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
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
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
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,
The government disagrees.
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
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 ...