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Full-text: July 13 2004
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,	)
Appellee	)
)
v.	)
)
Brett A. Bursey,	)
Appellant	)
	)

Appellee’s Brief

{Omitted: Table of Contents and Table of Authorities} {p.4}

Standards of Review

Argument I: Questions of statutory interpretation are reviewed de novo. United States v. Williams {41kb.pdf, 41kb.pdf}, 364 F.3d 556, 558 (4th Cir. 2004).

Argument II: When a defendant challenges the sufficiency of evidence, ¶

United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Statement of Facts 1 

The evidence at trial established that on October 24, 2002, President George W. Bush came to Columbia to appear at an event being held at the Doolittle Hangar at the Columbia Metropolitan Airport. Admission to the rally required a ticket, and the estimated 7000 tickets to the event were free and widely available to any member of the public or groups, such as schools. (2-43-47, 2-49).

In order to provide security for the President, prior to his arrival an area around the Doolittle Hangar was designated as a restricted area by the United States Secret Service. (1-18, 19) This information was shared with the law enforcement officers responsible for security, and beginning at approximately 7 a.m. on October 24, law enforcement officers {p.5} were stationed at both the perimeter of the restricted area as well as various locations within the area. (1-20)

This restricted area encompassed Lexington Avenue, the only route those attending the rally could use to access the designated parking area and then walk to the Hangar, as well as Airport Boulevard, the main access road to the Columbia Metropolitan Airport terminal, which was still in operation on October 24. ¶

For these reasons, prior to the President’s arrival those attending the rally were permitted to drive through part of the restricted area, park and then walk through the area and get in line to pass through metal detectors and eventual admission into the Hangar 2 . ¶

In addition, people were allowed to use a portion of Airport Boulevard that was within the restricted area to drive to the terminal. (1-21-23, 49) ¶

However, at no time was anyone (except law enforcement) allowed to stop, park, “hang out” or otherwise remain in the restricted area. (1-22-23, 30, 93, 179-180) ¶

In addition, shortly before the President’s arrival, the Secret Service planned to (and in fact did) close all non-law enforcement access to the restricted area until the President was safely inside the Doolittle Hangar. (1-32-33)

The intersection of Lexington Avenue and Airport Boulevard, which is approximately 100 yards from the Doolittle Hangar, was within the area the Secret Service had designated as restricted. ¶

This intersection was a significant security concern {p.6} to the Secret Service for several reasons. ¶

The Presidential motorcade would likely have to use that intersection in the event some catastrophic occurrence required an immediate, emergency evacuation of the President from the airport. ¶

In addition, from the time the Presidential limousine left the Doolittle Hangar following the event and traveled into Columbia 3 , that intersection was the one location on the entire route where the limousine would likely be traveling the slowest due to the sharp right-hand turn the vehicle was required to make. ¶

For these reasons, the Secret Service did not want anyone to remain near the intersection for fear that they might interfere with or even attack the motorcade. (1-23-25, 36-37, 79, 254)

Approximately one hour before the President landed at the airport, defendant Bursey, who was carrying a number of signs and a megaphone, walked into an area near the intersection of Lexington Avenue and Airport Boulevard. ¶

Since he did not get in line for admission into the rally, Bursey was approached by law enforcement officers. (1-120-123) ¶

Bursey was told by Secret Service Agent Holly Abel and SLED Agent Tamara Baker that he was in an area that had been designated a restricted area by the United States Secret Service and that he would not be allowed to remain there. (1-123-124, 198-199) ¶

Bursey became argumentative with the officers and refused to leave the area (1-199, 208). ¶

Bursey was told where demonstrators were permitted to picket, and he {p.7} acknowledged familiarity with the location, but he repeatedly stated he did not intend to relocate there. (1-123-125, 1-204) ¶

In fact, at no time did Bursey ever express and intent to leave the area or otherwise cooperate with the officers. (1-124, 204, 189) ¶

