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Full-text: July 8 2003
Protest zones: “No War for Oil” (October 24 2002)

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

Filed, JUL –8 2003, Larry W. Propes, Clerk, Columbia S.C.

 




Criminal No.: 3:03-309

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

Memorandum of Authorities Concerning the Elements of the Offense

Background

On June 23, 2003, the court asked the government, in consultation with defense counsel, to prepare a listing of the elements of the crime charged in the Information in this case (18 U.S.C. § 1752(a)(1)(ii)). This routine request resulted in a disagreement between the government and defense counsel concerning the elements of this offense, which also encompasses the important question of whether or not the Information states an offense.

As a result, on June 24, 2003, the government asked the court to identify the elements of the statute in question so that the parties and the court would be better prepared for trial. At the court’s request, the government submits this memorandum in support of its position.

The entire relevant text of the statute reads as follows: {p.2}

§ 1752. Temporary residences and offices of the President and others

(a)  It shall be unlawful for any person or group of persons–

(1)  willfully and knowingly to enter or remain in

(i)  any building or grounds designated by the Secretary of the Treasury as temporary residences of the President or other person protected by the Secret Service or as temporary offices of the President and his staff or of any other person protected by the Secret Service, or

(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:

(2)  with intent to impede or disrupt the orderly conduct of Government business or official functions, to engage in disorderly or disruptive conduct in, or within such proximity to, any building or grounds designated in paragraph (1) when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;

(3)  willfully and knowingly to obstruct or impede ingress or egress to or from any building, grounds, or area designated or enumerated in paragraph (1); or

(4)  willfully and knowingly to engage in any act of physical violence against any person or property in any building, grounds, or area designated or enumerated in paragraph (1).

The statute charged in the Information is 18 U.S.C. § 1752(a)(1)(ii), and the government maintains that the elements of this offense which must be proven beyond a reasonable doubt in order to convict the defendant are:

1.  The United States Secret Service has posted, cordoned off or otherwise restricted an area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting;

2.  The defendant willfully and knowingly enters or remains in the area so restricted; and {p.3}

3.  The defendant’s conduct is in violation of the regulations governing ingress or egress thereto. 1 

However, the defendant points out that paragraph (a)(1) of this statute ends with a colon, and is thereafter followed by three other numbered paragraphs, each separated by a semicolon (except for the last two, which are separated by a semicolon and the word “or”). According to the defendant, this means that the elements contained in at least one of these three other paragraphs must also be proven in addition to the elements contained in paragraph (a)(1). In other words, the defendant argues that this statute contains only three distinct crimes, the elements of which are described in paragraphs (a)(2), (a)(3) and (a)(4), and each of which also requires proof of the elements described in paragraph (a)(1). This reading of the statute will hereinafter be referred to as “the defendant’s interpretation.”

As will be shown below, the defendant’s reading of the statute is plainly wrong. The colon appearing at the end of paragraph (a)(1) is obviously a typographical error and should be read as a semicolon. As a result, it is clear that the statute contains four distinct crimes, one of which is properly alleged in the Information in this case and the elements of which are properly enumerated above. {p.4}

Issue

Whether the colon appearing at the end of paragraph (a)(1) is a typographical error and should be read as a semicolon; Or, stated another way: Whether 18 U.S.C. § 1752(a) contains three offenses or four offenses.

Applicable Law

The law this court must use to determine the meaning of 18 U.S.C. § 1752 in the face of a dispute caused by its punctuation is well established by long-standing precedent:

A statute’s plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning. Along with punctuation, text consists of words living “a communal existence,” in Judge Learned Hand’s phrase, the meaning of each word informing the others and “all in their aggregate tak[ing] their purport from the setting in which they are used.” Over and over we have stressed that in expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy. No more than isolated words or sentences is punctuation alone a reliable guide for discovery of a statute’s meaning. Statutory construction is a holistic endeavor, and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.

U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 454-55 (1993) (internal citations and punctuation omitted). The government characterizes this standard as “well established by long-standing precedent” because a portion of the above quotation is from the 1849 case of United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1849) {justia, altlaw, lexisone}, the first case to articulate the “whole law” approach to {p.5} statutory interpretation, which the Supreme Court observed had been repeatedly and recently reaffirmed.

