v.                           Criminal No. 87-60
SCOTT  M. GALINDEZ                   Criminal No. 87-159

        v.                           Criminal No. 87-61
    AKA Sunrise

        v.                           Criminal No. 87-62

        v.                           Criminal No, 87-63

        v.                           Criminal No. 87-64

(202) 755-1920


Washington, D.C.
Thursday, April 23, 1987

The above-entitled actions came on for hearing on pretrial motions before the Honorable CHARLES R. RICHEY. United States District Judge, in Courtroom No. 11, commencing approximately 2:00 o'clock, p.m.

For the Government:

Assistant United States Attorney
555 Fourth Street, N.W., Room 5816
Washington, D. C. 20001
(202) 272-9019

Assistant United States Attorney
555 Fourth Street, N.W. Room 5233
Washington, D, C, 20001
(202) 272-9078

For the Defendants:

For Defendants Scott M. Galindez and Stephen Semple aka Sunrise:

1717 K Street, N.W., Suite 1200
Washington, D. C. 20036
(202) 463-0662


APPEARANCES (continued):

For Defendant Ellen Thomas:

Georgetown Law Center
Legal Internship Program
25 E Street, N.W., Second Floor
Washington, D.C. 20001
(202) 662-9575

For Defendants William Thomas and Philip Joseph:



                             Marked for    Received
                          identification in Evidence
Defendant Thomas's No.  13     24             24
Defendant Thomas's No.  14     26             26
Defendant Thomas's No.  17     38             38
Defendant Thomas's No.  18     38             38
Defendant Thomas's No.  19     38             38




Criminal Action 87-60, USA versus Scott R. Galindez.
Criminal Action 87-61, USA versus Stephen Semple or Sunrise.
Criminal Action 87-62, USA versus William Thomas.
Criminal Action 87-63, USA versus Philip Joseph,
Criminal Action 87-64, USA versus Ellen Thomas.
And Criminal Action 87-158, USA versus Scott Galindez.

For the Government Linda S. Chapman and John Dominguez.

For the defendants, Mona Asiner and Mr. Robert Hurley.

THE COURT: Do you have a list?

THE DEPUTY CLERK: Yes, Your Honor.

THE COURT: Gentlemen and ladies, as you know, this is a pretrial hearing, and on April 9 the Court directed the clerk to send you all a notice of this hearing and to advise the Court again formally as to whether you wanted the court-appointed counsel or you did not want court-appointed counsel and whether you intended to represent yourselves in all pretrial proceedings, including the trial.


The Court is advised by its courtroom clerk, Mr. Burgess, that Mr. Scott Galindez has not responded to the notice.

Mr. Galindez.

MS. ASINER: Mona Asiner, Your Honor, for Mr. Galindez.

Mr. Galindez did not appear for his arraignment, and he is not here today.

I can only say that I know he has lost contact with his colleagues and consequently has not been seen by them or by myself for a period of time. And I don't know where to find him, quite frankly.

THE COURT: Mr. Clerk, let me just --

The address you have on the official jackets appears to be 270 Central Avenue, Albany, New York, 12206

Is that correct?

THE DEPUTY CLERK: That is correct.

THE COURT: Is that your address, Ms. Asiner?

MS. ASINER: The address that I have been using, Your Honor, for Mr. Galindez is the address Mr. Thomas -- where he permitted to get mail -- co-defendant Mr. Thomas, which is --

THE COURT: 1440 N Street --

MS. ASINER: That is correct, Your Honor.


THE COURT: Northwest. All right.

Ms. Chapman, do you have any --

MS. CHAPMAN: Your Honor, I believe Mr. Dominguez wants to make some representations.

THE COURT: Mr. Dominguez.

MR. DOMINGUEZ: Thank you, Your Honor.

John Dominguez, United States Attorney on behalf of the Government in United States versus Scott Galindez, 87-0158, which is a case also here before Your Honor that I am assigned to prosecute.

The Government would request the Court to issue a bench warrant for the defendant's failure to appear in this case.

There seems to be no other alternative, although efforts apparently have been made to try to reach him by defense counsel and his friends and co-defendants; they have been unsuccessful.

