U.S. v THOMAS AND PICCIOTTO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA,
                      PLAINTIFF
             VS.                             CRIMINAL ACTION
                                             NO. 82-358
WILLIAM THOMAS
      AND
CONCEPCION PICCIOTTO,
                      DEFENDANTS

WASHINGTON, D. C.
THURSDAY, JULY 7, 1983

THE ABOVE-ENTITLED MATTERS CAME ON FOR SENTENCING, BEFORE THE HONORABLE WILLIAM B. BRYANT, UNITED STATES DISTRICT JUDGE, AT APPROXIMATELY 9:40 A.M.

APPEARANCES:

FOR THE PLAINTIFF:
ERIC MARCY, ESQUIRE

FOR THE DEFENDANT:
DAVID C. WOLL, ESQUIRE

FOR THE PROBATION OFFICE:
VERDALE FREEHAN

GORDON A SLODYSKO
OFFICIAL COURT REPORTER
4800-E. U. S. COURTHOUSE
WASHINGTON, D. C. 20001
(202) 371-1734

PROCEEDINGS

THE DEPUTY CLERK: CRIMINAL ACTION 83-0056, THE UNITED STATES OF AMERICA VS. WILLIAM THOMAS. MR. MARCY FOR THE GOVERNMENT; MR. WOLL FOR THE DEFENDANT; AND MS. FREEMAN FOR THE PROBATION OFFICE.
(DEFENDANT PRESENT)

MR. WOLL: GOOD MORNING.
YOUR HONOR, THIS MATTER IS HERE BEFORE YOUR HONOR FOR SENTENCING ON TWO CASES. ONE CONCERNS A VIOLATION OF THE CAMPING REGULATION, AND THE SECOND MATTER CONCERNS VIOLATION OF THE SIGNS OR STRUCTURE REGULATION. THESE ARE TWO MATTERS THAT WERE HEARD BY YOUR HONOR; THE DEFENDANT WAS FOUND GUILTY IN BOTH CASES.

AS YOUR HONOR MAY RECALL, WHEN MR. THOMAS WAS BEFORE YOUR HONOR THE OTHER DAY, HE GAVE A STATEMENT TO YOUR HONOR? JUST BEFORE THE CONCLUSION OF THE PROCEEDINGS, AND I THINK, YOUR HONOR THAT PRETTY WELL WOULD ALMOST STATE EVERYTHING THAT I WOULD SAY ON HIS BEHALF.

I DON'T THINK MR. THOMAS WAS ENGAGED IN CRIMINAL ACTIVITY. I THINK THAT WHAT MR. THOMAS WAS ENGAGED IN WAS DEMONSTRATING -- OR PROTESTING WHAT HE BELIEVES TO BE A VERY SERIOUS PROBLEM. HE FEELS IT IS SO SEVERE AND SO SERIOUS THAT HE HAS TO BE OUT THERE ON A 24-HOUR BASIS IN FRONT OF THAT WHITE HOUSE TO COMMUNICATE TO OTHER PEOPLE HIS CONCERN ABOUT THIS PROBLEM. AND THAT IS EXACTLY WHAT THE FIRST AMENDMENT IS

ALL ABOUT. AND I THINK, YOUR HONOR, HE IS TRYING -- AS HE HAS GONE ALONG, HE HAS HAD A NUMBER OF ARRESTS BY THE PARK POLICE. HE IS TRYING TO CONFORM THE BEST HE CAN TO WHAT THE COURT SAYS HE CAN DO AND WHAT HE CAN'T DO.

HE WAS ARRESTED BACK IN JUNE OF 1982 FOR CAMPING. I THINK HE TRIED TO ADJUST HIS 24-HOUR VIGIL ACCORDINGLY SO THAT HE WOULDN'T GET IN TROUBLE WITH THE LAW. AND I THINK YOUR HONOR HAS REVIEWED THE TRANSCRIPT OF THE MATTER THAT WAS BEFORE YOUR HONOR, AND THE MAIN THING THAT HE RAN AFOUL OF, I GOT THE IDEA FROM THE POLICE OFFICER, WAS THAT HE WAS SLEEP- ING, AND THAT WAS ESSENTIALLY WHY THE ARREST WAS MADE.

