UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 88-3034 & 88-3035
(C.R. No. 87-0231)

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

Counterstatement of the Case

Appellants were charged by an information filed on May 20, 1987 with camping in Lafayette Park1/ between, on, or about March 22 and on or about March 29, 1988, in violation of federal regulations at 36 CFR ~ 7.96(i)(1).2/ Following a bench trial before the Honorable Thomas A. Flannery on December 14 and 15, 1987, the District Court found appellants guilty as charged in a


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).

Appellants have been, according to their testimony, conducting a continuous vigil in front of the White House for several years. Ellen Thomas has been maintaining the vigil since March of 1984; and William Thomas had already maintained the vigil for three years before his wife joined him in his endeavor. The vigil, according to appellants, is motivated by their religious beliefs, which compel them to demonstrate in pursuit of peace and non-violence and against the evils of nuclear war (Tr. 197-198, See also Tr. 227, 229). Appellants' demonstration site -- where they use signs as a means of attracting attention, talk to passersby, distribute literature, and solicit signatures for a petition (Tr. 198) -- is located on the southern sidewalk of Lafayette Park, across the street from the White House. The site is included within the boundaries of the Park. (Tr. 16).


"Tr." refers to the two-volume, 308 page transcript of trial proceedings in this case on December 14 and 15, 1987.

2/ The United States Department of the Interior, through the National Park Service, has been charged with 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 and 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 (footnote continued)

Memorandum and Order filed February 5, 1987. In rendering its judgment, the trial court found, based on the testimony of Park Police officers who testified for the prosecution, that "during the period in question defendants were observed at numerous times late at night and in the early morning to be lying prone, on bedding materials, with their eyes closed." Memorandum of February 5, 1987 (henceforth, "Men.") at 15. Accordingly the Court concluded, notwithstanding assertions in the record by appellants that they were not actually asleep on the specific occasions alleged by the government, that it was "beyond a reasonable doubt" that appellants laid down bedding for the purpose of sleeping and slept in the park with such frequency and for such periods of time as to constitute camping in violation of 36 CFR 7.96(i)(1).

(footnote continued from previous page)

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 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.

The Government's evidence

On March 22, 1987, at approximately 6:00 a.m. United States Park Police Officer Richard Deriso was patrolling the area of Lafayette Park in which the Thomas demonstration site is located (Tr. 43-46). Upon approaching the appellants, demonstration he observed them lying on blankets and wrapped in sleeping bags (Tr. 45). The Appellants' heads were covered, and they appeared to the officer to be sleeping. Deriso observed no movement, and heard what he believed was snoring (Tr.46). Various personal items, such as jackets, shoes, boots blankets, and other unidentified personal belongings , were strewn about the site(Tr.45. 50-51, 80-81). One or more plastic tarpaulins covered these items (Tr. I 55-56). Deriso woke the appellants, informed them that they were in violation of regulations prohibiting camping in the park, and issued them citations for the offense (Tr.46).

On March 25, 1987, Park Police officer Danial LeLullo came on duty to patrol the White House sidewalk in Lafayette park at approximately 100:00 p.m. (TR. 14-15). At that time, he observed the appellants sitting in sleeping bags at their demonstration site(Tr. 16). Plastic and other property -- including a couple of bottles of liquid, personal papers, "hand-out" literature, and clothing in at least three trash-bag type bags -- was lying around the site (Id: Tr. 31-32); a bicycle3/ was leaning against one of the appellants' signs (Tr. 17).

At approximately 11:00 p.m. Delullo returned to the site, and

Observed the appellants and the above-mentioned items of property in the same locations where they had been an hour before. By this time, however, appellants were lying down in their sleeping bags and appeared to be sleeping (Id.). They and their entire site were covered by what the officer described as "a clear white plastic-type covering" (Tr. 17-18).

Delullo approached the appellants, lifted up the plastic that covered them, and informed them that they were in violation of the camping regulations4/

(Tr. 17).

At approximately 10 minutes past midnight, Delullo again returned to the site and found the appellants and their property positioned as before (Tr. 18-l9). Appellants were each still lying down in a sleeping beg, 5/ motionless and apparently asleep (Tr. l9). The plastic covering remained over them and their entire site (Id.). Delullo therefore wrote out tickets for a regulatory violation, lifted up the plastic, and handed a ticket to each of the appellants.6/

3/ Delullo testified that he believed this bicycle belonged to Ellen Thomas (Tr. 17), and the defense testimony corroborated this fact (Tr. 205).

4/ Although Ellen Thomas acknowledged the Officer's warning, William Thomas did not respond (Tr. 18).