Bursey did move diagonally across the intersection and stood on the corner, but since that location that was still within the restricted area, law enforcement personnel again told him would not be allowed to remain in the area. ¶

Again he refused to leave. (1-125-126, 200) ¶

During these discussions Bursey was joined by several companions, who were also told they would not be allowed to remain in the area. (1-126, 201-203)

Bursey was repeatedly given four options by the law enforcement officers: if he had a ticket to the rally, he could get in line with the others for admission into the Doolittle Hangar (Bursey told the officers that he had no ticket to the event (1-189, 201)); since he clearly intended to picket, he could go to the demonstration area (which had been designated by the Airport Police, not the Secret Service, and which had been picked by the Airport Police for both Presidential security and demonstrator safety reasons (1-25-26, 94-97)); he could leave entirely; or he could be arrested. (1-125, 201) ¶

When given these same options, all of Bursey’s companions left. (1-130, 203-204) ¶

After Bursey refused to obey the directions of the law enforcement officers and it became clear that he intended to remain in the restricted area, a Secret Service Agent explained the situation to an Airport Police officer. “As a last resort,” (1-181-182) ¶

Bursey was arrested by the officer for trespassing and taken to jail. (1-131-132) {p.8}

The evidence established that once the restricted area was closed, all persons attending the event were inside the Doolittle Hangar (1-30). ¶

In addition, no one, with a ticket to the rally or otherwise, was permitted to enter or remain in the restricted area until President Bush was inside the Doolittle Hangar, and no members of the general public were standing at or near the intersection of Lexington Avenue and Airport Boulevard. (1-22-23, 33, 93, 166) ¶

In fact, during this time Secret Service Agents even turned away individuals who wanted to deliver lunch to the Doolittle Hangar for the high school band that was to perform for the President. (1-243-244)

Once the President was inside the Hangar, Airport Boulevard was reopened, but access to the area around Doolittle Hangar remained limited to law enforcement personnel only. ¶

Shortly before the President was to leave the hangar, Airport Boulevard was again closed and access to the intersection with Lexington Avenue was closed. (1-34-35)

Arguments

I.
The defendant was in a lawfully and properly
restricted area at the time of his arrest.

The defendant claims the Magistrate Judge erred in finding that he was in a restricted area as required by the statute, and he offers two arguments is support of that position. Each argument will be addressed separately below.

A.
The area was restricted as required
by the statutory language.

That statute in question, 18 U.S.C. § 1752(a)(1)(ii), reads in pertinent part as {p.9} follows:

The defendant’s first argument is that the Magistrate Judge erred in finding that the Secret Service created a restricted area as required by the language of this statute. ¶

The Magistrate Judge’s finding was based on evidence establishing that the defendant was repeatedly and personally told by law enforcement officers that the area where he was located had been designated by the U.S. Secret Service as a restricted area and that he could not remain in the area. ¶

However, according to the defendant, this oral notification is insufficient because the statute requires that a restricted area be delineated by some form of “physical manifestation,” such as being “posted” with some form of signage or “cordoned off” by means of some form of physical barrier such as ropes, cones or other static barricade. ¶

The defendant argues that since no signs or physical barricades were used by the Secret Service to delineate the restricted area in this case, no restricted area existed and therefore he could not have violated the statute. ¶

Furthermore, according to the defendant, oral notification does not satisfy the “otherwise restricted” catchall portion of the statute because the maxims of statutory interpretation of noscitur a sociis {p.10} and ejusdem generis 4  dictate that the phrase “otherwise restricted” be read as also requiring some form of similar physical manifestation.

