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Full-text: May 27 2003
Protest zones: “No War for Oil” (October 24 2002)

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

Filed, MAY 27 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)
)
v.)
)
Brett A. Bursey)
 )

Defendant’s Second Motion for a Jury Trial

The Defendant, Brett A. Bursey, through undersigned counsel, respectfully requests that this Court exercise its discretion to grant that the Defendant’s case to be tried before a jury in the interests of justice.

I.
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: {p.2}

“(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,

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 does not have an automatic right to a jury trial. Lewis v. United States, 518 U.S. 322, 326 (1996). As will be set forth below, the Court still has a discretion to grant Mr. Bursey a jury trial even in the matter of a petty offense, and Defendant contends that the Court should so exercise its discretion.

II.
Argument.

A. It is in the Discretion of the Court to Grant a Jury Trial

It is settled law that only the prosecution of serious crimes mandates the use of a jury trial. Duncan v. Louisiana, 391 U.S. 145 (1968). However, Duncan also “reaffirmed the long-established view that so-called ‘petty offenses’ may be tired without a jury.” Baldwin v. New York, 399 U.S. 66, 68 (1970) (emphasis added). The principle that petty crimes may be tried without a jury has also been subsequently affirmed by the Fourth Circuit, United States v. Jenkins, 780 F.2d 472, 473 (1986). {p.3}

The language of Duncan, as affirmed by Baldwin and Jenkins, demonstrates that jury trial for petty offenses is neither mandatory nor prohibited — petty offenses may be tried with or without a juty. 1 

§ 1752 does nor prohibit petty violations of the section being tried before a jury. Thus, in the absence of any legislative instruction to the contrary, it is in the discretion of the court to order a jury trial for a petty offense in the interests of just ice.

That this matter lies in the discretion of the court, has been expressly confirmed by the enactments of the Mississippi legislature, Mississippi’s Uniform Rules of Circuit and County Court Practice 12.02(c) provides that “[i]n appeals from justice of municipal court when the maximum possible sentence is six months or less, the case may be tired without a jury at the court’s discretion...” (emphasis added). This provision is based on the decisions of the United States Supreme Court (e.g. Duncan and Baldwin) which held the “presumption” that offenses carrying maximum sentences of six months or less are petty offenses and do {p.4} not require a jury trial. Skinner v. Mississippi, 809 So.2d 782 (2002).

B. The Court Should Exercise its Discretion to Grant a Jury Trial

As explained in Defendant’s first Motion for a Jury Trial, the cases of Apprendi v. New Jersey, 500 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002) and Alabama v. Shelton, 535 U.S. 654 (2002) expand the role of the jury and enhance the importance of jury trials and Sixth Amendment rights. Indeed, the Government, in its Response to Defendant’s Motion for a Jury Trial, expressly agrees that such cases “reflect the importance of the jury to American jurisprudence.” Therefore, because it is agreed that the role of the jury is so important, and because its role has been reinforced and strengthened by the above mentioned cases, Defendant contends that the Court should exercise its discretion to grant a trial by jury.

Moreover, it is in the interests of justice that Defendant be granted a jury trial. This case is important because it concerns not only the protection of the President but also the limits and potential abuse of governmental power. The intention of § 1752 was to provide the Secret Service with authority to provide the same degree of protection for the President outside the vicinity of the White House as Congress believed the Secret Service could exercise, {p.5} under § 3056, within the vicinity of the White House. 2  In relation to § 3056 which is analogous to § 1752, the Secret Service may not have unlimited powers in protecting the President. The test to be applied is whether the measures taken are “reasonable under the circumstances.” 3 

Relevant case law confirms this. The Supreme Court has recognized that ¶

“[t]he nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence.” ¶

Watts v. United States, 394 U.S. 705, 707 (1969). ¶

However, the circumstances of Defendant’s arrest hardly posed “threats of physical violence” to the President, nor were they likely to interfere with the performance of his duties. Defendant was part of a group of only four protesters — hardly a threatening number. Defendant was some distance away, approximately one hundred yards, from the hangar where the President was visiting, and the President remained safely inside throughout. In between Defendant and the hangar was a road congested by vehicular traffic and hundreds of the President’s {p.6} supporters on foot. Defendant would not have been able to reach the hanqar quickly or easily and, in any case, would have been intercepted first. Even if the Defendant had reached the hangar, he would not have been able to enter as he did not have a ticket. All Defendant was doing was peaceably holding an inoffensive protest sign. Due to Defendant being such a small physical threat and or interference, the Secret Service acted unreasonably under the circumstances.