5/ The Officer was uncertain as to whether the appellants shared one sleeping bag or were in separate bags (Tr. 20).

6/ Mrs. Thomas protested to the officer that the appellants were not sleeping; Mr. Thomas, however, again offered no response (Tr. l9).

At approximately 6:00 a.m. on March 27, 1987, Officer Deriso observed the appellants in essentially the same location and posture as he had seen them on the morning of March 22 before issuing them citations for camping (Tr. 47-48). As before, personal belongings were strewn about the area. Deriso awakened the appellants, and again issued each of them citations for violating the regulations against camping (Tr. 48).

At approximately 6:15 a.m. on March 29, 1987, U.S. Park Police Officer William Doerrler observed the appellants at their demonstration site. (Tr. 87-88). William Thomas was lying flat, in a prone position in between his two signs. He was lying on top of matting material and underneath a blanket. Ellen Thomas was seated next to him; her torso leaned up against one of the signs and her legs were covered by the blanket. (Tr. 88). Both appellants appeared to be sleeping (Tr. 90). Various bundles, "heaps of bags", and other unidentified material were strewn about the site at this time (Tr. 88); and although Doerrler did not-inquire into the ownership of the items, he saw no persons other than the appellants around the demonstration site (Tr. 94). Doerrler advised appellants that they were violating the camping regulations, and subsequently issued them citations for that offense7/ (Tr. 88-89).

7/ Doerrler testified that after observing the violation he went to the Park Police Lodge House to get his citation book, and returned to the Thomas site at about 7:00 to find Mr. Thomas gone. It was not until approximately 9:15 a.m. that Doerrler actually served the citations upon appellants (Tr. 88-89).

The Case for the Defense

The appellants both testified in their own defense; and four other witnesses were called on their behalf. Two other individuals who maintain demonstration sites in Lafayette park, Robert Dorrough and Phillip Joseph, testified as to their observations of the appellants' activities. Dorrough testified that he was in and around Lafayette Park between March 22 and March 27 and observed Ellen Thomas during that period. (Tr. 115). According to Dorrough the Thomases regularly move their "covering" away from the Park during the day. (Tr. 117). He further stated that he had never seen Ellen Thomas store clothing and plastic bags around her demonstration site (Id.) and had never seen her sleep continuously from 11:00 p.m. to 6:00 a.m.8/ (Tr. 119). Phillip Joseph also attested to the fact that Ellen Thomas generally removes her sleeping bag from the park at sunrise (Tr. 132). Like Dorrough, Joseph testified that he had never seen her store items around her demonstration site in plastic bags (Tr. 133-134). He admitted, however, that he was in Texas visiting family between March 22 and March 29 of 1987, and therefore had no specific knowledge of the incidents in question. (Id.). Both Dorrough and Joseph testified to occasions when persons unconnected with the appellants and their vigil (such as

8/ Dorrough explained, however, that particularly during the period of March in question, continuous sleep was rendered virtually impossible by the frequent approaches and inquiries of police officers. Dorough indicated that Ellen Thomas slept only "off and on" during the late evening and early morning hours, explaining that "you can't sleep when someone is there trying to wake you up." (Tr. 119).

Homeless persons in the Park) had left items of property at the Thomas demonstration site (Tr. 118, 123, 132-3, 134-135). Both witnesses agreed, however, that Ellen Thomas generally did not allow people to leave things at her site 9/ (Tr. 118, 132).

Another witness for the defense was Winifred Gallant, a resident of a house at 1440 N. Street N.W. in Washington, D.C. (Tr. 181). She testified that Ellen Thomas shares Gallant's home "to whatever extent she needs and desires." (Tr. 182). Thomas has keys to the N. Street residence, and uses it as a place of rest and refuge (Id.). According to Gallant, both appellants use the house at 1440 N. Street as a place to store, prepare and eat food, a place to use toilet and shower facilities, and a place to store clothing and person items10/ as well as petitions and literature (Tr. 182-183). Appellants regularly use a typewriter at the N. Street residence; and a telephone connected there is in William Thomas' name (Tr. 182). William Thomas also stores tools and paint at 1440 N. Street, and has done repairs on the house (Tr. 183). Although Gallant had no specific knowledge of the appellants' activities or the conditions at their demonstration

9/ According to Dorrough, on occasions when people asked to Ieave items of property at the Thomas site, Ellen Thomas told them to take the property with them. If a person walks away leaving property, she usually moves it away from her signs and sets it on the grassy area of the park (Tr. 118). Joseph testified that when he left something at the Thomas signs, he subsequently found it had been removed and put up into a tree (Tr. I 132-133).

