Alt+left-arrow to return from a link

 

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

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

 

	)
United States of America	)
)
-versus-	)
)
Brett A. Bursey,	)
Defendant.	)
	)

Motion

Before the Honorable Bristow Marchant
United States Magistrate Judge, presiding.

Appearances:

______________________

The proceedings were taken by mechanical stenography and the transcript produced by computer. {p.2}

______________________

The Court:  All right.

We’re on the record in the case of United States versus Brett A. Bursey. And that’s Criminal Number 3:03-309.

And Mr. Bursey is present with counsel.

And just for the record, I think the clerk wants to make sure, with respect to Mr. Bursey, he is represented by —

And I had the list.

But Mr. Nettles, you’re lead counsel, aren’t you?

Mr. Nettles:  Yes, sir.

The Court:  And Mr.—

Mr. Wise?

Mr. Wise:  That’s correct.

The Court:  And Mr. Blume had been in the case.

Is he not here today?

Mr. Nettles:  Mr. Blume is not here today, your Honor.

The Court:  All right.

But we do have outside counsel from North Carolina.

Mr. Pitts:  Lewis Pitts, your Honor, from Durham, North Carolina.

The Court:  I’m sorry. Your last name is?

Mr. Pitts:  Is Pitts, Lewis Pitts, P-I-T-T-S.

The Court:  All right.

And he was admitted pro hac vice yesterday?

Mr. Nettles:  Yes, your Honor.

The Court:  All right.

And Mr. Barton is here for the government.

And Mr. Bursey has been, has been charged in {p.3} a one count Information with violation of Title 18, US Code, Section 1752(a)(1)(ii).

And, Mr. Barton, I understand you have a motion this morning?

Mr. Barton:  Yes, sir, your Honor.

Your clerk contacted Mr. Nettles and I yesterday and asked that we prepare the elements of the offense.

I prepared the elements that I believe are applicable to the offense as charged in this Information.

I had a discussion with Mr. Nettles and other counsel last night and today in which they have indicated to me they do not agree with the elements, as I have presented them. And, in essence, the Information from —

Although they have not stated this, that I take it that they believe this Information may not state an offense.

Your Honor, as representing a party to this litigation, I believe that is an important matter which may be determined under Rule 12 by the court prior to trial.

And I am asking the court to make that determination as to what the elements of this offense are.

In essence, I’m making a motion in limine, for the court to rule as to the elements of the offense which will address the adequacy of the charge in the Information.

It is a — as I understand it — a fairly technical dispute about the interpretation of the statute.

The statute is —

There’s not a tremendous amount of case law, as I’m sure {p.4} your Honor has found, dealing with this.

So it’s going to require considerable research and articulation to support both our positions, I believe.

And what I would ask your Honor is the opportunity to brief this matter for the court. Give the defense an opportunity to respond.

I can have —

In a brief period, respond to that. And let your Honor rule on it.

I think it’s an important issue. It’s an important case that I believe that’s —

It’s certainly in the interests of everyone to get it right before we get started.

The Court:  How much time are you asking for?

Mr. Barton:  I would ask for —

I think I can have a response, my motion and my memorandum of authorities, to the court in the next fourteen days. And whatever time counsel needs to respond to that is acceptable to me.

The Court:  Mr. Nettles, what’s the defendant’s position on that?

Mr. Nettles:  Your Honor, we recognize the severity of this case.

And we recognize that it would be best for all, for obviously, for clearly, that one of the most basic elements of law — that being the elements — to be satisfied beforehand.

We will be happy to respond to the government’s motion.

We would be asking for — I mean right now, we’re saying — fourteen days. I say that not knowing how complex the government’s argument is going— argument will be. But at this point, I’d be asking for {p.5} fourteen days to respond.

The Court:  Well, I can give—

Under that timetable, Mr. Barton, I would give you until Wednesday, July the ninth, to file your brief. And then, Mr. Nettles, you could have as long as through Wednesday, July the twenty-third, to file a response brief.

Mr. Nettles:  Thank you.

The Court:  Is that agreeable to both parties?

Mr. Barton:  Yes, sir, your Honor.

The Court:  Mr. Bursey, do you understand, that with this motion we won’t go forward with the trial today?

We’re going to brief these issues? And then after the court has issued a ruling on that issue, if the trial was to go forward, that we would reschedule your trial at that time?

Do you understand that?

The Defendant:  Let me see if I do understand it, sir.

The Court:  Instead of talking to me, you might want to talk with your lawyers about it.

But the government has made a motion with respect to the language of the Information itself. What it is that you’re charged with.

The Defendant:  Correct.

The Court:  In order for the government to get a conviction against you, they have to prove to the court beyond a reasonable doubt that you meet all the elements of the statute {p.6} that you’ve been charged with violating. There’s a dispute between the government and defense counsel as to what the elements of that offense are.

And obviously it’s important that the court know, as well as the parties know, what the elements are in order for us to look at the evidence to determine whether or not you are, in fact, guilty of that charge.

So the government wants to have fourteen days to brief the issue as to what they say the elements are, and then your counsel would then have up to fourteen days to brief if they disagree with what the government says, what they believe the elements are.

And if there’s disagreement, the court would then have to make a ruling as to what the elements of this offense are. And what the government would be required to prove in order to obtain a conviction against you.

The Defendant:  After that twenty-eight day period how long could we expect your ruling to follow?

The Court:  I would probably rule shortly, to be honest with you. Probably. Certainly within a week.

The Defendant:  And then a trial would be rescheduled?

The Court:  I would schedule a trial at the convenience of the parties.

The Defendant:  Thank you, sir. Understood.

The Court:  All right. No objection then? {p.7}

Mr. Nettles:  I’m sorry. No, sir. No objection.

The Court:  Okay. No objection from the government?

Mr. Barton:  No, sir.

The Court:  All right.

Well, Mr. Barton then, we’ll postpone the trial that was scheduled for today.

You’ve got till July the ninth to file your brief. Mr. Nettles, y’all can take up until the twenty-third to file your brief.

And I’ll issue a ruling after that point.

If the defense prevails, I believe in all likelihood the Information would be dismissed.

If the government prevails, we will reschedule the trial at that time.

All right. Okay.

Thank you all.

* * *

______________________

Certificate of Reporter

I certify that the foregoing is a correct transcript from the record of proceedings in the above entitled matter.

{Signature}

Jean L. Cole, RMR
PO Box 10732
Greenville, SC 29603

 

This document is not copyrighted and may be freely copied. “There is no copyright on transcripts of court proceedings that are produced by court reporters” (Gary N. Smith, Court Reporter, Columbia South Carolina, email, Dec. 21 2003).

Charles Judson Harwood Jr.

Posted May 6 2004. Updated June 2 2008.

http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d84.html