The opinion of the court was delivered by: OBERDORFER
LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE
On November 17, 1987, United States Magistrate Arthur Burnett found defendant guilty of camping in Lafayette Park in violation of 35 C.F.R. § 7.96(i)(1) and sentenced him to incarceration for thirty days. After a hearing on December 22, 1987, this Court affirmed defendant's conviction, but on January 21, 1988, defendant filed a notice of appeal to the Court of Appeals for this Circuit. On February 11, 1988, defendant was ordered to comply with certain special conditions of probation, and on June 8, 1988, those conditions were modified. On July 6, 1988, at this Court's request, the Court of Appeals remanded defendant's appeal of his conviction to this Court for specific findings and conclusions in respect of the decision to affirm Magistrate Burnett's decision of November 17, 1987.
At the November 17, 1987 hearing, the arresting officer testified that on March 29, 1987, defendant was "lying down at his demonstration site [in Lafayette Park] on and under several blankets." Transcript of Hearing Before United States Magistrate Burnett, United States v. Semple, Crim. No. 87-0466 (D.D.C. November 17, 1987) at 57. Furthermore, as defendant testified in his own behalf, after waiving his privilege against self-incrimination:
So, if I am to be in the park 24 hours a day to guard my signs, or keep my signs in the park for the reason of communication, since I am a human being I must fall asleep, or I must sleep I suppose a certain time. . . .
In order for me to keep my signs in the park I must be there 24 hours a day . . . .
Id. at 87. Furthermore, on cross-examination, defendant conceded that, with "rare" exceptions, he remains in Lafayette Park almost 24 hours a day. The only specific instances he could cite for which he would leave the park were to "go to the bathroom, get a cup of coffee once in a while, [and] sometimes spend time walking around." Id. at 89. Defendant did not testify that he spent any time out of Lafayette Park sleeping. For the reasons stated in the attached Memorandum filed in a subsequent criminal case involving defendant, this testimony and reasonable inferences therefrom establish beyond a reasonable doubt that at the time of defendant's arrest it was his practice to "sleep overnight" in Lafayette Park and not elsewhere. As the Supreme Court has held, overnight sleeping in Lafayette Park without a valid permit violates 36 C.F.R. § 7.96(i)(1). See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984).
Accordingly, it is this 8th day of December, 1988, hereby
ORDERED: that defendant's conviction for violating 36 C.F.R. § 7.96(i)(1) should be, and is hereby, affirmed, and the special conditions of probation established for what conviction on June 8, 1988, should not be modified; and it is further
ORDERED: that the record in this matter shall be returned to the Court of Appeals forthwith.
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