10/ When shown photographs of possessions of the Thomases stored at the N. Street residence, Gallant testified that she was unaware of any other possessions belonging to the appellants(Tr. 193)site on March 22, 26, 27, or 29 in 1987, she testified that she had never seen appellants store clothing and plastic bags at their site (Tr. 184). She acknowledged, nevertheless, that she had seen one or two trash bags at the site on past occasions, but had not looked into the bags to determine their contents. (Tr. 185-86). Gallant also testified to incidents of homeless people and "casual travelers" leaving property at the site of the Thomas vigil (Tr. 194).

Richard Robbins, Assistant Solicitor of the National Capital Parks, was also called a witness by William Thomas. (Tr. 136). Robbins had no specific memory of facts concerning the Thomas demonstration in March of 1987 (Tr. 138), but was examined as to points of general Park Service policy. Robbins testified that there was no regulatory prohibition against having a "piece of plastic" equivalent to a raincoat to cover oneself from the rain in Lafayette Park, but that a piece of plastic equivalent to a tarp, used to cover a large area, was prohibited under permit conditions issued pursuant to regulatory authority11/ (Tr. 145147). According to Robbins, the conduct of a 24 hour vigil is permissible in Lafayette Park, and sleeping is not prohibited (Tr. 151). Although the witness expressed doubt as to whether blankets were permissible under the permit conditions applicable to demonstrators and stated that sleeping bags were

11/ The witness cited 26 C.F.R. 7.96 as the source of authority for issuance of the permit conditions (Tr. 146) prohibited, 12/ he stated that mere possession of a blanket or sleeping bag is not prohibited to a person, not a demonstrator, in the park (Tr. 151-52). It is not prohibited for a person to lay on a blanket or a sleeping bag in the park, nor is covering oneself with a blanket or sleeping bag, standing alone, a prohibited activity (T. 152). Robbins testified that sleeping in the park is one indicia of whether a person is considered to be using the park for living accommodations, but that there is no prescribed length of time spent sleeping that serves as at test for whether a person's activities constitute camping. (Tr. 154155). Under certain circumstances, Robbins stated, a case of camping could exist involving twenty minutes of sleep or no sleep at all (Tr. 157). Although Robbins stated that he did not think is possible to maintain a 24 hour vigil in the park 365 days a year and not use the park for living accommodations (Tr. 165), he agreed that it was hypothetically possible for a person to maintain a full week of 24 hour a day vigil without violating the camping regulations, provided that none of the other indicia of camping -- such as bathing, changing clothes, and storing clothes13/ -- were present (Tr. 167). Robbins also expressed a view that there would be no regulatory violation in specific

12/ Robbins clarified that in this testimony he referred to Storing blankets and sleeping bags as opposed to carrying such items through the park or holding them in a parking lot (Tr. 152).

13/ On cross examination, Robbins clarified that a person could be in violation of the camping regulation even though in technical compliance with storage of property regulations. (Tr. 169) hypothetical circumstances described by appellant William Thomas as where a person ... changes their clothes outside of the park, goes to the bathroom out of the park, takes a shower out of the park, stores their extra clothes out of the park, washes their clothes out of the park, takes their showers out of the park, prepares their food out of the park, and yet maintains a continuous presence to the best of their ability, having to go out of the park to perform all of these other functions, maintains a continuous presence by only engaging in the intermittent sleep ... (Tr. 171-172).

Testifying in her own defense, appellant Ellen Thomas asserted that her living accommodations are at 1440 N. Street, and not in Lafayette Park. She defined her "living accommodations" as where she would bathe, wash her clothes, cook, use the bathroom, have privacy, store clothes, write, type, make telephone calls, and seek sanctuary (Tr. 195). Appellant described her vigil and the religious motivation behind it and also described her other activities, which include volunteer work in soup kitchens for the homeless, involvement in trying to promote certain types of assistance for the homeless, lobbying Congress, communicating with the press, and writing (Tr. 197-199). She spends-12 to 20 hours per day in Lafayette Park. (Tr. 200), however, and acknowledged on cross examination that she has taken the "night shift" of the vigil on a permanent basis (Tr. 216). She testified that there was intermittent rain during the week of March 22 to March 29, and that she therefore put plastic over her literature to protect it. (Tr. 203).

