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Full-text: January 6 2004
Protest zones: “No War for Oil” (October 24 2002)

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

 


Cr. No.: 3:03-309-1



January 6, 2004
2:06 p.m.

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

Transcript of Verdict Hearing

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

Appearances:

For USA: John Michael Barton, Esq.
U.S. Attorney’s Office
1441 Main Street, Suite 500
Columbia, S.C. 29201
For the Defendant: Pascal Lewis Pitts, Jr., Esq.
1030 Carolina Avenue
Durham, N.C. 27705
  Clarence Rauch Wise, Esq.
Wise and Tunstall
305 Main Street
Greenwood, S.C. 29646
Defendant: Brett Bursey
P.O. Box 8325
Columbia, SC 29202
ESR Operator: Kurt McKaughan, ESR
U.S. District Court
901 Richland Street
Columbia, SC 29202
Transcription Service: Brunink Transcriptions
124 Water View Drive
Columbia, SC 29212

Audio

(Call to Order of the Court.)

The Court:  All right.

We’re on the record in the case of the United States of America versus Brett Bursey. That’s criminal number 3:03-309. Here for the final proceedings and decision in the case.

The Court notes that the defendant is present with counsel as is counsel for the government.

Are the parties ready?

Mr. Barton:  The government is ready, Your Honor.

Mr. Pitts:  Yes, sir.

The Court:  All right.

The defendant has been charged with a violation of Title 18 US Code Section 1752(a)(1)(ii) which makes it

“unlawful for any person or group of persons” 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.”

This matter came for trial before the Court, non-jury, on November the 12th through the 13th, 2003, following which a final decision in the case was taken under advisement pending filing of post-trial briefs.

Now, the issues to be resolved are whether the government has proved beyond a reasonable doubt that the defendant violated the statute at issue. And also whether the government has attempted to enforce the statute in an unconstitutional manner. And/or whether the defendant has been the subject of a selective prosecution. The defendant also has a pending motion for judgment of acquittal pursuant to Rule 29.

In rendering a decision in this case, the Court must state its specific findings of fact in open court or in a written decision or opinion.

And in rendering a verdict today, I want to assure the parties, as I did at the close of the trial, that I have carefully reviewed the evidence and testimony and have given careful consideration to all of the arguments made and the applicable case law in reaching a decision.

And I took that obligation very seriously.

Pursuant to Rule 23(c) I have this date filed a written order in the case, copies of which we have here at the desk and which will be made available to the parties at the close of these proceedings.

At the request of the defendant, I will also orally announce my decision — which is why we are here this afternoon. And as I do that, I will read some selected portions of my written order.

In doing so, I would remind the parties, as well as the members of the audience — and I know that there’s been a great deal of public interest in this case — that there are to be no outbursts or disturbances during the course of these proceedings by partisans of either side.

We, of course, welcome the public to these proceedings, but this is United States District Court, and those present in the court room are, therefore, expected to conduct themselves accordingly.

Now, first, with respect to whether there was a violation of the statute. In order to obtain a conviction under Section 1752(a)(1)(ii), the government must prove beyond a reasonable doubt that the defendant:

Number one: “willfully and knowingly” entered or remained in

Number two: “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”; and

Number three: “in violation of the regulations governing ingress or egress thereto”.

Now, there are several issues which must be addressed in determining whether the defendant violated this statute, with the main issue argued at trial being whether the defendant was even in a “restricted area” at the time of his arrest.

And after careful consideration of the facts and evidence presented, the Court does find that the defendant was in a “restricted area” as defined by the statute at the time of his arrest.

The testimony in evidence establishes that the area around the hanger where the President was to be speaking, and from where his motorcade would be leaving, was staffed by law enforcement officers, beginning several hours prior to the President’s arrival.

The evidence further showed, that because the main road in and out of the airport ran right next to the hanger, vehicles were allowed to traverse up and down the road prior to the arrival of Air Force One, but that only through traffic was allowed. Automobiles were not allowed to stop in this area, they could only pass through, and once Air Force One had landed, all vehicular traffic through the area was halted.

Similarly, while foot traffic was allowed through the area, with ticket holders for the event being directed where to go to get in line to enter the hanger, there was no evidence presented that anyone identified by law enforcement as not having a ticket for the event was allowed to remain, or in effect hang out, in the area around the hanger where the President would be speaking.

