Ranger Dodd False Report

Ranger Dodd wrote the following false report about the Memorial Day incident:

"Since arriving in the Flathead Valley BAUTISTA has been living in a variety of places including the Samaritan House in Kalispell. It was clear to me from the information I gathered that BAUTISTA is not a permanent citizen of the US. I discussed this case by phone with SAUSA Katie Schulz and she agreed that we did not have enough probable cause to charge BAUTISTA with the theft of money from Hopkins but that we did have sufficient evidence to charge him with the illegal use of the US Access pass. I then wrote out the charge of Misappropriation of Services by using an illegally obtained access pass to gain entry to the park and served in on BAUTISTA as a violation notice with a mandatory appearance. BAUTISTA refused to accept the violation notice. When he refused I told him he had to accept it or be arrested and incarcerated. He refused and was subsequently arrested and transported to the Flathead County Detention Center by me and ranger Smith pending an appearance before a US Magistrate.

On May 26, 2009 I returned the Vista Motel key to Lori Kami manager of the motel. She said BAUTISTA had stayed at the motel in November of 2008 for a few days. She didn't charge him for the stay because they had no water but when she told BAUTISTA he had to leave the facility he refused. Kami said she had to call her laid off maintenance worker back to help her physically throw BAUTISTA off the property and that she didn't get the key back. She further said she and others had seen footprints in the snow during the winter and suspects BAUTISTA may have been illegally staying in room # 2 but can't prove it.

Barely any of the above is true. It is Ranger Dodd's lie that "I refused to leave the Vista Motel", The same for "being physically thrown off the Vista Motel (listen to my recent conversation with Lori Kami). it is ridiculous for Ranger Dodd to say I stayed at the Vista Motel in November 2008, when it was in February 2009. It is also untrue that I was arrested after I refused to accept the violation notice. Finally, Ranger Dodd shows in his report that he has no grasp of what is a resident, a permanent resident or a citizen, and consequently he has and did not have any clue of what the law says.

The truth is that I stayed at the Vista Motel a few days in February 2009. Lori just had had a problem with the pipes and there was no running water. I helped out Lori as she fell ill that Superbowl weekend. Eventually, I also fell ill. I was the only guest, so after a few days struggling with the pipes, Lori and the owner decided to shut down the facility and wait for the snow to melt. Lori was leaving to visit her daughter fighting cancer in Idaho. I had remained in bed the days before, was still not feeling well and had to quickly pack all my stuff and leave. Lori asked a friend to give me a ride to wherever I was going next. he helped me loading all my stuff in his truck. as I was going through the phone book looking for a new place to stay. Since they were waiting for me for quite a while, when I finally found something and got off the phone, I rushed to the truck and did not think that I still had to check out. Lori never said anything to me either.

I wonder why Ranger Steve Dodd so grotesquely lied in his report. It is not just that what he wrote was not true, but it was not what Lori told him either. I recently talked to Lori and she perfectly remembers all what happened, exactly as it happened. Lori remembers perfectly well that she had the water freeze in February, because that forced her to shut down the motel for the entire Spring. Moreover, it could not have been in November 2008, because there was no snow until December.

The fact that Ranger Steve Dodd did not hesitate to lie as much as needed in order to hurt me, shows very clearly that his goal has never been to enforce any law, but a personal matter. A clear indication of the ridiculous account provided by Ranger Dodd of the days I stayed at the Vista Motel, is that as many incidents as Ranger Dodd and the US Attorney's Office tried to raise against me to attack me and present me as a dangerous individual, they did not dare to use the fake 'Vista Motel incident'. Their desperate efforts to trash me are also evident from Ranger Dodd's pathetic reasoning that they suspected I had illegally stayed at the Vista Motel, just because they "found footprints in the snow during the winter". It is not surprising they also decided to drop such ridiculous argument.

As much as they worked to portray me as a threat to the community, I wonder who is in the end the real danger to the community. If anybody has any doubt about it, to me it is very clear that Ranger Steve Dodd and the US Attorney's office fit better in that category. I certainly stand up as the first, but probably not the last, witness of their disposition and capacity to hurt other innocent people in the community. Ranger Dodd had declared me guilty even before he started investigating. But, as I happened to be innocent, he could not find any evidence against me and consequently, in joint effort with the US Attorney's office, started fabricating arguments and false evidence against me. To their disappointment, that was still not enough to have me convicted, but to their comfort, they had me spend a few days in jail anyway.

I do not understand how it is acceptable in the United States of America that public servants with this kind of authority mix their personal feelings with their public duties. With this law enforcement, attorneys and judges, no matter how much you respect and observe the law, they can still take away your freedom and incarcerate you, if they decide they do not like you.

It is also not true that I was arrested because I refused to accept the violation notice written by Ranger Steve Dodd. The truth is that Ranger Dodd knew that, traveling on I bicycle as I was, he would already destroy my trip by writing a citation with mandatory appearance on Aug 21st. I explained him that I would call a lawyer before accepting the citation. He corrected that he would not wait and let me call a lawyer. He would count to ten and arrest me if, in that time, I had not accepted the citation and left. I insisted I would first call a lawyer to see if there was any way I can have the case resolved without waiting three months to appear on August 21st. As I went towards my bicycle and started searching for my phone, Ranger Steve Dodd counted to ten and, as he finished, grabbed my wrists, handcuffed me and told me I was now under arrest. It is true that, although I was not able to speak with any lawyer, I was later allowed to make one call, but that was strictly after I have already been arrested.

