United States v. Thomas CR 87-0231

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES                              FILED AUG 12 1987
                                      CLERK, U.S. DISTRICT COURT
     v.                                  DISTRICT OF COLUMBIA

WILLIAM THOMAS,                             Cr. No. 87-0231
ELLEN THOMAS,
     Defendants

MEMORANDUM

This matter comes before the court on a variety of motions filed by defendants William and Ellen Thomas. Defendants are charged with violating 36 C.F.R. S 7.96(i)(1), which prohibits camping in Lafayette Park.

The court now has before it the following motions of defendant William Thomas, who is proceeding pro se: Motion for Jury Trial, Motion to Proffer Evidence in Support of a Defense of Necessity, Motion to Dismiss for Unconstitutional Application, Motion to Dismiss for Lack of Offense, Motion to Dismiss for Intentional Ex Post Facto Enforcement, Motion to Dismiss for Malicious Prosecution, Motion for Consolidation of the Trial on the Merits with an Evidentiary Hearing on Defendant's Various Motions, and Motion to Compel Discovery. Defendant Ellen Thomas has filed two motions which parallel two of the above motions: Motion for Jury Trial and Motion to Dismiss the Information. Because each of these motions either is unmeritorious as a matter of law or presents issues of fact that cannot be resolved prior to trial, all of the motions are denied. A brief explanation of each follows.

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I. Motions for Jury Trial

Both defendants move for trial by jury. with defendant William Thomas contending that he faces cumulative penalties of more than six months' imprisonment, and both defendants contending that they face the collateral penalty of abridgement of their first amendment rights as a result of incarceration. For these reasons, defendants assert that they are entitled to a trial by jury.

Judge Gasch of this court has very recently addressed this precise issue. U.S. v. Semple, Cr. Nos. 87-0193 and 87-0194, slip op. (D.D.C. June 5, 1987). In his Memorandum Opinion, Judge Gasch set forth the applicable law and concluded that violation of 36 C.F,R.S 7.96(i)(1), with which defendants are charged herein, constitutes a "petty offense" under the United States Constitution, Art. III S 2 and amendment 6. Thus, defendants have no constitutional right to trial by jury.

This is so notwithstanding defendant William Thomas' assertion that he is subject to cumulative penalties exceeding six months' incarceration. First, the argument is factually flawed, since the Government has elected to charge defendants with only a single count covering all violations of the regulation during that time. Second, it is legally flawed, since, as Judge Gasch noted, "[u]nder existing law in the District of Columbia, which is binding on the court, penalties may not be cumulated in an effort to exceed the six month period that normally characterizes punishment for petty offenses." U.S.

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v. Semple, supra, slip op. at 3, citing Scott v. District of Columbia, 122 A.2d 579 (D.C. Mun. App. 1956); Savage v. District of Columbia, 54 A.2d 562 (D.C. Mun. App. 1947).

Similarly, defendants' argument about the collateral first amendment effects of the six month sentence is of no avail. The case of U.S.v,Thomas, 574 F. Supp. 197 (D.D.C. 1983) (Oberdorfer, J.) is both factually distinguishable, see U.S. v. Thomas, Cr. No. 83-0243 (D.D.C. Dec. 22, 1983)(0berdorfer, J.), and superceded by Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). For all these reasons, defendants' Motions For Jury Trial are denied.

II. Defendant's Motion to Proffer Evidence
In Support of a Defense of Necessity

Defendant William Thomas seeks to proffer evidence in support of a defense of necessity. The essential elements of that defense are:

1) that defendant was under an unlawful and present, imminent, and impending threat of such nature as to induce well-grounded apprehension of death or serious bodily injury;

2) that defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose criminal conduct;

3) that defendant had no reasonable legal alternative to violating the law; and

4) that a·direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.

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See U.S. v. Gant, 691 F.2d 1159, 1162-3 (5th Cir. 1982).

Defendant's theory is that the threat to humanity posed by nuclear war left him "no reasonable alternative but do break the law" by protesting in Lafayette Park. Defendant's Motion at 2. He asks this court's permission to proffer evidence on "[n]uclear war, nuclear weapons, ... the Strategic Defense Initiative, Hiroshima, ... International Law, ..." and approximately 22 other subjects. Id. at 2-3. This novel application of the defense of necessity, however, fails to prove the elements listed above. Thus, defendant's proffer is wholly irrelevant to the action and must be rejected.

For example, the purported threat of "harm to humanity" fails to satisfy the first element of an unlawful, imminent threat to defendant. Nor can defendant show the type of "direct causal relationship" between his protests and avoidance of the alleged harm. Finally, it is beyond dispute that other members of the allegedly threatened group have chosen other lawful alternatives to the illegal conduct in which defendant allegedly engaged. Therefore, as a matter of law, defendant's defense of necessity cannot succeed, and Defendant's Motion to Proffer Evidence on that issue is denied.

