Motion to US District Court to vacate order, Feb 2003

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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United States of America,

Criminal Action No. 02-CR-369(GJD)
Affidavit in Support of Motion.

John Murtari,

Defendant
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JOHN MURTARI, being duly sworn, deposes and states:

  1. I am the defendant in this action, and I make this statement in support of my motion dated February 12, 2003.

Vacate the prior order of the Court dated 13 December 2002.

  1. The order is too broad in nature and provides an unjustified restraint on speech. Without repeating here, I include the argument made by Ms. Peebles in the Appellate Brief (Exhibit A, page 26).
  2. Without repeating, I also include the complete District Court decision in the case of Bynum vs. United States Capital Police (Exhibit B).
  3. Without repeating here, I include an excerpt from a Motion made by Attorney Charles Keller in State Court requesting an �Order of Protection� regarding the Federal Building be vacated (Exhibit C). The motion was granted.
  4. There has never been a hint of evidence produced that I have ever acted in a threatening or illegal manner with respect to office contact of Members of Congress. I also include a copy of an �Order of Protection� issued by a City Court Judge (Exhibit D), which was vacated, along with a letter from Congressman James Walsh (Exhibit E).
  5. I dispute the factual finding of the order that �� John Murtari has been charged on previous occasions with the same conduct for which he has been found guilty�� I was found guilty of trespassing & disorderly conduct triggered by �congregating� with other. In all the prior incidents the issue of �congregating� has never come up regarding conduct. I do not believe that any evidence was brought up in the Trial record to specify exactly what the prior charges were.
  6. I dispute the factual finding of the order that �� John Murtari has been charged on two separate occasions during the pendency of this case with the same unlawful activity.� Again, the issue of congregating never came up. Also, as was mentioned in our previous Court appearance, the US Attorney�s office still has note made a formal complaint specifying the exact charges. The one set of tickets I have for the 30th of September only charge �Failure to comply with directions from an FPS personnel� and �Unwanted loitering/demonstrating, causing concern within building�. I do not believe that any evidence was brought up in the Trial record to specify exactly what these charges were.
  7. I dispute the factual finding that ��John Murtari has indicated, publicly and in writing, that in the future he intends to continue these same activities for which he has been found guilty�� I continue to assert my innocence of �congregating� with others and it certainly is not my public position to promote �disorderly conduct� or �trespass� in the Federal Building. I do not believe any evidence was brought up in the Trial record to support such a finding.
  8. I dispute both the facts and the relevancy of the last finding that I have ��succeeded in bringing these issues to the attention of the two offices��
  9. The order broadly restricts my ability to contact my Members of Congress and work for reform. It did not limit itself to just saying don�t violate any laws such as disorderly conduct (which I was found guilty of by the Court).
  10. The order really appears to act as an �amendment� to fix presumed defects in the Building Rules. I can only repeat the argument earlier made by Ms. Peebles that this is not a �criminal� matter. If the GSA feels the building rules are not good enough they should pursue legislative change or civil suit.

Dismiss any pending action based on the order.

  1. The order should be vacated and in the interest of Justice the pending actions which use the order as a basis should be dismissed.
  2. Orders are presumed to have �validity� but there is certainly a threshold where an order can so exceed proper scope that an improper burden is placed on the individual.
  3. As a moral individual who is acting in good conscience to attempt to achieve Civil Rights recognition for parents and families, an order which blanket precludes contact with Members of Congress is impossible to obey.

Assigning another Judge to rule on this motion, to preside at any potential contempt hearing, and future trials.

  1. When delivering its verdict, the Court who was unable to say the words �not guilty� on counts one and two during my bench trial.
  2. The Judgment in a Criminal Case, dated 21 Nov, for this matter does not contain a �not guilty� entry with respects to counts one and two of the complaint.
  3. In my discussions with attorneys, I was unable to find any precedence for such conduct.
  4. During our earlier appearance on January 15th, I was concerned to hear the Court muse over the issue that 30 days confinement might not be enough punishment regarding the pending Contempt charge. That the Court considered �certifying� the matter to a District Judge so a six month sentence could be imposed.
  5. I continue to also stand by my innocence in the matter that went to Trial. The Brief (Exhibit A) makes clear what the elements of the crimes were and that they did not exist. I believe I was not given a presumption of innocence, nor was the government required to prove guilt beyond a reasonable doubt during my bench trial.
  6. I have a great respect for the Court. I am thankful for the original assignment of Counsel to help in my defense. I am most thankful for the Courts forbearance in sentencing and in scheduling appearances so that family visits with my Son could continue. Words cannot express my real appreciation.

 

 

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JOHN MURTARI

Sworn to before me this

12th Day of February 2003.

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Notary Public