It is also to worry about Ranger Dodd's ignorance of the law and incompetence. He justifies his arrest based on the finding that I am not a 'permanent citizen'. Yet, there is nothing such as a 'permanent citizens'. Citizens are not permanent or temporary; but just citizens. Ranger Dodd did not and still does not have any clue of the different immigration status categories. Even worse, he did not and still does not have any idea of the requirements of my disability access pass. He did not start his investigation of my disability access pass because he had any insight that the law had been broken, but because he was fully committed to find something he could use to hurt me. As I express in my complaint to Glacier National Park, I don't see how a law enforcement officer may be able to enforce the law, if he does not have any clue of what the law says. It is like a Highway Patrol Officer writing a speed ticket, with no knowledge of what is the speed limit. By Ranger Dodd's own words, after several hours fishing and investigating he arrested and put me in jail, not knowing what were the requirements of my disability access pass. Fact of the matter is that I am not a citizen or 'permanent citizen' of the US, but I did not need to be a 'permanent citizen', not even a 'citizen' in order to apply for my pass. I could understand that Ranger Dodd ignored what my application form read and that I was only required to state I was permanently disabled and domiciled in the US, but I cannot understand that he did not even know what were the requirements of the law. He ignored them when he started the investigation, at the time of my arrest and incarceration. Moreover, he did not even take the time to find them out in the days after.

It is true that I am currently having problems with US immigration, but I hope that any decision regarding that matter, as well as any possible consequence I may suffer, will always be made through the proper channels. Immigration may have its view of what is my legal status in the US and I have mine. In any case, any decision regarding that matter, would eventually have to be made by an immigration court. If it is found that I broke the immigration law, I will bear with the consequences deriving from that case, but that does still not mean that the price I would have to pay can be automatically extended to any other completely different case, like my application for a disabled individual access pass to be exempt of entrance fees to national parks. Whether I committed any misrepresentation as I applied for that pass is something that should always de judged independently. The fact of the matter is that I did not. What I stated in my application is true and is not even in dispute by immigration; hence no connection can be established.

Moreover, it is not just that I am legally right, but I also strongly believe to be morally right. I do not agree that just because I am currently struggling with immigration, I should, on moral grounds, avoid asking for any kind of benefit that I am told to be entitled because of my presence in the US. In my opinion, it is a shame that after over ten years living in the United States, without creating any trouble, I am still considered a second class citizen, do not even have the right to work and have to go back home on a regular basis to apply for visas and ask to be allowed to come back to the US for a little longer, even if it is just to see the country. It is a shame that after more than ten year, I still have to struggle with immigration, just because I wanted to see the country.

As a final remark, It is truly hilarious to note to what extend Ranger Dodd and US Attorney Tara R. Fugina's sickness to find some way to hurt me, got out of control, that, finally, they stepped in the way of immigration and obstructed their process against me. Ranger Dodd and Tara R. Fugina were so absorbed in their relentless efforts to hurt me and oppose anything I would suggest, that in the climax of their sickness they also opposed my motion to advance the date of my August 21st hearing. As a consequence, since I had federal criminal charges pending in Glacier National Park, immigration had to postpone their action against me until 2010. I wanted to resolve all matters as soon as possible and therefore requested to advance my August 21st hearing. Special Attorney Tara R. Fugina, apparently following Ranger Dodd's instructions, opposed my motion with no other grounds than I should not get any special treatment. I had understood the hearing had not been advanced, if there was no earlier date available in any other location, but that was something for the court to decide and not the prosecution to opposed. If my request did not hurt anybody's interests, instead it facilitated the work of immigration, I do not understand why the prosecution opposed it.

Disabled Access Pass Application Form

DISABLED ACCESS PASS

Please read before signing form

An ACCESS Pass will be good for a lifetime. We do not plan to maintain records on who has been issured a Pass. If It is lost a new one will need to be purchased. If your passport becomes worn or torn, we will replace that free of charge.

To the Secretary of the Agriculture:

I do hereby awear or affirm that I have been medically determined to be blind or permanently disabled for purposees of receiving benefits under Federal Law, that I am a citizen of the United States or that I am domiciled therein, and that I am duly entitled to be Issued free of charge, one Access Passport, pursuant to the Land and Water conservation

Fund Act of 1965, as amended bt P.L. 96-344.

Javier Bautista

Theft Report Statement

This is the theft report statement of Jesse Hopkins, the person who gave me a ride from Kalispell to West Glacier. After dropping me off and leaving the truck, he noticed somebody had emptied his wallet. I guess he thought he would give it a shot; perhaps it had been me. But in his report, he does not even point at me, he even refers me as 'a gentleman'. However, having hitchhiked, touring on a bike, loaded with complete camping gear, it seems that ranger Steve Dodd profiled me as a homeless and the kind of person that steals $75, and decided he was going to force me admit it one way or another.

"I picked up a gentleman who was hitchhiking in Kalispell he said he needed to go to West Glacier. When we got to West Glacier Bridge fhI noticed park service on the bridge with 2 victims in the water. I got out of my truck and let the hitch hiker get his bike out of my truck. When I finished with the incident I noticed my wallet had been gone through and emptied and noticed 75 had been taken out."

Investigation of written complaint to Glacier National Park

Below are my remarks to Glacier Investigator's report, followed by my own conclusions and thoughts about my encounter with Ranger Steve Dodd

Investigation Report
Conclusions
Transcript of Dialogue with Ranger Steve Dodd

Hi Javier,

Below is what I plan to submit in the report based on your complaint.
Would you please review it for accuracy and let me know what I may have
misinterpreted?

Background and Interviews: This incident occurred on May 25, 2009 at
approximately 1500 hours along Going to the Sun Road approximately 15 miles
west of the West Entrance to the park in the Avalanche Campground area.

