in and under bedding materials which they had laid down in preparation for sleep, when Officer Ward concluded they were violating the camping regulation and accordingly issued them citations for that offense.

These were not, however, the facts upon which the trial court determined that appellants were guilty of camping. 24/ Appellants' continued contention that the camping regulation was applied to them when they did no more than use sleeping bags and blankets to keep warm and protect themselves from the elements merely attempts to call into question the validity of the trial Court's factual findings and inferences. It raises no real issue as to the vagueness of the regulation as applied to the conduct in which the record reflects, and the court found, the appellants actually engaged. 25/
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24/ Thus, in effect, appellants raise a contention of vagueness based on facts other than those of their own case. Unconstitutional vagueness, however (as distinguished from overbreadth implicating First Amendment freedoms) must be demonstrated with specific reference to the facts at hand, and not in the abstract. See e.g. United States. of America v. Jim A. Brown, No. 88-3010 (October 21, 1988), slip op. at 3.

25/ Appellants also raise, apparently for the first time on [-is appeal, on argument that in light of the purposes of the camping regulation the rule should not be interpreted to apply to the sidewalk bordering Lafayette Park -- an area which, as appellants concede (see Appellants brief at 4) falls within the

(footnote continued)

CONCLUSION

WHEREFORE, appellee respectfully submits that the Judgment and conviction of appellants in the District Court should be affirmed.

JAY B. STEPHENS
United States Attorney

JOHN D. BATES
R. CRAIG LAWRENCE
EDITH S. MARSHALL
Assistant United States Attorneys

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(footnote continued from previous page) physical confines of the Park. See Appellants' brief at 17. Since this contention was not raised before the District Court, it cannot now properly be argued on appeal. See District of Columbia v. Air Florida, 750 F.2d 1084-85; Miller v. Avirom, 384 F.2d 321-22.

Moreover, we submit that this argument is facially unmeritorious since it conflicts with the well-established tenet of administrative law that courts should ordinarily defer to an agency's interpretation of its own regulations (see, e.g. Ford Motor Credit Corp. v. Milhollin, 444 U.S. 555, 566 (1980)), and the government's interest in prohibiting camping on the sidewalk adjoining the Park is substantial and integrally related to the Park Service's statutory duty to regulate the use of the National Parks so as to "provide for the enjoyment" of them by the public at large (See note 2 supra).