Reposted for server retention. (In this version I have corrected the page numbers.)
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This is a pdf-text conversion of AppBrf_nichols_06329.pdf linked from
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff / Appellee
vs. Criminal Action No. 2:05cr26
AMANDA J. NICHOLS,
Defendant / Appellant
ON APPEAL FROM THE UNITED STATES MAGISTRATE COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA AT ELKINS
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BRIEF OF APPELLANT
--------------------------------------
Patrick S. Cassidy (W.Va. Bar No. 671)
Email: pcass...@cmcvlaw.com
Timothy F. Cogan (W.Va. Bar No. 764)
Email: t...@cmcvlaw.com
CASSIDY, MYERS, COGAN & VOEGELIN, L.C.
The First State Capitol
1413 Eoff Street Wheeling, WV 26003-3582
Phone: (304) 232-8100 Fax: (304) 232-8352
Counsel for Appellant
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STATEMENT OF CASE, RELATED CASES AND PROCEEDINGS
This is an appeal of Defendant-Appellant's June 28, 2005 conviction of the
misdemeanor offense of use of the National Forest by 75 or more people without a
permit, 36 CFR 261.10(k). For purposes of appeal the following matters are
consolidated: United States v. Healy, United States v. Gardner, United States
v. Benedict and United States v. Nichols. Related cases on appeal, but not
consolidated with this set of Defendant-Appellants include United States v.
Michael, United States v. Keating and United States v. Orr.
STANDARD OF REVIEW
The scope of the appeal is the same as an appeal from a judgment from a District
Court to a Court of Appeals. Fed.R.Crim.P. 58(g)(2)(D). On appeal, the
record before the Magistrate Judge will be reviewed. See e.g., United States v.
Van Fossan, 899-F.2d 636, 637 - 38 (7th Cir. 1990).
------------------------------- 2 -------------------------------
STATEMENT OF FACTS
Defendant-Appellants are all members of Group 10. Group 10 is a series of
Defendants who were charged with the violation of 36 C.F.R. $ 261.10(k). Group
10 Defendant-Appellants include Amanda Nichols, Derek Benedict, Virginia Gardner
and Jessica Healy.
The proceedings were before the Honorable Magistrate Judge John Kaull.
Prior to the commencement of trial, Magistrate Judge Kaull advised the
individual Defendant-Appellants that the allegations of the Government are that
"you as part of a noncommercial group used National Forest lands on the dates
set forth in the citation within the Northern District of West Virginia and at a
time you were using National Forest lands, you were part of a group, either as a
participant or as a spectator, in violation of the regulation and that you
didn't have a special use authorization permit". (Tr. p. 115) Magistrate
Judge Kaull, however, advised that because were not charged with a violation
which would carry a term of incarceration in a jail, they were not entitled to
appointment of counsel, if they could not afford counsel (Tr. p. 116).
After reading the citation, Judge Kaull inquired of Group 10 as to anyone who
did not understand the charges (Tr. p. 116). Judge Kaull then indicated that
five hands were raised as a response to this question. (Tr. p. 117). At this
time, numerous questions were posed to Judge Kaull, but the individuals are not
identified in the record (audiotapes) nor can the content of their questions be
deciphered in all instances (Tr. p. 117-120). Presumably, many of the
defendants raised constitutional arguments wherein Judge Kaull indicated that
the same could be argued at the appropriate time (Tr. p. 117). Wherein an
unidentified male defendant of Group 10 said "I don't understand how we can be
using government forest land without a permit if we have the right of
constitutional use of them." (Tr. p. 117). With another or the same
unidentified male
------------------------------- 3 -------------------------------
saying "_____________ constitutional rights, but I think this Group pretty much
agrees it is infringing on our constitutional rights." Another or the same male
defendant also claimed that he was not part of any "group" during his pretrial
arguments (Tr. p. 117) 1
At the commencement of the trial, the Government called various witnesses from
the Forest Service and other law enforcement agencies. The Government also
introduced various exhibits including Exhibit 3, which was a pamphlet that the
Forest Service started to hand out on June 11 and 12, notifying individuals,
which they termed as a Group, that as long as the numbers were below 75, they
did not need to obtain a special non-commercial group use permit (Tr. p.128).
Exhibit 4 was introduced as a notice that was handed to various individuals on
June 12, 2005, advising "them" that they were over the 75 person threshold (Tr.
p. 128). The Government then "informed the public that there was, the
individuals that were there, that we would give them 24 hours to comply
to either submit a permit application or reduce their number below 75 and
not fall under the guidelines of the non-commercial use permit (Tr. p. 129).
Apparently, the Government used a distance of approximately one and one-half
miles to complete their count of the individuals gathered at the National Forest
(Tr. p. 129).
During cross-examination, Defendant-Appellant Benedict inquired of the
Government as to how it defined Group and was told "anyone that was in that
area, whether you were there, we didn't make the determination whether you were
camping there or visiting, you were part of the group that was there." (Tr. p.
132).
The Government witnesses continued to give testimony about their "head count"
of individuals that were in the National Forest. Officer Danielle Rainville
testified that he counted a group of people numbering 21 in an area designated
as A Camp (Tr. p. 136).
1 These arguments are important given the fact that Group 10 was arraigned and
tried instantaneously and did not have the benefit of counsel to file motions to
dismiss and all other motions to preserve issues for appeal.
------------------------------- 4 -------------------------------
*At this juncture, the audio recording used to preserve the record became even
more difficult to decipher. Therefore, no additional facts can be offered
without the same being deemed as speculation in light of the fact that the
undersigned was not trial counsel and that the Defendant-Appellants were pro se.
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SUMMARY OF THE ARGUMENT
1. Forest Service regulations requiring authorized signatures on permits and
permit applications cannot stand as time, place, and manner restrictions on
expression because the regulation does not serve any legitimate governmental
objective, is not narrowly tailored to achieve a legitimate objective, is
substantially more burdensome than necessary to the Defendants First Amendment
rights and does not leave open ample alternate channels of communication.
2. Proof of prior restraint.
3. The regulation compels the formal association of affiliated individuals
and requires compliance by fraudulent representation in their capacities.
4. The regulations under which the Defendant-Appellants have been convicted
criminalize only conduct by a group and no individual may be convicted under
such regulation.
5. If regulations are applied to these Defendant-Appellants, they are both
impermissibly vague and overbroad in violation of the First and Fifth Amendment
Rights of the Defendant-Appellants.