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III. Defendant's Motion to Dismiss for Intentional
Ex Post Facto Enforcement

Defendant William\ Thomas contends that "the regulation [under which he has been charged] has been enforced against him as an ex post facto remedy to expressive activity protected under the first, ninth, and fourteenth amendments to the Constitution of the United States." Defendant's Motion to Dismiss for Intentional Ex Post Facto Enforcement. Defendant misunderstands the nature of the constitutional protection at issue.

An ex post facto law is one which retroactively punishes conduct that occurred before its enactment. Defendant contends that because the regulation at issue criminalizes conduct that had previously been permitted, he is the victim of an ex post facto law. This is simply incorrect. Legislatures are always free to change the law and enact new statutes, as long as the reach of those statutes is only prospective -- toward future conduct. Such is the case here. Defendant is not charged with conduct which preceded the June 4, 1982 enactment of 36 C.F.R. S 7.96(i)(1), but rather with conduct occurring between March 22 and March 29, 1987. Accordingly, Defendant's Motion to Dismiss for Intentional Ex Post Facto Enforcement is denied.

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IV. Defendant's Motion to Dismiss for Malicious Prosecution

Defendant contends that this prosecution is based upon the Government's opposition to defendant's political views. Again, defendant misconceives the theory of "malicious prosecution" on which his motion is based.

In order to show that prosecutorial discretion has been exercised in an improper way, a defendant must show both that he has been singled out for prosecution from among others similarly situated and that his prosecution was improperly motivated by considerations of race, religion, or some other arbitrary classification. U,S. v. Washington, 705 F.2d 4891 494 (D.C. Cir. 1983). Underlying any review of such allegations is the strong presumption of propriety of a prosecutor's conduct, as well as deference to the prosecutor's broad discretion in determining what crimes to prosecute.

Defendant has offered no proof to sustain this heavy burden as to either element of the required showing, and thus he fails to overcome these presumptions. Others have recently been prosecuted under the identical provision applicable herein, for similar conduct. See U.S. v. Semple, supra; Clark v, C.C.N.V.. supra. In addition, defendant makes only generalized allegations that the Government was motivated by hostility to his "message" and to his "method of communication." Defendant's Motion to Dismiss for Malicious Prosecution at 1, These allegations are insufficient to evince a discriminatory purpose. For these reasons, Defendant's Motion to Dismiss for Malicious Prosecution is denied.

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V. Defendant's Motion to Compel

Defendant William Thomas seeks a variety of materials from the Government, which he contends are relevant to his allegations of selective prosecution. As the court stated in U.S. v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983), "(e]ven to initiate discovery to prove impermissible motives a defendant must make a colorable showing." As explained above, defendant has failed to make such a showing, and accordingly his Motion to Compel is denied. The materials sought are irrelevant to any other issues remaining in the case.

VI. Motion to Dismiss for Lack of Offense,
Motion to Dismiss for Unconstitutional Application,
and Motion to Dismiss the Information

Each of these three motions, the first two filed by defendant William Thomas and the last filed by defendant Ellen Thomas, alleges in substance that the conduct in which defendants were engaged was constitutionally protected by the first amendment, was different in kind from that in the leading case of Clark v. C.C.N.V., supra, and was therefore not properly within the ambit of 36 C.F.R. 7.96(i)(1). The court finds that none of these issues can be resolved on the present record, because each is premised on factual determinations which can only be made at a trial on the merits. The specific nature of defendants' conduct, including its first amendment political and religious aspects,

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has not been developed on the record. Hence it is impossible for the court to determine whether defendants fit squarely within Clark v. C.C,N.V., in which the Supreme Court upheld S 7.96(i)(1) as a valid time, place, and manner restriction on defendants' speech rights, or whether defendants' actions are sufficiently distinguishable, as they argue in the instant motions. For these reasons, Defendant's Motion ta Dismiss for Lack of Offense, Defendant's Motion to Dismiss for Unconstitutional Application, and Defendant's Motion to Dismiss the Information are denied. Defendants are free to renew these motions at a later date, when there is sufficient evidence in the record to permit their resolution.

VII. Motion to Consolidate Trial on Merits with
Evidentiary Hearing on Pre-trial Motions

Because each of defendant William Thomas' motions can be and has been resolved as a matter of law, there is no need for an evidentiary hearing as to any of them. Therefore, Defendant's Motion to Consolidate Trial on Merits with Evidentiary Hearing on Pre-trial Motions is denied.

Trial in this matter is scheduled to commence on October 13, 1987. An appropriate Order accompanies this Memorandum.

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