The evidence also showed that, once the President had arrived, the area where the President would be approaching the hanger was cleared even of ticket holders waiting to get into the building would.

The area around the hanger also remained cleared upon the President’s departure as the evidence established the President’s motorcade would be moving slowly from the building and around that adjoining intersection before proceeding out to the main road down Airport Boulevard.

Again, this evidence clearly establishes beyond a reasonable doubt that the area around the hanger was a restricted area under the statute.

Now, the Court also finds beyond a reasonable doubt that the defendant both willfully and knowingly remained in this restricted area after he had been instructed to leave.

The testimony in evidence shows that the defendant was initially in a grassy area near the sidewalk located right next to the hanger and right next to the area where the President’s motorcade would pull up for the President to exit his car to enter the hanger.

When the defendant was advised that he could not remain in that location, he proceeded to cross Airport Boulevard diagonally to the far corner of the intersection across from the hanger.

However, even in this location, the defendant remained in close proximity to the hanger as well as being on the corner of the intersection where the President’s automobile would have to exit the parking lot and make a slow u-turn onto Airport Boulevard before being able to speed up and travel down the boulevard to the main road.

The evidence before this Court establishes that the defendant was again advised that he could not remain in that location and would have to leave the area, but that he refused to do so.

Therefore, the Court finds that the government has established beyond a reasonable doubt that the defendant willfully and knowingly refused to leave that location and remained therein.

Finally, the Court finds, beyond a reasonable doubt, the defendant knowingly remained in this restricted area in violation of the regulations governing ingress or egress thereto.

Under the rules governing ingress and egress, the only category in which the defendant could possibly have belonged under the facts of this case was that of an invitee. However, the evidence clearly establishes that the defendant was not a ticket holder for the event, nor was he there to attend the event. Hence it was a violation of the regulations governing ingress or egress thereto for the defendant to have remained in the restricted area.

Therefore, the Court finds that the government has proved the defendant’s violation of each element of the statute beyond a reasonable doubt.

Now, the next question to be addressed by the Court is whether the government’s prosecution of the defendant has been conducted in an unconstitutional manner and/or whether sufficient information has been submitted to justify an evidenciary hearing on the issue of selective prosecution.

Now, the Court is careful to note that this does not mean that the Court has a role in deciding whether this case or any case should have been prosecuted.

Whether the government should have, in the exercise of its discretion and under the facts of this case, charged the defendant with the violation of this statute and pursued prosecution of this case is a decision solely reserved for the government to make and for the public to debate.

Once the government chooses to prosecute a charge, the Court, when acting as fact-finder, must then decide whether the elements of the charge have been proven beyond a reasonable doubt and also whether, in this particular case, the government has enforced the statute in an unconstitutional manner or subjected the defendant to a selective prosecution.

In making his claim of unconstitutional enforcement, the defendant argues that enforcement of this statute against him, under the facts presented, is unconstitutional because the parameters of the restricted area were vague and ambiguous, that he was never told what the boundaries of the restricted area were, and since there was no way for him to know where he could go to exercise his right to protest, the vague application of this statute is what led to his having been charged.

The defendant also argues that individuals with signs favorable to the President were allowed to remain in the supposedly restricted area, and that the only reason he has been charged in this case is because he was protesting against the President.

After careful consideration of these arguments, the Court finds that the evidence presented at trial does not support these arguments.

First, the evidence shows that the defendant was arrested because he refused to leave the area immediately adjacent to where the President would be arriving and departing in his vehicle; not because the boundaries of the restricted area were vague, or because he didn’t know what the boundaries of the restricted area were.

While the defendant correctly notes that there were no barriers or other indicia of a boundary surrounding this area, and that both vehicular and pedestrian traffic traveled through this area, leading up to the President’s arrival, these facts in and of themselves do not provide a basis for a claim of unconstitutional enforcement of the statute.

Both foot and vehicular traffic, by necessity, had to travel through this area for people to come to the event and it was also necessary to keep the area open for travel to and from the airport itself.

Nevertheless, the evidence showed that law enforcement agents were stationed at the perimeters of the area and were patrolling inside the area.

The Secret Service’s policy, as testified to at the trial, was that no one other than ticket holders were supposed to come into this area, and remain, as opposed to just passing through. Then upon the President’s actual arrival at the airport, the area and, in particular, the area immediately around the hanger, were to be cleared of even pass-through vehicular and pedestrian traffic.

