U.S. v. Thomas

Cr. No. 84-0255

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

CRIMINAL ACTION NO. 84-255 VS. 1. WILLIAM THOMAS
2. ELLEN BENJAMIN A/K/A

ELLEN THOMAS
3. ROBERT A. DORROUGH
4. WILLIAM THOMAS
5. DAVID MANNING
6. CONCEPCION PICCIOTTO
7. ANTHONY T. NELSON,

DEFENDANTS

WASHINGTON, D. C.
TUESDAY, SEPTEMBER 25, 1984

THE ABOVE ENTITLED MATTER CAME ON FOR FURTHER TRIAL BY COURT, BEFORE THE HONORABLE J0YCE HENS GREEN, UNITED STATES DISTRICT COURT AT APPROXIMATELY 9:30 A.M.

APPEARANCES:

FOR THE GOVERNMENT: PAMELA B. STUART, AUSA

OFFICIAL COURT REPORTER GORDON A. SLODYSKO, (202) 371-1734

(EXCERPT - RULING ON MOTION FOR JUDGMENT OF ACQUITTAL)

APPEARANCES (CONTINUED):

FOR THE DEFENDANT ELLEN BENJAMIN A/K/A ELLEN THOMAS

STEPHEN G. MILLIKEN, ESQ.
FOR THE DEFENDANT ROBERT A. DORROUGH:

MELVIN M, DILDINE, ESQ.
FOR THE DEFENDANT WILLIAM THOMAS:

ROBERT A. DEBARARDINIS, JR., ESQ.
FOR THE DEFENDANT DAVID MANNING:

CLAUDIA SCHLOSBERG, ESQ.
FOR THE DEFENDANT CONCEPCION PICCIOTTO:

PHYLLIS TATIK, ESQ.
FOR THE DEFENDANTS WILLIAM THOMAS (1) AND ANTHONY T. NELSON:

MARK VENUTI, ESQ.

THE COURT: A JUDGE ALWAYS WISHES AT A TIME LIKE THIS THAT THERE WERE MORE TIME TO CAREFULLY WRITE OUT THE WORDS WHICH WILL BE SPOKEN. BUT THE IMPORTANT THING IS TO MAKE THE DECISION, HOWEVER INARTFULLY IT MAY BE EXPRESSED AND WHATEVER RECOURSE TO NOTES MAY DELAY THE GIVING OF THIS DECISION,AS WILL BE DONE THROUGHOUT THE COURSE OF THE MATTER. WE ARERULING NOW ON THE RESPECTIVE MOTIONS FOR JUDGMENT OF ACQUITTAL OFTHE SIX DEFENDANTS PRESENT OF THE SEVEN WHO ARE CHARGED IN THIS CASE.

THE INFORMATION IN THIS CASE CHARGES AS FOLLOWS: "UNITED STATES ATTORNEY CHARGES ON OR ABOUT JUNE 6, 1984, WITHIN THE DISTRICT OF COLUMBIA, THE DEFENDANTS" -- AND THEY ARE ELLEN BENJAMIN, ALSO KNOWN AS ELLEN THOMAS, ROBERT A. DORROUGH, WILLIAM THOMAS, DAVID B.MANNING, CONCEPCION PICCIOTTO, AND ANTHONY T. NELSON -- "DID CAMP IN A PARK AREA NOT DESIGNATED FOR CAMPING, THAT IS, THE SOUTH SIDEWALK AREA OF LAFAYETTE PARK, 1600 PENNSYLVANIA AVENUE, NORTHWEST, WASHINGTON, D. C., AN AREA NOT DESIGNATED FOR CAMPING, FOR LIVING ACCOMMODATION PURPOSES, INCLUDING ACTIVITIES AND MAKING PREPARATIONS TO SLEEP, INCLUDING THE LAYING DOWN OF BEDDING FOR THE PURPOSE OF SLEEPING, AND STORING PERSONAL BELONGINGS, IN VIOLATION OF 36 CFR NOS. 50.5 AND 50.27, AS AMENDED JUNE 4, 1982."

THAT INFORMATION, AND AS TO 36 CFR NO. 50.27, PROSCRIBES CAMPING ON FEDERAL PARK LAND, AND 50.5 ESTABLISHES

THE PENALTY OF THAT RECUSATION, A MISDEMEANOR, THAT IS, $500 FINE AND/OR IMPRISONMENT FOR NOT MORE THAN SIX MONTHS.

LET US EXAMINE HOW AND WHAT CAMPING IS DESCRIBED TO BE. THE REGULATION DEFINES CAMPING AS FOLLOWS:

"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 STRUCTURE OR VEHICLE FOR SLEEPING, OR DOING ANY DIGGING OR EARTHBREAKING OR CARRY- ING ON COOKING ACTIVITIES.