I note that he failed to appear on April the 16th, although there was no bench warrant issued then.

THE COURT: No application was made either.

MR. DOMINGUEZ: I think it might not have been appropriate to ask one.

THE COURT: What authority do you have for issuance of a bench warrant for a petty offense?


MR. DOMINGUEZ: Well, I think the alternative would be issuance of a judicial summons to appear, would be sort of futile. a futile act and waste of the time of the clerk because he is clearly not at 1440 N Street receiving mail any more.

According to Pretrial Services, he has no fixed address other than Lafayette Park.

THE COURT: Well, we had an address that I just read into the record.

MR. DOMINGUEZ: That was 271 Central Avenue, Albany, New York, which was a prior address according to the Government's information, not a current address.

THE COURT: Well, sir, what authority do you have for the Court to issue a bench warrant for the arrest of somebody for failure to appear in response to an information involving a petty offense?

MR. DOMINGUEZ: I believe it is in the code.

THE COURT: Give me the authority.

Let me have my Rules down there.

I was looking for them the other day, and I didn't know they were on the table.

(Deputy clerk hands to the Court,)

MR. DOMINGUEZ: 18 United States Code, Section 3146, makes it a criminal --

THE COURT: Just a moment.


THE COURT: I read 3146, and I don't see where it says a person was released pursuant to that chapter of the Code and have a bench warrant issued for his arrest.

MR. DOMINGUEZ: It doesn't say that in those precise words. However, it makes it a criminal offense for an individual to fail to appear after having been released pursuant to this Code.

THE COURT: Well, can you represent and show me where this gentleman -- What is his name? Galindez?

MR. DOMINGUEZ: Galindez was released pursuant to this provision of the Code. your Honor, he was released --

THE COURT: What does the record show? Do you have the record, Mr. Clerk, or do I have it?

THE DEPUTY CLERK: Your Honor, I have it.

THE COURT: I want to see what the record says.

(Deputy clerk hands to the Court.)

THE COURT: Apparently he was released by Magistrate Burnett with Ms. Asiner as his counsel, directed to appear in Magistrate's Court for a status call on March 30, 1987.

Did he appear then?

MS. ASINER: Yes, he did.

THE COURT: Was he given any other notice of when to appear then, Ms. Asiner?


MS. ASINER: No, Your Honor.

There was no signed notice.

MR. DOMINGUEZ: That is not the sane thing; though, Your Honor.

He may not have received a signed notice, but the Government’s contention that he was, at that time he elected to proceed in this case by trial by the United Stated District Court and was advised by the magistrate that he would be notified of the judge assigned to the case and when to appear, and he has, by absenting himself from the jurisdiction, made it impossible for us to get notice to him.

Therefore the Government argues that a bench warrant is appropriate.

THE COURT: Ms. Asiner, will you respond?

MS. ASINER: Yes, Your Honor.

The Government has said that Mr. Galindez, in fact, has absented himself from the jurisdiction.

I don't know that there is any evidence of that.

All we know is that there was no notice, any court notice to him that he received advising him to be present, and I would say, based on that, I don't think that there is grounds to issue a bench warrant.

At the time he was released on 3-26-87 he signed notice, and there was a time certain to return, and he did return, and I, quite frankly, think, your Honor, that in


alternative might be for me to attempt to contact him at the last known address that he lived for two years, but I think that that should at least occur prior to even reaching the issue of whether or not the Court has authority to issue a bench warrant.

His belongings, although not in great number, are still in Washington, D. C., at his last known repository for mail and effects.

THE COURT: Where is that?

MS. ASINER: At 1440 N Street.

THE COURT: Northwest?

MS. ASINER: That is correct.

THE COURT: Well, the application for issuance of a bench warrant in the case of United States versus Galindez -- Is this 87-60?

MS. ASINER: No, Your Honor.

THE DEPUTY CLERK: Your Honor, we have two cases with Mr. Galindez.

THE COURT: That is why I asked which case is it.

MR. DOMINGUEZ: 87-158, Your Honor, is a case I represent the Government in making representations and making request --

THE COURT: 87-158.

