US District Court motion to dismiss complaint, Mar 2003

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________

United States of America,

          vs.                            Index No.    5:03-M-73 (GJD)
Affidavit in Support of Motion.
John Murtari,    

              Defendant
____________________________________

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 March 13, 2003.

Dismiss Counts one and two of the complaint.

  1. The complaint references New York Penal Law 140.05 (Trespass) and sections of the United States Code which allow prosecution based on violation of a state law.
  2. In the history of this activity I have had approximately 29 charges dismissed in state court by three different City Court Judges. The majority of those were �trespass� charges (140.05) and these were dismissed because in a public area there has to be an allegation of wrong doing.
  3. The complaint makes no such allegation other than failure to obey a lawful order to leave.
  4. It is my belief the government will concede the fact Federal Officers were using the building rules to justify their order.
  5. During the trial of October 29th, I was found not guilty of any violation of building rules. There exists no basis in the building rules for their order to leave the building.
  6. I believe the government will also concede the fact I am not claiming any absolute right to be in the building. On at least 3 recent occasions I did comply with requests by Federal Officers/Security Staff to leave the building because of unique activities that day.

Dismissing Counts three and four of the complaint.

  1. During the arrests that occurred on December 30th and January 6th there had been a stay away order issued by the Court on December 13th.
  2. Without repeating here, I include the original argument made in a Motion dated 12 February 2003 to have that order vacated.
  3. There was no lawful basis for an order to leave the building.

Dismiss all counts on the basis of double-jeopardy.

  1. I was charged for Trespass in City Court for each of the dates in the complaint. City Court Judge Kevin Young dismissed the charges.

Assigning counsel for the defendant

  1. There has been no significant change in my financial status since I filed my original statement with the Court.
  2. I am under a tremendous debt burden and it is difficult to meet basic family obligations. There are other more urgent matters I wish to pursue in Family Court, but simply cannot afford counsel and a retainer.
  3. I cannot pay for counsel to represent me in this matter nor in any appeal process.
  4. Certainly the tone of the proceedings have established this matter is not a �traffic ticket� and there are significant Constitutional questions involved.
  5. Assignment of counsel would insure an orderly and effective trial.
  6. My motivation in the underlying matter is Civil Rights for parents and their children. Certainly there may be personal sacrifice involved as this effort continues � but not having effective counsel can only aggravate the situation. In the long run, no money is saved.
  7. In the state court system I have been assigned counsel in these matters. I hope discretion will allow the same in the Federal system.

____________________

JOHN MURTARI

Sworn to before me this

13th Day of March 2003.

______________________________

Notary Public