UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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NO. 93-3215

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UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT xxxxxxx,

Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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REPLY BRIEF FOR APPELLANT

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PRELIMINARY STATEMENT

As to matters not discussed herein, Mr. xxxxxxx rests on the

opening brief for appellant.

SUMMARY OF ARGUMENT

All three of the Government's arguments for finding the evidence sufficient must be rejected. There is no support in law, logic, or policy for the initial proposition that Park Police may arbitrarily revoke a demonstration permit during a demonstration and then charge the protestors with demonstrating without a permit. The Government was required to present legally sufficient proof that the reasons for the revocation were proper.

Nor can the Government prevail in its contention that the "objective circumstances" purportedly justifying permit revocation would render irrelevant the actual motives and reasoning of the official who made the revocation. First Amendment activity may not be restricted because of distaste for its message, and the regulations pertaining to demonstrations may not be used as a pretext to suppress protest. The actual reasons for the revocation had to be proved.

Finally, contrary to the Government's argument, the "circumstantial evidence" was legally insufficient to prove the actual reasons for revoking the permit. In particular, the testimony about the reasons was conceded hearsay, and it cannot serve as competent evidence as to what the reasons were.

ARGUMENT

POINT I

THE GOVERNMENT ERRS IN CONTENDING THAT IT DID NOT HAVE TO PROVE THAT THE REASONS FOR THE PERMIT REVOCATION WERE AUTHORIZED, AND THAT PROOF OF THE FACT OF THE PERMIT REVOCATION WAS SUFFICIENT TO SUPPORT THE VERDICT.

Initially, the Government argues that proof of the "reasonableness" of the demonstration permit revocation was not required; it maintains that it only had to prove the fact of the revocation (Brief for Appellee ("GB") at 8-10). This point attacks a straw man; it avoids Mr. xxxxxxx's argument, found persuasive by the District Court (Memorandum at 5-6; A. 12-13), that the First Amendment requires official compliance with regulation standards and precludes revocation of a permit during a demonstration for just "any reason whatsoever."

The Government also ignores for purposes of this point the fact that the information charging Mr. xxxxxxx specified that he demonstrated without a permit, "such permit having been revoked. (In violation of 36 C.F.R. Sections 7.96 (g) (1), (2), (5), (6))." The first two of these subsections pertain to permit requirements, not revocations. Revocation is provided for in § 7.96 (g)(6), and additional possible grounds for revocation are set forth in § 7.96 (g)(5). It is manifest, therefore, that the information alleged that the permit was revoked pursuant to these latter two provisions. The Government proffers no reason of law, logic, or policy for relieving it of the obligation to prove these allegations, and indeed, in a footnote, it claims that it did prove them (GB at 10, n. 7).

The Government's analogy to Poulos v. New Hampshire, 345 U.S. 395 (1953) (GB at 9), is misguided. That decision required citizens to comply with the state's procedure for appealing the allegedly arbitrary denial of a permit, a procedure which resulted there in judicial authorization of First Amendment activity at "reasonable" times. Poulos contains no hint that the Court would approve the Government's arbitrary revocation, without recourse, of a permit after First Amendment activity is well under way. On the contrary, as the Supreme Court put it, "Regulation and suppression are not the same,[] either in purpose or in result, and courts of justice can tell the difference." Id. at 408 (footnote omitted).

In essence, the Government urges that the Park Police should not have to justify revoking a demonstration permit and arresting the demonstrators. This argument flouts the First Amendment.

POINT II

THE GOVERNMENT ERRS IN CONTENDING THAT MR. xxxxxxx WAS PROPERLY FOUND GUILTY OF DEMONSTRATING AFTER REVOCATION OF THE PERMIT EVEN IF MAJOR HOLMBERG ACTUALLY REVOKED IT FOR "COMPLETELY IMPROPER REASONS."