There are multiple flaws in both the defendant’s reading of the statute and his reasoning. ¶

Initially, the defendant offers no argument as to why his restrictive definitions of “posted” and “cordoned off” should apply, especially when, according to Webster’s Third New International Dictionary (1986), the verb “post” is defined as “to assign (a sentry) to a post,” as was indisputably done in this case; the verb “cordon” is defined as “to form a protective or restrictive cordon around (an area),” as was indisputably done in this case; and most tellingly, the noun “cordon” is defined as “a line or series of troops or of military posts placed at regular intervals and enclosing an area to prevent passage” and “a barrier of any kind operating to close off, restrict, or control access or communication.” ¶

These reasonable and widely accepted definitions described precisely the functions performed by law enforcement officers at the Columbia Metropolitan Airport on October 22, 2001 {sic: 2002}, whereby the area in question was rendered both “posted” and “cordoned off” as required by the statute. ¶

The defendant simply assumes, with no argument or authority, that these regularly accepted definitions do not apply to this statute, which violates the first tenant of statutory construction: {p.11}

Scott v. United States {69kb.pdf}, 328 F.3d 132, 138-39 (4th Cir. 2003).

Thus, since at the time of the defendant’s arrest the area in question was clearly “posted, or cordoned off,” the defendant’s argument must fail.

Even if the court were to accept the defendant’s argument that “posted” or “cordoned off” requires some “physical manifestation”of the existence of the restricted area, there are multiple reasons why it would be improper to conclude that the “otherwise restricted” phrase should also be read so restrictively. ¶

First, the word “otherwise” is defined as “in a different way or manner,” 5  meaning that “otherwise restricted” encompasses all other forms of restriction, such as clearly occurred through the oral notification he received. ¶

In addition, the physical presence of armed law enforcement officers, even without signs or barricades, obviously also provides a formidable physical restriction of the area. {p.12}

Secondly, the defendant’s contorted statutory interpretation and application of noscitur a sociis and ejusdem generis to determine the meaning of “otherwise restricted” is both unnecessary and improper. There is no need to use those principles because, as argued above, the meaning of the statute is clear, and it is improper to use those principles when their use would subvert the intent of the statute: ¶

United States v. Chambers, 985 F.2d 1263, 1273 (4th Cir. 1993). ¶

The Supreme Court, concluding that the term “all other law” was to be defined broadly and not limited by the specific terms preceding it in a statute 6 , warned against the simplistic application of ejusdem generis:

Norfolk and Western Ry. Co. v. American Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991) (citations omitted) (emphasis added).

In this case, there is nothing in the intent, meaning or context of the statute which requires or even suggests that “otherwise restricted” means anything other than a broad, all encompassing authority to implement every available means of restriction so that law {p.13} enforcement can have the necessary flexibility to address the wide variety of changing and often unforeseeable Presidential security concerns that might be encountered. ¶

While this language is broad, the public is amply protected from arbitrary enforcement of 18 U.S.C. § 1752 because the statute can only be violated if one “willfully and knowingly” enters or remains in a restricted area. ¶

It is readily apparent that the statutory requirement that a restricted area be “posted, cordoned off, or otherwise restricted” is intended to provide the requisite knowledge of the existence of the area, and thus the important issue is obviously the adequacy of the notice 7 , not the specific form that notice takes. ¶

There is simply nothing in the purpose or context of the statute which indicates any intent or need to limit the means by which that notice is provided.

Lastly, the practical absurdity of the defendant’s argument is further proof of the error in his interpretation of the statute. ¶

According to the defendant, a Secret Service Agent who orally and in person advises the defendant of the existence of a restricted area is insufficient notice and can be ignored without legal consequence, yet it would be sufficient if the exact same words were written down and taped to a tree. ¶

Such an absurd result could not have been intended by this statute because, again, the important issue is proof of the adequacy of the notice that the restricted area exists, not the specific manner {p.14} by which that notice is given.

Thus, it is clear that on October 24, 2002, the defendant was located in a area that had been properly restricted within the meaning of the statute, and the Magistrate Judge was correct in so finding.

