United States v. Thomas CR 87-0231
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES FILED AUG 12 1987
CLERK, U.S. DISTRICT COURT
v. DISTRICT OF COLUMBIA
WILLIAM THOMAS, Cr. No. 87-0231
This matter comes before the court on a variety of motions
filed by defendants William and Ellen Thomas. Defendants are
charged with violating 36 C.F.R. S 7.96(i)(1), which prohibits
camping in Lafayette Park.
The court now has before it the following motions of
defendant William Thomas, who is proceeding pro se: Motion for
Jury Trial, Motion to Proffer Evidence in Support of a Defense of
Necessity, Motion to Dismiss for Unconstitutional Application,
Motion to Dismiss for Lack of Offense, Motion to Dismiss for
Intentional Ex Post Facto Enforcement, Motion to Dismiss for
Malicious Prosecution, Motion for Consolidation of the Trial on
the Merits with an Evidentiary Hearing on Defendant's Various
Motions, and Motion to Compel Discovery. Defendant Ellen Thomas
has filed two motions which parallel two of the above motions:
Motion for Jury Trial and Motion to Dismiss the Information.
Because each of these motions either is unmeritorious as a matter
of law or presents issues of fact that cannot be resolved prior
to trial, all of the motions are denied. A brief explanation of
I. Motions for Jury Trial
Both defendants move for trial by jury. with defendant
William Thomas contending that he faces cumulative penalties of
more than six months' imprisonment, and both defendants
contending that they face the collateral penalty of abridgement
of their first amendment rights as a result of incarceration.
For these reasons, defendants assert that they are entitled to a
trial by jury.
Judge Gasch of this court has very recently addressed this
precise issue. U.S. v. Semple, Cr. Nos. 87-0193 and 87-0194,
slip op. (D.D.C. June 5, 1987). In his Memorandum Opinion, Judge
Gasch set forth the applicable law and concluded that violation
of 36 C.F,R.S 7.96(i)(1), with which defendants are charged
herein, constitutes a "petty offense" under the United States
Constitution, Art. III S 2 and amendment 6. Thus, defendants
have no constitutional right to trial by jury.
This is so notwithstanding defendant William Thomas'
assertion that he is subject to cumulative penalties exceeding
six months' incarceration. First, the argument is factually
flawed, since the Government has elected to charge defendants
with only a single count covering all violations of the
regulation during that time. Second, it is legally flawed,
since, as Judge Gasch noted, "[u]nder existing law in the
District of Columbia, which is binding on the court, penalties
may not be cumulated in an effort to exceed the six month period
that normally characterizes punishment for petty offenses." U.S.
v. Semple, supra, slip op. at 3, citing Scott v. District of
Columbia, 122 A.2d 579 (D.C. Mun. App. 1956); Savage v. District
of Columbia, 54 A.2d 562 (D.C. Mun. App. 1947).
Similarly, defendants' argument about the collateral first
amendment effects of the six month sentence is of no avail. The
case of U.S.v,Thomas, 574 F. Supp. 197 (D.D.C. 1983)
(Oberdorfer, J.) is both factually distinguishable, see U.S. v.
Thomas, Cr. No. 83-0243 (D.D.C. Dec. 22, 1983)(0berdorfer, J.),
and superceded by Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984). For all these reasons, defendants' Motions
For Jury Trial are denied.
II. Defendant's Motion to Proffer Evidence
In Support of a Defense of Necessity
Defendant William Thomas seeks to proffer evidence in
support of a defense of necessity. The essential elements of
that defense are:
1) that defendant was under an unlawful and present,
imminent, and impending threat of such nature as to induce
well-grounded apprehension of death or serious bodily
2) that defendant had not recklessly or negligently placed
himself in a situation in which it was probable that he
would be forced to choose criminal conduct;
3) that defendant had no reasonable legal alternative to
violating the law; and
4) that a·direct causal relationship may be reasonably
anticipated between the criminal action taken and the
avoidance of the threatened harm.
See U.S. v. Gant, 691 F.2d 1159, 1162-3 (5th Cir. 1982).
Defendant's theory is that the threat to humanity posed by
nuclear war left him "no reasonable alternative but do break the
law" by protesting in Lafayette Park. Defendant's Motion at 2.
He asks this court's permission to proffer evidence on "[n]uclear
war, nuclear weapons, ... the Strategic Defense Initiative,
Hiroshima, ... International Law, ..." and approximately 22 other
subjects. Id. at 2-3. This novel application of the defense of
necessity, however, fails to prove the elements listed above.
Thus, defendant's proffer is wholly irrelevant to the action and
must be rejected.
For example, the purported threat of "harm to humanity"
fails to satisfy the first element of an unlawful, imminent
threat to defendant. Nor can defendant show the type of "direct
causal relationship" between his protests and avoidance of the
alleged harm. Finally, it is beyond dispute that other members
of the allegedly threatened group have chosen other lawful
alternatives to the illegal conduct in which defendant allegedly
engaged. Therefore, as a matter of law, defendant's defense of
necessity cannot succeed, and Defendant's Motion to Proffer
Evidence on that issue is denied.
