U.S. v THOMAS & THOMAS

864 F.2d 188
(Cite as: 864 F.2d 188, 274 U.S.App.D.C. 385)

UNITED STATES of America

v.
William THOMAS, Appellant.

UNITED STATES of America
v.
Ellen THOMAS, Appellant.

Nos. 88-3034, 88-3035.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 8, 1988.
Decided Dec. 30, 1988.

Defendants were convicted in the United States District Court for the District of Columbia, Thomas A. Flannery, J., of violating United States Park Service anticamping regulation, and they appealed. The Court of Appeals, Starr, Circuit Judge, held that: (1) evidence was sufficient to sustain defendants' convictions, and (2) anticamping regulation was not unconstitutionally vague as applied to defendants who sought to maintain continuous presence in park across from White House to protest threat of nuclear annihilation.

Affirmed.

1. CRIMINAL LAW 110260.11(4)

Governing standard for reviewing sufficiency of evidence in nonjury cases is same as applied in jury cases: conviction must be reversed when evidence is such that reasonable minds could not find guilt beyond reasonable doubt.

2. UNITED STATES 39357

Evidence supported finding that nuclear protesters violated United States Park Service anticamping regulation; park officers on at least four occasions during week-long period observed defendants sleeping on bedding materials in park late at night and in early morning, defendants themselves admitted that they had slept in park for at least four and one-half hours during four-day period, and defendants further admitted that they were attempting to maintain constant, all-weather, around-the-clock expressive presence in park without benefit of other living accommodations.

3. CONSTITUTIONAL LAW 9282(3)

When enactment threatens exercise of otherwise permissible First Amendment rights, enactment must provide more notice and allow less discretion than for other activities. U.S.C.A. Const.Amend. 1.

4. CONSTITUTIONAL LAW 9282(4)

When enactment is challenged as vague in its application in First Amendment context, court must focus upon whether enactment provided fair notice that defendant's contemplated conduct fell within legitimate scope of prohibition. U.S.C.A. Const.Amend. 1.

5. CONSTITUTIONAL LAW 9290.1(4)

United States Park Service anticamping regulation was not unconstitutionally vague as applied to nuclear activists who sought to maintain "continuous presence" in park across from White House; regulation provided fair notice to protestors that around-the-clock vigil fell within regulation's prescription, park police officers had verbally warned protestors that camping regulation prohibited ongoing behavior, and there was no evidence that regulation was discriminatorily enforced. U.S.C.A. Const.Amends. 1, 5, 14.

5. UNITED STATES 39357

United States Park Service anticamping regulation was not unconstitutionally vague as applied to nuclear activists who sought to maintain "continuous presence" in park across from White House; regulation provided fair notice to protestors that around-the-clock vigil fell within regulation's prescription, park police officers had verbally warned protestors that camping regulation prohibited ongoing behavior, and there was no evidence that regulation was discriminatorily enforced. U.S.C.A. Const.Amends. 1, 5, 14.

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Appeals from the United States District Court for the District of Columbia (Criminal Action Nos. 87-00231-01 and 02). Mark A. Venuti, Washington, D.C., (appointed by the court), for appellants in Nos. 88-3034 and 88-3035. Edith S. Marshall, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:
Lafayette Park, as Washington residents and visitors well know, sits across Pennsylvania Avenue from the White House. It is a lovely park, beautifully landscaped and exquisitely maintained. On its north side stands St. John's Church, the church of Presidents, and the historic Hay-Adams Hotel. Looking out on the park are government buildings of some note, not the least of which are the National Courts Building, Dolley Madison House and the Decatur House. By virtue of its singular location, Lafayette Park has become a haven for First Amendment activity.

The keen governmental interest in maintaining the beauty and tranquility of this historic park has thus increasingly come into conflict with the equally keen interest on the part of various individuals and groups in expressing their viewpoints on significant issues of our age.