6. The flawed Trial transcript prejudices the Defendant-Appellants' ability to
perfect this appeal.
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ARGUMENT
1. Forest Service regulations requiring authorized signatures on permits
and permit applications cannot stand as time, place, and manner
restrictions on expression because the regulation does not serve any
legitimate governmental objective, is not narrowly tailored to achieve a
legitimate objective, is substantially more burdensome than necessary to
the Defendants First Amendment rights and does not leave open ample
alternate channels of communication.
The Defendants have used and seek to use National Forest lands for the purposes
of expression and religious exercise, which are presumptively protected by the
First Amendment to the United States Constitution. Cf. Texas v. Johnson, 491
U.S. 397 (1989) (political demonstration in public park); Niemotko v. Maryland
, 340 U.S. 268 (1951) (religious gathering in public park). Furthermore, the
Government must concede that the National Forest lands constitute a traditional
public forum for expression and religious exercise. Cf. Cornelius v. NAACP
Legal Defense and Education Fund, 473 U.S. 7 88, 800 (1985); Perry Education
Association v. Perry Local Educators' Association, 460 U.S. 37, 45-46 (1983 ).
As the Supreme Court observed:
"Wherever the title of street and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of mind, have
been used for the purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and
public places has, from ancient times, been a part of the privileges,
immunities, rights and liberties of citizens." Hague v. C.I.O., 307
U.S. 496, 515 ( 1939) (Roberts, J. joined by Black, J., lead opinion)."
------------------------------- 7 -------------------------------
The Government offered no reason, in its final rulemaking, suggesting that the
National Forests are any less a traditional public forum for expression and
religious exercise than the public park. For these reasons, this Court must
review the portions of the Forest Service administrative regulations challenged
here under the heightened scrutiny required by the First Amendment. City of Los
Angeles v. Preferred Communications, Inc.,476 U.S. 488, 496 (1986) ("[w]here
a law is subjected to a colorable First Amendment challenge, the rule of
rationality which will sustain legislation against other constitutional
challenges typically does not have the same controlling force.")
The challenged regulations are expressly designed to regulate the time, place,
and manner of expression and religious exercise on National Forest lands.
Statutes, ordinances, and administrative regulations, which restrict the time,
place, and manner of expression or religious exercise, are subject to an
intermediate form of judicial scrutiny, which is considerably more searching
then the rational basis scrutiny which the Courts ordinarily apply to
legislation challenged under other constitutional provisions. See, e.g., Turner
Broadcasting Systems, Inc. v. F.C.C., 512 U.S. 622, 640-42, 664 (1994). A
time, place, and manner regulation will be upheld if, but only if, "the
restrictions are content neutral, are narrowly tailored to serve a significant
governmental interest, and leave open ample alternative channels of
communication." United States v. Grace, 461 U.S. 171, 177 (1983); see also
Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 62 2, 642 (199 4); Clark
v. Community for Creative Non-Violence, 468 U.S. 288, 29 3 (1984). As with
all regulation of presumptively protected expression and religious exercise, the
government bears the burden of establishing each of these elements in order to
sustain a time, place, and manner regulation. Turner Broadcasting System, Inc.
v. F.C.C., 512 U.S. 622, 664 (1994) (government must demonstrate that the harms
at which it has aimed its time, place, and
------------------------------- 8 -------------------------------
manner regulations "are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way");
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) (citing
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), as a case
where government properly bore burden of justifying time, place, and manner
regulation); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293
n. 5,( 1984) ("...it is common to place the burden upon the government to
justify impingements on First Amendment interests...").
For the purposes of this litigation, these Defendants assume that there is no
longer any appreciable difference between the intermediate scrutiny which has
traditionally been applied to time, place, and manner regulations and that
articulated in United States v. O'Brien, 391 U.S. 367, 376 (1968), for review
of regulations reaching expressive conduct in a way that incidentally restricts
certain forms of expression. See Ward v. Rock Against Racism, 491 U.S. 781,
796-802 (1989); but see Clark v. Community for Creative Non-Violence, 468 U.S.
288, 293-94, 299 (1984) (distinguishing between time, place, and manner
scrutiny and O'Brien scrutiny). Thus while a "regulation of the time, place,
and manner of protected speech must be narrowly tailored to serve the
government's legitimate, content-neutral interests," no analysis properly
applying intermediate First Amendment scrutiny includes a requirement that the
government adopt that particular time, place, and manner regulation which is the
"least restrictive or least intrusive means of doing so," of all possible
alternatives. Ward at 798. Rather, the requirement of narrow tailoring is
satisfied "so long as the...regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation. To be
sure, this standard does not mean that a time, place, or manner regulation may
burden substantially more speech than is necessary to further the government's
legitimate interests. Government may not regulate expression in such
------------------------------- 9 -------------------------------
a manner that a substantial portion of the burden on speech does not serve to
advance its goals. So long as the means chosen are not substantially broader
than necessary to achieve the government's interest, however, the regulation
will not be invalid simply because the government's interest could be adequately
served by so me less-speech-restrictive alternative. Ward at 799-800 (internal
citations and footnote omitted).
The Supreme Court's formulation that "requirement of narrow tailoring is
satisfied so long as the... regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation," Ward at
799 (internal quotation marks omitted), certainly does not mean that the
government may seriously restrict or burden expression in order to make its
enforcement of other laws easier. That Court long ago rejected, for instance, a
law which prohibited leafleting in order to prevent littering. Schneider v.
State, 308 U.S. 147 (1939). Given the prohibition's substantial impact upon
expression, the First Amendment required that the state be left with the
admittedly more difficult requirement of enforcing the littering laws on an
individualized basis. Id. at 163. Thus while the Government is not required
to adopt the least restrictive time, place, and manner regulation imaginable, it
is not free to adopt an unduly broad or burdensome regulation in the guise of a
time, place, and manner regulation. Even where the Government can establish
that its regulation is actually aimed merely at the time, place, and manner of
expression or religious exercise, its regulation will fail the "narrowly
tailored " requirement if the Government has rejected or overlooked alternatives
which fully serve its significant interests while imposing substantially less
burden upon expression or religious exercise.
The specific outcome in Ward is not the contrary. In that case, the United
States Supreme Court accepted the challenged requirement as narrowly tailored
only because of the trial court's
------------------------------- 10 -------------------------------
finding that the control over music volume by a city designee did not
meaningfully interfere with or burden the challengers' musical expression. Id.
at 801-802. "If the city's regulatory scheme had a substantial deleterious
effect on the ability of bandshell performers to achieve the quality of sound
they desired, respondent's concerns *would have considerable force.*" Id. at
801 (emphasis added).
