U.S. v THOMAS
Cite as 571 F. Supp. 197 (1983)
UNITED STATES of America
Criminal No 83-186
Nov. 28, 1983.
Defendant who, in course of protest,
allegedly placed symbolic cardboard "missile" on White House sidewalk demanded
jury trial in prosecution for placement of
"structure" on White House sidewalk in
violation of Interior Department regulation. The District Court, Oberdorfer, J.,
held that: (1) exposure of defendant to
punishment not exceeding six months plus
impairment of defendant's ongoing protest
activity indicated that crime charged was
not petty and that jury trial was in order,
and (2) whether defendant knew or should
have known that "missile" that he placed
on White House sidewalk was a "structure"
within meaning of regulation was for trier
1. Jury §322(1)A defendant charged with a petty
crime is not entitled to a jury trial. U.S.
C.A. Const.Amend. 6.
2. Jury §322(1)There is a clear right to a jury trial of
a criminal charge punishable by a penalty
of imprisonment for more than six months.
U.S.C.A. Const.Amend. 6.
3. Jury §322(2)Risk to constitutionally protected conduct inherent in sanction of fine or up to six months imprisonment for proscribed
placement of "structure" on White House
sidewalk escalated crime from petty to one
for which jury trial should be available to
defendant who demands one. 16 U.S.C.A.
§ 3; U.S.C.A. Const.Amend. 1.
4. Jury §322(2)Exposure of defendant, who allegedly
placed symbolic cardboard "missile" on
White House sidewalk in course of protest,
to punishment not exceeding six months
plus impairment of defendant's ongoing
protest activity indicated that crime
charged of having placed "structure" on
White House sidewalk in violation of Interior Department regulation was not petty
and that jury trial was in order. 16 U.S.
C.A. § 3; U.S.C.A. Const.Amend. 1.
5. Criminal Law §738Whether defendant knew or should
have known that cardboard "missile" that
he placed on White House sidewalk in
course of protest was "structure" within
meaning of Interior Department regulation
prohibiting placement of "structure" on
White House sidewalk was for trier of fact.
16 U.S.C.A. § 3; U.S.C.A. Const.Amend. 1.
Stanley S. Harris, U.S. Atty., John D.
Bates, Charles H. Roistacker, Asst. U.S.
Attys., Washington, D.C., for U.S.
Sebastian K.D. Graber, Alexandria, Va.,
OBERDORFER, District Judge.
Defendant demands a jury trial. His
demand is well-taken. Pretrial hearings
have established that defendant has been
spending full time near the White House
expressing a protest on a public matter. In
the course of his protest, he allegedly
placed on the White House sidewalk a symbolic cardboard object of the shape and size
of a Pershing missile on which some words
The government alleges that defendant's
"missile" was a "structure" whose placement on the White House sidewalk violated an Interior Department regulation, 36
C.F.R. § 50.19(e)(8)(i). The United States
Code, title 16, section 3, makes the violation
of that regulation a crime punishable by a
fine of "not more than $500 or imprisonment for not exceeding six months
[1, 2] A defendant charged with a petty
crime is not entitled to a jury trial. The
Supreme Court established in Baldwin v.
New York, 399 U.S. 66, 90 S.Ct. 1886, 86
L.Ed.2d 437 (1970), however, that there is a
clear right to a jury trial of a criminal
charge punishable by a penalty of imprisonment for more than six months. Moreover
Baldwin left standing earlier decisions that
honor a demand for a jury trial when the
maximum sentence would be six months or
less if other special circumstances are
present such that the crime would not
considered petty. See District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct.660,
81 L.Ed. 843 (1937); District of Columbia
v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.
There is a special circumstance in this
case because of its First Amendment implications. The defendant claims that the
alleged "structure" was a symbol which
nonviolently expressed his views on a critical public issue. The factfinder must determine, among other issues of fact, whether defendant's missile is a structure
defined in the regulation, or is something
else. If the factfinder rules against
defendant on that element and the other elements of the offense, that decision could
have a chilling effect on a variety of future
protest activities by defendant and others.
