NO ORAL ARGUMENT HAS BEEN SCHEDULED FOR THIS APPEAL

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 91-3111

UNITED STATES OF AMERICA

V.

DIANE NOMAD
Appellant

ON APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
(Criminal NO. 91-0076-01)

A.J. KRAMER
FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500

By: Michael C. Wallace, Sr.
Assistant Federal Defender

Counsel for the Appellant

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

In accordance with the Court of Appeals for the District of Columbia Circuit, Rule 11 (a)(1), the appellant hereby certifies the following:

Parties

Diane Nomad, and the United States of America appeared below and are the only parties before this Court. Rulings Under Review The Appellant seeks review of the following issues arising from the trial of this case before the Honorable Royce Lamberth United District Judge for the District of Columbia:

I. Whether 36 C.F.R 2.12(a)(1)(i) on its face and as applied violates the defendant's First Amendment rights, especially considering the uniqueness of Lafayette Park.

II. Whether Ms. Nomad's conviction must be reversed because there was insufficient proof that she used a musical instrument over 60 decibels.

III. Whether the court committed error in deciding that a defendant is not entitled to a judgment of acquittal as a matter of law when the court admits evidence offered by the defendant in the government's case-in-chief.

Related Cases

The case on review has never been before this Court or any other Court. Counsel is aware that there may be other cases addressing the same issues with respect to the First Amendment and the sufficiency of the evidence arising out of other convictions based on the same facts and circumstances, under the same statutes.1/


1/ after a deligent search no cases could be found that deal with decibel violations in a national park.


TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES. . .i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .iii

STATUTES AND RULES . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 1

STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . .5

ISSUE ONE: . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE TWO: . . . . . . . . . . . . . . . . . . . . . .11

ISSUE THREE: . . . . . . . . . . . . . . . . . . . . .15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . .16


TABLE OF AUTHORITIES

CASES

A Ouaker Action Group v. Morton,

516 F.2d 717 (D C Cir 1975) . . . . . . . . . . .8, 9

Clark v. Community for Creative Non-Violence,

468 U.S. 302 (1984) . . . . . . . . . . . . . . . . . . . . . . 8, 9

Community for Creative Non-Violence v. Turner, 893 F.2d 1387

(D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . .6, 7

Glasser v. United States, 315 U.S. 60 (1941) . . . . . . . . . . .11

Hague v. C.I.O. 307 U ~ 496 (1939) . . . . . . . . . . . . . . . . 6

Jeannette Rankin Brigade v. Chief of Capital Police,

342 F.Supp. 575 (D.DC.1972) . . . . . . . . . . . . . . . . . . . .9

Texas v. Johnson, 491 U.S. 397, 110 S.Ct 2533 (1989) . . . . . . . 7

Tinker v. Des Moines School District, 393 U.S. 503 (1969) . . . . .6

United States v. Byfield, 9928 F.2d 1163 (D.C. Cir. 1991). . . . .16

United States v. Campbell, 702 F.2d 262 (D.C. 1983) . . . . . . . 13

United States v. Davis, 562 F.2d 681. (D.C. Cir. 1977) . . . . . .15

United States v. Ehrenberg, 485 F.2d 682, cert. denied, 416

U.S. 906 (1973) . . . . . . . .13

United States V. French, 470 F.2d 1234, 1242 (D.C. Cir.1972) . . .16

United States v. Grace, 461 U.S. 171, 176 (1983) . . . . . . . . . 9

United States v. Lennon, 751 F.2d 737, cert denied, 471 U.S.

