IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
PLAINTIFF,
v.                               CRIMINAL CASE NO. 83-243

WILLIAM THOMAS AND
CONCEPCION PICCIOTTO,
DEFENDANTS.

                                    WASHINGTON, D. C.
                                     DECEMBER 2, 1983 

FOR THE GOVERNMENT:

THEODORE SHMANDA, ESQ., ASSISTANT UNITED STATES ATTORNEY
FOR THE DEFENDANT THOMAS:

SEBASTIAN GRABER, ESQ.
FOR THE DEFENDANT PICCIOTTO:
DAVID WOLL, ESQ.

THE DEPUTY CLERK: CRIMINAL NO. 83-243, THE CASE OF WILLIAM THOMAS AND CONCEPCION PICCIOTTO.

COUNSEL FOR THE GOVERNMENT, MR. SHMANDA.

COUNSEL FOR DEFENDANT NO. 1, SEBASTIAN GRABER; COUNSEL FOR DEFENDANT NO. 2, DAVID WOLL.

THE COURT: DO YOU HAVE MOTIONS, MR. GRABER?

MR. GRABER: YES, YOUR HONOR.

THE COURT: WILL THEY REQUIRE TESTIMONY?

MR. GRABER: YES, THEY WILL.

THE COURT: CAN YOU MAKE A PROFFER AS TO THE WITNESSES YOU EXPECT TO CALL, JUST SO WE CAN SCHEDULE THIS?

MR. GRABER: MR. THOMAS AND MR. DURROUGH, PERHAPS, DEPENDING ON WHETHER OR NOT PREVIOUS TESTIMONY IN A CASE INVOLVING MR. THOMAS IS ADMITTED FOR THE PURPOSES OF THIS CASE.

THE COURT: TESTIMONY ADDUCED BEFORE ME?

MR. GRABER: YES, YOUR HONOR. IF SOME OF THAT IS ADOPTED FOR THE PURPOSES OF THIS HEARING, THEN IT WOULD JUST BE MR. THOMAS, MISS PICCIOTTO, AND A COUPLE OF THE POLICE OFFICER MR. HAYNES IS THE ONE THAT I WOULD BE CALLING. I UNDERSTAND HE IS NOT HERE TODAY.

THE COURT: MR. HAYNES IS A POLICE OFFICER?

MR. GRABER: YES, YOUR HONOR.

THE COURT: HOW LONG WOULD YOU EXPECT THAT THE TESTIMONY, OTHER THAN THE TESTIMONY OF MR. HAYNES, WOULD REQUIRE,

ASSUMING THAT I WOULD INCORPORATE BY REFERENCE THE TESTIMONY ADDUCED EARLIER IN A PROCEEDING?

MR. GRABER: AN HOUR, AT MOST, AND PROBABLY LESS, YOUR HONOR.

THE COURT: MR. SHMANDA?

MR. SHMANDA: GOOD AFTERNOON, YOUR HONOR. YOUR HONOR, I MUST APOLOGIZE TO THE COURT. THREE OF THE OFFICERS THAT I DEEMED POTENTIAL WITNESSES WERE SUBPOENAED FOR THE HEARING ORIGINALLY SCHEDULED ON THE 21ST, AND, THEN, AS YOUR HONOR MAY RECALL, WE HAD TO CHANGE THAT DATE SEVERAL TIMES.

TWO OF THEM WERE VERBALLY ADVISED OF THE CHANGE, AND, FOR SOME REASON NOT APPARENT TO ME, YOUR HONOR, THEY HAVE NOT APPEARED. SO I DO APOLOGIZE.

I WOULD ASK THE COURT, PERHAPS, TO GIVE US ONE MORE OPPORTUNITY TO HAVE THOSE OFFICERS PRESENT.

THE COURT: WELL, WHY DON'T WE PLAN TO SCHEDULE TODAY WHAT TESTIMONY IS AVAILABLE.

MR. SHMANDA: VERY WELL, SIR.

THE COURT: AND THEN WE WILL RESUME THIS HEARING ON ANOTHER DATE THAT IS MUTUALLY CONVENIENT.

MR. SHMANDA: VERY WELL.

THE COURT: WE HAVE NOT SET A TRIAL DATE IN THIS CASE; HAVE WE?

MR. . GRABER: : NO , YOUR HONOR

MR. SHMANDA: WE HAVE NOT, YOUR HONOR.

MR. GRABER: ALSO, ONE OF OUR MOTIONS WAS FOR A JURY TRIAL. I DON'T KNOW HOW YOUR HONOR IS GOING TO RULE, OR WHETHER THAT WOULD AFFECT THE DATE.

