United States v. Bursey , 416 F.3d 301 ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
BRETT A. BURSEY,
Defendant-Appellant.
DKT LIBERTY PROJECT;  No. 04-4832
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.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(CR-03-309)
Argued: May 27, 2005
Decided: July 25, 2005
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.
2 UNITED STATES v. BURSEY
COUNSEL
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 Appel-
lant. 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.
OPINION
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; sec-
ond, he contends that the court erred in finding that he possessed the
requisite criminal intent. As explained below, we reject both of Bur-
sey’s challenges and affirm.
I.
A.
These proceedings arise from a presidential visit to Columbia,
South Carolina, on October 24, 2002, for a political rally held at the
UNITED STATES v. BURSEY 3
1
Columbia airport’s Doolittle Hangar. See Verdict at 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 sta-
tioned 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 approxi-
mately 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 tick-
ets 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 await-
ing 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.
B.
Prior to the President’s arrival, Bursey drove to the airport, intend-
1
We recite the facts in the light most favorable to the Government, as
the prevailing party. See United States v. Pasquantino, 336 F.3d 321, 332
(4th Cir. 2003) (en banc). The Magistrate Judge made findings of fact in
the Verdict, which we review for clear error. See Fed. R. Civ. P. 52(a).
4 UNITED STATES v. BURSEY
ing 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, carry-
ing anti-war signs and a megaphone. See Verdict at 4. A Secret Ser-
vice 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 intersec-
tion, remaining in the restricted area. Id.Law enforcement officers thereafter advised Bursey that the north-
western 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 trespass-
ing. 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 demonstra-
tion, holding that the airport was public property and that the relevant
South Carolina trespass statute was inapplicable. See South Carolina
v. Hanapole, 178 S.E.2d 247 (S.C. 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 indi-
viduals 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 gen-
eral 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.
2
Bursey had previously called the South Carolina Law Enforcement
Division to advise it of his intention to protest. There is some dispute,
irrelevant to this appeal, as to what was said during and following that
conversation.
UNITED STATES v. BURSEY 5
C.
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 Novem-
ber 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 (pro-
viding 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. Bur-
sey has appealed, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
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 there-
from — in the light most favorable to the Government. See United
3
The Information alleged that, on October 24, 2002, Bursey:
knowingly and willfully did enter and remain in and on grounds
located at or near Airport Boulevard and Lexington Avenue,
West Columbia, South Carolina, which was then a posted, cor-
doned off and restricted area where the President of the United
States was temporarily visiting, in violation of the regulations
governing ingress and egress thereto;
All in violation of Title 18, United States Code, Section 1752(a)(1)(ii).
6 UNITED STATES v. BURSEY
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 regula-
tions) are reviewed de novo. See United States v. Leftenant, 341 F.3d
338, 342-43 (4th Cir. 2003).
III.
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
A.
In relevant part, the Statute provides that it is unlawful for any per-
son to willfully and knowingly "enter or remain in any posted, cor-
doned off, or otherwise restricted area of . . . grounds where the
President . . . is or will be temporarily visiting, in violation of the reg-
ulations governing ingress or egress thereto." 18 U.S.C.
§ 1752(a)(1)(ii).5 As directed by Congress, the Secretary of the Trea-
4
Bursey asserted before the Magistrate Judge that the Government’s
prosecution was conducted in an unconstitutional manner, i.e., that he
was the victim of an unconstitutional selective prosecution. See Verdict
at 5-12. Bursey abandoned that claim on appeal to the district court and
has not raised it in this proceeding. Opinion at 2 & n.1. Although the
constitutional propriety of this prosecution is not before us, whether Bur-
sey should have been prosecuted is — as a general proposition — a deci-
sion reserved to the executive branch, specifically the Attorney General
and the United States Attorney. And, while such decisions may be fair
game for public criticism, they normally are not subject to judicial
review. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[T]he
decision whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in [the prosecutor’s] discre-
tion.").
5
The Statute was enacted in 1971, following the assassinations of Pres-
ident John F. Kennedy and his brother, presidential candidate Robert F.
Kennedy.
UNITED STATES v. BURSEY 7
sury 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 area" under the Statute. We
then turn to his challenge concerning the Regulations.
1.
Bursey maintains that the area where he was arrested was not
restricted within the meaning of the Statute, because there was no
physical manifestation of the area’s boundaries. He contends that the
Statute’s terms — "any posted, cordoned off, or otherwise restricted
area" — require that such an area’s boundaries must be physically
demarcated. In so maintaining, he relies upon the statutory construc-
tion principles of noscitur a sociis ("[i]t is known from its associates")
6
Specifically, the Regulations provide that only the following persons
are authorized to be within a restricted area:
(1) Invitees: Persons invited by or having appointments with the
protectee, the protectee’s family, or members of the protectee’s
staff;
(2) Members of the protectee’s family and staff;
(3) Military and Communications Personnel assigned to the
Office of the President;
(4) Federal, State, and local law enforcement personnel engaged
in the performance of their official duties and other persons,
whose presence is necessary to provide services or protection for
the premises or persons therein;
(5) Holders of grants of easement to the property, provided such
persons or their authorized representatives show title to the grant
of easement and obtain authorization from the United States
Secret Service.
