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UNITED STATES v. PARISI

April 20, 1981

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CHARLES PARISI, DEFENDANT.



The opinion of the court was delivered by: Roszkowski, District Judge.

MEMORANDUM OPINION AND ORDER

Before the court are the motions of defendant, Charles Parisi, to dismiss the charges against him; to suppress evidence; for discovery; for notice of the government's intention regarding the use of evidence at trial; and for a ruling on the trial held April 6, 1981.

On January 5, 1981, in response to a call received from a post office official at the United States Postal Service facility located at 211 South Clark Street, Chicago, eight officers of the Federal Protective Service ("FPS"), including officer, Raymond Pawlowski, arrested defendant, Parisi, at approximately 4:00 p.m. and charged him with violations of 41 C.F.R. §§ 101-20.304 and 101-20.305.

Defendant, and somewhere between ten to sixteen individuals, were allegedly protesting, handing out literature, picketing, singing songs, and giving out legal advice inside the Post Office.

The FPS officers asked defendant, and the others, to stop singing and to leave the premises. The group refused.

Thereafter, the FPS officers issued citations to the group and requested identification. Upon his refusal to produce identification, the officers arrested, searched, and then locked up defendant, Parisi. After being locked up, defendant then produced identification and received a mandatory citation charging him with the above violations.

On March 16, 1981, defendant pled not guilty to the charges against him and challenged the constitutionality of the regulations.

The motions now before the court followed.

We consider first defendant's motion to dismiss.

Count I of the citation issued against defendant charges him with violations of 41 C.F.R. § 101-20.304 ("304"). That regulation provides,

  Persons in and on property shall at all times
  comply with official signs of a prohibitory,
  regulatory, or directory nature and with the
  direction of Federal protection officers and
  other authorized individuals.

Defendant contends that this regulation is unconstitutional on its face in that it "does not adequately notify a person of ordinary intelligence as to what specific conduct is proscribed;" and, therefore, the regulation is vague and overbroad. Defendant also challenges the regulation on the grounds that it gives the Federal Protective Service and "other authorized individuals" unfettered discretion to exercise police powers because no standards are provided to govern the exercise of discretion.

The government disagrees.

Count II charges defendant with violations of 41 C.F.R. § 101-20.305 ("305"). That regulation provides,

  Any unwarranted loitering, disorderly conduct, or
  other conduct on property which creates loud or
  unusual noise or a nuisance which unreasonably
  obstructs the usual use of entrances, foyers,
  lobbies, corridors, offices, elevators,
  stairways, or parking lots, which otherwise
  impedes or disrupts the performance of official
  duties by Government employees, or which prevents
  the general public from obtaining the
  administrative services provided on the property
  in a timely manner, is prohibited.

Defendant challenges this regulation on the grounds that it is unconstitutionally vague and overbroad on its face because it does not give a reasonable person notice of what conduct is proscribed and gives unfettered discretion to the authorities enforcing this regulation to curb lawful, First Amendment, activities.

The government disagrees.

MOTION TO SUPPRESS

We consider first defendant's motion to suppress all oral statements obtained by the government subsequent to charging him with violations of §§ 304 and 305, and during the officers interrogation of defendant at the Marshal's lock-up, on the grounds that the officers did not advise defendant of his Fifth Amendment Miranda rights.

The government has stated that it has no intention of using such statements in its case in chief, but it does seek to reserve the right to use any such statements in rebuttal pursuant to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In Harris, the Supreme Court held that,

  Miranda barred the prosecution from making its case
  with statements of an accused made while in custody
  prior to having or effectively waiving counsel. It
  does not follow from Miranda that evidence
  inadmissible against an accused in the
  prosecution's case in chief is barred for all
  purposes, provided of course that

  the trustworthiness of the evidence satisfies
  legal standards.

Harris, 401 U.S. at 224, 91 S.Ct. at 645; See also, Walder v. U.S., 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954).

More recently, the Supreme Court reaffirmed the Harris holding stating:

  Similarly, in Harris v. New York [citation omitted]
  and Oregon v. Hass, 420 U.S. 714 [95 S.Ct. 1215, 43
  L.Ed.2d 570] (1975), statements taken in violation
  of Miranda, and unusable by the prosecution
  as part of its own case, were held admissable to
  impeach statements made by the defendant in the
  course of his direct testimony. Harris also made
  clear that the permitted impeachment by ...

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