THE COURT: WELL, IT WOULD AFFECT THE TIME REQUIRED TO TRY IT, CERTAINLY.

MR. GRABER: YES, YOUR HONOR.

THE COURT: LET ME ADJOURN UNTIL TWO O'CLOCK, AND I WILL HEAR WHAT I CAN. I AM SORRY, MR. WOLL. I DID NOT HEAR FROM YOU YET.

MR. WOLL: YOUR HONOR, I WAS JUST GOING TO SAY, SO FAR AS TWO O'CLOCK, I AM SCHEDULED TO APPEAR BEFORE JUDGE PARK AT TWO O'CLOCK.

THE COURT: ALL RIGHT.

MR. WOLL: BUT IT SHOULD BE A VERY SHORT PROCEEDING ON THAT NARCOTIC CONSPIRACY CASE. WE ARE SUPPOSED TO FIRM UP THE TRIAL DATE, AND SO FORTH.

THE COURT: WHEN YOU FINISH WITH JUDGE PARKER, YOU COME DOWN, AND WE WILL GATHER -

MR. WOLL: ALL RIGHT, YOUR HONOR. I APPRECIATE THAT.

THE COURT: (CONTINUING) -- AS SOON AFTER TWO O'CLOCK AS WE CAN.

MR. WOLL: THANK YOU. I APPRECIATE IT.

THE COURT: I HAVE ANOTHER MATTER AT 3:30.

MR. GRABER: WE SHOULD BE ABLE TO -

THE COURT: AND IF WE HAVE NOT FINISHED BY 3:30, THEN, WHAT IS NOT FINISHED, WE WILL ARRANGE TO FINISH WHEN WE RESUME WITH THESE MISSING WITNESSES.

MR. SHMANDA: I MAY BE ABLE TO GET THEM HERE IN THE INTERLUDE, YOUR HONOR. I WILL MAKE EVERY EFFORT.

THE COURT: IF YOU CAN'T GET THEM HERE, WILL YOU AND MR. GRABER AND MR. WOLL CONFER, TO TRY TO AGREE AMONG YOURSELVES ABOUT A CONVENIENT, ALTERNATE TIME TO HEAR THEM?

MR. SHMANDA: YES, YOUR HONOR, WE WILL BE GLAD TO DO THAT. IS THERE SOME BLOCK OF TIME COMMITTED IN YOUR HONOR'S SCHEDULE RIGHT NOW WHICH WOULD BE BAD FOR THE COURT?

THE COURT: WELL, I AM IN VERY GOOD SHAPE NEXT WEEK.

MR. SHMANDA: ALL RIGHT, SIR. FINE.

THE COURT: I COULD DO IT MONDAY. AS A MATTER OF FACT, I COULD DO IT ALMOST ANY DAY NEXT WEEK, EXCEPT ON FRIDAY.

MR. SHMANDA: YES, SIR. WE WILL WORK AROUND THAT, THEN.

THE COURT: VERY WELL.

MR. SHMANDA: THANK YOU.

THE COURT: I WILL SEE YOU ALL AS SOON AFTER TWO O'CLOCK AS POSSIBLE.

(WHEREUPON, AT THIS POINT THE COURT ADJOURNED, TO RECONVENE AT 2:15 O'CLOCK P. M., OF THE SAME DAY, WHEN THE FOLLOWING PROCEEDINGS WERE HAD:)

THE COURT: GENTLEMEN, THAT CLOCK IS WRONG, AND I DO HAVE TO ADJOURN AT 3 30. SO WE ARE NOT GOING 1-0 GETA WHOLE LOT DONE, BUT WE WILL GET STARTED.

ARE YOU PLANNING TO OFFER ANY EVIDENCE, MR. SHMANDA?

MR. SHMANDA: NOT TODAY, YOUR HONOR.

THE COURT: VERY WELL.

MR. SHMANDA: I HAVE STILL BEEN UNABLE TO GE T THE OFFICERS HERE. I HAVE MESSAGES IN FOR ALL THREE OF THEM.

THE COURT: VERY WELL.

MR. SHAMANDA: YOUR HONOR, BEFORE WE DID GET STARTED, HAVE TWO CORRECTIONS THAT I WOULD LIKE TO MAKE, IN TERMS OF THE WRITTEN DOCUMENTS THAT I FILED, PREVIOUSLY FILED, WITH THE COURT.

THE COURT: VERY WELL.