SLEEPING IS A VERY -- I AM NOT TRYING TO REARGUE THE MOTION, YOUR HONOR, BUT I AM JUST SAYING THAT I THINK HE WAS TRYING TO RESTRAIN HIS CONDUCT S0 HE WOULDN'T AFOUL OF THE LAW; THAT HE WOULDN'T BE CAMPING OUT THERE. IN OTHER WORDS, HAVING AN ENORMOUS AMOUNT OF GEAR OUT IN FRONT OF THE WHITE HOUSE OR DIFFERENT TYPE OF STORAGE OF EQUIPMENT. HE WASN'T TRYING TO DO THAT. HE HAD A VERY MINIMAL AMOUNT OF PROPERTY IN FRONT OF THE WHITE HOUSE ON THIS PARTICULAR COLD WINTER NIGHT WHEN HE WAS ARRESTED.

HE'S STILL OUT THERE YOUR HONOR. I MEAN HE'S OUT THERE. HE STILL FEELS THAT HE HAS TO MAINTAIN THIS VIGIL. AND AGAIN, HE IS TRYING TO ACCOMMODATE THE COURT BY NOT DOING THOSE THINGS WHICH WOULD GET HIM ARRESTED AGAIN. HE DOESN'T WANT TO GET ARRESTED; HE DOESN'T LIKE TO GET ARRESTED; HE

DOESN'T WANT TO GO TO JAIL. BUT HE DOES WANT TO PROTEST, AND HE FEELS THAT IS HIS FIRST AMENDMENT RIGHT. AND THAT IS ESSENTIALLY, YOUR HONOR, WHERE HE IS COMING FROM. AND I THINK IN GOOD FAITH HE IS TRYING TO ACCOMMODATE THE COURT, AND ALSO HE IS TRYING TO GET HIS PROTEST ACROSS.

IN REGARD TO THE STRUCTURE OR THE SIGN, YOUR HONOR FOUND THAT THIS SIGN WAS A STRUCTURE. INDEED, IT MAY VERY WELL HAVE BEEN. AGAIN, HE HAS RECEIVED THIS BACK FROM THE PARK SERVICE. THEY GAVE HIM BACK THE STRUCTURE. HE BROKE IT DOWN. HE CONFORMED IT TO WHAT HE BELIEVES IS IN CONFORMITY WITH THE LAW NOW CONCERNING SIGNS, ALTHOUGH APPARENTLY THIS WHOLE MATTER IS UP IN THE AIR NOW, ABOUT WHAT IS A PROPER SIGN AND WHAT IS NOT A PROPER SIGN IN FRONT OF THE WHITE HOUSE. BUT, AGAIN, YOUR HONOR, GOOD FAITH ON HIS PART, THAT HE IS TRYING TO STAY WITHIN THE LAW AND STILL MAINTAIN HIS PROTEST, WHICH HE FEELS HE HAS AN ABSOLUTE RIGHT TO DO. I THINK THAT IS ESSENTIALLY WHAT HE WAS TRYING TO GET ACROSS TO YOUR HONOR.

AND FOR THOSE REASONS, YOUR HONOR, I DON'T SEE WHERE JAIL OR PRISON IS THE ANSWER. I JUST DON'T SEE IT. I DON'T THINK HE IS A HARM OR A DANGER TO OTHER PEOPLE, THAT HE HAS TO BE PUT IN JAIL. AND THE FACT THAT HE MAY HAVE HAD A CRIMINAL RECORD BACK IN 1971 OR 1992, I BELIEVE, YOUR HONOR, IS JUST TOTALLY IRRELEVANT TO WHAT YOUR HONOR HAS BEFORE YOU, BECAUSE HE IS NOT BACK BEFORE YOUR HONOR FOR HOUSEBREAKING, BREAKING INTO SOMEBODY'S HOUSE OR STEALING SOMEBODY'S CAR. HE IS OUT

THERE FOR PROTESTING. THAT IS WHY HE IS HERE BEFORE YOUR HONOR, AND I DON'T SEE WHERE SANCTIONS OF IMPRISONMENT ARE CALLED FOR IN THIS CASE.

THANK YOU, YOUR HONOR.

MR. MARCY: YOUR HONOR, COULD WE BE HEARD FOR A MOMENT?

THE COURT: YES.

MR. MARCY: YOUR HONOR, ADDRESSING MR. WOLL'S COMMENTS BRIEFLY, WHERE HE INDICATES THAT THE DEFENDANT HAS DURING THIS PERIOD OF TIME TRIED NOT TO GET IN TROUBLE WITH THE LAW WE WOULD JUST POINT OUT THREE INCIDENTS. ONE INVOLVES WHERE HE TIED HIMSELF INTO A TREE FIFTY, SEVENTY-FIVE FEET ABOVE THE GROUND ON NOVEMBER 13TH OF LAST YEAR IN A SLEEPING BAG, WHICH I HAVE A PICTURE OF HIM. IT WAS A CASE THAT WAS DECLINED BY THE UNITED STATES ATTORNEY'S OFFICE.