1100 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Lewis, 701 F.2d 972, (D.C. Cir. 1983) . . . . . .16

United States v. Lumpkin, 448 F.2d 1085 (D.C. Cir. 197. . . . . . 14

United States v. Median, 887 F.2d 528 (5th Cir.1989) . . . . . . .11

United States v. Musser, 873 F.2d 1513 (D.C.Cir. 1989) . . . . . . 9

United States v. Treadwell, 760 F.2d 327, cert. denied,

474 U.S.1064 (1985) . . . . . . . . 15

United States v. Watkins, 519 F.2d 294 (D.C.Cir. 1975) . . . . . .16

Women Strike for Peace v. Morton,

472 F.2d 1273 (D.C. Cir. 1972) . . . . . . . . . . . . . . . . . .9

STATUTES AND PROVISIONS

18 U.S.C. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 11

18 U.S.C. 3231. . . . . . . . . . . . . . . . . . . . . . . . . .1

18 U.S.C. 3742. . . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . 1

36 C.F.R 2.12(a)(1)(i) . . . . . . . . . . . . . . .i, 1, 5, 7, 11

OTHER AUTHORITIES

District of Columbia Rule 11 (1)(3) . . . . . . . . . . . . . . . 1

Federal Rules of Appellate Procedure 28(f) . . . . . . . . . . . .1

Federal Rules of Appellate Procedure 4(b) . . . . . . . . . . . . 1

Federal Rules of Criminal Procedure, Rule 29(a) . . . . . . . . .15

United States Constitution Amendment I . . . . . . . . . . . . . .5

STATUTES AND RULES

In accordance with the Federal Rules of Appellate Procedure, Rule 28(f) and the District of Columbia Rule 11 (1)(3), pertinent statutes are reproduced in the Addendum to this brief.

STATEMENT OF JURISDICTION

The appellant was charged with a violation of Federal law that is within the jurisdiction of the District Court pursuant to 18 U.S.C. 3231. This court has jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742. The Notice of Appeal was filed within the ten day time limit prescribed by the Federal Rules of Appellate procedure 4(b).

STATEMENT OF ISSUES

I. Whether 36 C.F.R 2.12(a)(1)(i) on its face and as applied violates the defendant's First Amendment rights, especially considering the uniqueness of Lafayette Park?

II. Whether Ms. Nomad's conviction must be reversed because there was insufficient proof that she used a musical instrument over 60 decibels.

III. Whether the court committed error in deciding that a defendant is not entitled to a judgment of acquittal as a matter of law when the court admits evidence offered by the defendant in the government's case-in-chief.

STATEMENT OF THE CASE

A. Proceedings Below

The appellant, Diane Nomad, was charged in a criminal complaint with Using an Audio Device in a National Park, at a sound level in excess of 60 decibels and "annoyance and disturbance", violating 36 Code of Federal Regulation 2.12(a)(1)(i) (C.F.R.), and Title 22 DC Code 1121, respectively. The case was tried to the Court, the Honorable Royce Lamberth, United States District Judge for the District of Columbia presiding.

The District Court denied the defendant's motion to dismiss that argued that the statute abridged Ms. Nomad's First Amendment right to free speech. (Rt1:98). At the trial the government moved to dismiss the "annoyance and disturbance" charge and elected to proceed under the C.F.R. violation only. (RT1:4) The Court denied the defendant's motion for judgment of acquittal at the conclusion of the government's case-in-chief and again at the conclusion of all of the evidence. (RT1:68 & 91).

The Court found Ms. Nomad "Guilty", (RT1:91), and sentenced her to serve a term of seven (7) days in the custody of the Bureau of Prisons2/ and to pay a special assessment fee of $15.00.

Ms. Nomad gave timely notice of appeal.

STATEMENT OF THE FACTS

President Bush deployed American troops to the Persian Gulf in


2/ Ms. Nomad spent two days in jail prior to her first appearance. The Court credited her those days served in announcing her sentence. The Court also allowed Ms. Nomad to remain out on her Personal recognizance pending this appeal.


response to Iraq's invasion of Kuwait.3/ This action caused protest of this policy in many places, including Lafayette Park, a National Park, across the street from the White House.

On the night of January 27, 1991, in Lafayette Park, Ms. Nomad was arrested. Ms. Nomad and other protesters chanted, beat drums, and sang songs in a vigil opposing the President's decision. (RT1:55); (government exhibit # 10); (RT1:59). The vigils and protest started about a week or so before Ms. Nomad's arrest. (RT1: 72).

The United States Park police4/ shortly before 10:30 pm, issued an oral warning to the protesters. (RT1:47). Officer Larry Romans testified that he made a video of the area where demonstrators were playing the musical instruments or beating the drums.5/ (RT1:5).