The Fourth Circuit has recently stated this same principle thusly:

Our examination of issues involving statutory interpretation begins with an analysis of the language of the statute. In analyzing the meaning of a statute, we must first determine whether the language at issue has a plain and unambiguous meaning. Our determination of ambiguity is guided by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. The sole function of the courts is to enforce the statute according to its terms.

United States v. Jennings {126kb.pdf}, 323 F.3d 263, 266-67 (4th Cir. 2003) (internal punctuation and citations omitted).

Based on this precedent, this court is bound to look not just to the punctuation of 18 U.S.C. § 1752, but to its full text, language, structure and subject matter in order to determine its meaning. This analysis leads to the inescapable conclusion that the colon is in fact a typographical error and that this statute defines four criminal offenses, one of which is properly charged in the Information in this case 2 . {p.6}

Arguments

1.  Text and Language. Using the defendant’s interpretation to read 18 U.S.C. § 1752 creates unnecessary confusion as to what conduct is criminalized by the language of the statute. According to the defendant, the following is the crime defined by 18 U.S.C. § 1752(a)(1)(2):

to willfully and knowingly enter or remain in 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, with intent to impede or disrupt the orderly conduct of Government business or official functions, to engage in disorderly or disruptive conduct in, or within such proximity to, any such building or grounds, when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions.

Identifying this “crime” is difficult for a number of reasons, not the least of which is the fact that internally it contains both specific and general intent requirements for the various types of conduct it supposedly prohibits: one must willfully and knowingly enter a restricted area, in violation of the regulations governing ingress and egress, but one need only to intend to disrupt government business once there, and government business must in fact be disrupted. In contrast, conduct supposedly criminalized by § 1752(a)(1)(3) would require both the entry and the subsequent obstruction or impediment to ingress or egress to be willful and knowing. The result is that both identifying what the crime is and how one commits it are unclear under the defendant’s proposed interpretation. {p.7}

However, by repunctuating the statute with a semi-colon and thereby separating the offenses into four distinct crimes, no such confusion occurs: paragraph (a)(1) prohibits willfully and knowingly entering into or remaining in a designated residence or restricted area; (a)(2) prohibits engaging disruptive or disorderly conduct with the intent to impede or disrupt government business in or near residences or restricted areas, so long as government business is actually impeded or disrupted; (a)(3) prohibits obstructing ingress or egress to or from residences or restricted areas; and (a)(4) prohibits acts of physical violence in residences or restricted areas.

The defendant attempts to bolster his argument by noting that paragraphs (a)(2), (a)(3) and (a)(4) all make reference to paragraph (a)(1), which the defendant interprets as meaning that each of those paragraphs are complete only when all the provisions of paragraph (a)(1) are included. However, the plain text and language of the statute do not support this argument, A simple reading of the statute makes it clear that the reference to (a)(1) is only used to identify the places where the activity criminalized by paragraphs (a)(2), (a)(3) and (a)(4) must occur, and it in no way makes the activity described in those subsequent paragraphs dependent on any of the other language in paragraph (a)(1).

Thus, an analysis of both the text and language of the statute supports a. finding that the plain language of 18 U.S.C. § 1752 creates four separate offenses, one of which is properly charged in the Information in this case. {p.8}

2.  Structure. If one accepts the defendant’s assertion that the colon at the end of paragraph (a)(1) is correct, then the entire structure of the statute is in question because either that colon is a typographical error or every other letter and number designation in that paragraph is a typographical error. If using a colon after paragraph (a)(1) means that Congress intended for the entirety of (a)(1) to be the primary paragraph, and for (a)(2), (a)(3) and (a)(4) to be its sub-paragraphs, then those sub-paragraphs should have been designated (a)(1), (a)(2) and (a)(3), because otherwise, by starting with the first subparagraph designated as “(a)(2),” the statute would appear to be missing its first subparagraph.

Further analysis of the structure of the statute under the defendant’s interpretation only compounds this confusion. Since, according to the defendant, the first paragraph is properly designated (a)(1), then the subparagraphs should be designated in some fashion other than numbers, such as perhaps (a)(1)(A), (a)(1)(B) and (a)(1)(C), assuming this would be grammatically correct since paragraph (a)(1) already has subparagraphs designated as (i) and (ii). However, even these redesignations do not solve the structural problems created by the defendant’s interpretation. Regardless of whether the subparagraphs are re-designated with numbers or letters, the first primary paragraph should designated only as (a), not (a)(1), because there would be no (a)(2) primary paragraph in the statute.