The complainant Javier Batista is a resident of Spain but has had a series
of Visa’s allowing him to be in the United States since 1996 living in the
Los Angeles area and attending the University of Southern California. He
left school in the fall of 2008 to travel Western National Parks eventually
visiting the Glacier area. He has remained in the Glacier area since
January of 2008. Mr. Batista is reportedly blind in his left eye and has
10% vision remaining in his right eye. He has chosen to rely on his
bicycle for transportation around the Western United States.

I have uninterruptedly been living in the U.S. since 1996. If there is any need to make reference to my Spanish origin and nationality, given that the English dictionary defines 'resident' as somebody that lives in a place for a long period of time, I would consider more accurate to say that I am a citizen of Spain that has been residing in the U.S. since 1996.

I am actually blind on my right eye, while my left eye keeps about 10% vision.

- Show quoted text -

I think it is relevant to make clear that I did not have my driver's credit card. I had a few credit cards with me, all issued to my name.

I was not quite asked to accompany the rangers to the headquarter. They never asked for my agreement. I was required to board the vehicle that was going to take me to the headquarters. I was just informed they would take me to the headquaters.

I don't think it is quite accurate to say the investigation continued in the headquaters. Rather, the theft investigation ended at Avalanche campground. No further investigation on the disappearance of the driver's $75 and credit card was ever conducted at the headquarters. As soon as we arrived to the headquarters, Ranger Dodd, consistent with his threats, started a series of unrelated investigations; my boots, my immigration record, the places where I had stayed, my access pass, etc.

According to Mr. Batista, he was interviewed, interrogated and harassed for
approximately two more hours while sitting in wet clothing in a cold area
of the headquarters building.

I was kept at the headquarters more than two more hours. I think I should have been at least three hours. I arrived to jail around 8:30pm-9pm.

That the area was cold is a subjective opinion that other people may argue. It is, however, an undisputable, objective fact that more accurately describes the conditions in which I was kept, that I was shivering the whole time. I, therefore, would prefer to make that clear. I believe Ranger Dodd's tactics were to break me down physically, if not psychologically.

Mr. Batista claimed Ranger Dodd was talking
on the telephone to at least two different parties – one of whom was Mr.
Batista’s former roommate in Los Angeles. Mr. Batista claimed to overhear
Ranger Dodd refer to him as “a pain” in one conversation.

I did not overhear any conversation where Ranger Dodd referred to me as 'a pain'. Rather, Ranger Dodd blurted out those words directly to my face, in the presence of the other rangers. He expressed that view several times.

Ranger Dodd kept an unreasonably long phone conversation with my old roommate, inconsistent with the explanation that he needed to verify a few facts. The conversation was part of his relentless efforts to find something he could hurt me with.

Mr. Batista reportedly hadn’t eaten since breakfast and was about to leave to get
something to eat when he was told by Ranger Dodd that they were almost
done. Ranger Dodd then wrote out a mandatory appearance citation for use of
an illegally obtained Interagency Access Pass requiring Mr. Batista to
appear before a U.S. Magistrate on August 21, 2009. Mr. Batista claimed
that he would not accept the citation without discussing the situation with
his lawyer. According to Mr. Batista, Ranger Dodd refused him time to
consult with his attorney and gave him ten seconds to decide whether he’d
accept the citation before placing him under arrest. Mr. Batista went on
to state that Ranger Dodd then started counting backwards from ten. Mr.
Batista stated that he can be stubborn and was angry at being coerced to
accept something he didn’t fully understand and felt Ranger Dodd was true
to his word in finding a way to make things hard for him – all due to the
fact that Mr. Batista refused to say that he had stolen money. Mr. Batista
was placed under arrest and transported to the Flathead County Detention
Center.

I am not sure I understand what you mean with 'being coerced to accept something I did not fully understand' (I don't know what were my words that led you to write that). I did not quite understand why I was being cited. I, however, fully understood Ranger Dodd's threats and would be ready to admit to be very stubborn and get angry if anybody tries to intimidate me, coerces me, as Ranger Dodd did.

For complete accuracy, I need to say that after I was arrested (after Ranger Dodd ended his 10-second count), I was eventually allowed to make a call to my lawyer. As I was not able to get hold of him, I tried to make another call, but was told time was up. One of the rangers kindly advised me that if Ranger Dodd would still give me the option to take the citation and leave, I should definitely "take it". I was however not given that option anymore. Instead, I was kept under arrest and directly transported to jail.

Conclusion

In summary, there is no doubt to me that my citation and subsequent arrest was not the consequence of a routine inspection or investigation that led to the conclusion that the law had been broken, but rather the result of a continuous, determined, tireless, deliberate and fully committed effort to hurt me, because I did not admit I had stolen any monies and refused to give out $75. That should not come to any surprise, because that is exactly what Ranger Dodd promised. Considering what was the course of the investigation and interrogation, I do not see any other conclusion is possible. After unsuccessfully investigating a few other issues, Ranger Dodd started yet another new investigation and inquired about entrance fee payment:

Dialogue with Ranger Steve Dodd

- "How did you get into the park?"

- "I have a pass".

- "How come they don't remember you at the gate?".

- "I don't know, I even asked them a few questions. She even slid my card, I believe...".

- "OK, so what pass do you have".

I handed my pass to Ranger Dodd and he left, back to his office. After a while he returned.

- "How come you have this pass? This pass is only for citizens".

- "No, it's also for residents".

- "No, it's only for citizens. I spoke with the person who issued you the pass, he said it's only for citizens".

- "No, it's also for residents!".