Officer Gurrieri testified that from his patrol car he announced to the group three times that they were violating the law. (RT1:46). He further testified that Ms. Nomad was standing with a group of people some 30-40 feet away from him beating on a drum, (RT1:50;58), while a group of demonstrators in front of him were singing. (RT1:59). (This testimony was based on a viewing of government exhibit # 10 Ms. Nomad would have been to the left of


3/ This appeal does not involve the appropriateness of the President's decision, nor does it reach any of the issues or opinions expressed by its proponents or opponents.

4/ All of the government's witnesses were employees of the United States Park Police, therefore, no additional notations in this brief will identify by whom the officers were employed.

5/ The government stipulated that Ms. Nomad was not in the videotape. (Government's Exhibit #10).


the screen. RT1:59). Officer Gurrieri testified, however, that Ms. Nomad was sitting (RT1:55), and admitted he could not hear her beating on the drum. (RT1:61). He stated that each time he gave the warning he looked at Ms. Nomad. (RT1:47-49). The Officer further admitted that he recognized Ms. Nomad from another occasion as a protector beating a drum. (RT1:61).

Officer Rule testified he was assigned to take audio meter readings of the noise made by the demonstrators. He explained he took measurements with an audio meter that would measure any sounds to 10 decibels below 60. He stated, the audio meter measures both the A and C weight scales, and that simply by "flicking [a] knob" the meter will read on either scale. (RT1:13-15). Officer Rule further testified that there were gas-powered electrical generators in the area that made a noise that exceeded 60 decibels. (RT1:21); (RT1:81). All the readings that he took were on the A-scale.

Officer Borden testified he took the readings on the night that Ms. Nomad was arrested. The readings that he took exceeded 60 decibels. (RT1:35). He stated however that when he took the readings he did not see Ms. Nomad drumming. (RT1:38). He further explained that the audio meter he used will monitor everything". (RT1:41). In addition, he admitted he did not know independently whether the sounds of the drumming exceeded 60 decibels or whether all of the sounds in the park, other people talking and drumming caused the reading to exceed 60 decibels. (RT1:41-42).

Officer Borden explained that he took his reading on the A-scale. Yet, he could not explain why the manufacturer's instructions for the particular device he used requires the C weight scale be used when measuring musical instruments. (RT1:40) (defense exhibit #1 at p.9).

During cross examination, at defense counselor's request, Officer Rule, took a reading with his audio meter of counsels questions. Officer Rule testified that he measured the questions at 60 decibels. (RT1:22).

SUMMARY OF ARGUMENT

This case presents the proper factual bases for invalidating a criminal statute. The statute as applied violates Ms. Nomad's First Amendment right to freedom of her speech by the suppression of her speech, in a unreasonable manner.

The evidence against Ms. Nomad was so speculative that no verdict can stand. The Court assumed, the defendant's mental state, for the purpose of proving aiding and abetting, was the same as that of other people engaged in like or similar conduct. However, there was no evidence that she was a part of any "concerted" group. Finally, the Court erred in determining that a motion for judgement of acquittal is not appropriate when the defendant offers evidence during the government's case in chief.

ARGUMENT

ISSUE ONE:

Whether Title 36 C.F.R 2.12(a)(1)(i) on its face and as applied violates the defendant's First Amendment rights, especially considering the uniqueness of Lafayette Park.

The First Amendment to the United States Constitution states that, "Congress shall make no law ...abridging the freedom of speech..." U.S. Const. Amend. I.

Shortly after American troops deployed to the gulf and it was announced that they were preparing to take an offensive stance, the drumming and protesting began.6/ Ms. Nomad was arrested for beating a drum to express her opposition to this governmental policy.