In this case the Forest Service, through its demand for an authorized signature
on the permit and permit application, effectively excludes the Defendants and
others from gathering for expressive and religious purposes on National Forest
land. The unwavering insistence of the Forest Service, through its regulation,
that an authorized agent or representative of the group sign the application for
a permit and the "special use" authorization (i.e., the permit) is substantially
more burdensome of the Defendants' expressive and religious exercise than
obvious alternatives available to the Government. The regulation excludes those
who wish to attend from using the Forest for their assembly. An assembly of
20,000 or more individuals has few places to gather, if not on Forest Service
land. And while the regulation excludes those who wish to attend, it serves no
governmental purpose and certainly no purpose that cannot be served equally well
by other means.
Under the Forest Services regulation, in order to gather in groups larger than
seventy five, the group (the applicant) must first designate and authorize an
individual to apply for and sign a "special use" permit on behalf of the
applicant. 36 C.F.R. $ 251.54(e)(2)(E) and $ 251.54(h)(viii). The requirement
that the group designates and authorizes an individual to act on its behalf
admits of no exception. A hypothetical illustrates the problem. If an
individual wishes to conduct a large meeting on Forest Service land, and if this
individual posted flyers, sent mailings or created a website encouraging
citizens to attend, he would be unable, under existing
------------------------------- 11 -------------------------------
regulations, to apply for a "group use" permit so that the gathering could
lawfully occur. The individual posting the flyers would certainly be an
organizer of the group use, but he would not be designated [36 C.F.R. $
251.54(h)(viii)] to sign the permit application or the "special use"
authorization (i.e., permit) on behalf of the group. Nor would other
individuals, who volunteer to assist the speaker in dealing with the expected
crowd, be able to comply with the Forest Service permit requirements. Until the
gathering actually occurred there would be no way for the individuals organizing
and assisting in the organization of the assembly to know whom the attendees
would be. The assembly would thus be unlawful the moment the seventy-fifth
person arrived. And it is problematic as in the present case whether the
attendees at this unstructured gathering would be willing to designate another,
whom they may not know or trust, to act on their behalf in securing a "special
use" permit binding them collectively to the, as yet unknown, terms and
conditions of a permit.
The current regulations do not allow a leader, qua leader, or an organizer, qua
organizer, of an assembly to apply for or secure a permit; only an individual
designated by the group for that specific purpose may sign the permit on behalf
of the group. Nor would self-designation by an individual, with a wink and a
nod to the regulations, be advisable since every statement to a federal employee
in an official matter is subject to prosecution, and imprisonment for up to five
years, if untrue. 18 U.S.C. $ 1001. The permit application carries just such
an explicit warning.
The Forest Service non-commercial Group Use regulations effectively restrict
"special use" permits only to certain types of groups - those that have a formal
hierarchical structure capable of binding its members. From a bureaucratic
viewpoint, it may be convenient to deal with such as a "group," but as presently
written, the regulations exclude groups of individuals ...as individuals...
from gathering on Forest Service land unless the assembly first organizes
------------------------------- 12 -------------------------------
itself into a hierarchical structure and authorizes a sole individual to deal
with the Forest Service on the group's collective behalf.
Assumably, the Government argues that the regulation in question is valid
because it is facially neutral and justified without reference to the content of
the speech. The refusal of the Government, through the guise of this permit
scheme, to permit large groups of individuals to gather on Forest Service land,
without first organizing and thereafter delegating authority, is unduly
burdensome. The act of organizing and delegating some measure of individual
autonomy is not a neutral act; it would fundamentally alter the willingness of
many individuals to participate and, by excluding those unwilling to submit to
hierarchical decision making, alter the nature of speech, expression and
association that occurs at the assembly. The First Amendment grants rights of
speech and assembly to individuals. And, it protects the infinite variety of
ways in which humans may choose to gather and express themselves.
The particular mechanism the Government uses to exclude the defendants and other
individuals attending non-structured gatherings in the National Forest is the
demand for a signature on the permit application and the "special use"
authorization (the permit).
The issuance of the permit itself gives the Forest Service the right to insist
on compliance with the permits terms and conditions. As with every permit,
legal effect arises from the power of the agency to require a permit and the
agency's control over the land where the gathering or demonstration is to occur.
Moreover, the use of Forest Service land is regulated by a plethora of laws,
rules and regulations that prohibit what individuals may do on this land.
Quite apart from any permit, conduct deleterious to Forest Service land is
already proscribed and can be readily enforced upon individual violators.
Arguing that a signature is necessary on a permit to occupy a Forest Service
campsite in order to give the permit legal effect is analogous to arguing that a
------------------------------- 13 -------------------------------
federal prisoner must sign the sentencing order in order to occupy his cell.
In both instances the power of the order or permit arises from the inherent
power of the issuing authority.
As to the permit application, the argument that a signature is necessary to
deter false statements is demolished by a collision with the facts. First, the
insistence by the Forest Service of a signature on a permit application is
without authority. The regulations dealing with permit applications contain no
such requirement. 36 C.F.R. $ 25 1.54 (e) has no requirement for a signature
on an application. But, the Forest Service demands a signature without
regulatory authority as a condition to processing the permit application.
Second, false statements are already proscribed by 18 U.S.C. $ 1001. Section
1001 prohibits any false statement, oral or written, to a government agent or
agency in an official matter. The mere utterance of a false exculpatory "no"
may subject an individual to felony prosecution. The permit application itself
contains a prominent warning that it is a crime to make a false statement on the
application. A writing might be helpful to establish and memorialize a false
statement made on a permit application but the written permit application itself
serves that purpose. Third, matters of vital importance to the Government
frequently do not require verification by signature, i.e. FBI "302" statements
and grand jury testimony are not signed. It violates the Government's own
regulations to demand a signature on the permit application. And, it strains
credibility to argue that that an application to occupy a Forest Service
campsite implicates such essential government functions that the system cannot
function without a signature on a permit application or permit.
It may be that the Government is also arguing that a signature on a permit is
necessary to deter false statements on the preceding application. If so, it is
important to note that the regulations do not envisage that the person applying
for a group permit be the same person who
------------------------------- 14 -------------------------------
signs the permit. Compare 36 C.F.R. $251.54(e) and $ 251.54(h)(viii). Such an
argument, if it is being made, is illogical.