The Court can find nothing unreasonable about this policy, under the facts and circumstances of this case, nor was the alleged vagueness of the restricted area’s boundaries what led to the defendant’s arrest.

Further, the evidence showed that the defendant was initially in a grassy area, right next to where the President’s car would be pulling up, and where the President would be exiting the vehicle, following which he moved across the street, right next to where the President’s limousine would be slowly making a u-turn, when he left the rally.

In this age of suicide bombers where people are willing to strap explosives to themselves to literally become walking bombs, the Secret Service’s concern with allowing unscreened persons to stand in such close proximity to a slow-moving vehicle carrying the President of the United States is not just understandable but manifestly reasonable.

I would note that the defendant, in his own reply brief, submitted after the trial of the case, makes the following statement:

“Aside from the defense of this country by military, there is no greater obligation for the federal government than the protection of the President.”

Now, while the defendant argues that he posed no danger to the President — and indeed, there was no evidence presented at trial to show that the defendant intended any harm or at any point ever posed an actual danger to the President — the Secret Service does not have the luxury of assuming such to be the case with respect to any individual during the unfolding of an actual event.

Now, this is not to say that the Secret Service’s power to restrict the area around the President is absolute, nor does the Court find that protesters are required to go to a designated demonstration area — which was an issue in this case — as long as they do not otherwise remain in a properly restricted area.

The Court also does not accept the government’s argument, which was presented in an earlier brief, that courts in general should not be second-guessing security decisions made by the Secret Service and law enforcement personnel.

By bringing prosecutions under the statute, the government is, by necessity, drawing the courts into the debate over how far the government can go in restricting the rights of protesters, and others, in the exercise of their constitutional rights.

Here, however, in this case, the defendant effectively sealed his own fate when he chose to make his principled stand in a location manifestly reasonable for the Secret Service to make secure.

Nor does the evidence support defendant’s claim that the only reason he was charged in this case was because he was protesting against the President. There was no evidence presented at the trial to show that any other persons, either supporting the President or opposing him, were allowed to remain in the area around the hanger, for the purpose of demonstrating, pro or con, upon the President’s arrival.

Finally, the defendant has also failed to present any evidence to show that he was the victim of a selective prosecution in this case. In order to succeed on this claim, some credible evidence must be adduced indicating that the government intentionally and purposely discriminated against the defendant, by failing to prosecute other similarly situated persons.

Further, the focus of the selective prosecution inquiry is on the federal prosecutor, and the defendant must therefore show that the federal prosecutor has purposefully and intentionally discriminated.

The Court does not find that the defendant has made such a showing in this case. Specifically, there was no evidence presented to show that any supporter of the President was present that day who did not have a ticket and did not enter the building to attend the rally, but nevertheless was allowed to remain in the secure area without being prosecuted.

Now was there any evidence presented to show that other individuals who were there to demonstrate against the President received such favorable treatment. The defendant was the only one who refused to leave the area, when instructed to do so.

Hence, there is no evidence that others similarly situated have not generally been proceeded against for engaging in like conduct. Nor has the defendant presented any evidence that the prosecutor in this case brought this prosecution out of a desire to prevent the defendant from exercising his constitutional rights.

Indeed, the evidence presented at trial, which was evidence presented by the defendant over the objection of the prosecution, showed that the defendant has engaged in this exact same conduct — protesting against the President’s policies — during other presidential visits to this state without incident or interference from the federal government in general or the United States Attorney’s office for South Carolina in particular.

Now, with respect to the pending motion for judgment of acquittal, the ruling on this motion must be based on the evidence before the Court at the time of the close of the government’s case.

The evidence shows that, during the government’s case in chief, witnesses were presented who testified that agents arrived on the scene that morning to secure the area. A security sweep was performed. And the site was otherwise readied for a presidential visit. Agents were posted interspersed throughout the restricted area with the public being told where to park for the event and where to go to get in line to enter the hanger for the rally. Witnesses further testified that thru traffic was permitted up until the arrival of the President, at which time even thru traffic was prohibited. The government’s witnesses also testified that the defendant was present in the area, immediately adjacent to the hanger that day, that he was advised he could not remain in that area and would have to leave, and that the defendant ultimately refused to leave the area as instructed. The government’s witnesses also testified that the defendant was not there to attend the rally, nor did he have a ticket to attend the rally, but was there to protest.