Thomas admitted to having a sleeping bag and perhaps a blanket with her in the park prior to 6:30 in the morning on March 22. She stated, however, that she uses the bag and the blanket not for sleeping but to keep herself warm and dry (Tr. 204, 221). She takes the sleeping bag out of the park every morning and stores it in an alley near Lafayette Parka14/ (Tr. 204-6). Appellant denied that she had clothes or other article stored in plastic bags at her site on any of the dates in question (Tr. 208, 209, 211, 214). She acknowledged, however, that her backpack, which she keeps with her at all times, may have been wrapped in plastic to protect it from the rain (Tr. 211). Appellant further testified that she was not asleep between 11:00 p.m. and 12:10 a.m. on March 25 and 26 (Tr. 209), and that she did not physically receive a citation for camping from a police officer on March 27.15/ (Tr. 212) On this morning, according to Ellen Thomas, her husband did not arrive at the park until five minutes to 6:00, as he had been working all night (Tr. 211). At 6:15 a.m. on March 29, appellant

14/ Thomas also stated that, depending upon the weather, she may not always bring the sleeping bag back to the park (Tr. 205). She claimed to occasionally take the bag to "the apartment" to be washed or dried, but reiterated that she usually took it to an alley (Tr. 207).

15/ Thomas claimed that on this date she received a warning from Officer Deriso, and that she then packed up and left the park for most of the morning (Id.). Robert Dorrough had also testified for the defense that Ellen Thomas was not present when William Thomas received a camping citation on the 27th (Tr. 129), claimed, she was sitting with a blanket over her legs to keep warm, but was not asleep (Tr. 213).

On cross examination by her co-appellant, Mrs. Thomas emphasized that she consistently removes to another location any "stuff" that is "dumped" at her site by drunks or homeless persons (Tr. 224). She also explained that when she puts plastic over her signs and herself to keep dry, the covering is placed directly on top of her.16/ It is not, she explained, draped over her signs to form a "tent" configuration. (Tr. 225).

Appellant William Thomas testified in his own behalf that on March 22 he listened to Officer Doerrler speaking with another man until about 4:00 a.m. At this time, Doerrler returned to the police Lodge House, and appellant took a nap for 1 and 1/2 or 2 hours (Tr. 230, 232). This was the only period appellant remembered sleeping on that day. He did not know whether or not his wife was asleep at any time during the night, but acknowledged that each of them were in sleeping bags (Tr. 230, 232-233). At about 6:30 a.m. he took the sleeping bags out of the park and placed them in an alley, and proceeded to run some errands. When he returned to the park around noontime, his wife gave him a camping citation which she had received from Officer Deriso. (Tr. 231).17/

16/ Appellant described the position of the plastic covering as "looped down over [her] head and looped down under [her] toes." Tr. 225.

17/ The testimony was that Ellen Thomas had two separate (footnote continued)

On March 25, according to appellant, he was outside of the park -- spending time in the law library and doing errands -- for most of the day. (Tr. 235) When Officer DeLullo came on duty he went to various of the other demonstration sites and warned people that they were violating the camping regulations (Id.). When DeLullo approached the Thomas site a second time around 11:00, William Thomas was lying down. Both he and his wife were using a sleeping bag, and they were covered with plastic to protect them from the rain (Tr. 236). DeLullo informed the appellants at that time that they were violating camping regulations (Id.). About an hour later, the officer returned to "the same secenario." William Thomas did not respond to DeLullo in any way at this time, but his wife asked why they were being given a ticket. The officer's response, according to William Thomas' recollection, was that appellants were being given a warning and not a ticket (Tr. 236-237).

On March 27, appellant was absent from the park until 5:55 a.m., having left at about 10:30 on the previous evening (Tr. 245). Ellen Thomas was lying down in her sleeping bag, and her husband lay down next to her. Officer Deviso then approached and told appellants that they were violating camping regulations. Ellen Thomas thereupon picked up the sleeping bag, left the park with it, and did not return until the afternoon. At about 9:30 or 10:00 in the morning, William Thomas was


(footnote continued from previous page)
citations -one for each of the two appellants. Id. sitting "slouched up" against one of his signs. Deriso came over and told him to sit up so that he would not look like he was camping, and a brief verbal altercation ensued on the subject of whether appellant was required to "sit up. The officer then commented that he had given appellant a warning, and proceeded to give him a ticket. Deriso also indicated that he had a ticket for Ellen Thomas; but her husband refused to take it to give to her. (Tr. 245-246). According to William Thomas, he did not sleep at all in the park on March 27 (Tr. 246).

On March 29, appellant testified, he "napped" from about 3:00 to 5:00 or 5:30 a.m. He and his wife got up at 6:00 when officer Doerrler came on duty; and did not receive a ticket on that day (Tr. 246-248).