As noted above, time, place, and manner review does not require that the
Government adopt the least restrictive possible regulation of expression of
religious exercise, but it does demand that the Government forego regulations
which are substantially more burdensome than available alternatives. Ward,
supra. at 799-800.
The Government's legitimate interests in protecting National Forest lands,
preparing to assist those who will be using the National Forests, preventing
conflicts among uses of the National Forests, and serving as a "reservation
desk" to allocate use of particular National Forest lands on a first-come,
first-served basis can all be fully served by a system which assesses
proposed land uses on a case by case basis but does not require an agent for
the group to sign a special use authorization.
From all that appears in the record, a signature on a permit, as the Forest
Service demands, may be unique. The burden is on the Government to establish
justification for such a requirement. The proffered justification for the
signature requirement, either on the application or permit, fails to measure up.
The challenged regulations are not narrowly tailored to serve a significant
government interest nor, in walling off the entire National Forest system, do
they leave open ample alternative channels of communication.
Thus, it is respectfully requested that this Court find that the regulation(s)
which serve(s) as a basis for Defendant-Appellants' convictions are
unconstitutional.
2. Proof of Prior Restraint
A. Facial Issues Refocused
------------------------------- 15 -------------------------------
"The term prior restraint is used `to describe administrative and judicial
orders forbidding certain communications when issued in advance of the time
that such communications are to occur..." Alexander v. United States, 509 U.S.
544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 44 1 (1993). "Prior restraint on
expression comes to this Court with a `heavy presumption' against its
constitutional validity," Organization for a Better Austin v. Keefe, 402 U.S.
415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971) (quoting Carroll v.
President and Comm'rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351,
21 L.Ed.2d 325 (1968)).
It is well settled that any system requiring a license, permit, or similar
official authorization in advance of expression, religious exercise, or "conduct
commonly associated with expression" carries a serious danger of censorship.
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988).
Whenever a licensing official has the authority to permit or deny expression or
religious exercise in advance on a case-by-case basis, the law recognizes the
danger that that official may base the licensing decision on an official or even
a personal distaste for the message to be conveyed or the religion to be
practiced. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130,
(1992). Furthermore, the law recognizes two additional constitutional
difficulties presented by a system of prior restraint. First, the very
possibility of close, unfettered pre-expression administrative review may chill
the willingness of some potential speakers or worshippers even to apply for
official permission. Lakewood at 757- 58. Second, even if a willing applicant
submits an application and even if the licensing official unconstitutionally
denies that application because of official or personal distaste for the content
of the expression or religious exercise, it will generally be quite difficult to
identify such surreptitious censorship unless a reviewing court can measure the
reasons for the licensor's decision against established criteria for issuance or
denial of the permit in question. Id. at 758.
------------------------------- 16 -------------------------------
For these reasons, whenever a government decides to further its substantial or
compelling concerns by requiring an advance license for expression, religious
worship, or conduct commonly associated with either, the licensing scheme must
contain "narrow, objective, and definite" substantive standards to constrain
licensing discretion. Nationalist Movement at 131; Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 150-52 (1969). The courts cannot simply rely upon
the good faith of the government officials involved to avoid unconstitutional
censorship, Lakewood at 770; the objective standards narrowly constraining the
licensor's authority "must be made explicit by textual incorporation, binding
judicial or administrative construction, or well-established practice." Ibid.
One of the major premises of this Appeal is to show extreme discretions
exercised in the Group Use scheme as applied, and also immanent in the Permit
and requirements as stated - with clear chilling effects on peaceful assembly.
If properly examined under Lakewood, the `nexus to expression' is obvious, the
`threat of censorship ' is painfully real, and the major fallacy of this
regulation is revealed in this test: A `law of general application' cannot
preclude a broad class of speakers from compliance.
The Masel ruling addressed similar facial arguments, and was most cogent on the
standards applied. That Court noted the general rule that facial analysis on
prior restraint can proceed if the regulation is "directed narrowly and
specifically" at expressive conduct, and it knew the limits of the issues before
it:
"... the query under Lakewood is not simply whether the regulation may
occasionally implicate First Amendment activities, it is whether the
regulation targets them." U.S v. Masel, 54 F.Supp.2d 903,920; Opinion
and Order, 6/24/99; pg. 14.
------------------------------- 17 -------------------------------
In this way the Masel ruling opened prior restraint arguments to proof of the
regulation's impact on speech. It continues to outline the applicable test:
"...defendant might have been able to establish that the regulation has a
greater impact on expressive activities by presenting evidence showing
that applicants seeking to engage in protected expression comprise a
substantial portion of the pool of applicants for special use
authorizations. See, e.g., Kentucky Sports Concepts, Inc. v. Chandler,
995 F.Supp. 767, 772 (W.D. Ky. 1998). ...[Upon such a showing there
is] basis to conclude that the... provision presents a substantial
opportunity for censorship on an ongoing basis." (Id., pp. 16-17)
Precisely this proof is in the present case - viewing the Permit and stated
requirements as facial elements, examining the imminent harms and chilling
effects faced by this Appellant, and showing how this regulation systematically
restrains, defrauds, or excludes all speakers of similar standing and creed.
B. Permit, Ultra Vires
The Noncommercial Group Use Permit is first and foremost a legal instrument
requiring an able `group' party as Holder, and an authorized agent to sign. The
Forest Service avers that a signature is required to give the permit legal
effect. This is self-evident as applied to a legally endowed Group, but an
oxymoron otherwise. If these capacities do not exist, the Permit is
tantamount to a fraudulent contract: Enacted ultra vires, it is void and
meaningless with an imaginary Holder lacking the authority of those subjected to
its terms.
This was the significance of events in 1996, when the annual `Rainbow Gathering'
also took place in Mark Twain National Forest. The person who signed a permit
was in Wisconsin, not present at the gathering, and identified as permit Holder
"The Divine Composting and Composing Church of the Sacred Rainbow Imagination".
This permit was later disclaimed by
------------------------------- 18 -------------------------------
council consensus at the gathering, and then nullified by the signer in a formal
`refusal for cause'. The named entity was unheard-of before that time or
outside that document, yet Forest Service officials "were willing to accept it
as representing Rainbow People."
In similar instances around the country, the Forest Service has repeatedly
tried to implement permits on behalf of made-up or ad hoc `groups' - presumably
convoked upon the signature of an alleged `agent', embodied in name only
within the permit and for its purposes, yet binding unknown and involuntary
`members' to its terms.