Further, Defendant was arrested in an area where there were scores of other people holding placards and banners supporting the President’s policies, but who were not arrested. It raises the specter that the Secret Service used § 1752 arbitrarily and selectively; that Defendant was selected because he was holding a placard which opposed the President’s policies; and that it was politically inconvenient for him to be there even though it was lawful. ¶

Just as the Secret Service’s arbitrary and content-based criteria for press pass issuance is prohibited under the First Amendment, Sherrill v Knight {29kb.html}, 569 F.2d 124, 129, so too should be similar selective criteria in the application of § 1752. In fact, the only limitation the courts have recoqnized on the Secretary of the Treasury’s authority under § 3056 (and therefore under § 1752) has been the Constitution. In particular, where First Amendment riqhts have been implicated, courts have balanced the Secret Service’s interest in protecting the President against the First {p.7} Amendment Rights of those burdened by such actions. 4  For all these reasons, the jury is ¶

“necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.” ¶

Duncan, 391 U.S. at 156.

A jury of twelve drawn from the local community is the moral compass of the people more than any judge could be.”[T]he jury is designed not only to understand the case, but also to reflect the community’s sense of justice in deciding it.” Taylor v. Louisiana, 419 U.S. 522, 529 n.7 (1975). A jury is “a significant and reliable objective index of contemporary values.” Spaziano v. Florida, 468 U.S. 447, 485 (1984) (Stevens, J., concurring in part and dissenting in part) (citations omitted). Therefore, it is in the interests of justice that a jury decide the limits of § 1752 in this case, and that Defendant be judged by a jury of his peers. {p.8}

Prayer for Relief.

Wherefore, Defendant respectfully prays that this Court exercise its discretion and grant that the Defendant’s case be tried before a jury.

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

Signature: William N. Nettles

By:

{Signature}

{William N. Nettles}
Attorneys for Brett A. Bursey

Date: 5/27/03 {p.9}

______________________

Certificate of Service

{Case caption, omitted}

I hereby certify that on this 13th {sic: 19th} day of May 2003, I served a true and correct copy of the attached:

1. Defendant’s Second 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

{Signature}

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

Footnotes

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

 1  The Government relies on Muniz v. Hoffman, 422 U.S. 454 (1975). However, this case involving criminal contempt proceedings in. the federal courts actually supports Defendant’s position. At 476 it states that the constitutional doctrine “may be capsuled as ... [l]ike other minor crimes, ‘petty’ contempts may be tried without a jury, but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to a jury trial.” (Emphasis added) {no emphasis added}.

 2  Legal opinion, of the Office of Legal Counsel, U.S. Department of Justice, provided for the Secretary of the Treasury dated May 12, 1995, 1995 WL 917148 (O.L.C.) (publication page references not available for this document)

 3  Memorandum from William E. Rehnquist, the then Assistant Attorney General, Office of Legal Counsel, to Honorable Robert E. Jordan, III, General Counsel, Department of the Army II (Nov. 12, 1969) (as quoted in Legal opinion of the Office of Legal Counsel, U.S. Department of Justice, provided for the Secretary of the Treasury dated May 12, 1995, 1995 WL 92718 (O.L.C.))

 4  Legal opinion of the Office of Legal Counsel, U.S. Department of Justice, provided for the Secretary of the Treasury dated May 12, 1995, 1995 WL 917148 (O.L.C.) referring to Quaker Action Group v. Hickel, 421 F.2d 1111, 1117-18 (D.C. Cir. 1969); Sherrill v. Knight {29kb.html}, 569 F.2d 124, 128 n.14 (“[t]he congressional grants of authority to the Secret Service to protect the President ... and to control access to temporary presidential residences ... cannot be said to authorize procedures or actions violative of the Constitution ... [W]e cannot agree with the Government’s argument that mere mention of the President’s safety must be allowed to trump any First Amendment issue”).

 

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

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  ¶ .

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).

Previous: Response to Defendant’s {First} Motion for a Jury Trial (May 19 2003).

Next: Response to Defendant’s Second Motion for a Jury Trial (May 29 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.

CJHjr

Posted Dec. 14 2003. Updated June 4 2008.

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