Transcript, January 28, 1988

(continued...)

THE COURT: All right. Do you have any objection to hearing from this other potential witness about the authenticity of some signature or document granting them a permit?

MR. DUBESTER: Your Honor, I don't know where Ms. Thomas got the idea that someone was --

THE COURT: Speak into the microphone, please.

MR. DUBESTER: -- challenging the authenticity. Your Honor, the Thomases did send in a post-trial motion which is based on the fact that they had received a permit to do some of their vigil activities. I filed the government's response. I've never challenged the authenticity of the permit. I'm not quite sure that this hearing needs to be stretched to include testimony on that point.

THE COURT: All right. There probably is no dispute, then, Miss Thomas and counsel, there appears to be no dispute. She applied for a permit after the conviction in this case and received a response from the Department of the Interior, National Park Service, and, therefore, is there anything else you wish to say?

MS. THOMAS: Well Your Honor, do you have any questions about the application, about the understanding of ourselves and the Park Service as to what, as to what they say we can do?

THE COURT: Frankly, Mrs. Thomas, that is not before

the court today. The question is whether you were guilty of violating the regulations on the date of the issuance of the citation or arrest in this case, and the court has been required to make a factual determination about that, and has done so. Whether you subsequently have obtained permission to do or to engage in activities to that which you stand convicted of before the court is only in the most extremely tangential way important to the court insofar as its discrete responsibility here this morning, but I'm aware of it because of the motions and the materials that have been submitted. Anything else?

MS. THOMAS: No.

THE COURT: Thank you. All right, do you have anything else you want to add?

MR. DUBESTER: No, Your Honor.

THE COURT: All right, call the next case, Mr.Clerk.

THE CLERK: Criminal 87-0063, United States of America vs. Philip Joseph. For the government, Mark DuBester.

MR. HURLEY: Excuse me, Your Honor. You mentioned the next case. Do you wish us to remain at counsel table?

THE COURT: Yes, sir. All right, Mr. Joseph, do you claim any material factual inaccuracies in the presentence report, sir?

MR. JOSEPH: I've had some, and --

THE COURT: Tell me what they are.

MR. JOSEPH: Well, I went and spoke with the Presentencing Department and I haven't seen the presentencing report again, so I'm not sure. I believe, from what they told me, they changed the factual material.

THE COURT: Miss Best make it available to him right now. You can walk over there, Mr. Hunter and Miss Best.

MR. JOSEPH: That's correct.

THE COURT: All right. Mr. Joseph, is there anything in the presentence investigation report material to sentencing that you claim to be inaccurate?

MR. JOSEPH: Probably nothing except --

THE COURT: All right.

MR. JOSEPH: -- in looking over the material, it says my mother doesn't understand what I'm doing, and I believe she does.

THE COURT: All right.

MR. JOSEPH: I went to visit my mother Christmas.

THE COURT: Pull up the microphone, sir. you went to visit your mother at Christmas.

MR. JOSEPH: I went to visit her at Christmas.

THE COURT: Yes, sir.

MR. JOSEPH: She may not fully understand what I'm doing, but I believe she does. She even wrote me a poem to tell me she understood. I don't really mind anything in

here. There's been mistakes on the presentencing, and they were my fault, on things of education, different things. They were all my fault. I believe they've all been corrected. The only thing really is, is my mother. I'm very close to my mother.

THE COURT: You what?

MR. JOSEPH: I'm very close to my mother.

THE COURT: Pull the microphone up just a little bit.

MR. JOSEPH: I'm very close to my mother, and I really don't like to say my mother doesn't understand. It probably doesn't matter. It's not material. I have (pause), I believe that, at the very end of the report, I believe it says that he has shown no concern to change his behavior or to go within the guidelines. I'm not sure what the wording is, to go within the guidelines of the law, and before I was allowed to review the presentence report, application for written permit to do what I'm doing was done by me, a permit to do it in front of the white House. It says that, under 25 people, I don't need a permit, but I went away and got the permit anyway, just because I wish to try and comply with the Law.

It says that I show no wish to change ny behavior. I applied for this before I even saw the presentencing. I think, if nothing else, I showed I tried to comply within the

guidelines of the law. As Mrs. Thomas said, it's just a definition of camping and sleeping. The permit was granted to me, which allows involuntarily to sleep intermittent and to use a sleeping bag, and what I understand the law is, that, for under 25, you don't need the permit, and I have all these rights anyway. I have all of these rights without a permit, because my demonstration is under 25 people, but I went ahead just for the court to give this.

So I think I have tried to -- I don't wish to break any laws. I have tried to change what I guess you would call illicit behavior by even going and taking an extra step that is not even needed, as I understand your laws, which is to get a written permit. Two probationary periods have been served and not deterrent. One was for DUI in Texas. I have not had one since then. It seems to have been deterrent. The other one was for failure to appear for probation, and I've never had another one. So, to say that the two probation periods was not a deterrent is false, because, unless I was charged with it again, let alone convicted, it shows they were both deterrent, and it was the recommendation of the Presentencing Department that two probationary periods were not deterrents. I think factually the record will show it was, because I wasn't charged with them again. So I think that's a little biased in that regard. That and the fact that of my mother. That's it.

THE COURT: All right, thank you. The government, stay up here. Does the government have anything to say?

MR. DUBESTER: Your Honor I only would like to make a few brief points. I think it's fair to say that Mr. Joseph is more of a follower than a ringleader, to the extent that there is some joint activity going on, but there is also reason to feel that he's not particularly candid and some of his representations may not be the most accurate. He does have a history of theft or bad check-related offenses in Texas, which we would submit bear on his honesty. This is corroborated in effect by the misrepresentations he made to the probation officers regarding, for example, his educational background and his history of growing up in Texas.