However, by repunctuating the statute by inserting a semi-colon for the colon at {p.9} the end of paragraph (a)(1) resolves all of these issues. The crimes in § 1752 become simply (a)(1)(i) or (a)(1)(ii), (a)(2), (a)(3) and (a)(4), statutory references that are both clear and common in federal law.

Thus, the structure of the statute makes it clear that the defendant’s interpretation is wrong and that he is properly charged in the Information in this case.

3.  Subject Matter of the Statute.

The subject matter of this statute is the protection of the President of the United States, and the obvious purpose of 18 U.S.C. § 1752 is to give federal authorities the ability to provide protection to the President through the enforcement of this criminal statute (see S. Rep. No. 91-1252 {Serial Set 12881-5}, at 3 (1970), attached). While the Supreme Court has made it clear that “[t]he Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive,” Watts v. United States, 394 U.S. 705, 707 (1969), this simply cannot be accomplished using the defendant’s proposed interpretation of this statute, and therefore that interpretation must be wrong.

According to the defendant, it would not be a crime for an individual to enter or remain in any area where the President is living or temporarily visiting, regardless of the security and safety needs as deter mined by the United States Secret Service, unless the individual also intends to and in fact does disrupt the conduct of government functions, or impedes ingress or egress into the area, or engages in some act of physical violence. According to the defendant, absent at least one of these additional requirements, anyone {p.10} could at any time lawfully be as close to the President as he or she chooses, which law enforcement officers would be powerless to prevent because the very statute intended to be used for this purpose would not criminalize that conduct.

But the above preposterous result is not even the most absurd. The defendant’s interpretation of this statute would literally make it impossible for certain people to violate it, regardless of their intentions when entering a restricted area. To be unlawful, paragraph (a)(1) requires the entry into or remaining in a restricted area to be “in violation of the regulations governing ingress or egress thereto,” plus, according to the defendant, an intention to disrupt and disruption of government business, or obstruction of ingress or egress, or an act of physical violence. The pertinent regulation referenced in paragraph (a)(1) is found at 31 C.F.R. 408.3 3  {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf}, and reads as follows:

§ 408.3 Rules governing access.

(a)  For the purposes of 18 U.S.C. 1752 (84 Stat. 1891, 96 Stat. 1451), ingress or egress to or from the buildings or grounds designated in § 408.2 {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf} and any posted, cordoned off, or otherwise restricted areas of a building or grounds where the President or other person protected by the United States Secret Service is or will be visiting is authorized only for the following persons:

(1)  Invitees: Persons invited by or having appointments with the protectee, the protectee’s family, or members of the protectee’s staff;

(2)  Members of the protectee’s family and staff;

(3)  Military and Communications Personnel assigned to the Office {p.11} of the President;

(4)  Federal, State and local law enforcement personnel engaged in the performance of their official duties and other persons, whose presence is necessary to provide services or protection for the premises or persons therein;

(5)  Holders of grants of easement to the property, provided such persons or their authorized representatives show title to the grant of easement and obtain authorization from the United States Secret Service.

(b)  Authorized persons must possess and display identification documents issued by or satisfactory to the United States Secret Service.

(c)  Unauthorized entry is prohibited.

(d)  The term “protected” as used in this rule includes the President and any other person receiving protection from the United States Secret Service as provided by law.

As can be seen, it is not a violation of these regulations for an invitee or any of the other listed persons with proper identification documents to enter restricted areas since they are authorized to be present; a violation of the regulations occurs only if an unauthorized person enters or remains in a restricted area. Thus, if the defendant’s interpretation is correct, an invitee who is present in a restricted area with appropriate identification documents, and who disrupts government functions, blocks ingress or egress or violently assaults another in the restricted area, cannot be in violation of the statute because such a person is not in violation of the regulations 4 . It is difficult to {p.12} imagine a more absurd result (or a better way to thwart the obvious purpose of the statute), yet this is precisely the result that must be reached if the colon is allowed to remain unchanged.

When the obvious purpose of a statute is so totally thwarted by a proposed interpretation based solely on the punctuation of the statute, this court is fully authorized to read a statute in a manner so as to avoid such absurdity. Faced with a very similar issue in U.S. National Bank of Oregon, the Supreme Court stated:

Against the overwhelming evidence from the structure, language, and subject matter of the [statute] there stands only the evidence from the [statute’s] punctuation, too weak to trump the rest. In these unusual cases, we are convinced that the placement of the quotation marks in the [statute] was a simple scrivener’s error, a mistake made by someone unfamiliar with the law’s object and design. Courts, we have said, should “disregard the punctuation, or repunctuate, if need be, to render the true meaning of the statute.” The true meaning of the [statute] is clear beyond question, and so we repunctuate.

