U.S. v. Bursey, 04-4832.

Citation416 F.3d 301
Decision Date25 July 2005
Docket NumberNo. 04-4832.,04-4832.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Brett A. BURSEY, Defendant — Appellant. DKT Liberty Project; People for the American Way; National Lawyers' Guild; First Amendment Foundation; People for the Ethical Treatment of Animals; People's Law Office of Chicago, Amici Supporting, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Jeffrey E. Fogel, Center for Constitutional Rights, New York, New York; P. Lewis Pitts, Jr., Advocates for Children's Services, Durham, North Carolina, for Appellant. Christopher Todd Hagins, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attorney, Columbia, South Carolina, for Appellee. Susan R. Podolsky, Julie M. Carpenter, Jenner & Block, Washington, D.C., for Amici Curiae Supporting Appellant.

Before MOTZ and KING, Circuit Judges, and EUGENE E. SILER, JR., Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Senior Judge SILER joined.

KING, Circuit Judge:

Appellant Brett Bursey was convicted in early 2004 — after a bench trial conducted by a magistrate judge in the District of South Carolina — of willfully and knowingly entering and remaining in a posted, cordoned off, or otherwise restricted area where the President was temporarily visiting, in contravention of § 1752(a)(1)(ii) of Title 18 of the United States Code. See United States v. Bursey, No. 3:03-309 (D.S.C. Jan. 6, 2004) (the "Verdict"). Bursey's conviction was thereafter affirmed by the district court, and he has now appealed to this Court. See United States v. Bursey, No. CR-03-309 (D.S.C. Sept. 14, 2004) (the "Opinion"). Bursey advances two contentions on appeal: first, he maintains that the trial court erred in finding that he was in a "restricted area" at the time of his October 2002 arrest; second, he contends that the court erred in finding that he possessed the requisite criminal intent. As explained below, we reject both of Bursey's challenges and affirm.


These proceedings arise from a presidential visit to Columbia, South Carolina, on October 24, 2002, for a political rally held at the Columbia airport's Doolittle Hangar. See Verdict at 1.1 In advance of the President's trip, the Secret Service designated an area near the hangar as a restricted area. See id. at 12. The restricted area extended approximately 100 yards on each side of the hangar along Airport Boulevard and approximately one-half mile from the hangar toward Highway 302. See id. at 6.

On the day of the political rally, law enforcement officers were stationed at the perimeter of the restricted area and were patrolling inside of it, although its boundaries were not marked by physical barriers or signs. Verdict at 6-7. The restrictions were in effect from approximately 7:30 a.m. until the President's departure following the rally. See id. at 3. Vehicles and pedestrians were permitted to travel through the restricted area until shortly before the President's noon arrival, in order to accommodate commerce and to permit airport access. See id. at 7, 12. Vehicles were not, however, allowed to stop or remain in the area. Id. at 3. Pedestrians were only permitted to remain in the restricted area if they waited in line to enter Doolittle Hangar, where they were required to present tickets for the rally and pass through a security checkpoint. See id. Because the Republican Party of South Carolina, the rally's sponsor, had distributed approximately 7000 tickets for the presidential event, numerous persons waited in line.

After the President's plane had landed but before he arrived at Doolittle Hangar, the restricted area was "shut down," i.e., it was cleared of all vehicles and pedestrians, including ticket holders awaiting entrance to the hangar. See Verdict at 7, 12. Thereafter, only authorized persons, such as presidential staff, military, and law enforcement officers (all of whom wore lapel pins issued by the Secret Service), could remain in the restricted area.


Prior to the President's arrival, Bursey drove to the airport, intending to protest the war in Iraq.2 After parking his car, Bursey walked to a grassy area near the hangar (within the restricted area), at the southeastern corner of Airport Boulevard and Lexington Drive, carrying anti-war signs and a megaphone. See Verdict at 4. A Secret Service Agent, Holly Abel, and a state law enforcement officer, Tamara Baker, then approached Bursey and informed him that he could not remain in the restricted area. See id. After some discussion Bursey crossed diagonally to the northwestern corner of the same intersection, remaining in the restricted area. Id.