MR. SHMANDA: THANK YOU, YOUR HONOR.

YOUR HONOR, IN THE OPPOSITION TO A MOTION FOR A JURY TRIAL, ON PAGE 1 OF THAT PLEADING, I APOLOGIZE TO THE COURT. IN MY HASTE TO GET THE PLEADINGS FILED, IN THE FIRST PARAGRAPH THE THIRD SENTENCE READS:

"IT ALSO HAS BEEN EXPRESSLY RECOGNIZED BY OUR OWN UNITED STATES COURT OF APPEALS . . ."

I MEANT TO SAY THAT IT HAS ALSO BEEN EXPRESSLY RECOG NIZED BY OUR UNITED STATES SUPREME COURT. THAT SENTENCE DOES NOT MAKE SENSE THE WAY I HAVE IT PRESENTLY CAST. THAT WAS A MISTAKE ON MY PART.

THE COURT: ALL RIGHT.

MR. SHMANDA: AND, FINALLY, YOUR HONOR, IF WE COULD TURN FOR A MOMENT TO THE GOVERNMENT'S PRINCIPAL RESPONSE, ITS OPPOSITION TO DEFENDANTS' MOTION TO DISMISS, IN THE VERY BRIEF STATEMENT OF FACTS ON PAGE 1, IT INDICATED THAT AT APPROXIMATELY 6:30 A. M., ON SATURDAY, SEPTEMBER 24, 1983, THE SLEEPING DEFENDANTS WERE ARRESTED BY MEMBERS OF THE UNITED STATES PARK POLICE ON THE SOUTH SIDEWALK OF LAFAYETTE PARK IN THE 1600 BLOCK OF PENNSYLVANIA AVENUE, NORTHWEST.

THEN, THERE IS A FOOTNOTE. THE STATEMENT I JUST READ IS CORRECT. WHAT IS NOT CORRECT IS MY FOOTNOTE, WHICH SUGGESTS THAT WHERE MR. THOMAS AND MISS PICCIOTTO WERE ARRESTED IS CONSIDERED, BY LEGAL DEFINITION, "THE WHITE HOUSE SIDEWALK.

"THE WHITE HOUSE SIDEWALK" IS ONLY THE SIDEWALK DIRECT IN FRONT OF THE WHITE HOUSE.

SO THAT FOOTNOTE, IF YOU WILL JUST DISREGARD IT, YOUR HONOR, IS WHAT I AM SAYING.

THE LAST CHANGE, WHICH GOES IN KEEPING WITH THAT: STILL IN THE SAME PLEADING, WHEN WE TALK ABOUT THE REASONS FOR THE REGULATION, PAGE 8, TRYING TO SHOW HOW THE REGULATIONS MEET THE CONSTITUTIONAL REQUIREMENT OF UNITED STATES VERSUS O'BRIAN, BECAUSE OF MY CONFUSION, YOUR HONOR, IN THINKING THAT THIS WAS DEFINED AS "THE WHITE HOUSE SIDEWALK," I PUT IN, IN THE BOTTOM PARAGRAPH, A REFERENCE TO SECURITY PROBLEMS INVOLVING THE PERSONAL SECURITY OF THE PRESIDENT OF THE UNITED STATES.

THAT CERTAINLY WOULD BE THE CASE ON THE SIDEWALK DIRECTLY IN FRONT OF THE WHITE HOUSE.

THE COURT: BUT YOU ARE ABANDONING ANY SECURITY DEFENSE.

MR. SHMANDA: THAT IS RIGHT, FOR THE SIDEWALK ACROSS THE STREET IN LAFAYETTE PARK, YOUR HONOR. I DON'T THINK THAT THAT WOULD BE CORRECT: FOR ME TO MAKE THAT REPRESENTATION, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU.

MR. SHMANDA: THANK YOU.

MR. GRABER: YOUR HONOR, I HAVE MR. DORROUGH HERE AND I HAVE SPOKEN WITH MR. SHMANDA ABOUT ADOPTING THE RECORD FROM THE SELECTIVE-PROSECUTION MOTION ARGUED BEFORE YOUR HONOR ON OCTOBER 21 AND OCTOBER 24, IN CRIMINAL NO. 83-186.

I WOULD SUBMIT THAT AT LEAST THE TESTIMONY OF MR. DURROUGH AND THE TESTIMONY OF MR. MONTGOMERY WOULD BE APPLICABLE TO THIS CASE, BECAUSE THEY TESTIFIED SOMEWHAT ABOUT CAMPING AND ENFORCEMENT OF THE CAMPING REGULATION WITH RESPECT TO MR. THOMAS.