Ranger Dodd went back to his office and returned after a while.

- "OK, what is your permanent address?".

- "1826 N Harvard Blvd #21, Los Angeles CA 90027".

- "Are you in the lease, are you paying there any rent now?".

- "I don't think so, I left in September 2008 and have been riding my bicycle since then".

- "So you lied to this federal investigator!".

- "Why?".

- "You said your permanent address is in Los Angeles, but you are not paying any rent or mortgage there. What is your permanent address, where you are paying rent or mortgage?".

- "During these last months that I have been riding my bicycle, I have stayed in hundred different places and have not been paying a monthly rent or mortgage".

- "So you are not paying any rent or mortgage at the present time?".

- "I don't think so".

- "Well, if you are not paying any rent or mortgage at the moment, you are not a resident and therefore you obtained and entered the park illegally".

This dialogue, which accuracy can be confirmed by one other ranger present in the room, shows very clearly that Ranger Dodd was not trying to enforce the law, but rather was looking for anything he could use to hurt me. It shows that Ranger Dodd had no real belief that I had broken the law. I would think that in order to enforce the law, in order to have a reasonable belief that the law has been broken, a minimum insight of what the law says is necessary. It is not that Ranger Dodd was ignorant of what the law says, it is that what he said, particularly his conclusion, just did not make any sense. I think it shows he was desperate to hurt me. I think that, if not the entire dialogue, at least Ranger Dodd's conclusion and justification of why he had to cite me is relevant to the report: "Well, if you are not paying any rent or mortgage at the moment, you are not a resident and therefore you obtained and entered the park illegally".

Finally, National Park Services has always had a very loose policy enforcing national park entrance fee payments. While I fully acknowledge National Park Services' right to ask for payment or proof of payment of national park entrance fee, I have been in national parks many, many times, and have never been asked or seen any park officer ask anybody for proof of payment of park entrance fee.

In fact, Glacier Park is probably the best example of the above. Most of Glacier Park's entrance stations are not manned most of the year. That, however, does not mean that no entrance fee payment is required during those times. During the last winter and spring, I have had several different encounters, under all sort of different circumstances (from 'very friendly' to 'not so friendly'), with park rangers. I was never asked to show proof of payment. I have been standing, alongside my bicycle, at entrance stations several times. As I was standing there, many cars passed. Seeing that the station was not manned, nobody ever stopped to make any payment. This fact is very well known by park rangers. Park rangers do not routinely ask for proof of payment of entrance fees. That is also well known by park visitors. It is of no coincidence that Ranger Dodd was the first ranger to ever ask for proof of payment; it was part of his efforts to hurt me because I did not admit to steal any monies and refused to give out $75.

False Government Allegations to the court.

See also:

• Motion to Amend Conditions of Release and Advance Hearing Date
• Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• Reply to Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• False Government Allegations to the Court
• Order from the Court Denying Motion to Amend Conditions of Release and Advance Hearing Date

At first I thought it was unfortunate that I run into some bad apple: Ranger Law Enforcement Specialist Steve Dodd. It was however most disturbing to learn that the problem was more widespread and included Glacier National Park and other government's representatives in the form of US attorneys and not even excluding judges. Particularly revealing of the three-world practices I discovered in Montana was the government, represented by the US Attorneys, forgetting that its role is to enforce the law, and instead prosecutes a citizen with the only intention to hurt him or her. Especially if that entails deliberately making false statements to the court about the defendant.

In my case, the government, represented by US Attorney Tara R. Fugina, deliberately lied to the judge by making allegations about me they knew were false.


The government received information from Glacier NP, probably through Ranger Steve Dodd, that a search and rescue team was deployed in late January 2009, to look after me as I had gone snowshoeing on a 12 mile trip to Bowman Lake. Ranger Scott Emmerich led that team and would tell anybody how embarassed he was to learn Glacier National Park had used that against me, as, using his own words: "I had not done anything wrong". The truth is that I did not call the rangers, neither did I ever ask anybody to ever call the rangers in the event something happen. Moreover, interestlingly, the government provided the information that I was found without pack, but omitted that I was in perfect conditions, warm, snowshoeing, with the help of a flashlight, my way back, at just one mile from from the exit of the park. Although I appreciate other people's concerns about my wellbeing, fact of the matter is that I was doing fine, my life was not saved or whatsoever, that evening by the rangers and I had had no problem to get back to the hostel on my own. Apparently, one other of the hostel's guest called the rangers as he was worried about me. I think I understand the good intentions behind that guest and the ranger's efforts, but don't see what is that I did so wrong that the government used it against me. My understanding is that there is no regulation that prohibits to come late from a hike.


The government also lied when they told the judge I had refused to shower during my stay at the Ray of Hope shelter and subsequently did not leave when I was told to do so by the shelter's personnel. I wonder who on earth would believe that I would refuse to shower. I may be a pig and not shower on a regular basis. I may be a pig and stink. I may be a liar and not admit I do not shower. In fact, none of the previous is true. But to go all the way and say that I refused to shower... In what planet are we living that anybody can give any credibility to such a statement? It is very disturbing that, apparently judge Keith Strong did. The truth is that I shower on a daily basis (particularly if there is a shower available, like it was the case at Ray of Hope), I never refused to shower and the government knew that well as Kalispell PD officers were witness of that fact. Moreover, I never refused to leave Ray of Hope. In fact, I did the very next morning.


I hope some day, somebody will tell me what were the government's motivations to lie and how was it ever possible that judge Keith Strong gave them such credibility that led him to conclude I was a threat to the safety of the community.