MS. ASINER: -- and that is the only matter that I represent him on at this juncture.


THE COURT: The application for a bench warrant in that case just referred to, 87-158, will be denied, there being no evidence before the Court that the defendant knew or was advised of the hearing date today.

However, that does not mean that the Government is without its remedy should it choose to exercise it under the law if it feels it appropriate and proper to do so in the premises.

MR. DOMINGUEZ: Might I ask the Court just for purpose of clarifying the record what remedy is the Court giving the Government? I don't understand.

THE COURT: I am not giving you anything. The law gives it to you.

I said you have remedies under the law if you wish to pursue them.

MR. DOMINGUEZ: Are you asking our office to notify the defendant at his last previous-known address?

THE COURT: I am not asking you to do anything, sir. I am not directing you to do anything.

If you wish to proceed further by way of a different avenue than your asking this Court to issue a bench warrant, you may do so, period, and that is all I am saying.

MR. DOMINGUEZ: Thank you, Your Honor.

MS. ASINER: Your Honor, does the Court wish me


to remain for any other proceedings?

THE COURT: I would be very happy to have you here if you have the time and would be willing to do it because I do have some matters --

Are you sure you can't represent Mr. Galindez in the case before the Court today, namely, 87-60?

MS. ASINER: Well, I didn't say I couldn't, I am just saying that I am not prepared in terms -- I don't really know much about the case. I don't have any documents with respect to the case.

THE COURT: There aren't many documents, Ms. Asiner, unfortunately.

Mr. Thomas has filed some and some of the other defendants have.

I think you will be able to pick up on this pretty well.


THE COURT: The able, experienced counsel that you are.

MS. ASINER: Thank you.

THE COURT: I will appoint you to represent Mr. Galindez in this case, 87-60, also.

Now, before we proceed to that, though, in this -- Back up a minute.

In conclusion, with respect to the case of


United States versus Galindez, you are advised to advise the Court and Ms. Asiner as to what further action, if any, Government seeks to take in connection with this case on or before May 8 at 4:00 p.m., 1987.

Otherwise, it will stand dismissed.

MR. DOMINGUEZ: Thank You, Your Honor. I understand.

THE COURT: All right.

The Court in the beginning was talking about response from Mr. Galindez in this case, and then it was detoured, if that is an appropriate word, from 87-60 to the 158 case against him, also.

It was in that direction that I started to pursue, before being diverted.

The Court mentioned that Mr. William Thomas had been asked to advise the Court as to whether he wanted counsel and the other question that the Court described in the notice it sent out on April the 9th to the Clerk's Office Did Mr. Thomas respond, Mr. Clerk?


THE COURT: Did Ms. Ellen Thomas respond?

MR. HURLEY: Your Honor, I am here on behalf of Ms. Ellen Thomas.

THE COURT: You intend to remain for the pretrial and trial?


MR. HURLEY: Yes, Your Honor.

THE COURT: Mr. Thomas, I noticed you did not want counsel.

Do you want the services of a court-appointed attorney to assist you in this pretrial proceeding today?

DEFENDANT WILLIAM THOMAS: I think I am prepared to go ahead at this hearing today

THE COURT: Did you receive the notice the Court sent you?


THE COURT: If I am not mistaken, the clerk was directed to send you an envelope, postage prepaid to return to the Court.

DEFENDANT WILLIAM THOMAS: Yes, that is true, and the only excuse I can give, I was in touch with Mr. Mark Venuti -- And I really did not get it straight with him whether he would be available.

If you recall, last time I was here I made some mention about Mr. Venuti, and I wasn't really clear on whether or not he would be able to represent me in the trial, and, if he wasn't, I wasn't sure what I wanted to do because I have been thinking about it up to this point.

I am prepared to go ahead today, and so I didn't think that, I thought that perhaps we could deal with whether or not I would be represented at the trial today.


THE COURT: All right.

In response to the Court’s question -- which I did out of an abundance of caution, as you obviously know and I hope you appreciate, on behalf of you and your colleagues here, to make sure all rights are protected to the full extent authorized by law -- I take it your response to the Court's second inquiry this time in writing on April 9th is that you do not want the services of a court-appointed attorney to represent you in the pretrial proceedings today?