THE COURT: IT WAS WHAT?

MR. MARCY: IT WAS A CASE THAT WAS DECLINED BY THE UNITED STATES ATTORNEY'S OFFICE. BUT I WOULD JUST PROFFER THIS PHOTOGRAPH TO THE COURT ON THE GROUNDS THAT THIS KIND OF BEHAVIOR IS NOT THE TYPE OF BEHAVIOR THAT SOMEONE FOLLOWS WHO IS TRYING TO OBEY THE LAW.

THE COURT: YOU SAID A U. S. ATTORNEY DECLINED TO PROSECUTE HIM.

MR. MARCY: YES, YOUR HONOR.

THE COURT: WHAT WOULD HE HAVE PROSECUTED HIM FOR?

HANGING IN A TREE?

MR. MARCY: WELL, I'M NOT EXACTLY SURE WHAT THE CRIMINAL CHARGE WOULD BE. I HAVE NOT REVIEWED THE FILE. THE COURT: THE U. S. ATTORNEY WASN'T, EITHER, WAS HE?

MR. MARCY: WELL, I WOULD IMAGINE THAT MIGHT HAVE HAD SOMETHING TO DO WITH IT, YOUR HONOR.

THE COURT: AND I'M NOT, EITHER.

MR. MARCY: ON OTHER OCCASIONS, THE DEFENDANT HAS CLIMBED THE WHITE HOUSE FENCE, FOR WHICH HE WAS CHARGED WITH UNLAWFUL ENTRY. ALSO, YOUR HONOR HAS SEEN IN THE STRUCTURES CASE WHERE THE DEFENDANT IN MARCH OF THIS YEAR SET FIRE TO WHAT WAS REFERRED TO IN THE TRIAL AS A "REVELATION" STRUCTURE, WHICH WAS AN EXTENSIVE FIRE THAT CAUSED SUBSTANTIAL PROPERTY DAMAGE AND COULD HAVE CAUSED HUMAN DAMAGE UP ON THAT SIDEWALK.

IT IS A SITUATION THAT HAS GONE ON FOR A YEAR AND A HALF. ALL THE LAW ENFORCEMENT AGENCIES, I THINK, AS THE RECORD REFLECTS, HAVE SHOWN AMAZING RESTRAINT IN DEALING WITH MR. THOMAS.

THE COURT: LET ME ASK YOU THIS. I AGREE WITH YOU, BUT HASN'T IT BEEN ONE OF THESE THINGS WHERE HE GETS ARRESTED TODAY FOR DOING "X" CONDUCT, AND THEN HE GOES BACK OUT AND HE DOES "X" MINUS "Y" CONDUCT, RIGHT? AND HE GETS ARRESTED. AND THEN HE GOES BACK OUT AND HE DOES "X" MINUS "Y" MINUS "Z" -- IN OTHER WORDS, WHEREVER YOU FOLKS DRAW THE LINE, HE WANTS TO

STAY ON THAT LINE, WHEREVER YOU WANT TO DRAW THE LINE.

MR, WOLL SAID HE IS TRYING TO COMPLY WITH THESE REGULATIONS, AND AS YOU MAKE THEM AND AS HE GETS ARRESTED FOR THEM, OKAY, WHATEVER YOU SAY DO, HE'LL DO.

MR. MARCY:WELL, YOUR HONOR --

THE COURT: IT IS A TUG-OF-WAR BETWEEN WHAT HE VIEWS TO BE HIS FIRST AMENDMENT RIGHT AND WHAT THE POLICE VIEW AS A VIOLATION OF THE REGULATIONS. AND IT IS NOT AN EASY THING. CLIMBING THE FENCE BOTHERS ME, BUT THAT IS NOT BEFORE ME. SETTING FIRE TO THE STRUCTURE APPARENTLY WAS AN ABERRATIONAL TYPE OF THING. HE WAS IRRITATED AND, IN A FIT OF PIQUE, HE DID THAT. BUT IN CONNECTION WITH THESE DEMONSTRATIONS THEY HAVE FROM DAY TO DAY, IS THERE ANY REASON TO BELIEVE THAT IF HE IS PUT ON PROBATION WITH A PROVISO THAT HE IS NOT TO REPEAT THE OFFENSE FOR WHICH HE IS BEFORE ME, THAT HE WILL REPEAT THAT OFFENSE?