It is true that I am currently having problems with US immigration, but I hope that any decision regarding that matter, as well as any possible consequence I may suffer, will always be made through the proper channels. Immigration may have its view of what is my legal status in the US and I have mine. In any case, any decision regarding that matter, would eventually have to be made by an immigration court. If it is found that I broke the immigration law, I will bear with the consequences deriving from that case, but that does still not mean that the price I would have to pay can be automatically extended to any other completely different case, like my application for a disabled individual access pass to be exempt of entrance fees to national parks. Whether I committed any misrepresentation as I applied for that pass is something that should always be judged independently. The fact of the matter is that I did not. What I stated in my application is true and is not even in dispute by immigration.

Moreover, it is not just that I am legally right, but I also strongly believe to be morally right. I do not agree that just because I am currently struggling with immigration, I should, on moral grounds, avoid asking for any kind of benefit that I am told to be entitled because of my presence in the US. In my opinion, it is a shame that after over ten years living in the United States, without creating any trouble, I am still considered a second class citizen, do not even have the right to work and have to go back home on a regular basis to apply for visas and ask to be allowed to come back to the US for a little longer, even if it is just to see the country. It is a shame that after more than ten year, I still have to struggle with immigration, just because I wanted to see the country.

It is truly hilarious to note to what extend Ranger Dodd and US Attorney Tara R. Fugina's sickness to find some way to hurt me, got out of control, that, finally, they stepped in the way of immigration and obstructed their process against me. Ranger Dodd and Tara R. Fugina were so absorbed in their relentless efforts to hurt me and oppose anything I would suggest, that in the climax of their sickness they also opposed my motion to advance the date of my August 21st hearing. As a consequence, since I had federal criminal charges pending in Glacier National Park, immigration had to postpone their action against me until 2010. I wanted to resolve all matters as soon as possible and therefore requested to advance my August 21st hearing. Special Attorney Tara R. Fugina, apparently following Ranger Dodd's instructions, opposed my motion with no other grounds than I should not get any special treatment. I had understood the hearing had not been advanced, if there was no earlier date available in any other location, but that was something for the court to decide and not the prosecution to oppose. If my request did not hurt anybody's interests, instead it facilitated the work of immigration, I do not understand why the prosecution opposed it.


See also:

• Motion to Amend Conditions of Release and Advance Hearing Date
• Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• Reply to Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• False Government Allegations to the Court
• Order from the Court Denying Motion to Amend Conditions of Release and Advance Hearing Date

Government's response to motion to remove restriction to enter Glacier National Park

See also:

• Motion to Amend Conditions of Release and Advance Hearing Date
• Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• Reply to Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• False Government Allegations to the Court
• Order from the Court Denying Motion to Amend Conditions of Release and Advance Hearing Date

The United States of America, through its attorney Tara R. Fugina, Special Assistant United States Attorney for the District of Montana, objects to Defendant's Motion to Amend Conditions of Release and Advance Hearing Date.

The conditions of release as set by Flathead County Justice of the peace David M. Ortley are appropriate under the circumstances, and the appearance date of August 2l, 2009, before a magistrate in Glacier National Park is the first scheduled date at that location.

BRIEF

The conditions of Defendant's release are proper and relevant. Defendant is awaiting immigration proceedings to the Government's allegations that pursuant Defendant is in the United States illegally. In the instant case, Defendant is charged with an offense that claims, at its most elementary level, Defendant essentially defrauded the Government. This offense was discovered while Defendant was being questioned as a suspect in a theft from a person who had been kind enough to give Defendant a ride into Glacier National park. Defendant argues that the condition restricting his access to Glacier National Park is not the least restrictive further condition that will reasonably his assure appearance as required and the safety of any other person and the community. However, Defendant's historically problematic presence in and around the park belies this assertion.


In January 2009, a search and rescue team had to be deployed because Defendant snowshoed into the park and was late reporting back. He was found at approximately 8:00p.m. with no pack. In February 2009, he was found sleeping on the porch of a private residence in the Park and had to be asked to leave by law enforcement.

Further, Defendant has had multiple contacts with other law enforcement officers outside of the Park. In May 2009, officers with the Kalispell police Department had to respond to the Ray of Hope shelter when Defendant refused to shower and subsequently would not leave when told to do so by facility personnel. He has also been the subject of many other reports in the community concerning his transient status. The last report was on June 22, 2009, when he was found by Kalispell Chief of Police Roger Nasset, sleeping behind the pump house in Woodland Park.

The Government concedes that refusing Defendant recreational entry into the Park does nothing to assure his appearance However, at court proceedings. it does help ensure the safety of others. Defendant, by his behavior, has shown a continuing disrespect for the rights and wellbeing and disregard of others.

Technically, Defendant is in violation of his Conditions of Release, as the order signed by Judge ortley states that Defendant shall reside at 182 N. Harvard Blvd., Apt. 21, Los Angeles, California. However, because Judge Ortley noted in the Status Record that Defendant was on a "bike tour" and "going to Yellowstone," the Government believes that Judge Ortley knew Defendant was not going to be residing in Califomia, and the Government has chosen not to revoke Defendant's release on this basis. It cannot be disregarded, though, that Defendant is not abiding by the information he gave Judge Ortley as he has not gone to Yellowstone.


Defendant also recently filed a complaint against Glacier National Park Law Enforcement Officer Steve Dodd. Defendant's written complaint (which is being investigated per Park policy) claims Defendant was "harassed, humiliated, threatened, treated like a criminal and thrown in jail." The complaint is indicative of Defendant's perception of unjust persecution, which the Government believes could result in escalation of Defendant's unlawful behaviors or provocation of law enforcement.