IT GOES INTO SOME MORE DETAIL, BUT ESSENTIALLY, CAMPING, AS DEFINED BY THE REGULATION, MAY BE ESTABLISHED BY SHOWING THAT THE PARK LAND IS BEING USED FOR SLEEPING, THAT IT IS BEING USED TO MAKE PREPARATIONS TO SLEEP, OR THAT IT IS BEING USED FOR STORING PERSONAL BELONGINGS, OR THAT IF IS USED, AS I HAVE SAID EARLIER, TO MAKE A FIRE, ERECT TENTS, ENGAGE IN DIGGING ACTIVITIES, OR COOK. IT MAY ALSO BE ESTABLISHED IF IT REASONABLY APPEARS, IN LIGHT OF ALL THE CIRCUMSTANCES, THAT THE PARTICIPANTS 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.

TURNING FIRST, NOW, TO THE CAMPING ALLEGATIONS, LET US MAKE SOME FINDINGS OF FACT. OUR SETTING IS IN AN AREA

WHERE A VIGIL PROTECTED BY THE CONSTITUTION AND BY A GOVERN- MENTAL PERMIT HAS BEEN TAKING PLACE FOR ONE-AND-A-HALF TO TWO YEARS. IT IS A VIGIL THAT WAS DESCRIBED IN THE TESTIMONY OF THE GOVERNMENT WITNESSES AS, QUOTE, THE THOMAS VIGIL, END QUOTE.

NONE OF THE WITNESSES PRESENTED BY THE GOVERNMENT WAS ABLE TO TESTIFY WITH REASONABLE CERTAINTY THAT ANY OF THE DEFENDANTS WERE SLEEPING AND NOT SIMPLY RECLINING, RESTING, MEDITATING, OR CONDUCTING ANY OTHER SILENT AND PASSIVE ACTIVITY. IT IS NOT POSSIBLE TO DETERMINE FROM THE EVIDENCE WHETHER THE DEFENDANTS WERE ASLEEP OR AWAKE AT THE TIME OF THEIR ARREST ON JUNE 6TH, 1984.

LET US LOOK AT THE EVIDENCE IN ABBREVIATED STYLE. OFFICER AGUSIEWICZ, WHOSE TOUR OF DUTY WAS THE DAY BEFORE AND UNTIL THE DAY AT HAND, WAS FROM 10:00 P.M. ON JUNE 5, 1984, TO 6:00 A.M. ON JUNE 6, 1984. HE TESTIFIED THAT HE MADE THREE PATROLS THROUGH LAFAYETTE PARK IN THE EIGHT-HOUR PERIOD OF HIS TOUR OF DUTY PRECEDING THE ARREST. THE ARREST WAS ALLEGED TO HAVE TAKEN PLACE BETWEEN 6:05 AND 6:10 A.M., FIVE TO TEN MINUTES AFTER THAT OFFICER'S TOUR OF DUTY CEASED. HE NOTICED SEVEN OR EIGHT INDIVIDUALS ON THE SOUTH SIDE OF THE PARK. HE WAS CHECKING FOR THE PURPOSE OF WHETHER OR NOT PEOPLE WERE SLEEPING, AS HE SAID IN HIS TESTIMONY: "I JUST CHECKED TO SEE IF ANYONE WAS SLEEPING IN THE PARK, IF THERE WERE ANY LOUD NOISES, OR IF EVERYONE WAS O.K." HE

WAS TWO TO THREE FEET DISTANT FROM SOME OF THE PEOPLE THAT HE OBSERVED IN THE PARK. AND SO, ALTHOUGH HE WAS CHECKING FOR THE VERY PURPOSE INVOLVED HEREIN, HE DID NOT OBSERVE ANY- ONE SLEEPING. HE DID SEE SOME PEOPLE LYING DOWN. HE MADE NO ARRESTS FOR VIOLATIONS OF THE REGULATIONS HEREIN INVOLVED.

GEORGE WASHINGTON, A WHITE HOUSE GARDENER, CAME INTO THE SCENE AT THE REQUEST OF THE ARRESTING OFFICER, WHO SECURED HIM FOR THE SINGULAR PURPOSE TO BE A WITNESS. GEORGE WASHINGTON ACCOMPANIED THE ARRESTING OFFICER INTO THE PARK AT THE TIME OF THE ARRESTS, AND HE TESTIFIED THAT ALTHOUGH HE SAW FIVE INDIVIDUALS LYING PRONE ON THE SOUTH SIDE OF THE PARK AND ALTHOUGH THOSE INDIVIDUALS WERE AT LEAST PARTIALLY COVERED, HE COULD NOT SAY DEFINITELY WHETHER THOSE INDIVIDUALS WERE ASLEEP. HE DID TESTIFY THAT WHEN HE AND OFFICER HAYNES, THE ARRESTING OFFICER, WALKED TOWARDS THE PEOPLE, THE PEOPLE WERE GETTING UP AND PULLING COVERS OFF, AND THAT HE SAW ONE PERSON WHO WAS STANDING BY A SIGN. HE COULD NOT RECOGNIZE ANY OF THE SIX PERSONS INVOLVED ABOUT WHOM HE HAD OBSERVED.