AND I WOULD ASK THE COURT, AND SUGGEST, THAT, FOR PURPOSES OF THIS CASE, AT LEAST THAT TESTIMONY BE ADOPTED HERE WHICH WOULD SAVE US, I THINK, HAVING TO PUT ON MR. DURROUGH.

THE COURT: IS THERE OBJECTION?

MR. SHMANDA: WELL, YOUR HONOR, I DON'T MEAN TO BE DIFFICULT. I DID HAVE AN OPPORTUNITY OVER THE LUNCHEON HOUR, THROUGH THE COURTESY OF MR. GRABER, TO READ BOTH TRANSCRIPTS.

MY ONLY PROBLEM, YOUR HONOR, IS THAT THE FRAME OFREFERENCE IN THOSE PROCEEDINGS WAS THE WHITE HOUSE SIDEWALK. IN OTHER WORDS, THE GENTLEMEN WERE ASKED QUESTIONS BY BOTH COUNSEL, COUNSEL FOR THE DEFENDANT AND COUNSEL FOR THE GOVERN MENT, ABOUT WHAT HE HAD SEEN, WHAT THEY HAD SEEN, AND IN TERMS OF ACTION BY THE GOVERNMENTAL AUTHORITIES ON THE WHITE HOUSE SIDEWALK.

WE ARE TALKING ABOUT THE AREA ACROSS THE STREET, YOUR HONOR.

THE COURT: WOULD IT BE POSSIBLE TO SUPPLEMENT THAT RECORD?

MR. SHMANDA: I THINK THAT WOULD BE POSSIBLE.

THE COURT: ALL RIGHT. SUPPOSE I RECEIVE IT WITHOUT PREJUDICE TO EITHER OF YOU SUPPLEMENTING THE RECORD WITH RESPECT TO SELECTIVE PROSECUTION ON THIS QUESTION.

MR. SHMANDA: OKAY, YOUR HONOR. I THOUGHT, AS A SUPPLEMENT, THAT WE WOULD HAVE THE WITNESS SIMPLY -- AT LEAST I WOULD MAKE THIS REQUEST: THAT THE WITNESS BE PUT ON THE STAND MOST BRIEFLY, SO I CAN AT LEAST ASK WHETHER THE SAME OBSERVATIONS PERTAIN TO THE SIDEWALK THAT WE ARE TALKING ABOUT.

THE COURT: MAYBE WE CAN GET A PROFFER.

MR. GRABER: I THINK WHAT WE COULD DO IS ACCEPT WHAT WAS OFFERED BEFORE AND THEN PUT ON THE WITNESSES TO ADD TO IT WITH RESPECT TO THE LAFAYETTE PARK SIDE. IT WOULD -

THE COURT: AND MAKE IT CLEAR AT THAT TIME THAT DIFFERENT CIRCUMSTANCES OBTAIN THERE.

THE COURT: VERY WELL. THANK YOU. YOU WILL HAVE TO IDENTIFY ON THE RECORD SPECIFICALLY THE TESTIMONY OF WHAT WITNESSES ON WHAT ON WHAT DAY, FOR THE PURPOSE OF MAKING THE RECORD ON APPEAL AND FOR MY OWN FINDINGS.

MR. SHMANDA: YES, YOUR HONOR.

MR. GRABER: THAT WILL BE FINE, YOUR HONOR.

THE COURT: WHY DO YOU NOT IDENTIFY TWO EXHIBITS AND OFFER THEM?

MR. GRABER: I HAVE THEM.

THE COURT: GIVE THEM TO THE CLERK.

THE DEPUTY CLERK: DO YOU WANT THEM MARKED, YOUR HONOR?

THE COURT: PLEASE.

THE DEPUTY CLERK: AS DEFENDANTS' EXHIBITS, YOUR HONOR?

THE COURT: AS DEFENDANTS' EXHIBITS IN THE MOTIONS PROCEEDING.

MR. GRABER: YOUR HONOR, I FILED SOME EXHIBITS WITH MY MOTION PAPERS, AND I DON'T REALLY SEE THE NEED TO REINTRODUCE THEM TODAY.

THE COURT: NO. LET'S GET THEM NUMBERED, THOUGH, SO THEY ARE ON THE RECORD. YOU CAN DO THAT WITH THE CLERK DURING A RECESS.

MR. GRABER: ALL RIGHT. FlNE.

THE COURT- NOW, LET'S GET THESE TWO EXHIBITS INTO