Appellant acknowledged that from March 21 through March 26, 1987, he had spent most of his time demonstrating at Lafayette Park. He did go to 1440 N. Street on March 22 to pick-up papers, and testified he probably went to the house on March 25 to shower and change clothes prior to a court hearing on that day (Tr. 238). Appellant stated that his usual reason for going to the N. Street residence is to pick up or drop off papers. He also uses the residence on occasion for making telephone calls, changing clothes, and taking showers. (Id.). He testified that he does not go to the bathroom, have sex, do laundry, shower, or store property in Lafayette Park (Tr. 253). He admitted however, that whatever sleeping he finds necessary he generally does in the park18/ (Tr. 242).

On cross examination, William Thomas admitted that at 11:00 p.m. on March 25 and 12:10 a.m. on March 26 he and his wife were lying on bedding materials at their demonstration site, (Tr. 255). He denied the presence of trashbags or bags of clothing at the site, although he acknowledged that his backpack may have been wrapped in plastic to protect it from the rain (Tr. 255256). Appellant admitted that he and his wife were covered with plastic when officer Delullo approached them on March 26, but denied that he was asleep when the officer came by (Tr. 257). He further testified that he did not observe his wife to sleep continuously at the demonstration site from 11:00 p.m. to 6:00 a.m. on any of the dates in question (Tr. 263).

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


18/ Following discussions with friends during a court recess, however, appellant qualified this testimony somewhat by noting that he has fallen asleep at the computer center where he does his paper work, at the homes of certain friends, in church, and in court (Tr. 250)

appellate court in assessing such a challenge are well-established. 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,19/ 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).

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 United States v. Curley, 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 sufficient 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


19/ 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).

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", the laying down of bedding for the purpose of sleeping, or storing personal belongings. Id.

In this case there was evidence, in the form of eye-witness testimony from three different police officers, that appellants slept -- using bedding materials laid down inferentially for the purpose of sleeping -- and stored personal property on park land between the hours of 11:00 p.m. and 6:30 a.m. on at least four out of seven days in a one week period. According to the prosecution witnesses, appellants were lying down sleeping on top of blankets and inside sleeping bags at 6:00 a.m. on March 22, 1987. (Tr. 43-45). Personal property was strewn about the appellants' demonstration site and was covered with a plastic tarpaulin material (Tr. 45, 50-51, 55-56, 80-81). On March 25, appellants had laid down their sleeping bags and were sitting in them at 10:00 p.m. (Tr.14-16). By 11:00, they were lying down sleeping in the bags, underneath a plastic tarpaulin - type covering (Tr. 17-18). At 12:10 a.m. on the next morning, appellants were in the same position, lying in sleeping bags underneath the plastic covering and sleeping. Again bags of personal property were in their site area and were also covered by the plastic covering (Tr. 16-18). On March 27 at 6:00 in the morning, appellants were again asleep, on top of blankets and in sleeping bags, and near a variety of items of personal property which were also covered by a tarp (Tr. 47-48). On March 29, appellants were asleep when Officer Doerrler observed them at 6:15 a.m. This time they did not use a sleeping bag, but instead were in repose on top of "matting material" and under a blanket. (Tr. 87-88). Personal property -- lying in "bundles and heaps" -- was still located within the confines of their demonstration site. (Tr. 88).

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 blankets, a sleeping bag, or "matting material" upon the ground, lies down on or in it, covers himself or herself with a blanket or sleeping bag for warmth, and appears to be asleep, there is a strong inference that the person has laid down bedding materials for the purpose of sleeping. When a person is observed to be lying prone or in some other position of repose, in, on, or under traditional "bedding materials" such as blankets or sleeping bags, and is essentially motionless for any period of time, emits noises associated with "snoring", or fails to respond to others who approach or address him, a natural inference may be drawn that the person is asleep. These inferences are particularly strong if the associated conduct or activity transpires during the hours normally used for sleeping, i.e. the late evening and early morning hours.20/


20/ The inference that appellants had "bedded clown be on the

(footnote continued)

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., sleeping, and in particular sleeping after laying down bedding for the purpose of sleeping. This evidence alone, viewed in the light most favorable to the government, was sufficient to sustain appellants' convictions.21/

The record contains, moreover, further evidence based upon which it may reasonably be concluded that appellants' conduct on the days in question fell within the scope of activity prohibited by the camping regulation. Each of the Park Police


(footnote continued from previous page)

evening of March 25 issue in this case is also strengthened by the additional fact that they had lain down underneath a plastic covering which could serve to shelter them from the elements for some length of time.


