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Full-text: August 10 2004
Protest zones: “No War for Oil” (October 24 2002)
On appeal, to U.S. District Judge Cameron M. Currie
from U.S. Magistrate Judge Bristow Marchant

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

 

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

Defendant/Appellant’s Reply Brief

Reply to Statement of Facts

Ignoring the strictures of Rule 52(a), and the proper scope of appellate review, appellee asserts facts which are not the subject of fact finding by the trial court and which are not supported by the record. ¶

In addition, appellee relies on facts which were in dispute and not the subject of fact finding by the Magistrate Judge. ¶

Appellant focuses on only the most important of those facts.

Appellee apparently recognizes that it is important to establish that Bursey knew that the area he was in had been designated a restricted area by the Secret Service pursuant to the authority of 18 U.S.C. § 1752. 1  ¶

In this regard, appellee claims that Bursey ¶

Appellee’s Brief at 6. 2  {p.2}

Although Bursey was told to leave the area, what he was told about the area is a matter of dispute and none of the government witnesses testified that Bursey was told that the area had been designated a restricted area by the United States Secret Service. ¶

Agent Abel testified only that she told Bursey “that this was a restricted area” (1-124); Agent Baker testified that Bursey was told that “he was in a secure or restricted area.” (1-198). ¶

Neither said they (or anyone else) told Bursey that the area had been designated restricted by the Secret Service. ¶

Moreover, Bursey testified that he was only told that he couldn’t be in the area if he was going to protest; that he had to do so in the designated free speech zone. 3  (2-209-12). ¶

He specifically denied having been told that the area was a federally restricted zone. (2-220). ¶

The Magistrate Judge made no finding on these disputed facts, concluding only that Bursey was told that he could not remain where he was. Order at 4. ¶

There is no dispute that when Sgt. Campbell approached Bursey at the request of Agent Abel, he told Bursey “to leave the area, he was trespassing.” 2-62. ¶

And that of course, is what he was arrested for. Defendant’s Exhibit 9. 4  {p.3}

Argument

I.
The Government Failed to Establish that Defendant Was in a Restricted Area;
The Area Was Neither Posted Nor Cordoned Off
and There Was No Other Indicia of the Area.

Appellee claims that defendant’s interpretation of “posted” and “cordoned off,” as requiring some physical manifestation, is too restrictive a definition (Appellee’s Brief at 9-10) and that the placement of some law enforcement officers at the perimeter of the area suffices to establish that the “restricted area” was “posted” and “cordoned off.” Appellee’s Brief at 10-11. 5 

Defendant grounds his interpretation of these words on the legislative history as well as their common meanings. ¶

Even as described by appellee, both words connote a barrier or other physical indicia of a boundary. ¶

Congress believed that the activity described by the terms “posted” and “cordoned off” would be such as to provide visual notice to the public of a restricted area. See Senate Report cited and quoted in Appellant’s principal Brief at 9-10. ¶

Appellee further argues that the area was, in fact, posted and cordoned off by the placement of some personnel at the periphery. Appellee’s Brief at 10, 11 (“the physical presence of armed law enforcement officers ... obviously also provides a formidable physical restriction of the area.”). ¶

However, as found by the Magistrate Judge (which finding is not challenged in this appeal): ¶

Order at 6, 7. {p.4}

II.
The Government Failed to Prove
that Defendant Knew
that His Conduct Was Unlawful.

While acknowledging that the government must prove (beyond a reasonable doubt) that defendant knew his conduct was illegal, appellee asserts that the government needn’t prove that defendant knew that his conduct violated the regulations or that defendant willfully violated those regulations. Appellee’s Brief at 19. ¶

Appellee argues that the terms “willfully and knowingly” only “modifies ‘enter or remain in,’ not the reference to regulations ...” Id. ¶

There is no basis in statutory construction to so limit the specific intent requirement in this statute. ¶

Moreover, appellee’s argument defies logic. ¶

According to appellee ¶

Appellee’s Brief at 20. ¶

Yet the statute makes the conduct at issue unlawful only when it is ¶

18 U.S.C. § 1752. ¶

Therefore, a citizen cannot know that his conduct is unlawful without knowing that it violated the regulations governing ingress or egress. 6  {p.5}

Conclusion

For the reasons expressed in appellant’s principal Brief as well as those herein, the Order and Verdict of the Magistrate Judge should be reversed and a Judgment of Acquittal should be entered.

Of counsel and on the brief:

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

Attorneys for Brett Bursey

Footnotes

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

 1  These “facts” would be important to the issue of specific intent. See Appellant’s Principal Brief, Point II at 14 et seq. and infra, at Point II.

 2  The government goes further and asserts in its argument that Bursey ¶

Appellee’s Brief at 9.

 3  Appellee further asserts that Bursey was told where the free speech zone was (Appellee’s Brief at 6-7), but Bursey denied that he was ever given that information. 2-213. ¶

The Magistrate Judge made no fact finding on this issue.

 4  Given this sequence of events, it was reasonable for Bursey to assume that the only charge he could have faced was that of trespassing, a charge that he knew could not be sustained in light of State v. Hanapole, 255 S.C. 258 (1970).

 5  In the trial court, the government acknowledged that

Government’s “Response to Defendant’s Memorandum of Authorities Concerning the Elements of the Offense,” filed August 15, 2003 at 3. ¶

At the time of trial, the government specifically conceded that there was no evidence that the area was posted or cordoned off and that the government was proceeding on an “otherwise restricted” theory. 2-25-26.

 6  In this case, if Bursey had the regulations in front of him, he would have concluded that the area was not restricted since there were thousands of people present who were not authorized to be in a restricted zone. See Appellant’s Principal Brief, Point I, B. at 10 et seq.

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted August 11 2004. Updated August 11 2004.

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