OFFICER HAYNES, THE ARRESTING OFFICER, TESTIFIED THAT ALL OF THE DEFENDANTS, QUOTE, APPEARED, END QUOTE, TO BE SLEEPING WHEN HE ENTERED THE PARK ON FOOT WITH GEORGE WASHINGTON ON THE MORNING OF JUNE 6, 1984. OFFICER HAYNES' TOUR OF DUTY BEGAN AT 6:00 A.M. AND TERMINATED EIGHT HOURS LATER. HE NOTED THAT THE DEFENDANTS' EYES WERE CLOSED, THAT THEY DID NOT APPEAR TO BE MOVING, AND THAT THEY WERE PRONE.

HOWEVER, IN TESTIMONY THAT CAN ONLY BE DESCRIBED AS INCONSISTENT ON OCCASION, EVASIVE ON MANY OTHER OCCASIONS, HE CONCEDED THAT IN EARLIER SWORN TESTIMONY IN THIS COURTHOUSE AT A PRELIMINARY HEARING, HE HAD STATED HE COULDN'T BE CERTAIN THAT ANY OF THE DEFENDANTS WERE SLEEPING; MERELY THAT THEIR EYES WERE CLOSED. HE COULD NOT TESTIFY WHETHER OR NOT, INDEED, THEY COULD HAVE BEEN MEDITATING, AND CONFESSED THAT THEY COULD HAVE BEEN SIMPLY MEDITATING.

HE TESTIFIED THAT HE SAW BLANKETS AND POUCHES ON THE GROUND NEAR SOME OF THE DEFENDANTS, BUT HE COULD NOT TESTIFY THAT THESE ARTICLES' WERE USED AS PREPARATIONS FOR SLEEPING OR AS ACCOMMODATIONS FOR SLEEPING. THEY MERELY WERE WHERE IN THE PROXIMITY AROUND, UNDER, OR IN THE AREA OF SOME OF OUR DEFENDANTS.

OFFICER HAYNES' TESTIMONY WILL BE ADDRESSED IN A MOMENT OR TWO.

NOW LET'S TALK ABOUT STORING PERSONAL BELONGINGS, ABOUT WHICH THERE HAS BEEN A GREAT DEAL OF TESTIMONY IN THIS COURTROOM. ONE THING IS CLEAR: THE TERM "STORING" IS NOT DEFINED WITH ANY PRECISION IN THE CODE OF FEDERAL REGULATIONS. WEBSTER'S THIRD INTERNATIONAL DICTIONARY DEFINES THE VERB "TO STORE" AS "THE LAYING AWAY OF OR THE ACCUMULATION OF AN ITEM FOR FUTURE USE." BUT INHERENT IN THE DEFINITION -- INHERENT IN EVEN A COMMON SENSE DEFINITION OF THAT TERM, WITHOUT EVEN RECOURSE TO AN ACCEPTED DICTIONARY, IS DURATION.

STORAGE HAS TO BE A DURATIONAL CONCEPT. AN ITEM MAY ONLY BE "STORED" -- "STORED" IN QUOTES -- IF IT IS KEPT IN A PLACE OVER A PERIOD OF TIME. HOW LONG A PERIOD OF TIME NEED NOT BE ANSWERED IN THIS PARTICULAR CASE. IT IS CLEAR THAT, AS HAS BEEN ILLUSTRATED, A SUITCASE CARRIED INTO A PARK OR AN ATTACHE CASE CARRIED INTO A PARK AND PLACED ON THE GROUND MOMENTARILY, AND EVEN FOR A PERIOD OF LONGER THAN A MOMENT OR TWO OR A FEW MOMENTS, HAS NOT BEEN "STORED" IN THE SENSE OF STORAGE AS USED IN THIS REGULATION.