21/ Appellants take particular issue with the court's finding "that lying on top and within bedding materials thoughout the night, for a one week period, without evidence of any other sleeping quarters, is sufficient evidence of the use of the park for living accommodations" (Memorandum at 17), contending that there was insufficient evidence that the appellants were on top of and within bedding throughout any of the nights in question (Brief for appellants at 26). Again, appellants ignore the factfinder's prerogative to assess the credibility of witnesses and draw inferences from the facts in evidence. The prosecution introduced evidence that the appellants were observed lying on and within bedding materials and apparently asleep at such times and with such frequency during a one-week period as to give rise to a reasonable inference that during the time period in question it was appellants' regular practice to "bed down" in the park through the late evening and early morning hours. The court was under no obligation to credit the defense testimony contradicting this conclusion; and it was a reasonable and hence permissible inference to be drawn from -even though it may not have been compelled by -- the evidence.

Officers who testified for the prosecution stated that some substantial amount of personal property, variously described as lying in "heaps", "piles", "bundles" or plastic bags, was located within the apparent confines of the appellants' demonstration site. Although none of the officers made specific inquiry or could attest to the ownership of this property, there was circumstantial evidence that the property did indeed belong to the appellants. It was, on each occasion testified to by prosecution witnesses, located or "strewn" sufficiently close to the appellants and their signs22/ (and sufficiently far away from any other individuals) to give rise to an inference that the observed items were the appellants' property.23/ This inference, was further buttressed by testimony from appellant Ellen Thomas herself as well as two other defense witnesses to the effect that Mrs. Thomas does not ordinarily permit the possessions of others to lie within her demonstration area. (see Tr. 118, 132-33, 224). Based on the officers' descriptions of this property (which indicated the presence of some substantial amount of property in multiple piles, heaps, bags or


22/ On March 22, and March 27, the property lay "within several feet" of the appellants (Tr. 45). On March 25 and 26, the property was less than a foot from the appellants, and there was no one else observed within 10 or 15 feet of that location (Tr. 35-36). On March 29 at 6:15 a.m., the "bundles and heaps" of clothing were described as in or near the Thomas demonstration site, and there were no other individuals around the site except for the appellants.


23/ In addition, this property was in one instance covered by a plastic tarpaulin that had been laid over the appellants and their entire site, and was protected by similar plastic tarpaulin material on two of the other occasions at issue.


bundles), the fact that the testimony indicated a consistent presence of such property at the Thomas site, and the fact that appellants were on three of the four occasions in question equipped with and utilizing tarps to shield their possessions from the element, the Court could reasonably infer that the appellants were storing personal property on park land within the meaning of the camping regulation. Therefore, the presence of an additional element indicative of prohibited camping by appellants could permissibly be inferred by the Court as factfinder in this case.

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 318-19. In the face of the prosecution evidence, therefore, the court below was not required to credit the appellants' testimony that they were not actually asleep when various police officers observed them,24/ that they used blankets and sleeping bags


24/ we submit, moreover, that whether or not appellants were actually in a state of sleep when police officers observed them to be "apparently asleep" is of no real significance. The regulation at issue prohibits camping as indicated by "sleeping activities." We submit that if someone lies down on, in, or under bedding materials so as to facilitate or invite sleep, he is engaging in "sleeping activities" irrespective of when or whether he actually falls asleep. The applicability of the camping regulation cannot reasonably be considered to hinge upon (footnote continued)


strictly for warmth and not for purposes of sleeping, 25/ that they did not have quantities of personal property in bags, heaps, or bundles at the times in question, or that they had in every instance testified to by the prosecution witnesses commenced their apparent "sleeping activities" shortly before being observed by police. That the District Court could reasonably have credited this testimony, and arguably could have based there on 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, supra, 718 F.2d at 438, quoting United States v. Carter,, 522 F.2d 666, 682 (D.D.C Cir. 1975); Curley v. United States, supra, 160 F.2d at 237. Notwithstanding the contradictory testimony of defense witnesses, it is enough to sustain appellants' conviction 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.


(footnote continued from previous page) such factors as anindividual's sensitivity to noise or occasional insomnia.


25/ In fact, appellants' repeated 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 on pulls up the "covers" on a chilly evening.

Finally, it is important to note that various portions of defense testimony actually served to buttress the inferences to be drawn from the prosecution evidence, and thus to support a conclusion of appellants' guilt. Defense testimony strengthening the inference that items of personal property strewn about the Thomas demonstration site were appellants' possessions stored on park land has already been mentioned. See p. 21 supra. In addition, both of the appellants gave testimony that supported the inferences that they had laid down bedding materials for the purposes of sleeping and were indeed engaged in "sleeping activities" at the times in question.