THE COURT: Very well.

And if Mr. Venuti does not represent you, in the event the motion should not be granted today, you want the Court to appoint somebody? Tell me now --

DEFENDANT WILLIAM THOMAS: I believe that would be the best course to follow.

THE COURT: Very well.

Mr. Clerk, we want an attorney if we haven't heard -- appoint an attorney if we haven't heard from Mr. Thomas by next Tuesday at 9:00 a.m.

You call Mr. Burgess and tell him.

If Mr. Venuti is going to represent you, we will not appoint somebody. If he is not, the Court will direct. Your failure to let us know means we will go ahead and appoint somebody for you.



THE COURT: Now, Mr. Philip Joseph, the Court ---


THE COURT: The Court is advised that you have chosen to represent yourself today and at any subsequent proceedings, correct?


THE COURT: The Court has not received Mr. Stephen Semple's response to the notice the Court has been speaking of.

That was apparently sent to him at his last known address, which is 3450 Terrace Court, Alexandria, Virginia, zip code 22302, and according to the courtroom clerk, Mr. Burgess, the notice was returned and no address was left.

Did you get the notice?


THE COURT: It was returned?

DEFENDANT SEMPLE: It was returned.

Well, that is right, because that address is no good. I don't live there any more.


Where do you live now, so the clerk will make a note of it?

DEFENDANT SEMPLE: Post Office Box, P. O. Box 27217, Washington, D.C., 20038, two, zero, zero, three, eight.


THE COURT: Now, in order to return you every courtesy, do you want, do you prefer the Court to refer to you as Sunrise or --

DEFENDANT SEMPLE: Sunrise, just Sunrise.

THE COURT: All right. Sunrise.

Now, directing your attention to the questions the Court asked, do you want the services of a court-appointed attorney in these pretrial proceedings today?

DEFENDANT SEMPLE: I don’t think I will probably need one today.

THE COURT: The question is: Do you want one?

DEFENDANT SEMPLE: Yeah, I would like to have one.



THE COURT: Are there any lawyers in the court- room?

DEFENDANT SEMPLE: There is a lawyer here that was representing Scott Galindez.

I don't know if it would be possible, since he is not going to be here, maybe she could work with me today.

THE COURT: All right.

Ms. Asiner, you will be appointed to represent Mr. Sunshine.



THE COURT: Sunrise. I am sorry.

And will independent counsel represent you at the trial--


THE COURT: -- if there is a trial --

DEFENDANT SEMPLE: If there is a trial, I have to talk with my counsel.

(Ms. Asiner and defendant Sunrise speaking informally.)

DEFENDANT SUNRISE: Oh, yeah. Right. Right, definitely.

THE COURT: I don't know what you are saying, that you are talking about.

DEFENDANT SUNRISE: If it goes to trial, then I will have an independent counsel.

THE COURT: All right. We will appoint somebody to represent you.

THE DEPUTY CLERK: Your Honor, I know Ms. Asiner is appointed for the pretrial.

THE COURT: If the case is not dismissed and it is required to go to trial, appoint counsel. Do you understand?

THE DEPUTY CLERK: Yes, sir, I do.

THE COURT: Ms. Asiner will be appointed for purposes of the pretrial to represent Sunshine, also known as Stephen Semple.


All right.


THE COURT: Does that take care of every case?

THE DEPUTY CLERK: Yes, Your Honor, it does.

THE COURT: I am going to ask you to file this memorandum in the jackets of each of the cases.


THE COURT: The Court has just, as a matter of housekeeping, received this morning an application by the United States, Linda S, Chapman, Assistant United States Attorney, for leave to file an opposition to a defendant's motion in the Ellen Thomas case for trial by jury out of time. Do you wish to file such a motion?

MS. CHAPMAN: Yes, I do, Your Honor. And, Your Honor, I didn't speak yesterday with Mr. Hurley, who was kind enough to stop by our offices to pick up a copy of that motion, so he does have a copy on behalf of Ms. Thomas.

