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Full-text: August 15 2003
Protest zones: “No War for Oil” (October 24 2002)

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

Filed, AUG 15 2003, Larry W. Propes, Clerk, Columbia S.C.


Criminal No.: 3:03-309

United States of America)
Brett A. Bursey)

Response to Defendant’s Memorandum of Authorities Concerning the Elements of the Offense


Since the defendant has conceded that his argument based on the existence of a colon at the end of the statute charged in this case was wrong, the elements of this offense are clear. The information charges a violation of 18 U.S.C. § 1752(a)(1)(ii), which reads:

§ 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

* * *

(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:...

Based on the clear and unambiguous language of this statute, the elements of this offense are, as previously submitted by the government, the following:

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: {p.2}

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

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

The defendant has incorrectly asserted that the government believes it need not prove Bursey knew that the area which he entered and remained in was restricted. This is not the government’s position, and the evidence will conclusively establish that Bursey was told that the area he entered and in which he sought to remain had been restricted by the U.S. Secret Service, and further that if he chose to remain there he would he arrested. Thus, Bursey knew he was in a restricted area and he knew that if he remained there his conduct was unlawful. Nothing more needs to be proven.

The defendant also makes other blatantly incorrect arguments. The defendant asserts that the statute requires a “restricted area” to be posted or cordoned off because otherwise the public would not “be on clear notice that a certain area is in fact a restricted area.” (Defendant’s Memorandum, p.6). The defendant simply ignores the clear language of the statute, which states the area may be “posted, cordoned off, or otherwise restricted...” (emphasis added), which properly permits the U.S. Secret Service the necessary flexibility to alter the parameters of a restricted area depending on the physical conditions presented, security concerns, or if the President’s location unexpectedly changes. In fact, the present case presents a good example of the flexibility the Secret Service needs with regard to restricted areas. Since pedestrians and vehicles were {p.3} permitted to pass through the area prior to the President’s arrival, cordoning off the area was impractical 1  . However, with the parameters of the restricted area thus not readily apparent from any physical barriers, law enforcement officers were present to inform anyone who appeared intent on remaining in the restricted area that the area had been restricted by the U.S. Secret Service and that they would not be allowed to remain there. This is precisely what the defendant Bursey was told, yet with this knowledge, and after being told he would be arrested if he remained, he chose to ignore the officers.

Bursey also incorrectly asserts that in order to convict him, one of the elements the government must prove is “that only invitees were permitted to enter the restricted area.” (Defendant’s Memorandum, p.6). This argument is apparently based on the regulations referenced in the statute, and it is simply wrong. The government need not prove anyone else’s compliance with the regulations; the government need only prove that the defendant’s entry into or remaining in the restricted area was in violation of the regulations. How the statute and regulations were enforced during the President’s visit may be relevant to a separate argument, but it has nothing to do with the elements of the statute the government must prove in order to convict the defendant. The evidence will show that not only did Bursey violate the statute, but the statute was properly enforced because no other person at the airport on October 24, 2002, violated the statute and {p.4} regulations in the manner in which Bursey did. This is the reason Bursey was arrested, and his continued claims that his arrest and prosecution are in some way based upon the content of the message he sought to convey is nothing more than a red herring being used in an attempt to divert the court’s attention from the relevant issues in this case.


The defendant also seeks dismissal of the information in this case, claiming that his supposed ignorance about the meaning of the statute in question and the conduct it prohibits renders the statute unconstitutional. However, ignorance of the law is not and has never been a defense 2  , and therefore is not a defense here. See: United States v. Rogers, 962 F.2d 342, 344 (4th Cir. 1992); United States v. Daughtry {15kb.html}, 48 F.3d 829, 831-32 (4th Cir. 1995) (rev’d on other grounds: United States v. Daughtry {5kb.html, 5kb.pdf}, 91 F.3d 675 (4th Cir. 1996)); Bryan v. United States, 524 U.S. 184 (1998).

Bursey’s argument that the statute fails to give notice because the meaning of the statute can only be “gleamed [sic] from the legislative history” is belied by his concession that the statute contains an obvious typographical error. Bursey has conceded that the {p.5} meaning of the statute is plain because his previous reading of the statute renders it absurd, yet it is this absurd interpretation that he now wishes to rely upon in arguing that the statute is vague and unconstitutional. Bursey’s argument that any interpretation of the statute which is different from the one he claims to have relied upon is a violation of the ex post facto clause is similarly specious on its face. Bursey cannot engage in illegal conduct based upon an ignorant and incorrect interpretation of a statute and then seek ex post facto protection simply by claiming the obviously correct reading of the statute is different from his. The evil condemned in Bouie v. City of Columbia, 378 U.S. 347, 353 (1963) was the “...unforeseeable judicial enlargement of a criminal statute, applied retroactively,” which simply has not occurred in this case. Here, the defendant has conceded that there is only one interpretation of this statute that is plain and thus only one interpretation that is foreseeable.


For the forgoing reasons, the government asks the court to adopt the elements of the offense as previously submitted by the government and to deny the defendant’s motion to dismiss.

Respectfully submitted,

J. Strom Thurmond, Jr.
United States Attorney {p.6}

Signature: John M. Barton




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



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, and on August 15, 2003, I served one true and correct copy of the Response to Defendant’s Memorandum of Authorities Concerning the Elements of the Offense, in the above-captioned case via first class United States Mail, return address clearly stated, proper postage affixed thereto, addressed as follows:

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: Tracey S. Donaldson



Tracey S. Donaldson


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

 1  In addition, since the President’s trip from the airport into Columbia was not for any public appearance, the fact that the President was leaving the airport and the route he was to take were not widely publicized for security reasons.

 2  While the Supreme Court has recognized exceptions to the longstanding maxim that “ignorance of the law is no defense,” it has done so in only limited circumstances involving highly complex and technical statutes. See: Cheek v. United States, 498 U.S. 192 (1991) (tax prosecutions) and Ratzlaf v. United States, 510 U.S. 135 (1994) (structuring prosecutions). These exceptions are based upon an objective analysis of the crime proscribed by those statutes or their “particular statutory context,” Bates v. United States, 522 U.S. 23, 31 (1997), and are not applicable here. See also Liparota v. United States, 471 U.S. 419 (1985).


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.

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).

Previous: Defendant’s Memorandum of Authorities Concerning the Elements of the Offense (July 25 2003).

Next: Defendant’s Memorandum in Support of Dismissal Because of Vagueness (Aug. 20 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. 13 2003. Updated June 2 2008.


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