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United States v. Murtari

March 11, 2008

UNITED STATES OF AMERICA
v.
JOHN MURTARI, DEFENDANT.



The opinion of the court was delivered by: David E. Peebles U. S. Magistrate Judge

(MEMBER CASE)

DECISION AND ORDER

This matter, which involves four separate misdemeanor informations all of which accuse defendant John Murtari of criminal contempt based upon his alleged disregard of conditional release orders issued by the court in connection with pending criminal charges, in violation of 18 U.S.C. § 401(3), implicates the court's power to set pretrial release conditions under the Bail Reform Act, 18 U.S.C. § 3141 et seq., restricting the defendant, while on release, from engaging in conduct which might not otherwise violate any state or federal criminal provision. Presently before the court is a motion by the defendant seeking dismissal of the charges against him or, in the alternative, an order rescinding or narrowing the restrictions contained in one of the two disputed pretrial release orders. In seeking dismissal, defendant asserts that the relevant provisions of the court's conditional release orders unduly restrict his freedom of speech, in violation of the First Amendment, and are therefore invalid. Defendant also contends that the orders which he is alleged to have violated are impermissibly vague, and accordingly cannot support convictions for criminal contempt.

Having reviewed the matter in light of defendant's arguments, I find that while the First Amendment does impose certain limitations upon the right of a court to impose release conditions, the release orders issued in this instance did not exceed those permissible bounds. I also find that the provisions of the release orders which the defendant is accused of having violated, particularly as supplemented by the explicit verbal instructions given to the defendant in open court providing guidance with respect to the second of those orders, are not ambiguous and thus do not require dismissal, and that defendant's request for recision or modification of the second of the two release orders in issue has been rendered academic in light of the subsequent revocation of his release status.

I. BACKGROUND

Defendant John Murtari is no stranger to the court or law enforcement officials stationed at the James M. Hanley Federal Building, located in Syracuse, New York (the "Federal Building"). For an extended period Murtari has engaged in various activities in and around the Federal Building apparently calculated to draw attention to his cause, in which he advocates for fathers' rights, and to lend support to his efforts to secure a meeting with Senator Hillary Clinton with the intent to elicit her assistance.

As a result of earlier encounters, defendant has been banned from entering the Federal Building without permission, other than for required court appearances, and has been arrested on numerous occasions by security personnel assigned to the facility. While the majority of his arrests prior to those now at issue have resulted from the defendant's entering onto the Federal Building premises and refusing to leave when ordered to do so, some have also involved his refusal to obey explicit directions that he not write in chalk on government property adjacent to the Federal Building.

The four criminal contempt charges now pending arise from the issuance of two separate conditional release orders by the court. The first of those was issued on September 7, 2007 by Chief United States Magistrate Judge Gustave J. DiBianco, prohibiting the defendant's entry onto any portion of the property associated with the Federal Building absent prior permission from the court. See United States v. Murtari, Criminal Action No. 5:07-CR-387 (GJD), Dkt. No. 2. The second, issued by me on January 18, 2008, was somewhat more generous, in that while it prohibited the defendant from entering the Federal Building, absent prior permission, it permitted him to engage in certain peaceful activities in the plaza adjacent to the building provided that he did not deface or destroy government property when doing so. United States v. Murtari, Criminal Action No. 5:07-CR-428 (DEP), Dkt. No. 8.

On September 27, 2007, Murtari was charged by information with having entered onto the premises of the Federal Building on that date without having obtained prior permission and refusing to leave after having been asked to do so, in violation of Judge DiBianco's September 7, 2007 order prohibiting such conduct. See United States v. Murtari, Criminal Action No. 5:07-CR-428 (DEP), Dkt. No. 1. After having initially appeared before me in connection with that charge, defendant was released on conditions pending disposition of that and another open criminal matter against him. In an ensuing order, I conditioned defendant's release on his continued compliance with the terms of Judge DiBianco's September 7, 2007 release order, and specifically cautioned Murtari that his refusal to sign an acknowledgment regarding the court's release conditions would not excuse the requirement of faithful compliance with those terms.

Defendant is alleged to have again entered onto the property adjacent to the Federal Building on January 15, 2008, without obtaining prior permission, and was charged by misdemeanor information with criminal contempt arising from that act.*fn1 See United States v. Murtari, Criminal Action No. 5:08-CR-17 (DEP). When defendant was brought before me in connection with that charge he convincingly argued that my prior release order was ambiguous, in that it incorporated conditions from an order issued by Judge DiBianco on September 7, 2007 which was no longer in effect, based upon the fact that the case in which it was issued was closed on October 22, 2007.*fn2 In light of the defendant's arguments in this regard I issued an order dated January 18, 2008 clarifying that while Judge DiBianco's order had indeed expired, the conditions contained within it, with some modification, would continue to govern the defendant's conduct while on release, having effectively been incorporated by reference into my release order issued in connection with the September 27, 2007 charge. See United States v. Murtari, Criminal Action No. 07-CR-428 (DEP), Dkt. No. 8. My January 18, 2008 order additionally relaxed somewhat the restrictions imposed in connection with the defendant's release, based upon an in-court discussion with him, in that it explicitly permitted Murtari to engage in certain peaceful conduct on the grounds of the Federal Building provided that his activities were in compliance with any applicable permit requirements governing such activity, and did not result in destruction or defacement of federal property. See id. ¶ 3. That written order specifically stated that it did not prohibit Murtari from engaging in peaceful conduct in the outdoor plaza area of the James Hanley Federal Building providing that he does so alone and not in concert or association with others, does not interfere with any party's access or egress to the premises or otherwise intimidate or annoy others lawfully on the property, and does not deface or otherwise destroy government property, and does not engage in any activity which would threaten the safety and welfare of himself or others. Id. ¶ 4 (emphasis added).

Despite the issuance of that order and my specific directive that when on property adjacent to the Federal Building he is not permitted to destroy or deface government property, including through chalking, the defendant is alleged to have entered onto the property on January 24, 2008, and again on January 29, 2008, and on both of those occasions defaced government property by writing in chalk.

II. PROCEDURAL HISTORY

The defendant is currently facing four separate charges of criminal contempt. By information filed on September 17, 2007, Murtari is alleged to have violated the terms of Chief Magistrate Judge DiBianco's September 7, 2007 order by entering onto property adjacent to the Federal Building on September 13, 2007. United States v. Murtari, Criminal Action No. 07-CR-406 (DEP), Dkt. No. 1. A second information, filed on September 27, 2007, alleges an additional violation of Judge DiBianco's order occurring on that date, when Murtari again purportedly entered onto property adjacent to the Federal Building, refusing to leave when asked to do so by law enforcement officials. United States v. Murtari, Criminal Action No. 07-CR-428 (DEP), Dkt. No. 1.*fn3

Murtari is also separately charged in two informations, both filed on January 29, 2008, with having violated the terms of my order issued on January 18, 2008, by entering onto premises adjacent to the Federal Building on January 24, 2008 and January 29, 2008, respectively, and on those occasions defacing government property by writing in chalk. United States v. Murtari, Criminal Action No. 08-CR-59 (DEP), Dkt. No. 1; United States v. Murtari, Criminal Action No. 08-CR-60 (DEP), Dkt. No. 1. The defendant has appeared with ...


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