31 C.F.R. § 408.3(a).
8 UNITED STATES v. BURSEY
and ejusdem generis ("[o]f the same kind, class, or nature"). Black’s
Law Dictionary 608, 1209 (4th ed. 1968). Under these canons of con-
struction, "where general words follow specific words in a statutory
enumeration, the general words are construed to embrace only objects
similar in nature to those objects enumerated by the preceding spe-
cific words." See Wash. State Dep’t of Soc. & Health Servs. v. Guard-
ianship of Danny Keffeler, 537 U.S. 371, 384 (2003) (internal
quotations marks and alterations omitted). Applying these canons to
the Statute, Bursey asserts that the term "otherwise restricted" must
be construed to embrace only physical indicia of a restricted area’s
boundaries, much like the terms "posted" and "cordoned off." He also
contends that, at the time of his arrest, there was no physical manifes-
tation of the restricted area’s boundaries, and that he thus did not vio-
late the Statute.
We need not determine whether, as Bursey contends, the Statute
requires a physical demarcation of a restricted area. This is because,
contrary to Bursey’s assertions of fact, the boundaries of this
restricted area were visibly marked. Indeed, the Magistrate Judge spe-
cifically found that the "law enforcement agents were stationed at the
perimeters of the area." Verdict at 7. Stationing agents along an area’s
perimeter squarely falls within the plain meaning of the term "cor-
doned off," that is, "a line or series of troops or of military posts
placed at intervals and enclosing an area to prevent passage" or "a
barrier of any kind operating to close off, restrict, or control access."
Webster’s Third New International Dictionary 506 (1976). Pursuant
thereto, the officers at the perimeters of the area were sufficient to
make it a "cordoned off" and otherwise restricted area. As a result,
there was no error in the trial court’s ruling that the area surrounding
Doolittle Hangar, in which Bursey was arrested, was a restricted area
within the meaning of the Statute.7
7
In his appeal, Bursey makes no contention that the Magistrate Judge’s
finding that law enforcement officers were stationed at the perimeters of
the restricted area is clearly erroneous, or that the finding is otherwise
insufficient to render the area "cordoned off" or otherwise restricted
under the Statute. We thus need not address the contention of the amicus
curiae that the Opinion, by not mandating visible markers of the
restricted area’s boundary, presents First Amendment problems.
UNITED STATES v. BURSEY 9
2.
Bursey next contends that the trial court erred in concluding that
the area was restricted within the meaning of the Regulations. See
Verdict at 4. Specifically, he maintains that, because persons with and
without tickets could freely enter and traverse the restricted area, and
could wait in line to enter Doolittle Hangar, the area was not
restricted pursuant to the Regulations, which limit access to persons
such as presidential invitees, family members, and staff.
Bursey’s contention on this point is also without merit, because the
area was restricted to all but authorized persons, as provided for in the
Regulations, at the time of his arrest. Although there was conflicting
testimony on this point, the evidence must be viewed in the light most
favorable to the Government, and we can only vacate factual findings
that are clearly erroneous. See Leftenant, 341 F.3d at 342-43; Pasq-
uantino, 336 F.3d at 332. The Magistrate Judge found that once Air
Force One had landed, "all vehicular traffic through the area was
halted," and, once the President had departed the plane, the area was
"cleared even of ticket holders waiting to get into the building." Ver-
dict at 3. Although no specific finding was made on the precise time
of Bursey’s arrest in relation to the time of the shut down, we are
obliged — in properly viewing the evidence — to agree with the dis-
trict court that "at the time of his arrest, the area had, in fact, been
shut down." Opinion at 16 (emphasis omitted). On this point, Agent
Abel testified that she advised Bursey, prior to his arrest, "[l]ook
around you, there is nobody else here . . . . Don’t you understand, it’s
completely closed off now . . . ." Id. at 16 n.26. Agent Baker also tes-
tified that, at the time of Bursey’s arrest, "the ticketholders had actu-
ally been moved out of the area" and "when the President is coming
in . . . you can’t have anybody . . . where they can see him." Id. (alter-
ations omitted). In these circumstances, the trial court did not err in
determining that the area was restricted pursuant to the Regulations.
B.
