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Full-text: May 14 2003
Protest zones: “No War for Oil” (October 24 2002)

United States District Court for the District of South Carolina Columbia Division

Filed, MAY 14 2003, Larry W. Propes, Clerk, Columbia S.C.


Criminal No. 3:03-0309

18 U.S.C. § 1752(a)(1)(ii)

United States of America)
Brett A. Bursey)

Defendant’s Motion for a Jury Trial

The Defendant, Brett A. Bursey, through undersigned counsel, respectfully requests that this Court permit the Defendant’s case to be tried before a jury in accordance with the fundamental right to a jury trial enshrined in the Sixth Amendment and with the due process guarantee of the Fifth Amendment to the United States Constitution.

Relevant Facts.

Mr. Bursey was arrested on October 24, 2002 near the intersection of Airport Boulevard and Lexington Avenue, in West Columbia, South Carolina. This area is located near to Columbia Airport. Defendant was holding a sign protesting the President’s policies which stated “No more war for oil.” Defendant was arrested for failing to put down his sign or to move to another area when requested to do so by law enforcement personnel. Defendant was initially charged with trespassing under state law, but those charges were dismissed. Defendant is now charged in this court with violating Title 18, United States Code, § 1752(a)(1)(ii) which provides:

“(a)  [i]t shall be unlawful for any person or group of persons–

(1)  willfully and knowingly to enter or remain in ...

(ii)  any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting, {p.2}

in violation of the regulations governing ingress or egress thereto: ...”

The maximum punishment for this offense is a fine or imprisonment not exceeding six months, or both, § 1752(b). Because this is deemed a petty offense, under current law, Mr. Bursey is not entiled to a jury trial. Lewis v. United States, 518 U.S. 322, 326 (1996). As will he set forth below, recent Supreme Court decisions emphasizing the importance of the Sixth Amendment jury trial right indicate that a jury — not a judge — should decide whether Mr. Bursey is guilty or not guilty of the charged offense.


A.  Overview of Current Law

The jury is fundamental to our criminal justice system. ¶

“[T]he primary purpose of the jury in our legal system is to stand between the accused and the powers of the State. Among the most ominous of those is the power to imprison.” ¶

Lewis, 518 U.S. at 335 (Kennedy, J. concurring). The right to jury trial is granted to criminal defendants in order to prevent oppression by the Government and safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

If one were only to review the plain language of the Sixth Amendment, it would seem readily apparent that Defendant was entitled to a jury trial. The Sixth Amendment reads ¶

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...” ¶

Despite the constitutional provision’s clear language — “in all criminal prosecutions” — the Supreme Court held in Duncan, 391 U.S. at 159 that ¶

“[i]t is doubtless true that there is a category of petty crimes or offenses which is not {p.3} subject to the Sixth Amendment jury trial provision ... [c]rimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offences.” 1 

To determine whether an offense is petty, the maximum penalty attached to the offense is the most relevant criterion. Lewis, 518 U.S. at 326. Lewis presumed that an offense carrying a maximum prison term of six months or less was petty unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious.

Defendant is charged with a violation of Title 18, United States Code, § 1752(a)(1)(ii) which is punishable by imprisonment not exceeding six months or a fine not exceeding $5,000, or both. Defendant contends that recent Supreme Court decisions have undermined the reasoning of Duncan and Lewis and significantly strengthened the right to jury trial, so that either: (i) the right to a jury trial now applies to all crimes, including petty ones; or, (ii) the already “ambulatory” definition of petty has narrowed and no longer includes the current charge. ¶

Further and alternatively, because § 1752 concerns the protection of the President, any violation is a serious matter because of its general public interest and because of the possibility of government abuse, and in any case, the legislature has indicated that it is a serious offense by authorizing the Court to impose not only a six month prison sentence but also a substantial fine on top.

B.  The Role of the Jury has been Expanded
and its Importance Enhanced.

Apprendi v. New Jersey, 530 U.S. 466 (2000) concerned a defendant convicted by a jury of a second degree offense. In determining sentence, the judge found, by a preponderance of the evidence, the aggravating circumstance that the crime was motivated by racial animus. This “hate crime enhancement” doubled the maximum authorized penalty, allowing the judge to impose a {p.4} punishment identical to what the New Jersey criminal code provides for a crime of the first degree, even though it was only a second degree offense. The Supreme Court held that the Fourteenth Amendment right to due process (also embodied in the Fifth Amendment) and the Sixth Amendment right to trial by jury, taken together, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime, beyond a reasonable doubt. 2  The Court held that a judge is not entitled to enhance the punishment because the Sixth Amendment does not permit a defendant to be exposed to a penalty exceeding the maximum he would received if punished according to the facts reflected in the jury verdict alone. Apprendi, 530 U.S. at 483. Apprendi, therefore, reinforces and strengthens the jury’s role as the ultimate fact finder; a role that should not lightly be usurped by a judge.