As for Defendant's request to advance hearing date, it is policy to hear matters that originated in Glacier National Park at sessions held in the Park. The first scheduled session is August 21, 2009. Defendant is no more prejudiced (and actually substantially less so) than other defendants who are charged with offenses, many of whom reside many hundreds of miles outside of Montana, that must appear in the Park up to several months later to answer their charges.


CONCLUSION


For the foregoing reasons, Defendant's Motion to Amend Conditions of Release and Advance Hearing Date should be denied. Defendant's actions have shown that denying him access to Glacier National Park is a proper measure for the safety of persons and the community. Defendant is currently scheduled for the next available court date in the Park.

DATED this 26th day of June. 2009.


TARA R. FUGINA
Special Assistant U.S. Attorney


See also:

• Motion to Amend Conditions of Release and Advance Hearing Date
• Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• Reply to Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• False Government Allegations to the Court
• Order from the Court Denying Motion to Amend Conditions of Release and Advance Hearing Date

Reply to Government's Response to Motion to remove the restriction to enter Glacier National Park

See also:

• Motion to Amend Conditions of Release and Advance Hearing Date
• Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• Reply to Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• False Government Allegations to the Court
• Order from the Court Denying Motion to Amend Conditions of Release and Advance Hearing Date

Defendant Javier Bautista, through counsel, submits this reply brief in support of his motion to amend the conditions of his release on bond. The Justice Court erred when it imposed a condition of release stating "Defendant shall not enter Glacier National Park except to make Court appearances or for purposes of employment." Neither the record of hearing, nor the government's response brief, identifies a single legitimate basis to impose such a restriction on the Defendant. (1)

It is undisputed that a condition of release satisfies due process only if it is the least restrictive condition that will (a) reasonably assure the appearance of the Defendant and (b) assure safety of any other person and the community. 18 U.S.C. g 31a2(c)(1)@).The govemment admits that barring the Defendant from Glacier National Park does nothing to assure the Defendant's appearance at future court proceedings.( Response Brief at 3.) Therefore, the only basis to impose this condition would be if it were the least restrictive condition necessary for "the safety of any other person and the community." Id. The govemment fails to establish that the Defendant poses any risk whatsoever to the community, much less that preventing him from entering Glacier National Park is the least restrictive condition that will assure the safety of the community.

In the first instance, it is clear that the Justice Court itself did not find the Defendant to pose a risk of harm to the community. The Justice Court's conditions of release would allow the Defendant to enter Glacier National Park "for purposes of employment." If the Justice Court believed that Defendant posed a risk of harm to the community, it is difficult to comprehend why an exception would be made to allow the Defendant to enter the Park for purposes of employment. Whatever the Justice Court's basis for this condition, it was not related to any belief that the Defendant posed a danger to the community.

Nevertheless the government attempts to support this condition of release by making brand new allegations regarding Defendant's "historically problematic presence in and around the Park" that were never presented at Defendant's Initial Appearance and played no role in the Justice Court's decision-making. (2) (see Response Brief at 2.) Even assuming, arguendo, that the government's characterizations were true, which they are not, these allegations completely fail to establish that the Defendant poses a danger to anyone.

Incredibly, the govemment points to a written complaint that the Defendant filed against a law enforcement officer in Glacier National Park as reason to believe that he is a danger to the community. (Response Brief at 4.) This written complaint, which was filed through proper channels, states that the officer in question harassed Mr. Bautista by interrogating him for hours - without probable cause - on suspicion of an alleged theft. Mr. Bautista also complains that once the authorities abandoned these charges the officer continued to ask irrelevant ques tions for hours while he *fished" for something else to charge the Defendant with. The result of this harassment is the present action for "misappropriation" of a park pass that was allegedly intended for U.S. Citizens and green card holders.'

The Defendant raises sound grievances that should be investigated and addressed by the authorities. The government cannot support its baseless speculation that this complaint is "indicative of Defendant's perception of unjust persecution" and "could result in escalation of Defendant's unlawful behaviors or provocation of law enforcement." ( Response Brief at 4.) Indeed, it would eviscerate the concept of due process if the filing of a written complaint against law enforcement automatically rendered suspicion that one was a danger to the community. There is no factual or legal basis to restrict Defendant's movements based on such unfounded conjecture.

The Defendant's written complaint is attached to this brief. (See Exhibit A attached.) Notwithstanding the govemment's characterization of this complaint, it represents nothing more than the airing of a legitimate grievance regarding a potential abuse of authority. The complaint explains in clear and neutral terms why Mr. Bautista feels that his rights were violated, and nothing in this complaint could possibly be taken to constitute "provocation" of law enforcement.

Similarly, none of the remaining incidents referenced in the government's response brief involve any specific or generalized risk of harm to anyone in the community. (See Response Brief at 2-3.) While the government may believe that Mr. Bautista poses a problem due to his "transient status," ( Response Brief at 3), this is not a legitimate basis to impose restrictions on his travel to Glacier National Park. The Ninth Circuit has rejected attempts to impose restrictions on transient individuals based on the characteristic of their homelessness (3). See, e .g., Jones v. City of Los Angeles, 444F .3d I118 at 84. ("the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.").

Moreover, the government has failed to state any basis for why the restriction on Defendant's movements should be related to travel into Glacier National Park. There appears to be no particular basis to restrict Defendant from entering the Park. Indeed, Defendant is an expert camper who is traveling with full camping gear and equipment. If Defendant were allowed to pursue his longstanding dream of camping in Glacier National Park, the alleged problem of transience within the city limits would be resolved as well.

In light of all of these facts, the Court should exercise its discretion under 18 U.S.C.$ 3142(c)(3)o amend the conditions of release and eliminate the restriction on movements in to Glacier National Park.