In fact the resultant compact is anomalous among special use authorizations, or
proper regulatory permits of any kind - at once void in its stated purposes, yet
bearing wide collateral impacts under color of law:
~ Such a permit vests sanctions and obligations in a fictional party that has no
ability to act at law. An aggregate entity must have fixed procedures and
discrete delegations to conduct ongoing business, elements that are lacking in a
gathering. To give permit terms continuing legal force upon and through all
`group members' as intended, officials must repeatedly contact participants as
de facto agents, and confer obligations personally under threat of criminal
penalties - just as if there were no permit at all.
~ An individual signer is made responsible for `group' compliance, but has no
binding authority over others' actions. Stipulating to agent powers he could
not fulfill, he is held personally accountable for conditions and communications
onsite, yet with no ability to be a guarantor of conduct outside his control.
He is subject to repeated `official contacts' preempting his activities during
the event, and these may persist afterwards.
~ The Permit signer also incurs personal liability, despite official disclaimers
of this effect. The `hold harmless' clause indemnifies the government and
nominally shifts liabilities to
------------------------------- 19 -------------------------------
a hypothetical `Group' that cannot assume them. Yet as the principal agent of
record, in fact this person is the only legal party engaged, and is then subject
to peer claims for damages or misrepresentation, as well as the government's: If
costs are assessed on the `group', the same individual would be sent the bill
and held liable for payment as its named agent -- or for a felony if he disavows
such a role after signing (18 USC 1001). This is liability in fact, regardless
of any policy palaver.
~ As authorities devolve in the Permit transaction - if in fact there are no
delegative powers among attendees, USFS personnel embody the ONLY vested
official capacities in this exchange - so the alleged ' group leader' can only
derive authorization from them. Thus in signing he acts as their agent
exclusively, and the Permit is literally enacted and imposed singularly by the
Government rather than mutually entered.
As shown in the instant case, it is only by sheer conjecture that the Forest
Service identifies a `Group' to act as party to a permit, or any person as its
agent. The permit stands on no footing where the elements of mutual obligation
are lacking, and has no real effect or actionable recourse. Yet the District
ruling still infers group legal capacities from the personal cooperations that
enable a gathering, and affords the government broad discretion to do the same
with no burden of proof:
"Therefore the Court does not find that the government must show that the
defendant was authorized or had authority to sign the permit for the
group." (District Opinion, pg. 12)
Here the District Court's theory devolves into pure solipsism, fixed on the
dogma of government authority and dispossessed of real grounds. To arrive at
such a finding does not follow from facts in the case or tenets of due process
law: No legal permit conjures a subject party without proof,
------------------------------- 20 -------------------------------
engages unknown `members' in vicarious liability without notice or consent, or
takes unilateral force without mutual authorities.
Most importantly, the Permit has profound intrinsic impacts on consensual
speech, vitiating Individual Standing en masse. Alleged `members' can incur
displaced liabilities, and all are bound to the signer for legal sanction in
this exercise. In turn that person suffers chilling duress and is put in an
untenable `treaty chief' posture. The culture and creed of the gathering, its
basis in self-responsibility and collaboration, are fundamentally altered.
Ultimately participants confront an impossible choice: Either their personal
rights of assembly & expression are made revocable privileges, held by a
fictional entity that cannot defend them ... or they can be prosecuted as
criminals.
C. Targeted Expression
Addressing the test under Lakewood, a facial challenge of the permit requirement
is a hard sell because it does not appear to be narrowly directed at expressive
conduct. The Group Use rule was made to look that way: Prior permit schemes
were twice found unconstitutional in the 1980's, so the Forest Service crafted
this rule on the model of a routine land use regulation, generally applicable
to "all groups" and not singling out First Amendment activities.2
In the instant case, Defendant-Appellants argue the discriminatory and censorial
effect of the Permit on their expressive purposes and views - quite relevant in
light of Hurley. Moreover where the creed of consensual gathering is shown to
align with their personal standing at law, this argument is compelling. The
record is clear that there was no `Group' embodied to apply, and nor could they
legally "sign a special use authorization on behalf of the applicant", as
required. 36 C.F.R. $251.54(h) (1)(viii). Confronting this provision on its
face, Defendant
2 U.S. v. Israel, No. Cr.-86-027-TUC-RMB, Dist. Ariz. May 1000, 1986; U.S.
v. Rainbow Family, 695 F.Supp 294, 303 E.D. Tex. 1988
------------------------------- 21 -------------------------------
Appellants were excluded from any possibility of legal compliance, and thereby
it is shown how all similarly situated individuals are targeted in effect,
regardless of their beliefs. Whether by obtuse oversight or capricious intent,
this regulation bears an intrinsic jurisdictional flaw with respect to assembled
users who are `Not Groups' - inevitably resulting in fraud or prosecution.
In rationalizing the Group Use regulation, the Forest Service touts certain
stated public interests and maintains that it is a `reasonable time, place, and
manner restriction', only subject to challenge as-applied. Arguably this claim
is purely pretextual if those interests are not rationally served, and
constitutional review must go further if widespread and continuing conflicts are
roused in the face of this stricture.
Ultimately the analysis must reach the three prongs of the constitutional test:
(1) The signature requirement might be reasonable as applied to an embodied
organization able to apply for a Special Use Permit as a 'group' and legally act
as Holder. However it precludes good-faith compliance by those who gather
consensually, without delegated authorities In Fact and By Creed. Where no
alternative means of compliance is allowed it discriminates against this
exercise and is not `content-neutral`.
(2) The permit rule should achieve specified regulatory purposes, working
narrowly to the public interests in resource protection, public health & safety,
and fair allocation of uses on NFS lands. However it has persistent collateral
effects outside those purposes, and arguably contrary to those interests: Where
this restriction results in systematic harassment and prosecution against
heretofore lawful expressive activities, and actually disables cooperation on
legitimate public concerns, it is not `narrowly-tailored`.
(3) There are no alternative channels of communication "...on private property
or on property not owned by the Forest Service". A private sponsored event can
exclude the public at
------------------------------- 22 -------------------------------
will and is subject to actual authority of the owner or principal; this is
antithetical to the consensual creed. The National Forests are the only public
lands suitable for gatherings over 75, and common ground for all citizens.
Moreover the Forest Service is a trustee for broad public interests and rights,
and has no proprietary authority to exclude expressive activities in a
traditional public forum.