The Court does not find that the defendant is entitled to judgment of acquittal under Rule 29 based on this evidence. And his motion is therefore denied.

Based on all of the foregoing, the Court finds that the government has proved beyond a reasonable doubt that the defendant violated each element of Section 1752(a)(1)(ii). And he is, therefore, adjudged guilty of the charge set forth in the one count information filed in this case.

And that is the order and verdict of the Court.

Now, the U.S. Sentencing Commission Guidelines do not apply to this conviction, under USSG section 1(b)1.9.

And the Court further finds that a pre-sentence report is not necessary under Rule 32(c)(1)(A)(ii) and that all of the information regarding the defendant’s criminal history is already before the Court. No calculations under the guidelines are required, and there is sufficient information in the record to enable the Court to meaningfully exercise its sentencing authority under Section 3553.

Therefore, we will proceed with sentencing at this time.

Mr. Pitts:  Your Honor, may I be heard briefly before we move to sentencing?

The Court:  Yes, sir.

Mr. Pitts:  Judge Marchant, I believe we left here on November 13th, was the end of the trial. And we had two days of testimony. It was late in the day and neither the government nor the defense made any, really, closing arguments. And I felt later that that was in error.

And I think that is relevant now because I would like make a motion and ask you to reconsider this verdict. And I think, while your reading of part of what is probably your full order indicates a lot of the detail, I think that’s what I felt was the problem with the way that I left here on that day, is that the trees got in the way of seeing the forest.

The evidence, if we stand back from it, shows that Mr. Bursey was standing with a sign that said “No More War for Oil” 200 yards away from the hanger where the President was speaking, with ample security measures around that building, to prevent anything from happening to him in that building.

And I’m afraid that I didn’t emphasize that point at the close.

The Court:  Well, I did not read it because it’s —

I didn’t want to read my entire order. That’s not —

My written order does contain a footnote that addresses that issue.

Mr. Pitts:  You mentioned earlier that there’s been a lot of public interest in this case. Which is true. And I realize that public interest from people who didn’t sit here for the two days of testimony is not the same as the judicial scrutiny that you would give it as the judge sitting in this matter.

But, I believe every single article, everybody, just about everybody, that you talk to — from high schoolers and middle schoolers, to law professor types, to lawyers, to working people in the middle — focus on the forest and say, “They can’t do that in America.”

In my plea to you, in this motion to reconsider, is to—

Of course, bear in mind the quote that you describe, that’s in our brief, that says a primary or the ultimate responsibility or supreme responsibility is protecting the President.

But, that very same case says it has to be done within constitutional parameters.

And that’s the concern here.

And when you stand back, take a snapshot of what happened that day, and realize that nothing happened of danger that day to the President, and it’s five months later that the U.S. Attorney’s Office brings this, it seems like in our nation — even in a time when our chief justice, Chief Justice Reinquist, is saying publicly that he’s concerned that Congress is trying to intimidate the judiciary, and that we have lots of debates in small communities, as well as large, by citizens coming together and forming committees to defend the Bill of Rights — that even in the times where we are concerned about terrorism and physical danger, that these are times that we need to be most zealous in guarding the big picture and the basic civics class lesson, grounded in self-government, that you can’t do that in America.

And I realize my chances are slim in light of the effort you’ve put in the order, but I just feel the need to, as a lawyer, plead with you to reconsider — even if it means taking more time and more days — to release a bit from the trees and stay focused on that big picture which, that big picture is that flag that’s right behind you.

And it is the stuff that we all get, and I get, and Mr. Bursey gets, chill bumps about on the fourth of July.

And let’s don’t — in order to save freedoms from terrorists — let’s don’t give them up voluntarily in our temples of justice.

And I would plead with you to reconsider and not proceed to sentencing today, but take another look at that big picture.

The Court:  I can assure you, Mr. Pitts, I did look at both.

And you mention about when the charges were filed in the case, and of course, my written order, as well as a part of what I stated here in court today, do refer to the fact that, again, it’s not for the Court to decide what cases are brought and what cases are to be prosecuted.

And my written order further states, as I’ve already orally stated, whether the government should have, in the exercise of its discretion, and under the facts of this case, charged the defendant with a violation of this statute, and pursued prosecution of this case, is a decision solely reserved for the government to make, and for the public to debate.