Finally, Bursey maintains that the trial court erred in finding that
he had "willfully and knowingly" committed the offense charged. See
Verdict at 4. Although Bursey concedes that he was advised by the
officers before his arrest that he was in a restricted area and required
10 UNITED STATES v. BURSEY
to leave, he contends that he was never advised that the area was a
federally restricted zone, so designated by the Secret Service. He fur-
ther asserts that the instructions given to him by the officers were
insufficient to supply the necessary knowledge that his conduct was
unlawful under the Statute.
Although "[d]ivining the meaning of ‘willfully’ in criminal statu-
tory mens rea terms has long bedeviled American courts," our assess-
ment of whether, under this evidence, Bursey willfully violated the
Statute does not present a close question. United States v. George,
386 F.3d 383, 389 (2d Cir. 2004) (emphasis in original).8 Bursey need
not have known of the Statute itself (nor, for that matter, the Regula-
tions) in order to possess the requisite intent to violate it. See Bryan
v. United States, 524 U.S. 184, 196 (1998) (holding, in context of fire-
arms statute, 18 U.S.C. § 922(a)(1)(D), that knowledge of conduct’s
general unlawfulness, rather than knowledge of particular criminal
statute and regulations, is only requirement for willful violation).9 As
8
We focus our discussion on whether Bursey "willfully" violated the
Statute, because, generally, "[m]ore is required" with respect to conduct
performed willfully than conduct performed knowingly. Bryan v. United
States, 524 U.S. 184, 193 (1998); see also United States v. Jarvouhey,
117 F.3d 440, 442 (9th Cir. 1997) (concluding willful violation of 18
U.S.C. § 924(a) requires "more culpable" mens rea than knowing viola-
tion). As a general proposition, the statutory term "knowingly" requires
the Government to prove only that the defendant had knowledge of the
facts underlying the offense. See Bryan, 524 U.S. at 192-93.
9
In Bryan, the Court acknowledged that it had held to the contrary in
a line of decisions addressing currency and taxation statutes — that is,
that the term "willfully" in a criminal statute required that the defendant
possess knowledge of the particular law that he was charged with violat-
ing. 524 U.S. at 194 (citing Ratzlaf v. United States 510 U.S. 135 (1994);
Cheek v. United States, 498 U.S. 192 (1991)). As in Bryan, the Ratzlaf
and Cheek line of decisions are inapposite to these circumstances, where
the Statute is not technical like the currency and taxation laws and the
danger of an innocent state of mind is diminished. Id. at 194-95 & n.22
(observing that in Ratzlaf and Cheek, "‘both sets of laws are technical;
and both sets of laws sometimes criminalize conduct that would not
strike an ordinary citizen as immoral or likely unlawful’") (quoting
United States v. Aversa, 984 F.2d 493, 503 (1st Cir. 1993) (Breyer, C.J.,
concurring)).
UNITED STATES v. BURSEY 11
the Bryan Court observed, for a defendant to have acted willfully, he
must merely have "acted with knowledge that his conduct was unlaw-
ful." Id. at 193. Thus, Bursey need not have had knowledge of the
existence of the Statute — or its federal nature — in order to have
willfully violated it.
The Statute required only that Bursey refrain from "willfully and
knowingly . . . enter[ing] or remain[ing] in any posted, cordoned off,
or otherwise restricted area of . . . grounds where the President or
other person protected by the Secret Service is or will be temporarily
visiting." 18 U.S.C. § 1752(a)(1)(ii). Bursey plainly intended to enter
and remain near Doolittle Hangar, which was a restricted area. He
concedes that he knew that the President was visiting the area, that the
area was deemed restricted by law enforcement, and that he had been
ordered to leave. Furthermore, contrary to Bursey’s position on
appeal, the district court found that he understood the restriction to
have been created by the Secret Service (as opposed to state or local
law enforcement). Opinion at 17-18. To the extent that Bursey chal-
lenges that finding, we again view the evidence (and any reasonable
inferences drawn therefrom) in the light most favorable to the Gov-
ernment. See Pasquantino, 336 F.3d at 332. In so doing, there was
ample evidence that Bursey understood the area to have been
restricted by the Secret Service, and thus a federally restricted zone.
Specifically, Bursey testified that he believed that "at that event,
October, when the President came to town, that the circumstances
would be similar to his prior visits, where . . . the Secret Service
comes in and preempts" local and state police. Opinion at 17 n.27.
Bursey also acknowledged that, in protesting at two earlier visits to
South Carolina by the incumbent President, he was advised in both
instances that "the Secret Service had basically preempted the security
arrangements" of local police. Id. Bursey thus took a calculated risk
when he defied the orders of the officers to leave the restricted area,
thereby intending to act unlawfully. As a result, the trial court’s deter-
mination that Bursey possessed the requisite intent to commit the
offense charged was not clearly erroneous.
IV.
Pursuant to the foregoing, we affirm Bursey’s conviction and sen-
tence.
AFFIRMED