Ellen Thomas testified that the appellants remove their blankets and sleeping bags from their demonstration site every morning, and that they keep these bedding materials in the park and utilize them only during the evening and early morning hours. (Tr. 204-207). This testimony was corroborated by both her co-appellant and another defense witness. The fact that appellants limited their use of bedding materials for times traditionally devoted to sleeping and preparations therefor, we submit, supports the inference that these materials were in fact used for purposes of facilitating and engaging in sleep.

In addition, Mrs. Thomas both acknowledged that she takes the "night shift" at the vigil on a permanent basis, (Tr. 216), and described numerous activities that apparently keep her busy during daytime hours away from Lafayette Park (Tr. 197-199). Although she stated that she used the house at 1440 N. Street for "sanctuary,"26/ she made no mention of sleeping there (Tr. 242). In light of the well-known fact that human beings require sleep to function, the facts of Mrs. Thomas' daytime activities and nighttime presence in Lafayette Park provide additional support for an inference that she regularly uses the Park for sleeping, and was doing so on the occasions when she was charged with camping.

Indeed, appellant William Thomas candidly acknowledged that, with occasional exceptions, he generally does in Lafayette Park whatever sleeping he finds necessary. (Tr. 242) Notwithstanding appellant's protestations that this sleep tends to be unplanned, "intermittent", and of short duration, the inference is reasonable that a man who regularly does his sleeping within the confines of the Park has lain down for the purpose of sleep and is indeed sleeping, when he is found lying prone at his demonstration site in the Park, on, in, or under a sleeping bag or blanket, during late evening or early morning hours, when the Park and the city as a whole are relatively inactive.

There was, in short, plainly evidence in the record based on which the court could reasonably have concluded that appellants were guilty beyond a reasonable doubt; and the evidence is therefore sufficient to support the challenged convictions.27/


26/ Winifred Gallant testified generally that Thomas uses the N. Street residence for "rest and refuge", but also made no mention of appellant sleeping or having a bed or sleeping quarters at the house.See Tr. 182-183.


27/ In claiming that the evidence was insufficient to support their convictions, appellants emphasize that Park Service Assistant Solicitor Robbins expressed a view in his testimony that the camping regulation would not be violated under the


( footnote continued)

II. The Regulation That Prohibits Camping is Not Unconstitutionally vague As Applied to the Appellants.


Appellants' also contend that their convictions should be overturned because the camping regulation is unconstitutionally 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,


(footnote continued from previous page)specific facts of a hypothetical posed by appellant William Thomas, wherein a person "changes their clothes outside of the park, goes to the bathroom out of the park, stores their extra clothes out of the park, washes their clothes out of the park, takes their shower out of the park, prepares their food out of the park, and yet maintains a continuous presence to the best of their ability, having to go out of the park to perform all of these other functions, maintains a continuous presence by only engaging in the intermittent sleep."

Appellants contend that this hypothetical described their vigil, and thus that their conduct in the course of the vigil did not violate the camping regulation as it is interpreted by the Park Service. This argument has a number of flaws. First, as Robbins testified, his individual advisory opinions on the regulations carry no force of law. More importantly, appellant's hypothetical does not fully and accurately describe the facts of this case. It does not include, for example, the information that the involved individual spends most nights and the majority of his sleeping hours in the park, and that with some regularity he is observed by the police to be sleeping on, in, or under a sleeping bag, blanket, or other bedding materials between the hours of 11:00 p.m. and 6:30 a.m. It is also unclear whether witness Robbins considered the park-based sleeping activities of the appellants to fall within the hypothetical description of "only engaging in the intermittent sleep." Thus, contrary to the appellants' suggestion, the record does not reflect an agreement by Robbins that appellants' various activities did not, in combination, run afoul of the camping regulation.


468 U.S. 288 (1984).28/ Appellants' "constitutional" argument is unmeritorious.

The doctrine of unconstitutional vagueness is predicated on the notion that, in order to comport with principles of due process estalished 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. 102 S. Ct 107O, 1075 (1982). Statutory or regulatory29/ 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


28/ 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 Nonviolence 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 (l982) (successful challenge to legal prohibition as unconstitutionally vague on its face must demonstrate that law is impermissibly vague in all its applications).


29/ 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).


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 argued 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 were, repeatedly, found to be lying asleep with accoutrements -- such as blankets, sleeping bags, and tarps -- used and positioned so as to indicate that appellants had made specific preparations for, and intentionally embarked upon, sleeping activities.