Apprendi’s reach has lengthened. Just last term, in Ring v. Arizona, 536 U.S. 584 (2002), the Court held that Arizona’s capital sentencing scheme was unconstitutional. 3  Arizona was a judge sentencing state, but the Court held that Arizona’s enumerated aggravating factors, despite being categorized as sentencing factors, operated as the functional equivalent of an element of a greater offense. The Sixth Amendment, therefore, required that their existence be found by a jury unanimously and beyond a reasonable doubt. Ring, 536 U.S. at 609, 612. Therefore, even at the sentencing phase of a capital trial, the jury is the ultimate arbiter of any facts which operate as an element of an offense. {p.5}

C.  Sixth Amendment Guarantees
Apply to Petty Crimes.

The right to a jury trial in this case is also supported by last term’s decision in Alabama v. Shelton, 535 U.S. 654 (2002). In Shelton, the Court held that the Sixth Amendment right to the assistance of counsel required the prevision of counsel in any petty offense, misdemeanor, or felony prosecution “‘that actually leads to imprisonment.’” Shelton, 535 U.S. at 661. 4  Shelton went further to find that a suspended sentence, although not resulting in immediate imprisonment, might end up in the actual deprivation of a person’s liberty. Therefore, a suspended sentence could not he imposed unless the defendant was accorded the assistance of counsel. ¶

The right to a jury trial is at least equally, if not, more established and more fundamental to basic fairness in the criminal justice system and to safeguarding against governmental abuse of power than the right to counsel. Therefore, the right to a jury trial should also apply to petty offenses, just as the right to counsel now does if any sentence of imprisonment, actual or suspended, will he imposed. Both are guaranteed by the plain language of the Sixth Amendment and so should apply in the same circumstances. ¶

However, if the United States Attorney was to forego seeking a sentence of imprisonment, actual or suspended, and this Court was to make a pre-trial ruling that no such sentence would be imposed, then the Defendant could be tried in the absence of a jury without raising any constitutional Sixth Amendment questions.

Since Duncan and Lewis, Sixth Amendment jurisprudence shows that the importance of the jury trial right has increased and its role expanded. Therefore, it is all the more important that the Defendant be tried by a jury in light of Apprendi and Ring. Indeed, the Defendant contends that the {p.6} role of the jury has expanded beyond adjudication of just “serious crimes” but now also extends to petty offenses, where any term of imprisonment, even a suspended sentence, is imposed.

D.  The Definition of “Petty” Is Not Fixed.

In any case, the definition of “petty” is not fixed. Duncan states that “of course the boundaries of the petty offense category have always been ill-defined, if not ambulatory.” 391 U.S. at 160. This is illustrated by the fact that the Duncan court declined to “settle ... the exact location of the line between petty offenses and serious crimes” merely holding that an offense punishable by 2 years imprisonment was a serious offense. Even in Lewis, 518 U.S. at 326-7, the Court was unable set out a fixed, definitive rule for categorizing “petty.” The Lewis Court held that the maximum authorized penalty was merely the “best indicator,” the “primary emphasis” or the “criterion ... most relevant” to the character of an offense. Apprendi, Ring and Shelton make clear, however, that the right to a jury trial has been strengthened and expanded, which necessarily expands the category of offenses to which it applies. As such, the current charge against the Defendant does not fall within an ever shrinking category of petty offenses.

E.  Other Relevant Factors.

Lewis implies that there are other relevant factors which may outweigh consideration of the maximum authorized penalty. For example, the offense set out in § 1752 is for the protection of the President in his temporary addresses and in the places he may visit. The President, because of his high office and his unique responsibility for the government of the nation, requires serious measures for his protection. Any violation of such serious measures is, a fortiori, a serious offense as it potentially impacts on the health and governance of the nation and its people. As such, it requires that any alleged violation be adjudicated by a jury. {p.7}

Further, a jury trial is essential to prevent governmental abuse of § 1752. By the time the Constitution was written, jury trial in criminal cases had existed in England for several centuries and acted as a protection against arbitrary rule. In the 18th century, Blackstone wrote that a trial by jury was a strong barrier between the liberties of the people and the prerogative of the crown, without which the Executive would be able to “imprison, dispatch or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure.” 5  The jury trial came to America with the English colonists who deeply resented any Royal interference with it. The Declaration of Independence stated solemn objections to the King depriving “us in many cases, of the benefits of Trial by Jury.” The Constitution itself, in Art III § 2, commanded “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...” Objections to the Constitution were satisfied by the adoption of the Bill of Rights which included the Sixth Amendment which provided that the accused would enjoy the right to a jury trial “[i]n all criminal prosecutions.”(emphasis added). ¶