MR. MARCY: I THINK THE RECORD HAS SHOWN THAT HE WILL, YOUR HONOR. HE WAS ON PROBATION WHEN HE COMMITTED BOTH OF THESE OFFENSES.

THE COURT: NO, NO, NO, NO. NO. I DON'T THINK THAT'S SO.

MR. MARCY: YOUR HONOR, THE MAGISTRATE HAD CONVICTED HIM OF --

THE COURT: HE IS BEFORE THE COURT FROM TIME TO TIME FOR VIOLATION OF VARIOUS REGULATIONS. BUT WHEN HE COMES BACK

IT ISN'T FOR VIOLATING THAT SAME REGULATION, IS IT?

MR. MARCY: YES, YOUR HONOR, IT IS. HE WAS ON PROBATION BY MAGISTRATE BURNETT ON A CONVICTION, I BELIEVE IN OCTOBER OR NOVEMBER, FOR CAMPING IN THE PARKS, THE SAME REGULATION THAT YOUR HONOR CONVICTED HIM OF THAT HE WAS ARRESTED ON ON DECEMBER 7.

THE COURT: BUT EACH TIME HE COMES IN, THE FACTS ARE DIFFERENT, AREN'T THEY?

MR. MARCY: HE PLAYS GAMES.

THE COURT: WELL, I DON'T KNOW WHO IS PLAYING A GAME, REALLY. THE FACTS ARE DIFFERENT. WHEN HE COMES IN, THE FACTS ARE DIFFERENT, AREN'T THEY?

MR. MARCY: BUT THE FACTS OF EACH CASE ARE ALWAYS DIFFERENT. THE STATUTE IS THE SAME, THOUGH, YOUR HONOR. YOUR HONOR MADE THE FACTUAL FINDING THAT HE WAS USING -- THAT HE WAS CAMPING ON THE WHITE HOUSE SIDEWALK I MEAN THAT IS A REASONABLE PRESUMPTION FROM ALL OF EVIDENCE THAT WAS SUBMITTED BOTH TO MAGISTRATE BURNETT, FOR WHICH HE WAS CONVICTED AND PLACED ON PROBATION, AND TO YOUR HONOR. AND THE DEFENDANT CAN GET UP AND SAY THAT IT WASN'T HIS INTENT TO CAMP; HE JUST WANTED TO LIVE THERE FOR 24 HOURS A DAY FOR A YEAR-AND-A-HALF AND ARGUE KIND OF, IN MY OPINION, SILLY LITTLE POINTS. WE ARE TALKING ABOUT A LARGE FACTUAL PORTRAIT, AND HE IS ARGUING LITTLE SPLOTCHES OF COLOR OVER ON THE SIDE, AND IT JUST -- AS YOUR HONOR SAID WITH THE STRUCTURE, YOU KNOW IT WHEN YOU SEE

IT. I MEAN YOU CAN ARGUE WHETHER IT HAS WHEELS OR WHETHER FIVE PEOPLE CAN LIVE IN IT OR ONE PERSON CAN LIVE IN IT.

THE COURT: I DON'T HAVE ANY PROBLEM WITH THAT, AND I'M SATISFIED HE WON'T HAVE SUCH A THING OUT THERE ANY MORE.

MR. MARCY: YOUR HONOR, WHAT IS --

THE COURT: HE MIGHT BE OUT THERE DEMONSTRATING SOME OTHER WAY. I DON'T KNOW WHETHER IT VIOLATES THE LAW OR NOT -- I DON'T KNOW WHETHER HIS NEXT ARREST VIOLATES THE LAW OR NOT.

MR. MARCY: YOUR HONOR, THERE HAS TO COME A TIME, WE WOULD SUBMIT, WHEN YOU SAY,"ENOUGH". HE WAS ON PROBATION FOR THE SAME THING --

THE COURT: I KNOW, BUT WHAT DOES THAT MEAN? THERE COMES A TIME WHEN YOU SAY, "ENOUGH; GET AWAY FROM THERE, DON'T COME BACK ANY MORE." YOU HAD A MAGISTRATE DO THAT TO HIM. I'M NOT GOING TO DO THAT TO HIM.