NUMBEROUS ARTICLES OF CLOTHING AND PERSONAL EFFECTS WERE IDENTIFIED BY OFFICER HAYNES IN COURT AS HAVING BEEN SEEN NEAR OR IN OR ABOUT OR IN A PROXIMITY TO WHERE SOME OR ALL OF THE DEFENDANTS WERE SEEN LYING PRONE OR STANDING IN LAFAYETTE PARK. BUT NO GOVERNMENT WITNESS COULD TESTIFY THAT THOSE SAME ITEMS IDENTIFIED IN COURT AS THOSE ITEMS FOUND IN THE VICINITY OF THE CERTAIN DEFENDANTS WERE SEEN ON EARLIER OCCASIONS OR REMAINED WITH OR UNDER THE CONTROL OF THE DEFEN- DANTS OVER AN APPRECIABLE PERIOD OF TIME. THE VERY BEST THAT COULD BE SAID BY ANY OF THE GOVERNMENT WITNESSES WOULD BE, AS EXAMPLE AGAIN, THAT A PAIR OF BLACK SLACKS HAD ONCE BEEN SEEN WORN IN THE SAME MANNER BY ONE OF OUR DEFENDANTS ON AN EARLIER OCCASION, OR A JACKET HAD BEEN SEEN WORN ON SEVERAL OCCASIONS BY ONE OF OUR DEFENDANTS, OR A PONCHO HAD BEEN SHARED JOINTLY WITH TWO OF OUR DEFENDANTS, SOMETIMES SEEN ON ONE AND SOMETIMES SEEN ON ANOTHER.

IN SHORT, NO EVIDENCE WAS OFFERED TO SHOW THAT SPECIFIC PERSONAL EFFECTS ATTRIBUTED TO ANY ONE OF THESE DEFENDANTS WAS "STORED" IN THE PARK FOR ANY IDENTIFIABLE PERIOD OF TIME. INDEED, OFFICER HAYNES SPECIFICALLY TESTIFIED TO THIS POINT. HE ADMITTED NOT ONLY THAT HE DID NOT KNOW WHAT PROPERTIES BELONGED TO WHOM AND HE MADE HIS ATTRIBUTION AS HE SAW BEST FIT, THAT HE COULD NOT SEPARATE ONE FROM ANOTHER AS TO THESE PROPERTIES; HE ALSO TESTIFIED HE COULD NOT GIVE ANY TESTIMONY AS TO THE DURATION OF THESE PROPERTIES IN THE PARK. HE COULD NOT TELL US, FOR EXAMPLE, WHETHER THOSE PROPERTIES HAD BEEN IN THE PARK ON THE DAY BEFORE THE ARREST, THAT IS, ON JUNE 5TH. HE COULD NOT TELL US SPECIFICALLY, AND HE ADMITTED HE COULD NOT TELL US WHETHER THOSE PROPERTIES HAD BEEN IN THE PARK EVEN HOURS BEFORE THE ARREST. AS NE SAID VERY CLEARLY, "I CAN ONLY TESTIFY THAT THEY WERE THERE MINUTES BEFORE THE ARREST."

INFO THIS INTERESTING SCENE, WHEN THE ARREST TOOK PLACE, NUMEROUS OTHER PERSONS, ACCORDING TO THE GOVERNMENT WITNESSES, CAME UPON THE SCENE, NOT THE ARRESTEES, MAKING CLAIM TO VARIOUS OF THESE PROPERTIES. NO GOVERNMENT WITNESS WAS ABLE TO TELL THE FACTFINDER WHICH PROPERTIES THEY WERE, WHO CAME UPON THE SCENE, WHO CLAIMED WHAT. ONLY ONE THING WAS CLEAR: ALL OF THOSE PROPERTIES, INCLUDING THE ONES THAT WERE DENOMINATED AS THEIRS BY THE NON-ARRESTEES, WERE SWEPT UP TOGETHER, GATHERED TOGETHER, SOME WERE TAGGED, SOME WERE

NOT, SELECTIVE IDENTIFICATION WAS MADE, RANDOM ROUGH NOTES WERE PRODUCED, SOME PROPERTIES WERE LISTED, SOME WERE NOT, AND ALL WERE PLACED ON TWO FIVE-TON TRUCKS, INCLUDING SOME MASSIVE SIGNS WHICH WERE, CONCEDEDLY, PART OF THE VIGIL. THERE IS NO QUESTION THAT THERE WERE SUBSTANTIAL NUMBER OF ARTICLES THAT WERE COLLECTED IN THE PARK. THERE IS NO QUESTION THAT THEY WERE IN VARIOUS CONTAINERS OR SOME OF THEM NOT IN CONTAINERS. THERE IS NO QUESTION THAT CON- TAINED WITHIN THOSE ARTICLES WERE SOME THAT CERTAINLY COULD BE DESCRIBED AS PERSONAL BELONGINGS, INCLUDING TOOTHBRUSHES AND HAIRBRUSHES AND VARIOUS ARTICLES OF CLOTHING, UNDERCLOTHING, OVERCLOTHING, WINTER CLOTHING, SUMMER CLOTHING.

Transcript Continued

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