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Like the now-legendary "sleeping in the park" case, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), the case before us involves individuals who are seeking by their continuing presence in the park to convey and communicate their sincerely held views about what they perceive to be the most elemental social ills. Two individuals, husband and wife, stand convicted for violation of the applicable Park Service regulations which forbid "camping" in areas including Lafayette Park. The challenge mounted by William and Ellen Thomas to their respective convictions sounds both in a substantiality of the evidence attack and in the familiar doctrine of void-for-vagueness, drawn from the body of First Amendment and DueProcess law. For the reasons that follow, we conclude that the Thomases' challenge cannot succeed and that their convictions must therefore stand.

I

Ellen and William Thomas have for several years pursued a vigil in Lafayette Park that entails what William Thomas terms a "continuous presence" in the Park. (Tr. 107). Ellen Thomas describes their vigil as "[an] attempt[ ] to maintain a constant, all-weather, round-the-clock expressive presence in Lafayette Park." Def. (E.T.) Exhibit 7. The Thomases have abandoned most worldly possessions and pursuits to alert whoever might pass by--through discussion, their signs, and their presence--of the threat of nuclear annihilation and the evils they perceive as having created that threat. They do have access to and use of a nearby apartment, where they store most of their few belongings, eat, shower, use the bathroom, pursue their correspondence, and attend to other such functions. However, they do not, except inadvertently, sleep in the apartment. Indeed, William Thomas claims to have sloughed off the need for regular sleep along with other attributes of worldly existence, and thus to sleep nowhere in particular unless overcome by exhaustion and forced to nap.

The Thomases pursued this pattern of activity during the week of March 22 through March 29, 1987. Park Service officers observed them on several occasions lying prone at night upon or within bedding material, surrounded by bundles of goods, occasionally under a plastic sheet, and, by all appearances, asleep. Several times, officers verbally warned the Thomases that they were in violation of the Park Service's prohibition against "camping," and issued four citations to that effect.

The Park Service regulation in question lists several indicia of "camping": Camping isdefined 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 structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. 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 engaging.... 36 C.F.R. 7.96(i)(1) (1988).

The United States Attorney's Office issued an information against the Thomases for their conduct during the week in question and prosecuted them for impermissibly camping in the Park. Following a bench trial before Judge Flannery, the Thomases were found guilty; the trial court reasoned that the regulation "does not permit individuals to spend substantially all of their time, including sleeping hours, in the park on a continuing basis."

Memorandum Opinion, Crim. No. 87-0231 at 16 (D.D.C. Feb. 5, 1988). Although the court did not define precisely what use of the park constituted "use for living accommodation purposes," it found "that lying on top and within bedding materials throughout the night, for a one-week period, without evidence

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of any other sleeping quarters, is sufficient evidence of the use of the park for living accommodations." Id. at 17.

The District Court thereafter denied the Thomases' motion to stay their 30-day sentences pending appeal. Despite having served their sentences, the Thomases appeal the verdict, alleging that insufficient evidence exists to support the convictions and that the regulation is unconstitutionally vague as applied to them.

II

The Thomases assert primarily that the government adduced insufficient evidence to support their convictions. We respectfully but emphatically disagree.

A

The standard governing our review is well settled and understood. On appeal, a reviewing court is to accord a guilty verdict great deference; indeed, the sole evidentiary issue in such instances is whether substantial evidence supports the verdict. "The governing standard for reviewing the sufficiency of the evidence in non-jury cases is the same as that applied in jury cases: The conviction must be reversed when the evidence is such that a reasonable mind could not find guilt beyond a reasonable doubt." United States v. Castellanos, 731 F.2d 979, 984 (D.C.Cir.1984); see United States v. James, 764 F.2d 885, 889 (D.C.Cir.1985) ("we cannot overturn the verdict unless a reasonable jury must necessarily have entertained a reasonable doubt"); Jackson v. United States, 353 F.2d 862, 864 (D.C.Cir.1965) (same standard applied to review of bench and jury trials) (Wright, J.). Our review of the record must also accord great weight to the factfinder's role, while providing no incentive for the parties to retry the case on appeal.