508 U.S. at 462 (citing Hammock v. Loan and Trust Co., 105 U.S. 77, 84-85, 26 L.Ed. 1111 (1882) {justia, altlaw, lexisone} (internal quotation marks and citation omitted).

Thus, as the Supreme Court has authorized, since the true meaning of 18 U.S.C. § 1752 is clear beyond question, it must be repunctuated. Otherwise this court must find that for some unexplained reason Congress intentionally inserted a colon at the end of paragraph (a)(1), knowing that by doing so it was enacting an indecipherable and nonsensical law that could not achieve the purpose for which it was intended because in many circumstances it would be unenforceable. On the other hand, correcting an obvious {p.13} error that is literally smaller than the head of a pin by substituting a semi-colon for the colon upon which the defendant’s entire argument hinges solves all of these problems. Four separate and distinct criminal offenses are defined, each of which appropriately addresses a separate, important and distinct issue. The U.S. Secret Service would have the tools it needs to provide security for the President because persons could gain access to the President only if such access was authorized. The gaping loophole created by the defendant’s interpretation is closed because the regulations referenced in paragraph (a)(1) become applicable only to that offense (unauthorized entry or remaining in a restricted area), and anyone (whether authorized or not) who disrupts government business, blocks ingress and egress or commits acts of violence in restricted areas could be prosecuted.

Legislative History

It is only when a statute is ambiguous that a court should look to the legislative history in order to determine what Congress intended and meant when it enacted the statute: “[w]e cannot go beyond the plain meaning of the statute unless there is a clearly expressed legislative intent to the contrary, a literal application of the statute would thwart its obvious purpose, or a literal application of the statute would produce an absurd result.” Jennings, 323 F.3d at 267. See also U.S. National Bank of Oregon, 508 U.S. at 463, fn.11. Here, since repunctuation of 18 U.S.C. § 1752 makes its meaning clear and unambiguous, an analysis of its legislative history is not required.

However, the government nonetheless invites such an analysis because the {p.14} legislative history makes it overwhelmingly clear that the colon at the end of paragraph (a)(1) is a typographical error and should be read by the court as a semi-colon. In addition to the patently absurd results described above which result from the defendant’s proposed interpretation of the statute, the clearly expressed intent of the legislature is completely contrary to that interpretation.

This statute was enacted in 1971 as a Senate amendment to the Omnibus Crime Control Act (P.L. 91-644). That amendment contains all the paragraphs which are subject to dispute here, and the original Senate Amendment (found at S. Rep. No. 91-1252 {Serial Set 12881-5}, at pp.1-2 and 17 and in the Congressional Record of the Senate, October 8, 1970, both attached hereto) contains a semi-colon at the end of paragraph (a)(1).

Inexplicably, when adopted by the House and then written as a Public Law and codified, the semi-colon was changed to a colon. But it is clear this was an inadvertent scrivener’s error because throughout the Senate Report, and especially in the portion captioned “Section-by-Section Analysis of the Bill,” (ibid. at pp.10-14), all four paragraphs of the statute are described as creating separate and distinct offenses, and paragraphs (a)(2), (a)(3) and (a)(4) are never described as being dependent on (a)(1).

The subsequent brief House Conference Report concerning the Senate amendment creating Section 1752 also supports the conclusion that the crime described in paragraph (a)(1) is separate and distinct from the other crimes contained in that section. The House Conference Report states: {p.15}

Protection of the President

The Senate amendment contained a provision not in the House bill amending Chapter 84 of Title 18, United States Code, which penalizes presidential assassination, kidnaping and assault. The Senate Amendment establishes new Federal penalties for unauthorized entry into any building or the grounds thereof where the President is or may be temporarily residing. It also penalizes intentional disruption of the conduct of Government business or official functions in any such building or on such grounds. The conference substitute adopts the Senate amendment with the substitution of the term “attempts” for the term “endeavors.”

1970 H.R. Conf. Rep. No. 91-1768 at 21 {Serial Set 12884-8)}, reprinted in 1971 USCCAN 5804, at 5849. (Emphasis added) (copy attached). The use of the term “also” clearly means “in addition to” the preceding matter, not “as part of.”