B.
The area was restricted as required
by the regulations.

The defendant advances a second argument to support his claim that the Magistrate Judge erred in finding that he was in a restricted area at the time he was arrested. This argument is based on based the federal regulations, which provide as follows:

According to the defendant, these regulations somehow establish that an area can be restricted within the meaning of 18 U.S.C. § 1752 only if that area is subject to the most rigorous enforcement of the regulations, such as was done in this case immediately prior to the President’s arrival when only law enforcement officials were permitted in the restricted area. ¶

According to the defendant, absent this type of enforcement, no restricted area can exist.

While the defendant may have a personal disagreement about how the Secret Service should have or could have enforced the restricted area, there is simply nothing in these regulations, or the structure of the statute, which supports, much less requires such an interpretation. ¶

The statute and regulations are designed to provide the Secret Service with the maximum flexibility needed to address the varying security concerns that may be faced during temporary visits by the President. ¶

However, such flexibility does not ¶

Colten v. Kentucky, 407 U.S. 104, 110 (1958). {p.16}

It is also important to remember that 18 U.S.C. § 1752 prohibits two types of conduct: (1) knowingly entering a restricted area in violation of the regulations, and (2) knowingly remaining in a restricted area in violation of the regulations. ¶

In this case the defendant violated the second provision, and his guilt was established by the following evidence:

(1) multiple witnesses testified that the area the defendant refused to leave had been designated by the Secret Service as a restricted area;

(2) two witnesses testified that they told the defendant this fact;

(3) the defendant told the agents that did not have a ticket to attend the event being held at the Doolittle Hangar and therefore was neither an invitee nor was he otherwise authorized under the regulations to enter or be present in the restricted area;

(4) the defendant was told that if he did not leave the restricted area he would be arrested; and

(5) the defendant refused to leave the restricted area.

Thus, while the government agrees wholeheartedly with the defendant’s statement that ¶

(Defendant’s Brief p. 12), it is clear that there was overwhelming evidence supporting the Magistrate Judge’s finding that the defendant remained in an area he knew to be a restricted area and he was not authorized to enter that area or otherwise be present pursuant to the regulations. ¶

As the defendant agrees is {p.17} proper, he is only being held criminally liable for conduct which clearly did violate the statute and the regulations, and his obvious guilt cannot be excused because of a personal disagreement with the lawful manner in which the Secret Service enforced the restricted area.

C.
There are no constitutional issues raised in this appeal.

The defendant’s brief is full of statements which might be interpreted as implying that the enforcement of the restricted area implicated his constitution right to free speech. ¶

But he goes no further than mere implication. ¶

For instance, the defendant’s brief states that ¶

(Defendant’s Brief pp. 12, 13, 14). ¶

While these statements might appear to be the introduction to an argument that the statute in question is either unconstitutionally vague or overbroad, nowhere in his brief does the defendant actually make this argument or attempt to establish whether or why this statute might be vague or overbroad.

Similarly, while these statements might be the foundation for the argument that Secret Service’s actual enforcement of the statute on October 24 somehow unconstitutionally violated his First Amendment rights, again he only refers to ¶

of the statute (Defendant’s Brief, p. 14) but he never actually alleges, argues or establishes that it occurred in his case. ¶

As the Magistrate Judge found, the defendant never proved that he was singled out for arrest and prosecution because of any unconstitutional or discriminatory motive. ¶

In fact, there was no credible evidence the the defendant was arrested for any reason other than he was the only unauthorized person at the airport on October 22, 2002, who knowingly refused to leave the restricted area.

The defendant’s constitutional red herrings should be ignored by the court. ¶

The Magistrate Judge determined pre-trial that this statute was neither vague nor overbroad, and in his findings the Magistrate Judge found that there was no unconstitutional enforcement of the statute (Order pp. 5-12). ¶

These issues could have been raised in this appeal but were not. ¶

Rather, the defendant’s argument in this appeal is solely that the restricted area was not in conformity with his nonsensical interpretations of the statute and regulations and therefore it did not exist. ¶

There is no factual or legal basis for these arguments and therefore they should be ignored.