The Supreme Court has afforded First Amendment protection to expressive conduct that qualifies as symbolic speech. See, e.g. Tinker v. Des Moines School District, 393 U.S. 503 (1969). This protection has been extended to various settings that are in a public forum. Lafayette Park, is a public forum. See, Hague v. C.I.O., 307 U.S. 496, 515-516 (1939), ("Whenever the title of streets may rest, they have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions. Such use of the streets...has, for ancient times, been a part of the privileges, immunities, rights and liberties of citizens."). See generally, Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1390 (D.C. Cir. 1990). ("Courts that have addressed the public forum question have determined that a property becomes a public forum in two ways. First, courts have tended to characterize as a public forum


6/ The parties prior to trial made it clear that the trial would not involve the Executive decision that President Bush made to deploy our troops to the Gulf region. However, it was understood that the protesting, demonstrations and drumming was in response to his decision.


property that resembles streets and parks because such property historically has been devoted to the exchange of free ideas... Second, *.* the courts [have] looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.")

The Supreme Court pointed out in Texas v. Johnson, 491 U.S. 397, 110 S.Ct 2533, 2539 (1989) that, "in deciding whether particular conduct possesses sufficient communicative elements to bring First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who viewed it." The regulation under which Ms. Nomad is charged significantly restricted her from expressing her opposition to the current situation in the gulf in a public place.

Title 36 C.F.R 2.12 (a)(l)(i) in relevant parts states: "(a) the following are prohibited: (l)operating *. *. an audio device, such as a radio, television set, tape deck, or musical instrument, in a manner; (i) that exceeds a noise level of 60 decibels measured on the A-weight scale at 50 feet;."

This provision of the law is unconstitutional as it applies to Ms. Nomad because it is an unreasonable restriction on her ability to convey her message, in a public forum. "By restricting permissible free speech activities to those conducted [at 60 decibels and below if they are 'unreasonable'] .. creates a classically vague restriction, replete with the dangers at which the void-for-vagueness doctrine has been aimed. *.*. More importantly, the standard would likely chill legitimate exercise of free speech, as a person of common intelligence must necessarily guess at its meaning". Turner, 893 F.2d at 1395. No reasonable person under normal circumstances could determine whether they have exceeded the 60 decibel limitation or determine the significance of its's application.

Protesting and staging demonstrations from within the boundaries of Lafayette Park have had historical significance that put aside the traditional restrictions on the use of the National park. "[The] Park... [is an] unique resource that the Federal Government holds in trust for the American People. "[A] fitting and powerful forum for political expression and political protest." Clark v. Community for Creative Non-Violence, 468 U.S. 302, 303, (1984). In A Quaker Action Group v. Morton, 516 F.2d 717, 725 (D.C. Cir. 1975), the court pointed out "it may be that certain parks can reasonably be reserved for specific use; first amendment activity might be inappropriate for a wilderness area such as Yellowstone Park. [However]... the White House sidewalk, Lafayette Park and the Ellipse constitute a unique situs for the exercise of First Amendment rights."

Ms. Nomad's conduct is protected by the First Amendment. These activities took place in Lafayette Park under circumstances which Ms. Nomad felt compelled to speak. The beating of a drum was her way of saying that she disapproved of the current situation in the middle east.

The Supreme Court has announced however, that expressive conduct is subject to the standard restrictions of time, place and manner. See, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984). The government's enforcement of the regulation unreasonably restricts the manner in which Ms. Nomad may protest. It limits her to 60 decibels, normal conversational tone7/, in a place that is classic for airing one's grievance. Moreover, any restriction that is imposed on free speech, to be valid must; (1) further an important or substantial government interest, (2) the governmental interest is unrelated to the suppression of free expression, and (3) the incidental restriction on alleged First Amendment rights is no greater than is of that interest. See Generally, Jeannette Rankin Brigade v. Chief of Capital Police, 342 F. Supp. 575 (D.DC. 1972), quoted in A Quaker Action Group v. Morton at 516 F.2d 717, 725 (D.C. Cir. 1975). Symbolic expression may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly tailored to serve a significant governmental interest, and if the interest is unrelated to the suppression of free speech. See, United States v. Grace, 461 U.S. 171, 176 (1983); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).


7/ During cross examination, at defense counselor's request, Officer Rule, took a reading with his audio meter of counsels questions. Officer Rule testified that he measured the questions at 60 decibels. (RT1:22). If the Court finds the volume or level of speech in decibels important in deciding the reasonableness of this case, this portion of the trial was recorded on cassette tape by the court reporters as part of the transcription.