Finally, the govemment opposes advancing the hearing date in this matter simply because "it is policy to hear matters that originated in Glacier National Park at sessions held in the Park." Response Brief at 4.) However, the government fails to explain why the interests of justice cannot be served by holding Defendant's arraignment in a different location. The Defendant wishes to quickly address and dispose of this matter, and requests that his arraignment date be
advanced to the earliest date that the Court's schedule permits.


(1) - There can be no question that the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent." Zadvydasv , Davis,533U .S. 678( 2001).

(2) - As discussed below, the government's allegations are insufficient to establish that Defendant poses a risk of danger to the community. However, before the Court can give any weight to any of these allegations,t he govemment must prove each and every one of these allegations and the nature of the risk allegedly posed by the Defendant. It may not support its arguments by making unsubstantiated accusations in a response brief.

(3) - Defendant is not homeless but is transient. Before embarking on his trip to Montana Respondent resided with his friend in Los Angeles, California. This is his only stable address and hence it is his address of record. However, Respondent has resided in the State of Montana for many months, and must remain here until the conclusion of these proceedings and pending immigration proceedings in Helena, Montana. The Justice of the Peace was fully aware of these circumstances when he released Defendant on bond.


See also:

• Motion to Amend Conditions of Release and Advance Hearing Date
• Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• Reply to Government's Response to Motion to Amend Conditions of Release and Advance Hearing Date
• False Government Allegations to the Court
• Order from the Court Denying Motion to Amend Conditions of Release and Advance Hearing Date

Detailed Description

I came to the US in 1996, to start doctoral studies in Computer Science at the University of Southern California in Los Angeles. As I expected to live in California for several years, I made plans to visit as many of the beautiful places in the west, as possible. I wanted to go to Yellowstone, as I remember watching the Yoggi Bear cartoons as a little child. Unfortunately, I do not have a driver's license due to a severe visual disability; I am blind of one eye and keep only ten percent vision in the other. As there is very little public transportation in the west, it had always been very difficult for me, without a car, to travel in this area. I could have got on a tour bus and been driven through, but that is not my way of traveling, getting to know and enjoy a place. One day I got the idea I could use a bicycle and tour across the entire west. However, that requires a lot of time, and it became impossible to afford during my graduate studies. One day, looking for information on Yellowstone, I came across some pictures of Glacier National Park. They seemed to me even more beautiful than those I had found of Yellowstone, closer to the image I formed during my childhood from those Yoggi Bear cartoons. I looked in the map and found that Glacier was actually not too far from Yellowstone. I decided I would do both; whenever I go to Yellowstone, I will also go to Glacier. Finally, after graduating I found enough time to go for my cross-country bicycle trip. I decided I would go to Yosemite, Zion, Bryce, Monument Valley, Arches, Teton, Yellowstone and Glacier.

Unfortunately, by the time I got to Montana, winter had already started. I arrived to Glacier area back in February. Along my route, everybody kept telling me not to go to Glacier in winter. Because I would not be able to see anything, as the park is pretty much shut down. I thought I would not be able to wait until summer, so I decided it would be better to come in winter than not to come at all. Different circumstances forced a radical change in my plans. In my first trips to the park, I got frostbite. Later, some part of my bicycle failed and had to wait a few months to have it replaced. At that time, summer was getting close and I saw the opportunity that I might eventually be able to ride across Logan Pass if only I waited a few more weeks.


Last Memorial Day, as there was no hiker/biker closure, I saw the chance to be one of the first to get to the top and enjoy the spectacular scenery of the snowed peaks. In order to keep enough time to do my riding in the park, I decided to hitchhike from Kalispell to West Glacier. After a while waiting, somebody stopped. Initially he thought he did not have enough gas to go all the way to West Glacier, but at least he would get me somewhere closer. Eventually, he made it to West Glacier. As we arrived, we found a crowd of people, apparently they were performing some rescue operation. My 'driver' decided he would help out and asked me to get off the truck. I got all my gear ready and took off up the Going to the Sun road. Two hours later, when I arrived to Avalanche, one ranger approached me; Some other ranger wanted to talk to me. Apparently Mr. Jesse Hopkins, the person who had given me the ride to West Glacier, was accusing me of stealing his money. I explained them that was totally false. I may be stupid, but not to the point of stealing something from somebody that is nice enough to give me a ride, and then flee on a bicycle, going up some dead-end road, with rangers all along the way, following the route that I had told my driver I would take. At least, I had tried to hide in some trail... Unfortunately, Ranger Steve Dodd was absolutely convinced it had been me and he had solved the case. He pointed out I had been the last person seen in that truck. But I guess the point of stealing is not to be seen. If you are seen, it should be very stupid to steal anything. As I knew I was innocent, I invited them to search as much as they wanted and realize that I didn't have anything that did not belong to me. For one hour, they kept searching, looking everywhere. I was kept without any other clothes than a thin rain coat and some shorts under the cold, pouring rain. I was not even allowed to put on a shirt. I kept being harassed, humiliated and accused, as Ranger Steve Dodd was totally convinced it had been me who stole the money. Apparently my driver was missing $75 and a credit card, however he was not even able to say he had seen me or anybody else taking the money. As a matter of fact, he never left the truck unattended while I was in the vehicle. I do not even see enough that I would be able to search and find some wallet I do not know anything about. However, Ranger Steve Dodd decided he was going to intimidate me, so that I would be forced to admit the accusation and give up $75 of my money, and had the case solved that way. But I was not going to admit something I had not done. I could not understand why they would believe him blindly and not even give me the benefit of the doubt. When they finished searching and could not find anything, Ranger Steve Dodd was too pretentious to admit he had made a mistake. Instead he insisted I give $75 to my driver, else he would find some other way to hurt me. So I had to decide whether I wanted to make it easy or difficult. I thought this kind of practices were common in three-world countries, but not in the United States of America, so I declined. Ranger Dodd tried to convince Mr. Hopkins to file charges against me. Mr. Hopkins, however, refused and only accepted to write a statement, where he referred to me as a 'gentleman'. I was then taken to the headquarters, where I was kept for the rest of the evening; still without clothes and without food. I was shivering the whole evening and did not have any food until the morning after; breakfast in jail.