In light of this legislative history, there can simply be no question that the colon at the end of paragraph (a)(1) is a typographical error and should have been a semi-colon, and as a result 18 U.S.C. § 1752 was intended to charge four separate crimes, one of which is properly charged in the Information in this case.

Conclusion

Given the above arguments and authority, this court can only conclude that the colon at the end of paragraph (a)(1) of 18 U.S.C. § 1752 is a typographical error and should be read as a semi-colon. This interpretation is fully authorized by long-standing legal precedent, it comports with the clear legislative history of the statute, it effectuates the purpose of the statute, and it avoids the absurd results which the defendant’s interpretation causes. With this interpretation, the elements of the offense as previously submitted by the government are correct and should be adopted by the court. {p.16}

Respectfully submitted,

J. Strom Thurmond, Jr.
United States Attorney

Signature: John M. Barton

by:

{Signature}

John M. Barton
Assistant U.S. Attorney
(Federal I.D. # 1226}
1441 Main Street, Suite 500
Columbia, S.C. 29201
(803) 929-3000

{p.17}

______________________

Attachment 1

U.S. Senate Report, Protection of the President (U.S. Congress 91-2, Senate Judiciary Committee, S. Rep. No. 91-1252, Sept. 29 1970, 20 pages, SuDoc Y 1.1/5.91-1252; Serial Set 12881-5). {p.28}

______________________

Attachment 2

Congressional Record, Senate, October 8 1970, pp. S 17514-17517. {p.32}

______________________

Attachment 3

House Conference Report, Omnibus Crime Control Act of 1970, P.L. 91-644, at p.21 (U.S. Congress 91-2, H.R. Conf. Rep. No. 91-1768, SuDoc Y 1.1/2.91-1768; Serial Set 12884-8), reprinted 1971 U.S.C.C.A.N. 5804, at 5849. {p.33}

______________________

Certificate of Service

{Case caption, omitted}

I hereby certify that I am an employee in the Office of the United States Attorney for the District of South Carolina, Columbia, South Carolina, and on July 8th, 2003, I served one true and correct copy of the attached Memorandum of Authorities Concerning the Elements of the Offense via Federal Express, on the following persons(s):

John H. Blume, Esquire
1247 Sumter Street, Suite 202
Columbia, SC 29202

Rauch Wise, Esquire
305 Main Street
Greenwood, SC 29646

Pascal Lewis Pitts, Jr., Esquire
1030 Carolina Avenue
Durham, NC 27705

Signature: Lisa B. Gillam

{Signature}

Lisa B. Gillam, Legal Assistant
to AUSA John M. Barton

Columbia, South Carolina

Footnotes

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

 1  These are the same elements previously submitted to the court by the government and with which the defendant disagrees.

 2  Unfortunately, there appears to be only one reported, but unpublished, decision which references 18 U.S.C. § 1752, and no issue concerning the colon or interpretation of the statute was raised in that case. See United States v. Junot, 902 F.2d 1580 (Table), 1990 WL 66533 (9th Cir. 1990). However, the defendant in that case was charged with violating 18 U.S.C. § 1752(a)(2), and it is interesting to note that the Ninth Circuit’s description of that offense does not include any reference to paragraph (a)(1).

 3  Regulations promulgated pursuant to this statute are also found at 31 CFR § 408.1 {2002: 2kb.txt, 24kb.pdf; current rule: 2kb.txt, 24kb.pdf} and § 408.2 {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf}, but these deal with the authority to promulgate the regulations (§ 408.1) as well as the designation of certain presidential residences (§ 408.2), and thus are not relevant to this case.

 4  This court cannot simply determine that the “in violation of the regulations” language of the statute is meaningless or superfluous: “where possible, [courts] must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.” Scott v. United States {69kb.pdf}, 328 F.3d 132, 138 (4th Cir. 2003) (citing Freytag v. Comm’r Internal Revenue, 501 U.S. 868, 877 (1991). The only way to accomplish that here is to repunctuate the statute by inserting a semi-colon for the obviously errant colon at the end of paragraph (a)(1).

 

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This case: United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {200kb.html}, criminal information filed March 7 2003, jury trial denied June 4, bench trial Nov. 12-13, 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: Defendant’s Memorandum of Authorities Concerning the Elements of the Offense (July 25 2003).

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

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Charles Judson Harwood Jr.

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Posted Dec. 17 2003. Updated June 5 2008.

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