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

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

Filed, AUG 28 2003, Larry W. Propes, Clerk, Columbia S.C.

 




Criminal No. 3:03-0309

Entered, AUG 28 2003
 )
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 was originally scheduled for trial on June 24, 2003; however, prior to commencement of the trial the Defendant raised a question regarding the proper elements for the charged offense and what the Government would be required to prove in order to obtain a conviction in this case. The parties requested time to brief this issue, and the trial was postponed.

The Government thereafter filed a memorandum of authorities concerning the elements of the offense on July 8, 2003, following which the Defendant filed a response memorandum on July 25, 2003. The Government filed a reply memorandum on August 15, 2003, and this matter was argued by counsel before the Court at a pretrial held on August 28, 2003. This issue is now ready for disposition.

Discussion

The text of the statute the Defendant has been charged with violating reads as follows:

§ 1752. Temporary residences and offices of the President and others {p.2}

(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).

As the Defendant has been charged with a violation of § 1752(a)(1)(ii), the Government asserts that, in order to obtain a conviction, it must prove beyond a reasonable doubt that the Defendant

1.  Willfully and knowingly entered or remained in,

2.  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,

3.  In violation of the regulations governing ingress or egress thereto.

Prior to commencement of the trial in this case, counsel for the Defendant argued that, {p.3} since the phrase “in violation of the regulations governing ingress and egress thereto” ends with a colon, the elements contained in at least one of the remaining three paragraphs of the statute must also be proven in order for there to have been a violation of the statute. In response to this argument, the Government has submitted copies of the legislative history of this statute which clearly show, and which convince this Court, that the colon appearing in the statute at the end of the phrase “in violation of the regulations governing ingress and egress thereto” is in fact a typographical error, and that the three paragraphs which follow that phrase are separate and distinct crimes under Subsection (a) of § 1752. Indeed, in his response memorandum, the Defendant concedes, after reviewing the Government’s memorandum and attachments thereto, that the colon in question should have been a semicolon. Nevertheless, Defendant still contends that the Government has not properly stated the elements of the crime, and further argues that because of this typographical error, the statute in question is vague and therefore unconstitutional.

The Court finds no merit in the Defendant’s first argument, in which the Defendant contends that the Government’s recitation of the elements is incorrect because they “seem to read that [the Defendant] has violated the statute if he knowingly and willfully remained in an area even if he did not know the area [was] restricted.” That is not the Government’s position, nor is such a requirement reflected in the elements set forth by the Government. To the contrary, those elements specifically require that the Government must prove beyond a reasonable doubt that the Defendant willfully and knowingly entered or remained in a restricted area as defined in the statute. Further, in its reply memorandum, the Government concedes that it must prove the Defendant knew that the area which he entered and remained in was restricted, and counsel for the Government confirmed at the pretrial hearing that each of the elements must be proved beyond a reasonable doubt. While the {p.4} Defendant also raises other issues, such as whether the area in which he was arrested was a properly posted or restricted area, those arguments are defenses to the charge itself, which can be raised at trial or, where appropriate, through motion.

Finally, with respect to Defendant’s argument that the typographical error in the statute renders the statute itself unconstitutionally vague, this contention is part of an additional motion filed by the Defendant on August 20, 2003 which generally asserts that the statute under which Defendant has been charged is unconstitutionally vague. The Government has not yet had an opportunity to respond to this motion; therefore, a final ruling on this issue is deferred pending receipt of the Government’s response brief. This brief is due by no later than Friday, September 12, 2003, with any reply brief from the Defendant due by Friday, September 19, 2003.

It is so ordered.

Signature: Bristow Marchant

{Signature}

Bristow Marchant
United States Magistrate Judge


Columbia, South Carolina
August 28, 2003

AO 72A
(Rev. 8/82)

 

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: Affidavit of Eric Sirotkin (August 28 2003).

Next: U.S. Response to Defendant’s Memorandum in Support of Dismissal Because of Vagueness (Sept. 12 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. 18 2003. Updated June 29 2008.

http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d46.html

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