MR. MARCY: WE ARE NOT ASKING THAT, YOUR HONOR. WE ARE ASKING THAT HE BE INCARCERATED. THERE SEEMS TO BE NO--

THE COURT: FOR WHAT?

MR. MARCY: HOW ELSE IN THIS CASE CAN YOU GET HIM TO COMPORT HIS CONDUCT TO THE LAW? HE HAS BEEN GIVEN OPPORTUNITY BY THE PARK POLICE; HE HAS BEEN GIVEN CHANCES BY THE UNITED STATES ATTORNEY'S OFFICE IN DECLINATIONS. HE HAS BEEN GIVEN CHANCES--

THE COURT: TO DO WHAT? TO GET AWAY FROM THERE?

MR. MARCY: TO COMPLY WITH THE LAW. NOT TO USE THE

SIDEWALK AS A LIVING ACCOMMODATION, OR TO BREAK ANY OTHER LAW OF THE UNITED STATES. IF YOUR HONOR --

THE COURT: LET ME ASK YOU THIS QUESTION: HE SCALED THAT FENCE AND WAS SITTING ON TOP OF THE FENCE; RIGHT?

MR. MARCY: YES.

THE COURT: HOW LONG AGO?

MR. MARCH: I'M NOT SURE, YOUR HONOR. I BELIEVE IT WAS MARCH OR SO. I WOULD HAVE TO GO BACK AND CHECK THE RECORD.

THE COURT: NO MORE INCIDENTS OF THAT SORT, WERE THERE?

MR. MARCY: I'M NOT SURE, YOUR HONOR. HE HAS BEEN ARRESTED NUMEROUS TIMES SINCE THEN.

THE COURT: AND HE HAD THAT ONE-ROOM AND WHATEVER I IS IN THAT STRUCTURE OUT THERE. HE HASN'T HAD ANYTHING LIKE THAT SINCE THEN, HAS HE? MR. MARCY: HE'S GOT THE SIGN BACK. HE HAS TAKEN THE --

THE COURT: THE SIDES OFF.

MR. MARCY: -- THE SIDES OFF.

THE COURT: IN OTHER WORDS, HE DISMANTLED HIS ROOM.

MR. MARCY: THAT'S RIGHT, YOUR HONOR. YOUR HONOR, I THINK JUST READING THE PRESENTENCE REPORT, UNSUPERVISED PROBATION HAS NOT WORKED IN THIS CASE. IF YOUR HONOR PUTS HIM ON SUPERVISED PROBATION, HE DID NOT

COOPERATE WITH THE PROBATION OFFICE IN PREPARING THIS REPORT. THERE IS NO INDICATION THAT SUPERVISED PROBATION IS GOING TO MEAN ANYTHING ELSE TO HIM THAN UNSUPERVISED PROBATION DID.

THE COURT: I SUPPOSE IN A CASE LIKE THIS THE ONLY SUPERVISION YOU NEED IS FROM THE POLICE: IF HE VIOLATES THE LAW, BRING HIM IN HERE. I THINK THAT IS THE REASON FOR HIS UNSUPERVISED PROBATION.

MR. MARCY: YOUR HONOR, WHAT IS THE POINT IN DOING THAT IF IT IS GOING TO RESULT IN THE SAME THING EACH TIME? HE HAS GOT NOTHING TO LOSE.

YOUR HONOR, WE WOULD --

THE COURT: IF YOU PUT HIM IN JAIL FOR TEN OR FIFTEEN YEARS, YOU MIGHT SOLVE YOUR PROBLEM. BUT YOU ARE NOT GOING TO SOLVE YOUR PROBLEM BY PUTTING HIM IN JAIL SIX MONTHS. YOU ARE NOT GOING TO SOLVE ANYB0DY'S PROBLEM WITH THAT, HIS OR OURS.

MR. MARCY: WELL, YOU ARE NEVER GOING TO KNOW UNLESS YOU TRY, YOUR HONOR. THERE IS A DETERRENT EFFECT. THERE IS A PENALTY INVOLVED IN THIS CASE.

IT IS NOT AN EASY CASE, YOUR HONOR, BUT WE WOULD SUGGEST TO THE COURT THAT THERE IS ONLY ONE ROAD TO GO DOWN AT THIS POINT. THE DEFENDANT HAS BEEN GIVEN EVERY OPPORTUNITY TO CONFORM HIS CONDUCT, AND HE HAS FAILED TO DO SO, AND WE WOULD ASK THE COURT TO INCARCERATE HIM.

THANK YOU.

Transcript Continued

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