When these standards are applied to Lafayette Park, seated at the heart of our government, the use of decibel levels as a restriction is unreasonable simply due to the park's frequent use, the actual use, and its historical recognition as a place to assemble peacefully in an informal setting to air one's grievance. See generally, Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir. 1972); United States v. Musser, 873 F.2d 1513, 1517 (D.C.Cir. 1989).

The statute as framed, is designed to protect the peace and serenity of a wilderness type park. See, A Quaker Action Group v. Morton, 516 F.2d 717, 725 (D.C. Cir. 1975). The decibel restriction suggests that it was added to the statute to insure that the wildlife can cultivate their species, undisturbed by sounds that are unfamiliar. In an urban area, like the District of Columbia, it is unlikely that sounds of a musical instrument will upset the delicate balance of nature.

The latter provisions of the statute discusses the "unreasonableness of the noise" even if it is below the 60 decibels threshold requirement. This section alone is void-for-vagueness. This section creates a further suppression of symbolic speech because, the "unreasonableness of the noise" aspect allows arbitrary and capricious enforcement.

ISSUE TWO:

Whether Ms. Nomad's conviction must be reversed because there was insufficient proof that Ms. Nomad used a musical instrument over 60 decibels.

Viewing the evidence in a light most favorable to government, [no trier of fact] could find guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80 (1941). There was insufficient evidence for the court to find guilt beyond a reasonable doubt.

The government contended that Ms. Nomad's conduct was that of concerted action in an effort to support their aiding and abetting theory. 18 U.S.C. 2. See e.g. United States v. Lennon, 751 F.2d 737, cert. denied, 471 U.S. 1100 (1985).

In order for the government to sustain its burden it must prove beyond a reasonable doubt, that the defendant (1) operated an audio device (musical instrument), (2) that she operated it more than 60 decibels measured on an A-Scale at 50 feet; and (3) it was operated in a National Park. See, 36 CFR 2.12(a)(1)(i) In order to prove aiding and abetting, the government must prove beyond a reasonable doubt that the defendant, (1) associated with the criminal venture, (2) participated in the venture and sought by action to make the venture succeed, and (3) the defendant shared the principal's criminal intent and engaged some affirmative conduct to make it succeed. United States v. Median, 887 F.2d 528 (5th Cir. 1989).

There was insufficient evidence to conclude that Ms. Nomad's drumming exceeded 60 decibels, nor proof that she shared the criminal intent with the actual principals.

The evidence at trial went uncontroverted that there was a lot of noise at Lafayette Park. Officer Borden who took the readings admitted that the device he used monitor "everything", and the readings he took were on the A-scale. (RT1:40-41) The evidence shows that the monitoring device was not properly used in measuring a musical instrument. Officer Rule admitted that the device that he used had two scales, A and C. (RT1:14). When using the monitoring device the manufacturer suggested that the C-scale setting be used when monitoring music. (Defense exhibit # 1 at page 9). On the night of Ms. Nomad's arrest, it was apparent from the large number of protesters, that there was a lot of noise. (Government Exhibit #10). However, Officer Gurrieri testified that in his observation of Ms. Nomad he could not hear her beating the drum. (Rtl:61) In addition to the people singing, Officer Rule testified that the generator in the area produced noise more than 60 decibels. (RT1:82).

The Court concluded that the generators did not play an appreciable role in the readings. (RT1:91). This conclusion was not supported by any scientific evidence, or any evidence from which the Court could have drawn this inference. In order to support this inference it would have been helpful if the government had offered some evidence as an alternative that would have suggested that the monitoring device (a) would not measure the generators in an excess of 50 feet of more, (b) that any appreciable sound made by the generators dissipates after traveling so many feet, (c) that the meter properly eliminated the background noise on the occasion when the reading were taken, or (d) at the time the readings were taken by Officer Romans, the only sounds he heard was the drumming. Yet, the officers admitted that they did not notice the generator during the times of the readings, (RT1:43) and that the generators were removed after Ms. Nomad was arrested. Mr. Thomas's testimony went uncontroverted that the generators were operating on the night of Ms. Nomad's arrest. As Officer Borden admitted, he could not determine if the 60 decibel level was attributed to the drumming or the combination of all of the noises. (RT1:41-42).