THE COURT: All right.

If you will hand me up an appropriate order, I will sign it.

MS. CHAPMAN: I am sorry, Your Honor, but I did not come prepared with an order.

THE COURT: All right. Present one by noon tomorrow.

MS. CHAPMAN: Yes, your Honor.


THE COURT: I will grant your motion. In fact, I have already read it.

MS. CHAPMAN: Thank you.

THE COURT: Now, do you have any preferences as to how we should proceed, counsel for the defendants and counsel for the Government, to handle these series of motions?

MS. CHAPMAN: Your Honor, I think the most appropriate way to proceed, as I understand it, there are two of the defendants who filed motions. Mr. Thomas, who has filed the bulk of the motions, and Ms. Ellen Thomas, who has filed requests for a jury trial.

Your Honor, given the nature of the motions, it is our understanding that Mr. Thomas and Mrs. Thomas bear the burden on their motions, so I think it would be appropriate for them to go forward with whatever evidence and testimony they have in that respect, and we will be glad to respond.

THE COURT: All right.

MR. HURLEY: Your Honor, I would be glad to start off.

THE COURT: Wait. Wait. Please. Please.

MR. HURLEY: First of all, Your Honor, the motion we have filed --

THE COURT: Which motion do you want to address first, so we can keep them discrete and separate?


MR. HURLEY: Yes, Your Honor. The motion for a jury trial for Ms. Thomas. We feel like --

THE COURT: You have filed papers?

MR. HURLEY: Yes, Your Honor. I picked them up.

THE COURT: And the Court has read them.

MR. HURLEY: Yes, Your Honor.

THE COURT: The Court has read the opposition of the Government.

The motion is granted. For the reasons set forth in Judge Oberdorfer's opinion.

MR. HURLEY: Thank you, Your Honor.

I might ask, for the record, we be allowed to orally join the motions that Mr. Thomas has filed before this Court today.

THE COURT: Very well.

MR. HURLEY: Thank you, Your Honor.

THE COURT: What other motions do you have, Mr. Hurley?

MR. HURLEY: That is the only motion, your Honor.

THE COURT: Now just a moment.

Now all defendants listen to the Court.

I am referring to Sunrise, William Thomas, Philip Thomas -- Philip Joseph -- Scott Galindez.

Is Musser still here?



THE COURT: All the defendants that were notified to be here today, do you all join in Mr. Thomas's motion? if you do, I want you to stand up and say, "Yes."

That is all you have to say.

MS. ASINER: On behalf of Mr. Galindez and Mr. Sunrise we would join in that motion.

THE COURT: Very well.

MR. HURLEY: For the record, Ms. Thomas would also join those other motions.

THE COURT: Your name?

DEFENDANT JOSEPH: Phillip Joseph. I also join in those motions.

THE COURT: Very well, sir. Thank you.

Now, Mr. Thomas, you may come forward.

You have filed a series of motions, and I have to consider each and every word you have put forth, and I want you to realize. and I want the Government to realize, and I want every other defendant to realize, and their lawyers the Court does not take this matter lightly, any of these matters lightly.

In fact, this is serious business.

And that is the way the Court approaches this


case and intends to approach everything with respect to each of these cases.

Now, Mr. Thomas, you're on my list.

I have your motion to dismiss what you claim to be a lack of an offense.

Have you got that before you?


THE COURT: Is there anything that you wish to tell the Court today other than what is in your paper that you submitted in writing in respect to that. in respect to that discrete, separate motion?


Well,Your Honor, I have taken the time to try to put everything in a short, concise form, and I also ---

THE COURT: Mr. Thomas, I have just asked you a discrete question, a direct question.

Do you have anything you want to say to the Court that is not in your papers, or, to put it another way, do you have anything you want to say to the Court in addition to that which is in your papers?

DEFENDANT WILLIAM THOMAS: I think that I can't remember exactly what I put in the papers.

THE COURT: Look at your papers.

Do you want to sit down and take a look at it right now?


Maybe this will save you some time, and the other people some time.

(Defendant William Thomas and Ms. Asiner conferring informally.)