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 they laid blankets, sleeping bags, or matting material on the ground, covered themselves with sleeping bags or blankets for warmth, and proceeded to sleep -- especially when they engaged in these activities during the hours between 11:00 p.m. and 6:15 a.m.30/


30/ Appellants' contention that they did not have fair warning of the applicability of the camping regulation to their


(footnote continued)

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, each of the officers who cited appellants for the camping violations at issue here based their action on the presence of at least three factors specified in the regulation as indicia of prohibited camping, i.e. engagement in "sleeping activities", bedding materials laid upon the ground in apparent preparation for sleep, and substantial amounts of personal property apparently being stored at the site.

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 are engaged in a continuous "24 hour vigil" in the park. They spend most of their time in the park -effectively "living" there during the majority of the hours of their lives. They do a large portion -- if not virtually all -- of their sleeping in the park. When, during the late evening or early morning hours, such persons "bed down" with the comfort of


(footnote continued from previous page)

activities on March 25, 26, 27, and 29 is also undercut by the point that they received citations on March 22 under circumstances very similar to those which prevailed on each of the other three occasions. On the evening of March 25, moreover, appellants received warning that their activity constituted camping more than an hour before they were cited for the regulatory violation.


sleeping bags or blankets, surrounded by bundles of their personal property, and perhaps under the added protection of a large plastic tarpaulin to shield their entire demonstration site and possessions as well as themselves from the elements, plainly it would reasonably appear to a person of ordinary intelligence that these individuals are using the park for "living accommodations."31/ Under these circumstances, a test of use of

parkland for living accommodations is easily applicable and represents a clearly comprehensible, even if arguably imprecise, normative standard which does not exhibit the flaws of unconstitutional vagueness See Coates v. City of Cincinnati, 402 U.S. 611m 614 (1971); Smith v. Goguen, 415 U.S. 566, 578 (1974).

Contrary to the appellants' contentions, it is entirely irrelevant to this analysis that they did not utilize any structure such as a tent, use the Park restroom, bathe, or


31/ Appellants seem to contend that they were uncertain of the applicability of the regulation to their conduct, among other reasons, because of a "Park Police policy" that one was not to be charged with camping if not observed sleeping for at least four hours (Brief for appellant at 31, citing Tr. 69). The record, however, does not support the contention that any such policy existed. Officer Deriso did testify concerning his reference in a prior incident report to not issuing CFR violations to appellants on a previous occasion because "they were not observed sleeping for the suggested four continuous hours," and testified that a superior (whose identity he did not recall) had given the suggestion of four hours continuous sleep as a standard for issuance of a camping citation (Tr. 69-70). There was no evidence that this "four hour test" was Park Police policy; and Deriso further explained that additional indicia of camping in addition to the mere fact of sleep were present in this case and rendered application of the suggested four-hour standard unnecessary (Tr. 71). Assistant Park Service Solicitor Robbins, indeed, specifically testified that there was no specific duration of sleep that, together with other activities, was considered to constitute prohibited camping. (Tr. 154).


prepare 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" including laying down bedding to prepare for sleep. Notwithstanding, Appellants' attempt to recast the regulation according to their own strained interpretation of prior caselaw,32/ the absence of any of these activities does not save the appellants' conduct form 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 or 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


32/ 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 28-30). This construction is apparently based upon an entirely out-of-context reading of portions of this Court's opinion in CCNV, v. Watt, supra, and the Supreme Court's subsequent decision in the same case in CCNV, v. Clark, supra. 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 finder 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.


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 engaged. In the final analysis, we submit, appellants' "constitutional" argument amounts to little more than on 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 asleep, and had not been lying in and under bedding materials which they had laid down in preparation for sleep, when police 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. Appellants' continued contention that the camping regulation was applied to them when they did no more than use sleeping bags, blankets, and plastic to keep warm and protect themselves and a few possessions from the rain, merely calls into question the validity of the trial Court's factual findings and inferences. It does not raise any 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.

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing corrected copy of the Brief For Appellee has been mailed postage prepaid on this 5th day of October, 1988 to Mark A. Venuti, Esq., Suite 100, 3600 M Street, N.W., Washington, D.C. 20007

RECEIVED
OCT 5 1988
CLERK OF THE UNITED
STATES COURT OF APPEALS

/s/Edith S. Marshall

EDITH S. MARSHALL
Assistant United States Attorney
Civil Division - Fourth Floor
Judiciary Center Building
555 4th Street, N.W.
Washington, D.C. 20001
(202) 272-9274


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