U.S. v. Thomas

• Decision Date: 30 December 1988
• Docket Number: 88-3035,Nos. 88-3034,s. 88-3034
• Citation: 274 U.S. App. D.C. 385,864 F.2d 188
• Parties: UNITED STATES of America v. William THOMAS, Appellant. UNITED STATES of America v. Ellen THOMAS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 188

864 F.2d 188

274 U.S.App.D.C. 385

UNITED STATES of America v. William THOMAS, Appellant.

UNITED STATES of America v. Ellen THOMAS, Appellant.

Nos. 88-3034, 88-3035.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 8, 1988.

Decided Dec. 30, 1988.

Appeals from the United States District Court for the District of Columbia (Criminal Action Nos. 87-00231-01 and 02).

Mark A. Venuti, Washington, D.C., (appointed by the court), for appellants in Nos. 88-3034 and 88-3035.

Edith S. Marshall, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

Lafayette Park, as Washington residents and visitors well know, sits across Pennsylvania Avenue from the White House. It is a lovely park, beautifully landscaped and exquisitely maintained. On its north side stands St. John's Church, the church of Presidents, and the historic Hay-Adams Hotel. Looking out on the park are government buildings of some note, not the least of which are the National Courts Building, Dolley Madison House and the Decatur House. By virtue of its singular location, Lafayette Park has become a haven for First Amendment activity. The keen governmental interest in maintaining the beauty and tranquility of this historic park has thus increasingly come into conflict with the equally keen interest on the part of various individuals and groups in expressing their viewpoints on significant issues of our age.

Like the now-legendary "sleeping in the park" case, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), the case before us involves individuals who are seeking by their continuing presence in the park to convey and communicate their sincerely held views about what they perceive to be the most elemental social ills. Two individuals, husband and wife, stand convicted for violation of the applicable Park Service regulations which forbid "camping" in areas including Lafayette Park. The challenge mounted by William and Ellen Thomas to their respective convictions sounds both in a substantiality of the evidence attack and in the familiar doctrine of void-for-vagueness, drawn from the body of First Amendment and Due Process law. For the reasons that follow, we conclude that the Thomases' challenge cannot succeed and that their convictions must therefore stand.

I

Ellen and William Thomas have for several years pursued a vigil in Lafayette Park that entails what William Thomas terms a "continuous presence" in the Park. (Tr. 107). Ellen Thomas describes their vigil as "[an] attempt[ ] to maintain a constant, all-weather, round-the-clock expressive presence in Lafayette Park." Def. (E.T.) Exhibit 7. The Thomases have abandoned most worldly possessions and pursuits to alert whoever might pass by--through discussion, their signs, and their presence--of the threat of nuclear annihilation and the evils they perceive as having created that threat. They do have access to and use of a nearby apartment, where they store most of their few belongings, eat, shower, use the bathroom, pursue their correspondence, and attend to other such functions. However, they do not, except inadvertently, sleep in the apartment. Indeed, William Thomas claims to have sloughed off the need for regular sleep along with other attributes of worldly existence, and thus to sleep nowhere in particular unless overcome by exhaustion and forced to nap.

The Thomases pursued this pattern of activity during the week of March 22 through March 29, 1987. Park Service officers observed them on several occasions lying prone at night upon or within bedding material, surrounded by bundles of goods, occasionally under a plastic sheet, and, by all appearances, asleep. Several times, officers verbally warned the Thomases that they were in violation of the Park Service's prohibition against "camping," and issued four citations to that effect.

The Park Service regulation in question lists several indicia of "camping":

Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging....

36 C.F.R. Sec. 7.96(i)(1) (1988).

The United States Attorney's Office issued an information against the Thomases for their conduct during the week in question and prosecuted them for impermissibly camping in the Park. Following a bench trial before Judge Flannery, the Thomases were found guilty; the trial court reasoned that the regulation "does not permit individuals to spend substantially all of their time, including sleeping hours, in the park on a continuing basis." Memorandum Opinion, Crim. No. 87-0231 at 16 (D.D.C. Feb. 5, 1988). Although the court did not define precisely what use of the park constituted "use for living accommodation purposes," it found "that lying on top and within bedding materials throughout the night, for a one-week period, without evi dence of any other sleeping quarters, is sufficient evidence of the use of the park for living accommodations." Id. at 17.

The District Court thereafter denied the Thomases' motion to stay their 30-day sentences pending appeal. Despite having served their sentences, the Thomases appeal the verdict, alleging that insufficient evidence exists to support the convictions and that the regulation is unconstitutionally vague as applied to them.

II

The Thomases assert primarily that the government adduced insufficient evidence to support their convictions. We respectfully but emphatically disagree.

A

The standard governing our review is well settled and understood. On appeal, a reviewing court is to accord a guilty verdict great deference; indeed, the sole evidentiary issue in such instances is whether substantial evidence supports the verdict. "The governing standard for reviewing the sufficiency of the evidence in non-jury cases is the same as that applied in jury cases: The conviction must be reversed when the evidence is such that a reasonable mind could not find guilt beyond a reasonable doubt." United States v. Castellanos, 731 F.2d 979, 984 (D.C.Cir.1984); see United States v. James, 764 F.2d 885, 889 (D.C.Cir.1985) ("we cannot overturn the verdict unless a reasonable jury must necessarily have entertained a reasonable doubt"); Jackson v. United States, 353 F.2d 862, 864 (D.C.Cir.1965) (same standard applied to review of bench and jury trials) (Wright, J.). Our review of the record must also accord great weight to the factfinder's role, while providing no incentive for the parties to retry the case on appeal. "Our task ... is to view the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the [factfinder] to determine the weight and credibility of the evidence." United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986); see United States v. Weisz, 718 F.2d 413, 437 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984); United States v. Singleton, 702 F.2d 1159, 1162-63 (D.C.Cir.1983). This standard applies to both direct and circumstantial evidence. See Sutton, 801 F.2d at 1358; see also Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

B

In light of the governing standard, we are satisfied that several sources of evidence in the record provide ample support for the verdicts. First. Three officers testified about what they observed during the period that included the four occasions when they issued citations to the Thomases for violating the regulation. As the District Court concluded, "[t]he testimony of the Park Police officers established that during the period in question, defendants were observed at numerous times late at night and in the early morning to be lying prone, on bedding materials, with their eyes closed." Mem.Op. at 15. Here is the substance of that testimony.

(1) Park Police Officer Richard DeRiso testified that at approximately 6:00 a.m. on March 22, he observed the Thomases lying in sleeping bags and on blankets, surrounded by clothes. The officer saw no activity and heard sounds that to him resembled snoring. He woke the Thomases, told them that they were violating the camping regulation, and cited them for the violation. According to the officer, the Thomases were in roughly the same circumstances on the morning of March 27, and he again gave them a citation. On cross-examination, Officer DeRiso indicated that on both occasions he may have actually issued the citations later in the morning.

(2) Patrol Officer Daniel DeLullo testified that he observed the Thomases at their demonstration site three times during the night of March 25 and morning of March 26. The first time, at 10:00 p.m., the Thomases were sitting on sleeping bags and blankets, surrounded by minor items of property and their literature, which was covered by plastic. An hour later, the Thomases were lying in their sleeping bags, which in turn were covered by plastic, and the Thomases appeared to Officer DeLullo to be asleep. The officer lifted the plastic to warn them that they were violating the camping...