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United States v. Murtari

October 16, 2007

UNITED STATES OF AMERICA,
v.
JOHN MURTARI, DEFENDANT.



The opinion of the court was delivered by: Gustave J. DI Bianco, Magistrate Judge

MEMORANDUM DECISION and ORDER

This defendant has been charged in a 4-count information with violations of the Code of Federal Regulations in conjunction with his activities at the James M. Hanley Federal Building Plaza on August 30 and September 4, 2007.

Specifically, the Superseding Information dated September 18, 2007 alleges that on August 30 and September 4, 2007, defendant willfully damaged or destroyed property at the James M. Hanley Federal Building by writing on the surface of the plaza on the outside of the building in violation of 41 C.F.R. § 102-74.380(b)(Counts 1 and 3). The defendant is also charged with failure to obey the lawful direction of the Federal Police Officers or other authorized personnel on August 30 and September 4, 2007 by returning to write on the plaza after being told to stop that conduct in violation of 41 C.F.R. § 102-74.385 (Counts 2 and 4).

The Superseding Information (07-CR-387) merely added Counts 3 and 4 to the original information that was filed on September 4, 2007 and includes the defendant's conduct of September 4, 2007.

This court held a bench trial on October 3, 2007. At the beginning of the trial, defendant moved to dismiss the charges. The Government opposed the motion, and I reserved on the decision and proceeded to hear all the evidence.

Prior to trial, the parties also discussed the fact that the defendant had additional charges brought against him involving contempt of my previous orders. These charges, however, are the subject of a separate information, and will be handled in a separate trial. The only charges that are the subjects of this trial are contained in 07-CR-387.

The following constitutes this court's findings of fact, conclusions of law on defendant's motion to dismiss, and verdict in this case.

FACTS

The first incident in this case occurred on August 30, 2007. The Government produced three witnesses to testify about the events on August 30, 2007: David M. Pontius of Wackenhut Security, the Site Supervisor at the James M. Hanley Federal Building; Jeff A. Berwald, an Inspector for the Federal Protective Service at the James M. Hanley Federal Building; and Jay Burris, the General Services Administration's property manager at the Federal Building.

The testimony of these three individuals showed that on August 30, 2007, defendant came to the Federal Building and wrote on the pavement in chalk. Defendant wrote the words "I Ì Dom, Sen. Clinton Help Us." Inspector Berwald testified that he specifically told defendant to stop this activity, but when he returned to the plaza 35-40 minutes later, the defendant was again writing on the ground with the chalk. Inspector Berwald stated that he asked defendant whether he had written on the ground "again," and defendant admitted the conduct.

After defendant's admission, Inspector Berwald placed defendant under arrest, issued him summonses for the violations and released him. Inspector Berwald stated that defendant did not ask any questions or state that he did not understand what Inspector Berwald was doing. He did not indicate in any way that he thought that Inspector Berwald's order to cease writing on the pavement was unlawful. Government counsel introduced photographs of the chalk writings,*fn1 and it is clear that the defendant does not deny writing the words, either the first time or after he was told to stop doing so.

The second incident in this case occurred on September 4, 2007. The Government produced two witnesses to testify about the September 4, 2007 incident: Dale Mitchell, a Wackenhut Security Officer, stationed at the James M. Hanley Federal Building; and Joseph P. Chapman, an Inspector for the Federal Protective Service.

The testimony of these two witnesses established that on September 4, 2007, defendant returned to the Federal Building and wrote several messages in chalk on the pavement of the Federal plaza. Officer Mitchell testified that at approximately 10:30 a.m. on September 4, 2007, he was informed that someone was writing on the Federal plaza in chalk. Officer Mitchell went outside and observed defendant kneeling on the ground writing with chalk on the pavement. Officer Mitchell spoke to defendant and asked defendant to give him the chalk. Officer Mitchell asked the defendant if he had more chalk, but defendant refused to tell the officer. Officer Mitchell then called Inspector Chapman.

Inspector Chapman testified that at approximately 10:40 a.m. on September 4, 2007, he was advised by building security officers that defendant was writing messages on the pavement in chalk. Inspector Chapman stated that he walked out to the plaza and looked at the messages. The Government introduced photographs of the messages. Officer Chapman was aware of the August 30, 2007 incident, and told ...


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