Law enforcement officers thereafter advised Bursey that the northwestern corner of the intersection was also restricted. See Verdict at 4. Moreover, Agent Abel advised Bursey that he had certain choices: (1) go home; (2) get in line if he had a ticket; (3) go to the designated demonstration area; or (4) suffer the consequences and be arrested. The officers also advised Bursey to leave the area, as he was trespassing. See id. at 12. Bursey, who thirty years earlier had participated in a peaceful demonstration at the same airport against President Nixon's policies in Vietnam, knew that the Supreme Court of South Carolina had thrown out trespass charges arising from that demonstration, holding that the airport was public property and that the relevant South Carolina trespass statute was inapplicable. See South Carolina v. Hanapole, 255 S.C. 258, 178 S.E.2d 247 (1970). As a result, Bursey declined to leave the restricted area. See Verdict at 4, 12.

The entire confrontation between Bursey and the officers lasted twenty to twenty-five minutes. During much of that period, other individuals were in the restricted area, many of them in line to enter Doo-little Hangar. When the officers gave Bursey a final ultimatum to depart, however, the restricted area had been shut down, and the general public (including those waiting in line) had been cleared. At that point, when Bursey refused to leave, he was arrested by airport police on a state trespass charge. That charge was later dismissed because, as Bursey had believed, the property was public and not subject to the South Carolina trespass statute.


Over four months after his arrest, on March 7, 2003, Bursey was charged by the United States Attorney in a one-count information with violating § 1752(a)(1)(ii) of Title 18 (the "Statute").3 On November 12 and 13, 2003, he was tried by the Magistrate Judge in a two-day bench trial. See 18 U.S.C. § 3401 (providing magistrate judge with trial jurisdiction under certain circumstances). By the Verdict filed on January 6, 2004, Bursey was convicted and sentenced to a $500 fine and a $10 special assessment. See Verdict at 13. On January 13, 2004, he appealed to the district court, which received briefs and conducted a September 1, 2004 hearing. See 18 U.S.C. § 3402 (providing appeal of right to district court from conviction by magistrate judge). On September 14, 2004, the district court issued its Opinion, affirming Bursey's conviction and sentence. See Opinion at 20. Bursey has appealed, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.


An appellate review conducted by a district court after a bench trial before a magistrate judge is not a trial de novo; rather, the district court utilizes the same standards of review applied by a court of appeals in assessing a district court conviction. See Fed.R.Crim.P. 58(g)(2)(D). And our review of a magistrate court's trial record is governed by the same standards as was the district court's appellate review. See United States v. Hughes, 542 F.2d 246, 248 (5th Cir.1976). We assess challenges to the sufficiency of the evidence by viewing it — including all reasonable inferences to be drawn therefrom — in the light most favorable to the Government. See United States v. Pasquantino, 336 F.3d 321, 332 (4th Cir.2003) (en banc). Findings of fact made by the trial court are reviewed for clear error, and issues of law (such as the interpretation of statutes and regulations) are reviewed de novo. See United States v. Leftenant, 341 F.3d 338, 342-43 (4th Cir.2003).


Bursey raises two contentions in this appeal. First, he asserts that the trial court erred in concluding that he was in a restricted area at the time of his arrest. In challenging this conclusion, Bursey contends that the area was not restricted within the meaning of the Statute and its governing regulations. Second, he maintains that the trial court erred in concluding that he possessed the requisite criminal intent to commit the offense charged. We address these contentions in turn.4


In relevant part, the Statute provides that it is unlawful for any person to willfully and knowingly "enter or remain in any posted, cordoned off, or otherwise restricted area of . . . grounds where the President . . . is or will be temporarily visiting, in violation of the regulations governing ingress or egress thereto." 18 U.S.C. § 1752(a)(1)(ii).5 As directed by Congress, the Secretary of the Treasury has promulgated regulations pursuant to the Statute, providing, in part, that "ingress or egress to or from . . . any posted, cordoned off, or otherwise restricted areas of . . . grounds where the President. . . is or will be visiting is authorized only for the following persons:" invitees, members of the President's family and staff, military and communications personnel, law enforcement personnel, and holders of easements to the property. 31 C.F.R. § 408.3(a) (the "Regulations").6 In reviewing Bursey's contention we first assess his position with respect to what constitutes a "restricted...

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