At the heart of the Government's second sufficiency-of-the-evidence argument is the comment that "theoretically, Major Holmberg could have been motivated to revoke the permit by completely improper reasons, such as a distaste for the content of the demonstrators' message" (Brief for Appellee ("GB") at 13). True, this sentence is followed by the claim that the "objective" grounds for revoking the permit were sufficient, and the Government goes on to contend that despite the conceded absence of "non-hearsay direct evidence" of the major's actual reasons, circumstantial evidence permitted the conclusions that those reasons were proper (GB at 13-15). Still, in hypothesizing and excusing the Park Police's use of the permit regulations as a pretext to terminate a demonstration and bring criminal charges against demonstrators, the Government reveals an alarming insensitivity to the meaning and importance of the First Amendment.

In Grayned v. City of Rockford, 408 U.S. 104, 115 (1972), the Supreme Court wrote,

. . . . The right to use a public place for expressive activity may be restricted only for weighty reasons.

Clearly, government has no power to restrict such

activity because of its message.[footnote omitted] . . . .

The Court restated that except where demonstrations "turn violent," the First Amendment permits only "reasonable" time, place, and manner restrictions. Id. at 115-116. In this case, the restriction primarily in question, once the permit was issued, was: . . . . During the conduct of a demonstration, the permit may be revoked by the ranking U.S. Park Police supervisory official in charge if continuance of the event presents a clear and present danger to the public safety, good order or health or for any violation of applicable law or regulation. . . .

36 C.F.R. § 7.96 (g)(6). While the tailoring of this language may be "narrow" enough to withstand facial attack, it certainly does not spell out precisely when a permit may be revoked. Major Holmberg had to decide whether the "public safety," "good order," or "health" were in "clear and present danger," or whether the demonstrators had "violated" some "applicable" regulation. All the terms within quotation marks required Major Holmberg to exercise his judgment. If he did not actually apply these standards, or if he actually applied them unreasonably, the permit was not properly revoked, and Mr. xxxxxxx's First Amendment defense and his insufficient evidence claim should have precluded his conviction.

The Government suggests that this Court should extend to First Amendment cases the "objective circumstances" test that has been applied in the Fourth Amendment context where defendants have claimed that they were actually detained or searched for improper reasons, yet other grounds existed that the police might properly have relied upon (GB at 13, citing United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir.), cert. denied, 112 S. Ct. 1976 (1992)). This suggestion, unsupported by any apposite authority, deserves short shrift. Criminal defendants most often make Fourth Amendment claims because they have been found in possession (actual or allegedly constructive) of contraband or other evidence of a crime. In conditioning suppression of such evidence on the absence of any objectively reasonable grounds for police action, rather than undertaking to assess the alleged personal motives of officers, courts arguably do not diminish the Fourth Amendment's protection against "unreasonable searches and seizures."

Criminal defendants who make First Amendment claims, however, generally are charged with offenses that are very unlike possessory crimes. Typically, as in the instant case, such a defendant has merely resisted or disobeyed a governmental restriction on his exercise of one or more of the unequivocally protected "freedoms." The propriety of the official action and the propriety of the defendant's action are therefore inversely interrelated--by definition, no offense was committed by the defendant unless the governmental restriction was authorized. It follows that proof of the offense requires evidence not only that the Government's action could have been justified by the existing circumstances, but that those circumstances were in fact the predicate for the action.

To hold otherwise would invite abuse of a regulation that the Government argues elsewhere (GB at 28-29) is designed to limit official interruption of demonstrations to occasions of necessity and to avoid impulsive or inconsistent police decisions. Only one Park Police officer is authorized by § 7.96 (g)(6) to revoke the permit for a demonstration in progress, and a revocation can only be based on that officer's finding of "clear and present danger" to specified conditions or of "violation" of some particular law or regulation. Mere speculation about Major Holmberg's actual reasoning process cannot suffice to support Mr. xxxxxxx's conviction of a charge that specifically encompassed that reasoning process.

POINT III

THE GOVERNMENT ERRS IN CONTENDING THAT MAJOR HOLMBERG'S OUT-OF-COURT EXPLANATION OF THE REVOCATION CONSTITUTED SUFFICIENT, NON-HEARSAY CIRCUMSTANTIAL EVIDENCE OF HIS AWARENESS OF THE PROPER REVOCATION CRITERIA AND HIS INTENT TO APPLY THEM.