Mr. Joseph tries to take credit for seeking the permit and going through this process that the other defendants went through. Well, this is clearly inferable as an idea that he picked up from the other defendants. It strains belief to believe that Mr. Joseph coincidentally came upon his own idea of trying to generate this additional record for sentencing. It's clearly something that he has picked up as a follower of the Thomases.

THE COURT: Excuse me (off-record with clerk).

You may proceed. Proceed.

MR. DUBESTER: In short Your Honor, it appears that Mr. Joseph is in some ways a little bit of a drifter. He's still a young man. He came from Texas. He feel it's inferable in light of how he's before you that he's fallen into a pattern which I think, is tough for many people, enduring what the vigil entails, but in a way is an easy course for him since it does not involve any other challenge or attempt to make something of himself. We would feel that a strong message should be sent to Mr. Joseph that it is time to grow up and make himself, of himself a more productive and responsible member of the community.

THE COURT: Very well. Do you have anything you want to say in response, Mr. Joseph?

MR. JOSEPH: Yeah, like the history of bad checks or anything, I paid for any checks that I ever wrote, paid for any bad checks that I wrote. There were only three checks and the counts are there. Early on in times of my life, I marked the same, as Mr. Thomas does, a large change in my life in the last year and a half. Things from maybe my past, a year and a half ago, sometimes I think they're not people's business, because I consider what I've gone through a large revelation. Having no direction and just a drifter and somewhere to be, I think is, is rather false, and I'm very strong in what I believe in. I don't put it in legal

language, and that is why I do follow Thomas's motion or Thomas's lawyer. It's not my job to do that. I have much faith in God, and whatever occurs, occurs, and what I do what I do wherever I go, which is to spread the word, and if sentencing brings me into jail, it doesn't matter. It's just God's will, because I do whatever I do wherever I go, and I do have a job, and my job will never change. My job stays the same, and I think, and I can never be fired, so whatever happens here doesn't really matter. I do what I do wherever I go.

THE COURT: All right Mr. Joseph, you may be seated right there across from Mr. Thomas.

Call the next case, Mr. Clerk.

THE CLERK: Criminal 87-0061, United States of America vs. Stephen Semple, or Mr. Sunrise. For the government, Mark DuBester, For the defendant, Mona Asiner, Mr. Sunrise.

THE COURT: Mr. Semple, Sunrise.

THE CLERK: Please raise your right hand, sir.

MR. SEMPLE: I always tell the truth the best I can.

THE COURT: Is your answer "yes"?

MR. SEMPLE: Yes, sir, I affirm.

THE COURT: All right. Ms. Asiner, do you have anything you wish to say before the court imposes sentence?

MS. ASINER: I do, Your Honor, and I discussed that

with Sunrise, and he has asked that he alone be allowed to address the court on his behalf.

THE COURT: All right. Is there anything, Ms Asiner, in the presentence investigation report regarding your client, material to sentencing, which is claimed to be inaccurate?

MS. ASINER: Well, in my judgment, no, however in Sunrise's judgment, they are material things.

THE COURT: What are they?

MS. ASINER: And he has typed up the document with them all spelled out, Your Honor.

THE COURT: Very well. Mr. Semple you may proceed.

MR. SEMPLE: I don't have a copy of the presentence report.

THE COURT: Have you read it?

MR. SEMPLE: Yeah.

THE COURT: When did you read it?

MR. SEMPLE: I read it twice, I think last week.

THE COURT: You read it twice?

MR. SEMPLE: (Nodding head affirmatively)

THE COURT: All right, furnish him with a copy, Mr. Probation Officer. And, of course, I'm going to ask you in what respect it is inaccurate, insofar as any portion thereof is material to sentencing.

MR. SEMPLE: Well, I would say in general that it's a misrepresentation of me as an individual.

THE COURT: All right, Mr. Hunter let him see it. In what respect is it inaccurate or materially inaccurate that is material to sentencing?

MR. SEMPLE: Okay, on the first page, there's an error as far as sentence by Judge Oberdorfer on the same charges.

THE COURT: Yes.

MR. SEMPLE: Number two of the probation conditions, it's on the front page there.

THE COURT: Page what?

MR. SEMPLE: It's just like on the front page. I don't know if you have a copy the same as this.

THE COURT: Oh, yes.

MR. SEMPLE: Yeah, number two, removed self from park five consecutive hours for sleeping. The judge never said that I should leave for sleeping; he said I could leave for any reason that I chose.

THE COURT: All right. That isn't false, then; that's not really material, is it?

MR. SEMPLE: Well, I think everything's material sir. I think everything is pertinent, necessary.

THE COURT: All right, what else is inaccurate that is material to sentencing?

MR. SEMPLE: Well, I would like to just go toward the recommendations from the Probation Office.

THE COURT: All right, what page? Page 6.

MR. SEMPLE: I guess so.

THE COURT: Do you want to look at it? What page?

MR. SEMPLE: I'm still looking for it, Your Honor.

THE COURT: I don't know what you're talking about.

MR. SEMPLE: What was that?

THE COURT: I don't know where it is that you're referring to.

MR. SEMPLE: Well, there was a recommendation from the Probation Office. Maybe they've changed it. It looks like they have changed it. Have there been changes? (Off-record with Probation officer)

THE COURT: Yes, Ms. Asiner, maybe you can help.

MS. ASINER: I think what happened is that Sunrise was mistakenly given the last page that's traditionally not given, and I think that will clear that up.

THE COURT: Thank you.

Transcript Continued
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