DEFENDANT WILLIAM THOMAS: I tried to organize this in sequential order, and I do have a couple of things to add.

First, I have what I have marked as Defendant's Exhibit 13, which is a copy --

THE COURT: All right.

You may tender it. Any objection on the part of the Government?

MS. CHAPMAN: No, Your Honor.

THE COURT: All right.

It will be received.

THE DEPUTY CLERK: Defendant Thomas's exhibit 13 received in evidence.

(Defendant Thomas' Exhibit No. 13 was marked for identification and received in evidence.)

THE COURT: Hand it up to the clerk.

DEFENDANT WILLIAM THOMAS: A copy of the Federal Register from June 3, 1982, and on page 24301 of that exhibit, the words, "Regulations banning the use of parks for living accommodations are designed not to stifle First Amendment


expression but rather to protect undesignated parks from activities for which they are not suited and impacts which they cannot sustain."

THE COURT: Slow down.

My court reporter -- He is one of the greatest in the country, but he can't do it that fast I don't think.

DEFENDANT WILLIAM THOMAS: "Short-term casual sleeping which does not occur in the context of using the park for living accommodations will not be affected by these regulations."

Now, I would just like to refresh the Court's memory on Defendant's Exhibits 1 and 2 that I submitted at the last hearing that we had on March 25 of 1987.

Exhibit 2 contained representations made by U. S. Attorney Craig Lawrence, quote, "Sleeping is not really the issue here. What is at issue is camping in the park and what would be conducting typical camping activities."

I would like to also non proffer Defendant's Exhibit 14, which is a letter that I received from Richard Robins, It is dated July the 3rd.

THE COURT: Any objection?

MS. CHAPMAN: Other than relevance, Your Honor, no.

THE COURT: All right.

It will be received.


THE DEPUTY CLERK: Defendant's Exhibit 14 received into evidence.

(Defendant Thomas's Exhibit No. 14 was marked for identification and received in evidence.)

DEFENDANT WILLIAM THOMAS: This letter was responding to a letter which I had sent to Mr. Robins requesting a definition of the term, "casual sleeping,"

During the course of this activity that I have been carrying out, I have been trying to conform my behavior so as not to offend these regulations, and I think that the relevance of this exhibit is that the Government has been using different pretexts to avoid setting up or allowing me to know what I could do and what I couldn't do in order to continue my continuous presence.

Also from Exhibit Number 2 that was filed on the March 25 hearing, the Government stated the position that a continuous presence is proper.

And that I think brings us back to the Abney decision, and the Supreme Court, and that is, I think, 534 Fed. 2d 984, where the Court held that incidental sleep which occurs during the course of a vigil must be considered sufficiently expressive in nature to implicate First Amendment scrutiny.

I think that the question that the Court has to


consider first is reasonable.

The Government in its opposition to my motion to dismiss for Lack of offense cited a number of cases at page 5 of their opposition.

THE COURT: Now, Mr. Thomas, I am going to ask you if you will be kind enough to --

You filed a motion. You filed a whole series of notions. And I want you to address only the motion to dismiss for lack of an offense.

That is all we are talking about now.


THE COURT: If you want to just take all your notions wholesale, I will be glad to do it, but don't think from your point of view, I don't think that is the businesslike way to do it, or from the Government's point of view.

DEFENDANT WILLIAM THOMAS: That is what I am endeavoring to do.

THE COURT: You say that, you said in that motion that sleeping or making preparations to sleep is different from camping, and you further argued in that motion that even if you were sleeping it is still not an offense under the regulations, since sleeping, incidental to an around-the- clock vigil is protected by the First Amendment to the Constitution.

And then you filed a sworn declaration to the


effect that you were engaged in this round-the-clock vigil or protest at the time of your arrest. Is that correct?


THE COURT: And then -- Anything else with respect to this discrete offense on that issue, that motion?

I don't want to talk about the others now.

DEFENDANT WILLIAM THOMAS: No. I think what we have to concentrate on here, because what the Government said in response to that motion, at page 5, they listed a number of cases.

THE COURT: Well, they said -- and I will summarize it for you --

Trascript Continued