But, but the court does not tell the prosecutors and the U.S. attorneys what cases they can bring and what they can’t bring. And once the prosecution brings a case, the Court, again, when acting as fact-finder, the Court’s duty is to decide whether the elements of the charge have been proven beyond a reasonable doubt which, in this case, I found that they have.

And I also understand, and I also have specifically stated, that there was no evidence presented that Mr. Bursey presented any danger to the President that day whatsoever, or intended to present any danger to the President.

But, as I also said, what facts we know after the fact don’t help the Secret Service on the day of an actual event. And the Secret Service has a monumental job to do in protecting the President of the United States. I think as I’ve mentioned earlier, we’ve had two presidents assassinated in this century. Several other presidents have been the subjects of attempted killings. And the Secret Service has got to have the power and the ability to establish what it thinks are effective perimeters around a person such as the President to protect him.

As I further say in my written order, and as I said in open court, the government, by bringing prosecutions under this statute is, by necessity, going to involve the courts in deciding whether or not the Secret Service’s actions have been reasonable when they do that.

In this particular case, where Mr. Bursey was, on that day, in conjunction with where the President was, and where his automobile would have to be leaving and making a slow u-turn around that corner, right where Mr. Bursey was, I think it’s manifestly reasonable for the Secret Service to have treated that as a secured restricted area.

And, when Mr. Bursey refused to leave it, he violated the statute.

But, you can always appeal.

I can only look at the facts and do the best job I can, based on what I’ve been able to find.

Now, you want those to be your comments on behalf of your client? Or do you want to make some other comments?

Mr. Pitts:  Mr. Wise would like to make some comments.

The Court:  All right.

Mr. Wise.

Mr. Wise:  Your Honor, as the Court may or may not be aware, Brett Bursey and I go back, about as long as I’ve been practicing law. And the Court is aware of the one incident that may resemble violence — if you want to call it that — with the draft board years — over 30 years ago.

Mr. Bursey, over the years, has obviously grown up a lot in protesting and understanding protesting. And as the Court noted in this case, there was never an inkling of any intent on Mr. Bursey’s part to harm the President. Nor even disrupt the orderly process of the President coming and going.

And I think that is very important to consider in this situation. That his sole intent, just as the other area events that he went to, was to just simply peacefully protest. I don’t think there is any question about that.

And I think the Court should consider the fact that, when first asked to move, he did, in fact, move.

And basically, you know, and no one ever instructed him after that, that all you have to do is move up the road, just a few hundred feet, and you’re okay. I think that also should be considered.

But I think, really, it’s quite obvious to, I think, everyone concerned that this certainly was not an attempt to even disrupt an event, or cause any harm whatsoever to the President.

Audio

The Court:  All right. Thank you, sir.

Mr. Bursey, if you want to make a statement?

Or —

Mr. Bursey:  Yes.

The Court:  — present any information in mitigation?

Mr. Bursey:  Yes.

The Court:  Yes, sir.

Mr. Bursey:  Certainly not taking issue with your ruling, I do want to point out that you said, I refused to leave.

During the testimony, you heard me say — you heard me testify — that I told Agent Able, “I’ll go up the road a piece.”

I was very accommodating.

They kept telling me, there’s no where I can be but the free speech zone.

And I really do appreciate the narrowness that you have to look at this issue. You can’t look at what happened in other states. Or the modus operandi of the Secret Service.

But, Your Honor, the reason I was there that day is I have a very, very deep and broad concern about what’s happening in our country.

And if people don’t get engaged in this democracy, we’re not going to have it for much longer. There are 136 other nations where people vote more frequently than we do.

There’re some serious fundamental problems.

And I’m of the opinion, that the George Bush administration is taking advantage of them.

That’s one of the reasons I was out there that day.

And I did not go there with any intent to be arrested.

As a matter of fact, I didn’t think I would be, based on the previous experience and the other visits.

And when they told me I couldn’t be there, I volunteered to go down the road.

I wasn’t going to go a half a mile away.

I wasn’t going to be neutralized or sanitized.

I believe that—

While you’re unable to separate the question of being in a restricted area from the question of being forced to go to free speech zones, I’m going to do that.

I think The People are going to do that, when they look at this issue.

The Secret Service manual, that we got on discovery, says the Secret Service “shall not” make a distinction between peaceful protesters and the general public.