Expressive assembly in its essential form is targeted by exclusion, triggering
invasive law enforcement and violations of Fifth Amendment rights under color of
law. These impacts are systematic, causing repeated burdens and litigation, and
bearing upon the broadest class of speakers - i.e., all unaffiliated citizens
who may choose to assemble on their own accord and belief, in the personal
protections of the First Amendment. Thus the Noncommercial Group Use Permit is
an unconstitutional prior restraint upon peaceful consensual assembly, and the
unique forums of faith and expression that this enables in the National Forests
- warranting the highest judicial scrutiny.
3. The regulation compels the formal association of affiliated
individuals and requires compliance by fraudulent representation in
their capacities.
As the Appellants argue, it is significant that their beliefs in individual
autonomy and consensus were affronted, and Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, 515 U.S. 557, offers an apt perspective
if terms are clarified. The broad analogy is straightforward: If those who
enact a parade may not be forced to associate with marchers who hold unwanted
views, then those who participate in a gathering should not be forced to
associate with other attendees unknown in name or conviction. However to
explain how the Appellants protected under this principle, it must be
re-examined at the nexus of avowed personal belief and actual legal standing.
------------------------------- 23 -------------------------------
Hurley further instructs that speakers have a First Amendment right to assemble
in distinctive public forums of choice and creed. In this context, people join
gatherings entirely by personal choice, as citizens and peers, and this
reflects in the `Rainbow' belief that defines this unique forum and enables its
diverse expressive forms, i.e., the creed of Gathering in Consensus. Their
`soapbox' is about the act of assembling peaceably - in prayer, speech,
petition, culture, cooperation, responsibility and respect - and showing that
this can be done. In principle, this expression is protected under any device
of regulation, but a special problem is posed where its content is at odds with
the permit requirement: Gatherers' shared belief in `No leaders' may be sincere
and profound, but does not suffice in itself as proof that the permit should not
apply. And it is misleading to suggest that their non-association is evident
"as a result" of an agreed ideology about "voluntary support among peers".
On the contrary, their lack of association is the apriori fact that gives rise
to the consensual "nature" of communications. The disclaimer of `leaders'
simply stands on the fact that there are none - since by definition there is no
delegative power among anonymous gatherers, no agent authorized by the whole.
No one could be legally bound by any statement or compact among unknown parties.
Thus, Defendant-Appellants could not be compelled to affirm that association or
act in that capacity - neither against his creed, nor in legal fact if due
process is preserved.
So the analysis must reach the facts: Confronted with the demand to endorse such
statements, or be prosecuted for not having the group use permit, Appellants
knew there is no 'Group', they are not a member, have no legal affiliation with
other participants, nor any authority on their behalf. Here, the belief in
cooperation without hierarchy is secondary and does not evade the law, but most
significantly it is accurate.
------------------------------- 24 -------------------------------
By signing such a permit, Appellants would waive their own and others'
individual standing in First Amendment exercise. And by acting ex parte and
without authority, they would be committing a constructive Fraud - at once
entering an improper complicity with a government agency to the detriment of
others, and violating the law. Nowhere else in the law is an individual coerced
into a fictional legal association, tort liability, and felony fraud as
preconditions of Government-authorized expression.
4. The regulations under which the defendant-appellants have been
convicted criminalize only conduct by a group and no individual may be
convicted under them and thus the court erred in ruling that the
regulations apply to individuals
The issue is whether a "group's" failure to obtain the necessary permit
subjects every person in attendance at that group's activity criminally
liable. See Kalb, 234 F.3d 8 27, 833 (3d Cir. 2000) and United States v.
Johnson, 159 F 3d. 892 (4th Cir. 1998).
In Johnson, the defendants argued that the government had to prove that the
defendants acted knowingly, in that they knew that 75 or more persons were
present in the forest at the time the citations were issued. The Court noted
that the regulations and the legislative history were silent as to the mens rea
requirement. Id. at 895. The Court did not resolve the issue, for it
determined that the evidence established that the defendants knowingly violated
the regulations. In Kalb, the defendants raised a different issue: whether the
regulations criminalized only group conduct, and had no actus reus element that
could be applied to individuals. Kalb 234 F.3d at 830-31. The Court held that
the statute applies to individuals, and liability attaches upon proof of 1) use
2) of National Forest land, 3) by a noncommercial group of 75 or more persons,
either as participants or spectators, 4) without special use authorization. 234
F.3d at 831, citing Johnson. The Court found that these requirements were
satisfied. Respectfully, the Kalb Court erred.
------------------------------- 25 -------------------------------
In the present case, a review of the transcript, or those parts that can be
delineated and deciphered, indicates that the individual Defendant-Appellants in
the case at bar were not similar to the defendant in Johnson. In the present
case, there is no evidence that Healy, Benedict, Gardner or Nichols were
forewarned regarding the regulation. Thus, it can not be said that they
knowingly violated the regulation. Again, this case is distinguishable from
that of Johnson given the fact that the defendant in Johnson admitted to
being forewarned about the regulation and simply refused to sign a permit.
A permit is required for "non -commercial group use" which is defined as an
"activity conducted on National Forest Service land that involves a group of 75
more people, either as participants or spectators." An application for a
special use authorization for a group use requires, in part, the name of an
adult to receive notices on behalf of the group, and the name of an adult "who
will sign a special use authorization on behalf of the applicant." 36 CFR
$251.54 (e)(2)(E). "Use or occupancy" of National Forest System land without
special-use authorization when such authorization is required is prohibited, and
subject to a fine and imprisonment.
The provisions at issue govern, and apply to, group use. The government will
not let an individual apply for a permit for a gathering. The group must apply,
through a contact person. The group must identify in the application a person
who will sign the special use permit on behalf of the group. The person who
signs the application as an agent for the group does not become a "holder,"
defined as the applicant which receives the authorization. Black v. Arthur,
201 F.3d at 1123-24 and n. 4. The person who signs the permit does not
become individually liable as a result of the signature. Arthur, 201 F.3d at
1123. If a permit is issued and the group fails to comply, the permit may be
revoked or suspended. Id. If a noncommercial group of 75 or
------------------------------- 26 -------------------------------
more conduct an event on national forest land without applying for and receiving
the special use permit, the group should be criminally liable.