The Government concedes that "there was no non-hearsay direct evidence regarding Major Holmberg's reasons for revoking the permit" (GB at 14). However, the Government suggests that the testimony about Major Holmberg's reasons was "relevant," not only to explain Sergeant Rule's issuance of warnings (which was why the prosecutor said it was elicited (Tr. 11-12; A. 40-41)), but to "demonstrate Major Holmberg's intent and his awareness of the criteria for properly revoking the permit" (GB at 14). Here, too, the Government's position is transparently meritless.

A statement made out of court and "offered in evidence to prove the truth of the matter asserted" is hearsay. Fed. R. Evid. 801(c). Sergeant Rule testified, undisputedly based on what he had been told, that Major Holmberg revoked the permit because the demonstration was causing sidewalk congestion and because demonstrators with signs had stopped moving (Tr. 10-12; A. 39-41). These are precisely the reasons the Government now claims were circumstantially proved to be Holmberg's actual reasons (GB at 13-15). The hearsay prohibition (Fed. R. Evid. 802) is not evaded merely by labeling a statement "circumstantial evidence" of particular thoughts. Holmberg's reasoning had to be proved to establish the offense. As evidence of his reasoning, therefore, Rule's testimony was pure hearsay.

The Government mistakenly relies on United States v. Mack, 466 F.2d 333, 336-337 (D.C. Cir. 1972) (GB at 14-15). In that murder case, the Court held that declarations heard in the hallway outside the victim's apartment "were highly relevant on the issue of premeditation, regardless of their truth or falsity." Here, the issue was not whether Holmberg had any reasons for revoking the permit, but whether the particular reasons he had were proper. The truth or falsity of the Government's allegations about Holmberg's reasons was an issue at the heart of the case. If Holmberg had testified that his reasons were those reiterated by Rule, he could have been cross-examined to test the credibility of his claim. But Holmberg did not testify, so for this Court to use Rule's testimony as the Government now proposes would frustrate both the letter and the spirit of the hearsay prohibition.

The Government's circumstantial evidence point also relies on the purported "absence of any suggestion of other possible motivations" for Major Holmberg to revoke the permit (GB at 14). Thus, the Government ignores both the purpose of the demonstration and the remarkable speed with which it was officially de-authorized, notwithstanding its relatively small size and peaceful character.

The American public indisputably gave the country's involvement in the Persian Gulf War in January, 1991 widespread support, but there was a protest movement that sought the President's attention in a rather conspicuous and continuous manner. See United States v. Doe, 968 F.2d 86, 87 (D.C. Cir. 1992) (week-long protests in Lafayette Park of bombing of Iraq; noise-level regulation held unconstitutionally overbroad). The anti-war protests surely were not welcomed by officials charged with presenting the enemy and the world with the image of a united national will to prevail militarily. Accordingly, if there is to be speculation about Major Holmberg's motives, as the Government urges, it should include the possibility that he was encouraged, explicitly or implicitly, to find a way to end the January 15, 1991 demonstration on the White House sidewalk as quickly as possible. For end it quickly he did--after only about 25 or 30 minutes (Tr. 32-33; A. 61-62). That the Park Police wanted the demonstration terminated, rather than continued in strict compliance with safety concerns and sign regulations, is compellingly proved by the lack of any warnings to the demonstrators until after the revocation decision. The warnings given permitted protestors to avoid arrest, but only at the price of abandoning their protest.

In sum, the purported circumstantial evidence of revocation of the permit for proper reasons is illusory.

CONCLUSION

For the reasons stated above and in the opening brief for appellant, the conviction should be reversed and the entry of a judgment of acquittal ordered.

   Respectfully submitted,

   A. J. KRAMER

   FEDERAL PUBLIC DEFENDER

        ________________________________

   Allen E. Burns

   Assistant Federal Public Defender

   625 Indiana Avenue, N.W. Suite 550

   Washington, D.C. 20004

   (202) 208-7500

CERTIFICATE AS TO LENGTH OF BRIEF

I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).

   _________________________________

   Allen E. Burns

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 17, 1994, two copies of the foregoing reply brief for defendant-appellant were served by hand delivery upon the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.

   ________________________________

   Allen E. Burns