And they shall not segregate peaceful protestors.

Sir, that is their pattern.

It’s what they’ve been doing since the President, Bush, has taken office.

It’s wrong.

And we’re going to continue to fight it.

And I believe we’re winning.

I may lose this battle here today. Over the restricted area.

But we’re winning the battle, to keep America a free speech zone.

By letting people know what’s happening.

And letting them know that the Secret Service has no authority, no constitutional right, to segregate peaceful protestors from the general public.

The sovereignty in this country is the people.

In the 30 plus years I’ve been doing what I’m doing, the thing that strikes me the most, is that Americans are afraid of their own government.

And so.

If I have to go to jail.

To try and keep the basic rights, that Madison and Jefferson, and people a lot smarter and braver than I am, set for this country.

Then send me.

The Court:  Thank you, sir.

Mr. Barton, do you have any remarks you want to make on behalf of the government?

Mr. Barton:  Your Honor, I had intended not to. But in this brief reply—

I mean, these are very heartfelt speeches you hear here.

But, the problem is, there’s simply no facts to support these fears that they are expressing. To stand up here and maintain— To have been given the opportunity to present any relevant facts they wanted to establish, that they have simply failed to do so.

This is a case, Your Honor—

While Mr. Wise wants to stand up here and say, that Mr. Bursey went out to the airport simply to peacefully protest, I would maintain he did not, Your Honor.

He went out there to have a confrontation and to be arrested.

There is no contrition by this defendant.

This defendant intentionally went out there to find himself in the very situation he is in.

And I just ask Your Honor to consider that in your discretion.

Thank you, Your Honor.

The Court:  Well, that final comment actually was not a finding of the Court in this case.

Mr. Barton:  Beg your pardon.

The Court:  That final comment was not a finding of the Court.

Mr. Barton:  Yes.

The Court:  All right.

I’m now going to state the sentence.

But I will give the attorneys a final chance to make legal objections before sentencing is finally imposed.

Now the defendant has been found guilty of willfully and knowingly remaining in a restricted area where the President was temporarily visiting in violation of Section 1752(a)(1)(ii).

Now, that’s a class B misdemeanor. And that carries a maximum sentence of six months imprisonment, a maximum fine of $5,000.00.

It does allow for probation for up to five years.

And also it carries a special assessment fee of $10.00.

In making a decision on this sentence, I’ve considered the comments of counsel. I appreciate those.

I’ve considered the statement by the defendant. I appreciate his statement, as to his purpose for being there that day, and as to his concerns that I certainly believe are heartfelt.

I’ve taken into account the gravity of the crime committed in this case, the character and background of the defendant, and the fact that the — or the facts of the previous findings that I’ve already made as stated.

I have also considered, that this is not the usual criminal case, where a defendant has been convicted of engaging in a wantonly criminal act, such as theft or fraud or crime of a personal gain or to inflict some type of harm on another.

Rather, the facts show that the defendant was at the airport that day for the purpose of engaging in a peaceful protest.

That’s the finding of this Court.

And there’s no evidence that the defendant was there to disrupt the scheduled event or to engage in any acts of violence.

And, if either of those had been shown, in the eyes of the Court, that would have made the defendant subject to a much more severe sentence.

Nor is there any evidence that the defendant posed any danger, or ever intended to pose any danger, to the President. Although, as I previously stated, that’s not a fact that the Secret Service has the luxury of assuming.

But, the defendant was there that day to exercise his constitutional right of freedom of speech and of expression.

Contrary to the testimony of one of the defendant’s witnesses, however — and it is testimony that stuck in my mind, when it was presented — that right, the right of freedom of speech and of expression, is not an unlimited right.

Everyone, I think, is aware of the old expression that the right of free speech doesn’t mean you have the right to {falsely} yell “fire” in a crowded theater.

Oliver Wendell Holmes Jr. (1841-1935) (Justice), in Schenck v. U.S., 249 U.S. 47, 52 (1919). But see, his dissent in Abrams v. U.S., 250 U.S. 616, 628-631 (1919). And see, Joe Bommarito, “Justice Oliver Wendell Holmes: A Clear and Present Danger”.  CJHjr

Nor, is the decision of how close one can get to the President a question to be decided by the public. Which is what one of the defendant’s witnesses stated during the trial.

Reasonable restrictions can be placed on the exercise of these rights, as I think even the defendant concedes in its brief.