The Rainbow Family, for example, has been deemed an unincorporated association
and may be sued. See, United States v. Rainbow Family. 695 F.Supp. 294
(D.Tex. 1988). The individual should not be subject to criminal liability. An
individual should not be punished because he or she was present during the time
the group's use was not permitted. To do so is to punish one for association,
which is prohibited. "The First Amendment similarly restricts the ability of
the State to impose liability on an individual solely because of his association
with another." NAACP v. Clairborne Hardware Co., 458 U.S. 886, at 918-19.
Unless this Honorable Court intervenes and properly interprets these statutes,
four individuals who essentially did noting but go to a national forest in the
Summer of 2005 will have a conviction for a federal misdemeanor offense. They
would certainly merit such a conviction if their conduct had violated a federal
criminal statute or regulation. It did not. The particular regulation which
has been applied to them as individuals does not apply to anyone as an
individual; rather, it applies simply to punish a group which fails to obtain a
proper permit.
Simply put, an analysis of the applicable regulations will show that the "crime"
here is the mere use of the forest, not "use" in a particular manner which is
prescribed, such as by doing damage to it, failing to restore it, or exploiting
it in some other specifically described adverse way. The issue is by whom the
"use" is prohibited and the answer to that question is "a group".
A review of the applicable regulations will demonstrate this point. Each
appellant was convicted under 36 CFR, Section 261.10(k). It is one subsection
of an overall section prohibiting certain activity.
"The following are prohibited: ... (k) Use or occupancy of National
Forest System land
------------------------------- 27 -------------------------------
or facilities without special use authorization when such authorization
is required".
The citations issued to each appellant specified that the special use
authorization was required under Title 36, CFR, Section 251.50 (c)(3). In
general, Section 251.50 states (in subsection (a)) that all uses of NFS land are
designated "special uses" except for those involving the disposal of timber and
materials, and the grazing of livestock. Section 251.50(a) then states that
before engaging in a "special use" either "persons or entities" must submit an
application to obtain a special use authorization unless that requirement is
waived under Section 251.50(c).
Section 25 1.50(c) states that a special use authorization is not required for
non commercial recreation and expression of views except under three
circumstances: first, where an area of NFS land has been closed or restricted by
an authorized official under Section 261.50. This section is not applicable to
the present case. Second, authorization for non-commercial use is required
under circumstances set forth in Section 261.70 that allows for the Forest
Service to enact special regulations for fire control, disease prevention,
protection of roads and trials and other public safety type circumstances. This
section is not applicable here.
Finally, Section 251.50(c)(3) states that a permit is required for
"noncommercial group uses". Such a "group use" is defined as "an activity
conducted on National Forest Service Lands that involves a group of 75 or more
people, either as participants or spectators".
Under Section 251.50(c )(3), it is clear that the entity required to get the
permit and, consequently, the entity to be punished for failing to get it, is
the group. Section 25 1.51 defines an "applicant" as "any individual,
partnership, corporation, association, or other business entity". Under this
entire statutory scheme, there are various types of special use authorizations
(permits), some of which can be applied for by individuals, and some which can
only obtained by groups. Where an individual is the applicant, the individual
becomes the "holder" and the
------------------------------- 28 -------------------------------
individual becomes liable to the United States for all things that a "holder" is
otherwise liable for under these regulations. Under Section 251.53(c), however,
the only entity which can apply for a permit to satisfy that provision is a
group.
The requirements for a special use application are set forth in Section 251.54.
Where, as here, a group is required to be the applicant, the application merely
requires the name of some person to receive notices on behalf of the group and
"the name of the person or persons 21 years of age or older who will sign a
special use authorization on *behalf of the applicant*".251.54(d)(2)(E)
(emphasis added). The Forest Service is to grant such an application where the
conditions of Section 25 1.54(g)(1) have been met, the one of these most
relevant to this inquiry is Section 251.54(g )(3)(ii)(h) which requires that "a
person or persons 21 years of age or older *have been designated* to sign and do
sign a special use authorization on behalf of the applicant". (Emphasis added).
The two sections quoted above demonstrate the clear intent of these regulations
to impose liability on a group. The group must apply for the permit; to do
that, the group must designate someone to sign on its behalf; if the group
fails to designate, the group cannot apply for the permit and its "use or
occupancy" of NFS is illegal. Just as no individual can acquire personal
liability if they sign the permit, Black vs. Arthur, 201 F 3d. 1120, 1123-1124
(9th Cir, 2000), no individual can be liable under the statute if they do not.
The statute here does not make it an offense for a person to fail to sign an
application. Indeed, under Section 251.54(g)(3)( ii)(H), the only people who
can sign for this application are those "designated" by the group. Unless an
individual has been designated by the group, they are not allowed to sign the
application. If the group fails to designate someone, the fault and
criminality lies with the group not the individuals who have no power in the
circumstance to
------------------------------- 29 -------------------------------
designate themselves to that end. Where an individual is incapable of doing an
act, they cannot be found guilty of violating a statute that requires the act.
See United States vs. Dakota 96 F. 3d. 121 (10th C ir. 1992) (failure to
register a firearm where registration was impossible cannot be a crime); United
States vs. Spingola 464 F. 2d. 909 (7th Cir. 1992) (where a person is
incapable of causing the filing of a government form, they cannot be held
criminally liable for failing to file it).
The failure to apply, and the failure to become a holder of a valid permit is a
crime committed by the group, not by these individual defendants or anyone
else. While it may have been the presence of a collection of more then
seventy-five people which required the group to get a permit, there is no
action by the individual which is proscribed by this statute.
Every criminal statute requires the occurrence of both an actus reus element as
well as a mens rus state of mind with respect to which that act is done. The
actus reus requirement is that which requires the law to specify conduct
punishable by the Government. See United States vs. Alkhabaz 104 F. 3d.
1492, 1494-1495 (6th Cir. 1997), quoting United States vs. Apfelbaum 445 U.S.
115, 130 note 13 (1980). The actus rus requirement "must have its origin in
some willed activity or omission on the part of the defendant". United States
vs. Mozh 676 F. 2d. 919, 920 (2nd Cir. 1982).
This statute has no actus reus element that can be committed by an individual.
If Congress wanted the statute to read that it was a violation for a person to
"organize or assist in organizing" a gathering of seventy-five or more people
without a special used permit, the statute could have easily said so. More
broadly, the statute could seek to make it a crime "to participate in or
observe an assembly of 75 or more persons on NFS land where the group has failed
to obtain a special use authorization". The statute, of course, says nothing of
the kind. What the
------------------------------- 30 -------------------------------
statute prohibits is the "use or occupancy" where a permit is required and none
has been obtained. The use or occupancy is by a group, not an individual, and a
group is the sole entity which is liable.