II.
The government proved by sufficient evidence that the defendant wilfully and knowingly violated the statute.

The defendant’s second argument on appeal is that the government failed to prove an statutory element of the offense, that is, that the defendant acted “willfully.” ¶

According to the defendant, the term “willfully” as used in the statute ¶

(Defendant’s Brief, p. 15), which is the common definition of the term when used in general criminal statutes. See: Bryant v. United States, 524 U.S. 184, 191, (1998) and United States v. Daughtry {15kb.html}, 48 F.3d 829 (4th Cir. 1995); remanded on other grounds: Daughtry v. United States, 516 U.S. 984 (1995); on remand: United States v. Daughtry {5kb.html, 5kb.pdf}, 91 F.3d 675 (4th Cir. 1996).

Contrary to the defendant’s argument, it is clear that there was ample evidence that the defendant knew his conduct was illegal. ¶

Two witnesses testified that the defendant was repeatedly told that if he remained in the restricted area, he would be arrested. ¶

Nothing more is required, and the fact that he may have been ¶

(Defendant’s Brief, p. 17) is wholly irrelevant. ¶

Once the statutory requirement of knowledge that his conduct is unlawful is met, his ignorance of the specific law he is violating is simply no defense. See: Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (noting the “venerable principle that ignorance of the law generally is no defense to a criminal charge”) and Daughtry {15kb.html}, 48 F.3d at 832.

The defendant’s argument that the government must prove that he knew his conduct violated the regulations is disposed of easily. ¶

By the plain language of the statute, the term “wilfully” in the 18 U.S.C. 1752 modifies “enter or remain in,” not the reference to regulations: ¶

Thus, while it must be shown that the defendant is in fact in violation of the regulations in order to convict, the only knowledge of the defendant which must be proven is his knowledge that entering or remaining in the restricted area is unlawful. ¶

This knowledge was proven, the Magistrate Judge was correct in so finding, and therefore this argument must fail.

Conclusion

For the forgoing reasons, the defendant’s conviction should be affirmed.

Statement Regarding Oral Argument

The government does not believe oral argument will materially assist the court because the issues in this appeal are straightforward, the record in complete, and the Magistrate Judge’s order is factually and legally thorough.

by: { Signature}

 

July 13, 2004 {p.21}

______________________

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 July 13, 2004, I served one true and correct copy of the Appellee’s Brief, in the above-captioned case via first class United States Mail, return address clearly stated, proper postage affixed thereto, addressed as follows:

Jeffery E. Fogel, Esquire
Leonard Kaplan, Esquire
Center for Constitutional Rights
666 Broadway New York, NY 10012

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

{ Signature }

Tracey S. Donaldson

Footnotes

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

 1  The Magistrate Judge’s Order in this case also accurately recites facts from the evidence presented at trial.

 2  Although the process was somewhat informal, law enforcement officers and volunteers checked to make sure those approaching the hangar did in fact have the tickets which were required for admission to the event. (1-20, 63-66, 145)

 3  Following the event at Doolittle Hangar, the President was scheduled to travel into Columbia for an unrelated matter. (1-24)

 4  These maxims, often used interchangeably, are generally defined as follows: ¶

Washington State Dept. of Social and Health Services v. Guardianship Estate of Danny Keffeler, 537 U.S. 371, 384 (2003) {288kb.pdf}.

 5  Webster’s Third New International Dictionary (1986).

 6  The Court was interpreting part of the Interstate Commerce Act, 49 U.S.C. § 11341(a) {repealed, see 49 U.S.C. § 11321}, which exempts certain carriers from “... the antitrust laws and all other law....”

 7  “[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). See also Hill v. Colorado, 530 U.S. 703, 727 (2000).

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted August 12 2004. Updated Jan. 10 2005.

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