UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
V. CRIMINAL NO. 87-62
GOVERNMENT''S RESPONSE TO DEFENDANT 'S MOTIONS
Comes now the United States, by and through its attorney,
the United States Attorney for the District of Columbia, and hereby
opposes defendant's request for discovery, his motion to dismiss
for intentional ex post facto enforcement, his motion to dismiss
for malicious prosecution, and his motion to proffer evidence
in support of a defense of necessity. As grounds therefor, the
government relies on the following discussion, and such other
points and authorities as may be cited at the hearing on these
1. Defendant, apparently on behalf of himself, Galindez,
Semple, Joseph, and Ellen Thomas, makes numerous discovery requests
on the grounds that the requested items are "appropriated
and necessary to our defense" (See Attachement A). In fact,
none of the items requested are discoverable. Fed. R. Crim. P.
16(c) requires the government to provide, upon request, documents
and tangible objects which are ''material to the preparation of
[a defendant's] defense or are intended for use by the government
as evidence in chief at the trial, or were obtained from or belong
to the defendant." In this case, the issue to be decided
at trial is whether, in fact, defendant and others were camping
in Lafayette Park in December as charged by the government. In
connection with that charge, the government will provide each
defendant with a copy of the police reports and photographs that
relate to that incident. The items requested by defendant have
no bearing on the factual issues to be resolved in this case,
and are not discoverable. The government has no obligation to
conduct the massive search that defendant requests.
2. It is not at all clear precisely what is defendant's
claim in his motion to dismiss for intentional ex post facto enforcement.
Defendant appears to assert that the regulation in question, 36
CFR 7.96 (i), was promulgated strictly for the purpose of "getting
convictions" of him. This claim is preposterous and totally
unsupported. Defendant also apparently claims that the enactment
and application of the regulation deprived him of a right he enjoyed
at the time of the offense, in violation of the constitutional
prohibition against ex post facto application of the law. Before
a statute or regulation can be found to violate the constitution's
ex post facto prohibition, however, it must be found to apply
retrospectively, that is, to events occurring before its enactment.
See, Weaver v. Graham, 450 U.S. 24, 29 (1981); Marshall
v. Garrison, 659 F.2d 440, 445 (4th Cir. 1981). In this case,
the regulation was in full force and effect at the time defendant
committed the offense with which he is charged. More importantly,
the regulation deprives defendant of no constitutional right that
he enjoyed at the time of the offense. As we discussed in our
opposition to defendant's motion to dismiss for lack of offense,
the Supreme Court, in Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984), has determined that
the regulation is a constitutionally valid time, place, and
manner restriction on First Amendment rights.
3. Defendant claims he is entitled to a jury trial. This
claim is unfounded. The maximum penalty on conviction for the
charged offense is six months', imprisonment and/or a $500 fine,
thus making it a "petty offense". There is no constitutional
requirement of a jury trial for a petty offense.
4. Defendant's motion to dismiss for malicious prosecution
is similarly unfounded. Defendant claims that he has been singled
out for prosecution for impermissible motives, that he is being
prosecuted because of his beliefs and convictions. In order to
prevail on a claim of selective prosecution, a defendant bears
the heavy burden of showing (1) that others similarly situated
have not been prosecuted for the same conduct, United States
v. Wilson, 639 F.2d 500, 503 (9th Cir. 1981); United States
v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975), cert.
denied, 424 U.S. 955 (1976); and (2) that the decision to prosecute
was "based upon an unjustifiable standard such as race, religion
or other arbitrary classification" Oyler v. Boles, 368 U.S.
448, 456 (1961); United States v. Diggs, 198 U.S. App.
D.C. 255, 270, 613 F.2d 988, 1003 (1980); United States v.
Bell, 165 U.S. App. D.C. 146, 161, 506 F.2d 207, 222 (1974),
or was made in a bad faith effort to prevent the defendant's exercise
of constitutional rights. United States v. Wallace, 578
F.2d 735, 741 (8th Cir. 1978); United States v. Murdock,
548 F.2d 599, 608 (5th Cir. 1977); United States v. Berrio,
501 F.2d 1207, 1211 (2d Cir.
1977). With respect to the latter determination, it is presumed
that the decision to prosecute rests upon proper motives. See
Newman v. United States, 127 U.S. App. D.C. 266, 382 F.2d
479 ( 1967 ) . A trial court' s determination that a claim of
selective prosecution is not supported by the record is to be
sustained on appeal unless clearly erroneous. United States
v. Wilson, supra, 639 F.2d at 503 & n.2.
Defendant offers no basis for his claim that he is being
prosecuted because the government disagrees with his purported
message, and wishes to silence him by prosecution. These claims
are "speculative and unpersuasive," and do not merit
serious consideration. See, e.g., White House Vigil v. Clark,
746 F.2d 1518 (D.C. Cir. 1984)
Defendant also seeks to proffer evidence in support of
a defense of necessity, claiming that his only option to avoid
"threat of death or harm to humanity" was to break the
law. This claim is absurd. Whatever defendant's purported message,
there were alternate, and arguably more effective, ways of presenting
it. Nor was defendant required to break the law to avoid a threat
of death or great bodily harm. Defendant's claim of necessity
conceivably could be raised in mitigation of sentence, but it
is not appropriate or relevant to the factual issues to be resolved
WHEREFORE, the government respectfully submits that defendant's
motions should be denied.
CERTIFICATE OF SERVICE
I HEREBY certify that a copy of the foregoing has been
mailed to WIlliam Thomas at 1440 N Street, N.W., Apartment 41O,
Washington, D.C. 20005, on this 17th day of April, 1987.
JOSEPH E. DIGENOVA
UNITED STATES ATTORNEY
/s/ linda s. chapman
LINDA S. CHAPMAN
Assistant United States Attorney
/s/linda s. chapman
LINDA S. CHAPMAN
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20001