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Full-text: June 4 2003
Protest zones: “No War for Oil” (October 24 2002)

Filed, JUN –4 2003, Larry W. Propes, Clerk, Columbia SC, Entered 6/5/03

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

 




Criminal No. 3:03-0309

 )
United States of America)
)
v.)
)
Brett A. Bursey,)
Defendant.)
 )

Order

The Defendant has been charged with a violation of 18 U.S.C. § 1752(a)(1)(ii). The case is currently scheduled for trial on June 24-25, 2003. Pending before the Court are motions filed by the Defendant for a jury trial, both as a matter of right or, if no such right exists in law, at the discretion of the Court. The United Slates opposes both motions.

In his first motion, Defendant argues that he is entitled to a jury trial as a matter of right under the Sixth Amendment to the United States Constitution. 1  ¶

However, the instant charge is deemed a petty offense under federal law, and the United States correctly points out that the right to a jury trial does not attach to prosecutions for petty offenses. See e.g., Callan v. Wilson, 127 U.S. 540 (1888); Muniz v. Hoffman, 422 U.S. 454, 475-476 (1975); Duncan v. Louisiana, 391 U.S. 145, 159 (1968); United States v. Merrick, 459 F.2d 644, 645 (4th Cir. 1972) [A federal petty offender has no {p.2} constitutional right to a jury trial]. ¶

Defendant contends, however, that an offense otherwise deemed to be a petty offense can be elevated to a higher category where Congress has added additional penalties increasing the severity of the punishment which can be imposed, and argues that the statutory provision providing for a fine of up to $5,000.00 for violation of the statute here increases the severity of the possible punishment sufficient to elevate this charge above the category of a petty offense. See Lewis v. United States, 518 U.S. 322, 326 (1996) [“An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional penalties so severe as to indicate that the legislature considered the offense serious.”]. ¶

This argument is without merit. The Congress has specifically provided that a fine of this amount does not take a charge out of the category of a petty offense. 18 U.S.C. § 19; see 18 U.S.C. § 3571(b)(6). Therefore, this Court finds that the Defendant is not entitled to a jury trial as a matter of right on this charge, and his motion for a jury trial as a matter of right is denied.

With respect to Defendant’s second motion, asking this Court to award him a jury trial in the Court’s discretion, the Court must respectfully deny this request after careful consideration of the arguments presented. A great many petty offenses are tried in this Court every year, and hence the granting of a jury trial to this Defendant would establish an unnecessary and unwarranted precedent. Cf. United States v. Morrison, 425 F.Supp. 1235, 1239 (D. Md. 1977); United States v. Floyd, 345 F.Supp. 283, 288 (W.D. Okla. 1972), aff’d, 477 F.2d 217 (10th Cir. 1973), cert. denied, 414 U.S. 1044 (1973). ¶

While this Court may have the authority to allow a jury trail on this charge in its discretion, Defendant has not set forth a sufficient or convincing argument for why a jury trial should be conducted in this case. Defendant’s argument that a jury trial is necessary to safeguard his liberties and to check potential governmental abuse of power is without merit. In the absence of a jury, the {p.3} Court itself performs this function, and the Defendant has presented no rational argument, nor has he cited any precedent, to show that the Court will not be able to perform this essential function in his case. Therefore, Defendant’s motion to be afforded a jury trial in the discretion of the Court is also denied. {Government’s opposition to the second motion}.

Finally, in reviewing the file and the briefs which were submitted by the parties, the Court notes that there are other motions which have been filed in this case. While these other motions are often considered to be “boilerplate” in criminal cases, if either party believes that a pretrial conference is necessary or advisable prior to the trial of this case, they should so advise the Court immediately. 2  Absent such a notification, the Court will assume that there are no discovery or other disputes or outstanding issues between the parties, and that both sides will be ready to proceed with trial on June 24, 2003.

It is so ordered.

Signature: Bristow Marchant

{Signature}

Bristow Marchant
United States Magistrate Judge


Columbia, South Carolina
June 4, 2003

AO 72A
(Rev. 8/82)

Footnotes

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

 1  The Sixth Amendment provides in relevant part that “[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....”

 2  A pretrial conference had previously been scheduled, but was canceled after both sides advised the Court that a pretrial in the case was not necessary.

 

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: Government’s 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. 17 2003. Updated June 3 2008.

http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d24.html

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