Alternatively, the government has contended that Ms. Nomad aided and abetted some person in the commission of this offense. This contention is not supported and must fail for two very distinct reasons: (1) the government offered no evidence that Ms. Nomad was a part of any particular group that set out to commit the substantive offense. See, United States v. Campbell, 702 F.2d 262 (D.C. 1983); (the government must prove that the defendant consciously assisted in the commission of the specific crime in some active way). (2) The government offered no evidence to demonstrate the mental state of the principal person; in a desire to see the crime completed. See, United States v. Ehrenberg, 485 F.2d 682, cert. denied, 16 U.S. 906 (1973). Assuming arguendo, that there is an inference that the principal intended to break the law. There is no evidence that Ms. Nomad had such an intent. Even accepting the government's evidence that she was beating a drum on that occasion, this is insufficient proof of an intent to exceed the decibel level. The statute does not specifically prohibit her from the precise conduct she was engaged in. The only prohibition under the statute is that the drumming not exceed 60 decibels. Ms. Nomad could very well have been complying with the law, yet, the other persons were deliberately disobeying the law. M e r e presence in an area where a crime is committed alone is insufficient to prove guilt. The government was obligated to demonstrate that she was a part of this group and that she willfully participated with the intent to bring about the outcome. See, United States v. Lumpkin, 448 F.2d 1085 (D.C. 1971).

ISSUE THREE:

Whether the court committed error in deciding that a defendant is not entitled to a judgment of acquittal as a matter of law when the court admits evidence offered by the defendant in the government's case-in-chief.

"The Court on motion of the defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." Federal Rules of Criminal Procedure, Rule 29(a). The court erred in concluding that the defendant is not entitled to such a motion because she introduced evidence during the government's case.

The test to determine if a motion for judgement of acquittal should be granted at the conclusion of the government's case-in-chief is "viewing the evidence in a light most favorable to the government. (emphasis ours), See, United States v. Davis, 562 F.2d 681. (D.C. Cir.1977); United States v. Treadwell, 760 F.2d 327, cert. denied, 474 U.S.1064 (1985). At the conclusion of the government's case-in-chief the defendant moved for a judgment of acquittal. The court denied the motion alternatively and on the merits. In summary, the court pointed out that the defendant had introduced evidence during the governments case, therefore the motion could not survive. (RT1:67-68) Accordingly, he ruled that there was sufficient evidence as to each of the elements.

The thrust of a motion for a judgement of acquittal is measuring the strength of all of the evidence at the conclusion the government's case-in-chief. See Generally, United States v. Watkins, 519 F.2d 294 (D.C.Cir. 1975); United States v. Lewis, 701 F.2d 972, (D.C. Cir. 1983). The ruling on a motion for judgment of acquittal depends upon whether the evidence is sufficient as to each element, and not upon which party was the proponent of the evidence. See United States v. Byfield, 9928 F.2d 1163 (D.C. Cir. 1991). (a motion for judgement of acquittal made at the close of the government case in chief is decided on the basis of only the evidence so far introduced at the trial.) Cf. United States V. French, 470 F.2d 1234, 1242 (1972). (The court discussed that there is no variance between the weight given circumstantial and direct evidence when evaluating a motion for judgment of acquittal. For the same reason there should be no distinction as to which party presented the evidence when the District Court Rules on Rule 29 motion at the conclusion of the government's case.)

CONCLUSION

For the foregoing reasons, Ms. Nomad respectfully request the Court of Appeals to reverse her conviction and direct the entry of an acquittal.

Respectfully submitted,
A.J. Kramer, Esquire
Federal Public Defender

Michael C. Wallace, Sr., Esquire
Assistant Federal Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20001
(202) 208-7500

CERTIFICATE OF SERVICE

I, HEREBY CERTIFY, that a copy of the foregoing was served by first class mail, postage prepaid to the Appellate Division, United States Attorney Office, 555 4th Street, N.W., Washington, D.C. 20001 on this ___ day of September, 1991.

Michael C. Wallace, Sr., Esquire
Assistant Federal Defender


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