And the Court has found, that the restrictions placed on the defendant that day were reasonable.

Nevertheless, the defendant’s purpose for being at the airport that day was to exercise his constitutional rights.

And even though he did violate the law, as this Court has found, he did not resist arrest or cause any other disturbance.

And, under these circumstances, the Court does not find a custody sentence to be warranted in this case.

Nor does the Court find that a probationary sentence would serve any purpose under these circumstances.

And the Court will therefore impose only a relatively small fine.

The defendant should not assume from this sentence, however, nor should the public assume, that disposing of this case in this manner establishes any precedent for how sentences for future convictions under this statute, if any, will be dealt with by the courts.

This sentence is based solely on the specific facts of this specific case.

Now, pursuant to all those findings, and pursuant to the Sentencing Reform Act of 1984, then, it is the judgment of the Court that the defendant, Brett Bursey, is hereby ordered to pay a $500.00 fine.

The Court finds that the defendant is healthy and employed and, therefore, he has the ability to pay a fine.

The fine is to be made payable to the Clerk of the U.S. District Court and received by the clerk’s office within 30 days.

Interest on the fine is waived.

The defendant is further ordered to pay the mandatory special assessment fee of $10.00, which is due immediately.

Mr. Bursey, I would just say in — I don’t mean in passing, but just for your benefit.

The evidence presented through your counsel at the trial is — as respected your motivations for being there that day — have played a large part in what the sentence is that the Court has issued today in this case.

Now, does either counsel know of any reason, other than reasons which may have already been presented, why the sentence should not be imposed as stated?

Mr. Barton:  The government does not, Your Honor.

Mr. Pitts:  Yes, to be formal, I hope I made a motion previously — may have called it a request — to reconsider.

I would ask you to rule on that.

But, before, I would add to what I previously said is:

Precisely because of your findings that there was no evidence that he intended to disrupt or commit violence or was any threat to the President.

And precisely because the evidence was unequivocal that the Secret Service agents, and SLED agents, did not tell Mr. Bursey where this restricted area ended, and gave him only one option, the one by your own findings, unacceptable, to be shunted to a half mile away.

Is that these facts showed that the government failed to prove beyond a reasonable doubt the willful and knowing aspect of this charge.

The Court:  Well, the prev- —

I previously told Mr. Barton that something in argument that — or a statement — that he was making was not a finding of this Court, even though he was making the statement.

And the statements that you’re making right there are also not findings of this Court.

My findings are the findings as I’ve stated them.

The motion to reconsider is denied.

Mr. Pitts:  Thank you.

No other response regarding the sentence.

The Court:  All right.

I order the sentence imposed as stated.

And I would also, at this time, advise the defendant that he can appeal his conviction if he believes there is some fundamental defect in these proceedings.

Mr. Bursey, you also have a statutory right to appeal your sentence under certain circumstances and, in particular, if you think your sentence is contrary to law.

With few exceptions, any notice of appeal must be filed within 10 days of judgment being entered in your case. If you are unable to pay the cost of an appeal, you may apply for legal appeal in forma pauperis, and if you so request, the clerk of the court will prepare and file a notice of appeal on your behalf.

Again, there’s a —

I think there’s a copy of the written decision the clerk has that’s available to the parties at the close of the proceedings.

Anything else?

Mr. Barton:  Not from the government, Your Honor.

Thank you, Your Honor.

Mr. Wise:  Nothing from defense.

The Court:  Okay.

Thank you all very much.

(Proceedings adjourned at 2:49 p.m.)

______________________

Certificate of Reporter

I, Cindy Lee Brunink, certified transcriber, certify that the foregoing twenty-nine (29) pages is a correct transcript from the official electronic sound recording of the proceedings in the above-entitled matter.


Certified Transcriber

{Signature}

Cindy Lee Brunink
Date: 12-1-03

 

Source: The court transcriber’s text file, line numbers omitted, conformed to the court’s audio recording.

By CJHjr: Formatted (xhtml/css), links, text {in braces}, text beside a green bar (   ) (above), highlighting, correcting minor errors in the transcript, added paragraphing (for ease of reading), converting the Court’s audio CD to mp3 {12.8mb.mp3}.

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).

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

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.

CJHjr

Posted May 4 2004. Updated Oct. 24 2008.

http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d87.html

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