"Our task ... is to view 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, and permitting the [factfinder] to determine the weight and credibility of the evidence." United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986); see United States v. Weisz, 718 F.2d 413, 437 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984); United States v. Singleton, 702 F.2d 1159, 1162-63 (D.C.Cir.1983). This standard applies to both direct and circumstantial evidence. See Sutton, 801 F.2d at 1358; see also Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

B

In light of the governing standard, we are satisfied that several sources of evidence in the record provide ample support for the verdicts. First. Three officers testified about what they observed during the period that included the four occasions when they issued citations to the Thomases for violating the regulation. As the District Court concluded, "[t]he testimony of the Park Police officers established 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." Mem.Op. at 15. Here is the substance of that testimony.

(1) Park Police Officer Richard DeRiso testified that at approximately 6:00 a.m. on March 22, he observed the Thomases lying in sleeping bags and on blankets, surrounded by clothes. The officer saw no activity and heard sounds that to him resembled snoring. He woke the Thomases, told them that they were violating the camping regulation, and cited them for the violation. According to the officer, the Thomases were in roughly the same circumstances on the morning of March 27, and he again gave them a citation. On cross-examination, Officer DeRiso indicated that on both occasions he may have actually issued the citations later in the morning.

(2) Patrol Officer Daniel DeLullo testified that he observed the Thomases at their demonstration site three times during the night of March 25 and morning of March 26. The first time, at 10:00 p.m., the Thomases were sitting on sleeping bags and blankets, surrounded by minor items of

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property and their literature, which was covered by plastic. An hour later, the Thomases were lying in their sleeping bags, which in turn were covered by plastic, and the Thomases appeared to Officer DeLullo to be asleep. The officer lifted the plastic to warn them that they were violating the camping regulation. Little had changed the third time, at 12:10 a.m. After briefly observing the Thomases from one foot away and discerning no activity, Officer DeLullo issued each of them a citation.

(3) Park Police Officer William Doerrler testified that at approximately 6:15 a.m. on March 29, he observed Ellen Thomas leaning against a sign and William Thomas lying down, covered by a blanket. He reported seeing them surrounded by heaps of clothing and bundles. Both appeared to be asleep. Officer Doerrler told the Thomases that they were violating the camping regulation and later issued each of them a citation.

Second. The Thomases' own admissions about their activities in Lafayette Park during the period in question provide further evidence supporting the convictions. The record amply supports the trial court's summary in this respect: Both defendants have testified that they spent most of their time in Lafayette Park and with occasional exceptions, spent every night there. William Thomas acknowledged that with the exception of the 'involuntary' naps he took when out of the park, whatever sleeping he did was done in the park. Ellen Thomas testified that she had the 'night shift' at their demonstration site in the park and did not testify that she slept anywhere else. Mem.Op. at 15.

Indeed, the defendants' testimony largely confirms the officers' accounts, differing principally over the time they actually received certain citations and (especially on Ellen Thomas's part) over whether they were actually asleep while lying in their sleeping bags. Ellen Thomas testified that she spent entire nights in Lafayette Park, and was on the occasion in question prone, in and on blankets and sleeping bags, and covered with plastic. (Tr. 218). William Thomas was more expansive. He opined that, although the government's evidence had established at most an hour and a half of sleeping during the four occasions, "[a]ccording to our testimony, I figure that we admit to having slept for about four hours and fifteen minutes in the park over the course of these four days." (Tr. 273). Mr. Thomas also described how he had been in the Park most of the day on March 21, and that at 10:00 p.m. that night Officer Doerrler had warned him and others in the Park that they were in violation of the camping regulation (prior to Mr. Thomas's admitted hour and a half of sleep later the morning of March 22 and prior to the citation issued by Officer DeRiso that morning). (Tr. 230, 232).

Third. The Thomases' description of how they conduct their "continuing vigil" supports reasonable inferences of violations of the anti-camping regulation. Ellen Thomas testified that, although she spends time away from the Park lobbying, writing, and communicating with the press, she spends from 12 to 20 hours per day in the Park. (Tr. 199-200). Two weeks after the period in question, Ellen Thomas wrote to the Park Service that "I have been attempting to maintain a constant, all-weather, round-the-clock expressive presence in Lafayette Park, without living accommodations...." Def. (E.T.) Exhibit 7. During the pivotal week in late March, she was pursuing her ongoing vigil, namely staying in the Park with her signs, "demonstrating my commitment to the necessity to spend as much time as possible to eliminate nuclear weapons." (Tr. 196-97). William Thomas states that his "main, practical purpose is a symbolic purpose to my being [in the Park], but practically my purpose is that I can be available at all times for clarification of actual reality." (Tr. 252). William Thomas testified that he spent most of his time from March 21 to 26 in the Park, leaving to go to a court appearance and twice to go to the nearby apartment. (Tr. 238). Although both use the apartment for tasks such as cooking, cleaning clothes, using the telephone, and writing, neither