This history demonstrates that the right to trial by jury guaranteed by the Sixth Amendment is founded upon the fundamental concern for protecting the liberties of the people by checking governmental abuse of power. ¶

There is potential for governmental abuse of § 1752 because it involves the Secret Service working on behalf of the Executive. Further, because § 1752(a)(1)(ii) does not define or limit the extent of “the posted, cordoned off or otherwise restricted area of a building or grounds ... where the President ... is ... temporarily visiting”, the Secret Service potentially can revise or extend the boundaries of a restricted area by an instant declaration that such is their will and pleasure. ¶

Without the safeguard of a jury trial, there would be no way to prevent § 1752 being used by the Executive for {p.8} political advantage under the guise of “Presidential security.” Thus, to grant the Defendant a jury trial in this case would be in conformity with the policies on which the Sixth Amendment is founded.

Lastly, under § 1752(b), the Defendant faces not merely a prison sentence, but can also be fined at the same time. The Information filed by the United States Attorney sets the maximum fine as $5,000. Thus, the Court may also impose a substantial fine on top of a six month prison sentence. This shows that the legislature has authorized additional statutory penalties which indicate that the legislature considered the offense serious. Lewis, 518 U.S. at 326.

Prayer for Relief.

Wherefore, Defendant respectfully prays that this Court order that the Defendant’s case be tried before a jury in conformity with the Sixth Amendment.

Signature: William N. Nettles


Respectfully submitted,



William N. Nettles
914 Richland St., Ste. A-102
Columbia, S.C. 29201
(803) 779 9966

John H. Blume
1247 Sumter Street, Suite 202
Columbia, S.C. 29202
(803) 765-1044

Rauch Wise
305 Main Street
Greenwood, S.C. 29646
(864) 229 5010

Attorneys For Brett A. Bursey

Date: 5/13/03 {p.9}


Certificate of Service

{Case caption, omitted}

I hereby certify that on this 14th day of May 2003, I served a true and correct copy of the attached:

1. Defendant’s Motion for a Jury Trial

 ) By personal service;

( X ) By depositing the same in the United States Mail; postage prepaid; to the following person;

 ) By fax to the following named person;

John Barton
Office of the US Attorney
Columbia Branch
1441 Main St., Ste. 500
Columbia, SC 29201

Signature: Stephanie J. Parker



Stephanie J. Parker
Assistant to William N. Nettles
914 Richland Street, Suite A-102
Columbia, South Carolina 29201
(803) 779-9966


Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  Relying on Cheff v. Schnackenberg, 384 U.S. 373 (1966)

 2  E.g. In re Winship, 397 U.S. 358 (1970)

 3  Ring overruled Walton v. Arizona, 497 U.S. 639 (1990). Walton had held that once an Arizona jury had convicted a defendant of first-degree murder, the defendant was already exposed to the maximum sentence of death. Therefore it was permissible to leave it to a judge to decide whether to impose the maximum penalty or a lesser one depending on whether the judge — not the jury-found aggravating circumstances.

 4  See also Glover v. United States, 531 U.S. 198, 203 (2001) (“any amount of actual jail time has Sixth Amendment significance”)

 5  4 W. Blackstone, Commentaries on the Laws of England 349-50 (Cooley ed. 1899) {First Edition (1765-1769); St. George Tucker Edition (1803)}


Source: Photocopy of a duplicate original (the court’s file copy), scanned to pdf.

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This case: United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {175kb.html}, criminal information filed March 7 2003, jury trial denied June 4 2003, bench trial Nov. 12-13 2003, bench trial Nov. 12-13 2003, verdict Jan. 6 2004: guilty, $500 fine (Bristow Marchant, U.S. Magistrate Judge), district appeal docketed Jan. 13 2004, affirmed Sept. 14 2004 (Cameron McGowan Currie, U.S. District Judge), circuit appeal docketed Oct. 7 2004, affirmed July 25 2005 {64kb.pdf, 64kb.pdf}, rehearing denied Sept. 8 2005 (4th Cir., No. 04-4832), petition for certiorari docketed Dec. 14 2005, certiorari denied Jan. 17 2006 (U.S., No. 05-767).

Next: Response to Defendant’s Motion for a Jury Trial (May 19 2003).

See alsoOther Secret Service protest zone cases” on the docket-sheet page. Brett Bursey

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.


Posted Dec. 14 2003. Updated June 2 2008.


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