Were the United States position correct, profound Constitutional problems would
be present. The First Amendment implications for individuals and the media
would be most serious. See Chicago vs. Morales, 119 S. Ct. 1849 (1999). By
adopting the interpretation of this regulation asserted by the Appellants,
however, these serious matters of constitutional application will be avoided by
the proper principles of statutory construction; this is the preferred method of
legal analysis in such a circumstance. See Jones vs. United States, supra
Public Citizen vs. United States Department of Justice 491 US 440, 465-466
(1989).
Finally, if there is ambiguity as to whom the statute applies, the rule of
lenity requires a strict construction favoring the Appellants. United States
vs. Wiltberg 18 U.S. 76 1820 Jones vs. The United States, supra at 1912;
Castilio vs. The United States -US-, 120 S. Ct. 2090, 2096 (2000). Simply,
this statute can not apply to the actions of individuals, and the citations
should have been dismissed by the District Court. Thus, the convictions now
should be reversed.
5. If These Regulations Are Applied To Individuals, They Are Both
Impermissibly Vague And Overbroad In Violation Of The First And Fifth
Amendment Rights Of The Defendant-Appellants
In City of Chicago vs. Morales, 119 S. Ct. 1849 (1999), the Supreme Court
considered a regulation which made it a criminal offense for a person to loiter
with a known street gang member and to fail to obey an order by a police officer
to disperse upon that observation. The Court struck the regulation down as a
violation of the right of free association an impermissibly vague statute. Id
at 185 7. The Court held that "it is imperative that an individual's decision to
------------------------------- 31 -------------------------------
remain in the public place of his choice is as much a part of his liberty as
freedom of movement inside frontiers". Id at 1858.
Here, as in Morales, the Court is faced with a criminal statute that contains no
mens rea requirement and is one which, if applied to conduct by individuals, is
as vague as was the statute in Morales. It fundamentally infringes on
Constitutional protections in a manner which can not be tolerated.
As in Morales, this statute sweeps in both a vague and overbroad manner,
prohibiting a wide range of innocent conduct indistinguishable from anything
even arguable criminal. Moreover, it invites discriminatory enforcement. As
the Morales Court noted, friends, relatives, or total strangers might
unwittingly engage in forbidden activities simply by conversing with a gang
member, Id at 1862, or, as here, by simply going to the National Forest as a
news reporter, or spectator, which was precisely what Defendant-Appellants were,
one would face criminal penalty.
Here, the Government has blanketly asserted that all people in the forest broke
the law, including those who showed up for but a few minutes to observe the
festivities or to gather news about the event to report in the print or
electronic media. If the Government is right, the statute criminalizes mere
presence by persons otherwise doing nothing even arguably illegal.
If the Court chooses to read these regulations as actually attempting to apply
to individuals, the issue of their unconstitutionality must be squarely faced
and the statutes truck down.
6. The flawed Trial transcript prejudices the Defendant- Appellants'
ability to perfect this appeal.
------------------------------- 32 -------------------------------
The Court Reporter Act requires that a reporter shall "record [ ] verbatim by
shorthand, mechanical means, electronic sound recording, or any other method
*** (1) all proceedings in criminal cases had in open court****" 28 U.S.C. $
753(b). However, a defendant is not automatically entitled to a new trial
every time there is an omission from the transcript. United States v. Selva,
559 F.2d 1303 (5th Cir.1977). Yet, A criminal defendant has a right to a
meaningful appeal based on a complete transcript. See Hardy v. United States,
375 U.S. 277, 279, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). When a transcript is
less than complete, the court must determine whether the alleged omissions or
deficiencies justify a new trial. In United States v. Gillis, the Fourth
Circuit held that whether an omission from a transcript warrants a new trial
depends on whether the appellant has demonstrated that the omission
"specifically prejudices his appeal****" 773 F.2d 549, 554 (4th Cir.1985) cited
in United States v. Huggins, 191 F.3d 532 (4 th Cir. 1999) Prejudice is found
when a trial transcript is so deficient that it is "impossible for the appellate
court to determine if the district court has committed reversible error."
Huggins at 537, citing United States v. Nolan, 910 F.2d 1553, 1560 (7th
Cir.1990).
In the case at bar, not only is the undersigned prejudiced in adequately
appealing trial errors on behalf of his client given the "condition of the
transcript/ audio recording, the undersigned can't even decipher what arguments
were made by Defendant-Appellants, and more specifically, who would have made
such arguments. The audio recordings are of such poor quality that it is
literally impossible to review the evidence put forth by the Government against
the undersigned's respective clients.
Errors such as sufficiency of the evidence and the like can not be further
perfected given the lack of record. Large gaps exist were no witness,
Defendant, Judge or attorney can be heard. Furthermore, when voices are
heard, it is impossible to decipher the name of the person
------------------------------- 33 -------------------------------
speaking. Simply put, the record in the case at bar as it relates to Trial
Group 10 leaves counsel to only speculate as to what the record indicates.
Thus, given the above referenced standard, the Defendant-Appellants should have
their convictions set aside, or in the alternative, they should be granted a new
trial.
------------------------------- 34 -------------------------------
CONCLUSION
For all of the foregoing reasons, this Court is requested to reverse the
decision of the District Court, vacate the defendants' conviction and sentence,
and dismiss with prejudice the citations filed against these defendants.
Respectfully Submitted,
Amanda J. Nichols, Defendant/Appellant
By: /s/ Patrick S. Cassidy
Of Counsel Patrick S. Cassidy (W.Va. Bar No. 671)
Email: pcass...@cmcvlaw.com
Timothy F. Cogan (W.Va. Bar No. 764)
Email: t...@cmcvlaw.com CASSIDY, MYERS, COGAN & VOEGELIN, L.C.
The First State Capitol
1413 Eoff Street
Wheeling, WV 26003-3582
Phone: (304) 232-8100 Fax: (304) 232-8352
------------------------------- 35 -------------------------------
CERTIFICATE OF SERVICE
I hereby certify that on March 29, 2006, I electronically filed the foregoing
BRIEF OF APPELLANT with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to the following CM/ECF participant:
STEPHEN D WARNER ESQ
ASSISTANT US ATTORNEY
300 3RD ST STE 327
ELKINS WV 26241
Steve.war...@usdoj.gov
By: /s/ Patrick S. Cassidy
Of Counsel
------------------------------- 36 -------------------------------