III. Defendant's Motion to Dismiss for Intentional
Ex Post Facto Enforcement
Defendant William\ Thomas contends that "the regulation
[under which he has been charged] has been enforced against him
as an ex post facto remedy to expressive activity protected under
the first, ninth, and fourteenth amendments to the Constitution
of the United States." Defendant's Motion to Dismiss for
Intentional Ex Post Facto Enforcement. Defendant misunderstands
the nature of the constitutional protection at issue.
An ex post facto law is one which retroactively punishes
conduct that occurred before its enactment. Defendant contends
that because the regulation at issue criminalizes conduct that
had previously been permitted, he is the victim of an ex post
facto law. This is simply incorrect. Legislatures are always
free to change the law and enact new statutes, as long as the
reach of those statutes is only prospective -- toward future
conduct. Such is the case here. Defendant is not charged with
conduct which preceded the June 4, 1982 enactment of 36 C.F.R.
S 7.96(i)(1), but rather with conduct occurring between March 22
and March 29, 1987. Accordingly, Defendant's Motion to Dismiss
for Intentional Ex Post Facto Enforcement is denied.
IV. Defendant's Motion to Dismiss for Malicious Prosecution
Defendant contends that this prosecution is based upon the
Government's opposition to defendant's political views. Again,
defendant misconceives the theory of "malicious prosecution" on
which his motion is based.
In order to show that prosecutorial discretion has been
exercised in an improper way, a defendant must show both that he
has been singled out for prosecution from among others similarly
situated and that his prosecution was improperly motivated by
considerations of race, religion, or some other arbitrary
classification. U,S. v. Washington, 705 F.2d 4891 494 (D.C. Cir.
1983). Underlying any review of such allegations is the strong
presumption of propriety of a prosecutor's conduct, as well as
deference to the prosecutor's broad discretion in determining
what crimes to prosecute.
Defendant has offered no proof to sustain this heavy burden
as to either element of the required showing, and thus he fails
to overcome these presumptions. Others have recently been
prosecuted under the identical provision applicable herein, for
similar conduct. See U.S. v. Semple, supra; Clark v, C.C.N.V..
supra. In addition, defendant makes only generalized allegations
that the Government was motivated by hostility to his "message"
and to his "method of communication." Defendant's Motion to
Dismiss for Malicious Prosecution at 1, These allegations are
insufficient to evince a discriminatory purpose. For these
reasons, Defendant's Motion to Dismiss for Malicious Prosecution
V. Defendant's Motion to Compel
Defendant William Thomas seeks a variety of materials from
the Government, which he contends are relevant to his allegations
of selective prosecution. As the court stated in U.S. v.
Washington, 705 F.2d 489, 494 (D.C. Cir. 1983), "(e]ven to
initiate discovery to prove impermissible motives a defendant
must make a colorable showing." As explained above, defendant
has failed to make such a showing, and accordingly his Motion to
Compel is denied. The materials sought are irrelevant to any
other issues remaining in the case.
VI. Motion to Dismiss for Lack of Offense,
Motion to Dismiss for Unconstitutional Application,
and Motion to Dismiss the Information
Each of these three motions, the first two filed by
defendant William Thomas and the last filed by defendant Ellen
Thomas, alleges in substance that the conduct in which defendants
were engaged was constitutionally protected by the first
amendment, was different in kind from that in the leading case of
Clark v. C.C.N.V., supra, and was therefore not properly within
the ambit of 36 C.F.R. 7.96(i)(1). The court finds that none of
these issues can be resolved on the present record, because each
is premised on factual determinations which can only be made at a
trial on the merits. The specific nature of defendants' conduct,
including its first amendment political and religious aspects,
has not been developed on the record. Hence it is impossible for
the court to determine whether defendants fit squarely within
Clark v. C.C,N.V., in which the Supreme Court upheld
S 7.96(i)(1) as a valid time, place, and manner restriction on
defendants' speech rights, or whether defendants' actions are
sufficiently distinguishable, as they argue in the instant
motions. For these reasons, Defendant's Motion ta Dismiss for
Lack of Offense, Defendant's Motion to Dismiss for
Unconstitutional Application, and Defendant's Motion to Dismiss
the Information are denied. Defendants are free to renew these
motions at a later date, when there is sufficient evidence in the
record to permit their resolution.
VII. Motion to Consolidate Trial on Merits with
Evidentiary Hearing on Pre-trial Motions
Because each of defendant William Thomas' motions can be
and has been resolved as a matter of law, there is no need for an
evidentiary hearing as to any of them. Therefore, Defendant's
Motion to Consolidate Trial on Merits with Evidentiary Hearing on
Pre-trial Motions is denied.
Trial in this matter is scheduled to commence on October 13,
1987. An appropriate Order accompanies this Memorandum.
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