This is a serious collateral effect, which
may distinguish the crime charged here
from the petty.
 More directly, incarceration would
both detain defendant and, for its duration,
[1 Moreover, if the government counters that the
alleged structure is a threat to the President or
the White House, they will have difficulty maintaining their claim that the crime charged is petty]
silence his protest.  In a sense, the defendant's alleged conduct has two elements:
one proscribed and one constitutionally protected. Confinement as punishment for
the proscribed element would spill over
onto the constitutionally protected element.
The risk to the constitutionally protected
conduct inherent in the sanction imposable
for the proscribed conduct escalates the
crime from the petty to one for which a
jury trial should be available to a defendant
who demands one. 
 Defendant's jury trial demand resembles the jury trial demand honored in
United States v. Craner, 652 F.2d 23 (9th
Cir.1981). Craner was convicted in a bench
trial for a violation of an Interior Department regulation, issued under 16 U.S.C.
§ 3, which proscribes driving under the influence of alcohol while in a National Park.
Conviction for such an offense not only
subjected the defendant to six months incarceration but also put at risk his California driver's license. The maximum fine
and imprisonment fell just below the thin
line above which a jury trial is automatically required by Baldwin; the added risk of
loss of a driver's license persuaded the
Court of Appeals that the charge was not
petty and that the defendant's demand for
a jury trial should be granted. So here, if
defendant were incarcerated, he would lose
both his liberty and what is in effect a
constitutionally protected license to maintain his ongoing protest.  The exposure of
defendant to punishment not exceeding six
months plus the impairment of defendant's
ongoing protest activity indicate that the
crime charged is not petty and that a jury
trial is in order. 
 Defendant has also moved to dismiss on the ground that the structure regu-
lation on its face violates the First Amendment; that, as applied, the regulation constitutes an unconstitutional delegation of
legislative power, and that the government
has indulged in selective prosecution. The
government has satisfactorily responded to
the First Amendment contentions. 
Whether the defendant knew or should
have known that the "missile" that he
placed on the White House sidewalk was a
structure within the meaning of this regulation is for the trier of fact and the
government has already proposed an instruction on the issue. The Court has already ruled on the selective prosecution
issue.  The claim of unconstitutional delegation was disposed of by the Supreme
Court in United States v. Grimaud, 220
v.s. 506, 31 S.Ct 480, 55 LEd. 563 (1911);
see also United States v. Brown, 552 F.2d
817, 823 n. 8 (8th Cir.), cert. denied, 431
U.S. 949, 91 S.Ct. 2666, 53 L.Ed 2d 266
(1977). Accordingly, the motion to dismiss
will be denied.
[2 The government's opposition to defendant's
motion to suppress suggests that the government considers the alleged structure to be forfeitable. See Government's Points and Authorities in Opposition to Defendant's Motion to Suppress and for Return of Property at 2. For
reasons stated by the government, the motion to
suppress will be denied, without prejudice to
defendant's defense to any final forfeiture.]
[3 [T]he primary purpose of the jury is to prevent the possibility of oppression by the
Government; the jury interposes between the
accused and his accuser the judgment of laymen who are less tutored perhaps than a
judge or panel of judges, but who at the same
time are less likely to function or appear as
but another arm of The Government that has
proceeded against him. Baldwin v. New York, 399 U.S. at 71,
90 S.Ct. at 1890 (White, J.) (footnote omitted).]
[4 Compare White House Vigil for the ERA
Comm. v. Watt. 717 F.2d 568 (D.C.Car.1983).]
[5 Counsel for the government has submitted instructions; none has been received from the
defendant. The accompanying Order will require submission of proposed instructions on or
before November 10, 1983.]
[6 See Government's Points and Authorities in
Opposition to Defendant's Motion to Dismiss
Information at 5-13.]
[7 See Memorandum and Order (Oct. 26, 1983).]
Final Order 4/4/86
Listing of Cases
Case Listing --- Proposition One ---- Peace Park