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testified to sleeping (except inadvertently) or spending significant amounts of time there. William Thomas claimed that "the object of my life is to live without accommodations, and to me [the apartment] is a compromise." (Tr. 240).

C

The Thomases' criticisms of the very substantial evidence arrayed against them are misplaced. They argue repeatedly that no matter what the police briefly observed or no matter that they (the Thomases) occasionally dozed off, they were not "sleeping" in the park in a sense relevant to the anti-camping regulation. William Thomas argues that "[p]ersonally, I don't consider what I do to be sleeping, I consider it to be intermittent naps." (Tr. 301); see Brief for Appellants at 12. This argument, on analysis, misses the mark. First, the regulation cites "sleeping activities" as an indicia of using the park as a living accommodation. Someone who lies down motionless in blankets or sleeping bags at night might reasonably be considered to be engaged in sleeping activities. Meditating, resting, napping, and actually sleeping all fall within the regulation and add weight to the contextual determination that the Thomases were indeed using the park as a living accommodation, which is the critical point under the Park Service regulation ("[c]amping is defined as the use of park land for living accommodation purposes ..."). In short, the physical condition of sleep is not the sine qua non of "camping" under the regulation; the sine qua non is, rather, the use of the park for living purposes.

Second, circumstantial evidence appropriately counts in the evidentiary calculation. Courts routinely accept objective indications as evidence for subjective or otherwise unverifiable states of mind. Specifically, in the context before us, the factfinder is permitted to rely upon the Park Service Officers' testimony that the Thomases were by all outward appearances asleep, although of course the Thomases are free to argue that their activities actually were of a relevantly different character that is beyond the scope of the regulation.

Third, and more generally, the factfinder is permitted to draw reasonable inferences from the evidence adduced. This observation addresses defendants' arguments that the officers observed too little sleep and otherwise observed them for a small part of the week. See Brief for Appellants at 24-27. Evidence of specific incidents observed by the officers, the Thomases' own admissions, and the admitted nature of the vigil permit inferences of patterns of use of the park and presumed repetition of observed behavior.

The Thomases, in contrast, attempt to define their behavior as only that which the direct evidence immediately and ineluctably proves. That is much too Procrustean an evidentiary approach; the law is not nearly so impractically tunnel-visioned in outlook. To the contrary, the factfinder is permitted to draw reasonable inferences, which readily include conclusions of ongoing and pervasive patterns of conduct. See supra p. 191 (government allowed benefit of inferences).

D

Under the appropriate standard of review, see supra p. 191, substantial evidence supports Judge Flannery's conclusion that the defendants were "lying on top and within bedding materials throughout the night, for a one-week period, without evidence of any other sleeping quarters." Mem.Op. at 17. Accepting the trial court's resolution of conflicts in the testimony, id. at 15-16; viewing the evidence in the light most favorable to the government; and accepting the direct and circumstantial evidence of guilt; we concluded that a reasonable fact-finder would by no means be obliged to conclude that either of the Thomases was not guilty. To the contrary, the District Court could readily conclude, as it did, that "beyond a reason[a]ble doubt ... defendants 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 C.F.R. 7.96(i)(1)." Id. at 16. In addition, the court could readily rely, as it did, upon the duration of the Thomases' residence in the Park (during the day

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and nearly every night) and upon the lack of another place for the Thomases to sleep or pass substantial amounts of time (as opposed to the less time-consuming activities pursued in the nearby apartment) to conclude that "defendants William Thomas and Ellen Thomas used Lafayette Park for living accommodation purposes." Id. at 15. In sum, substantial evidence supports the convictions.

Appeal Opinion Continued


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