During the following hours Ranger Steve Dodd, loyal to his promise, kept looking for anything he could charge me with. He looked into my immigration record. He asked me about my boots, as they looked too new to him that I had said I bought them in 2006. He asked and investigated about all the different places where I have been staying. He asked me how I have entered the park, as they did not remember me at the gate. He held an one-hour phone conversation with my old roommate in Los Angeles, trying to get any kind of information he could use against me. In any case, nothing that held the slightest relationship with the case of theft that supposedly was being investigated.

Ranger Steve Dodd finally went on and cited me with whatever looked best to him, because by no means he would let me go and therefore admit his mistake. According to Ranger Steve Dodd, I had illegally obtained the disability pass I used to enter the park. He first stated the pass was only for US citizens. As he realized it was also for residents, he argued that if I have been touring across the country for the last several months and was at the moment not paying any rent, any lease or mortgage, I was not a resident and therefore obtained my pass illegally and entered the park illegally. He cited me to appear before the judge three months later, knowing that would completely screw up my bicycle trip. As I protested and tried to give him my explanation to his charge, he replied: "that is all fine, but I will have to explain that to the judge". As I tried to make a call to my lawyer to get a better knowledge of my legal options, he arrested me. I spent that night in jail, and, if all that had not yet been enough, as I was released the next day, among the paperwork I received, it read I was 'not allowed to go back to Glacier park unless it was for employment or to attend some court hearing'. I had not been informed about that restriction by the judge as I was requested to pay my bond. Moreover, my lawyer was never adviced of my arrest and therefore could not represent me before the judge.

It was personally heartbreaking that after having been planning for so many years, waiting for so many months, when the time finally came, I was told I would not be allowed to ride across Logan Pass. That was the time and that was the moment. The snow was finally melting, the park was blooming, the crowds had not yet arrived. The road was not yet open for cars and was available day long for bicyclist. And I could not enter Glacier park, as if I had caused any damage to the park.

I am sorry I could not come in a car, quickly drive around and leave the next day. I am sorry my vision only allowed me to come on a bicycle. I am sorry it took me several months on the road and I cannot afford to pay several months of motel rooms. However, I don't think I deserved the treatment I received last Memorial Day. What happened to me that day is more proper of a fascist regime, rather than a free country where people is free, have rights and are considered innocent unless proven otherwise in a court of law. In June 2009 I filed a complaint to Glacier National Park for the incident with Ranger Steve Dodd on Memorial Day. I asked to have the restriction not to enter Glacier park removed. I was hipocrately told that condition was not coming from Glacier park, but was responsibility of the judge that released me. However, as I filed a motion to the court to have the restriction lifted, Glacier park and the government opposed it (see also my reply to the court) Based on four bogus incidents, the worst of which was that in February 2009, when the park was covered by the snow, I was found sleeping in my sleeping bag at 9am in Apgar Village, outside of the designated area for winter camping, Glacier park argued I was a troublemaker. They even used the fact that I had filed a complaint to argue "that made me more dangerous". My motion to be allowed into Glacier park was rejected, as it was considered 'necessary for the safety of the community'. Similarly, Glacier park and National Park Services, concluded there was no basis for my complaint. Ranger Steve Dodd filed a false report and Glacier NP did not admit any wrong-doing and did not offer the slightest apology. According to them, it was fine Ranger Dodd coerced me to admit quilty. They said: "it had only been wrong if I had submitted to the coercion and actually admitted quitly".

In July 2009 the prosecution finally presented the evidence against me: a copy of the application form I signed to obtain my disability pass. I had stated "I was permanently disabled and was a citizen or was domiciled in the United States". Both statements were true as my passport proved. Still, even when they knew I was innocent, I was asked by the prosecution to pay a settlement of $500 to have the case dismissed. I declined.

After some weeks riding my bicycle around Yellowstone and the Beartooth Highway, I started my way back to attend my August 21st court hearing. As the restriction whereby I was not allowed in Glacier read I 'could not enter the park unless it was for employment or to attend a court hearing', on August 20, the day before my hearing, I rode my bicycle from the east side to the west side through the Going-to-the-Sun' road. One ranger saw me as I was going down the mountain and informed me he would 'tell the judge about my behavior'.


The next day, at the court hearing, my lawyer presented a motion to have the case dismissed, as it was clear the statements I made in my disability pass application were true. My lawyer had thought he could explain in person the arguments for the motion during the hearing and have the judge decide on the following days. The judge however stated the time my lawyer chose to file the motion was not appropriate and rejected it without even reading it. The government then asked to put me in custody, since I had been found the night before on the Going-to-the-Sun road. The judge accepted the government's request, since he considered it was well known that the fastest route from the east side to the west side was US-2, instead of the Going-to-the-Sun road. I tried to explain that riding a bicycle as I am, it is precisely much more dangerous to ride alongside cars driving as fast as 60-70 mph on US-2, compared to the Going-to-the-Sun road, where cars cannot go over 20-25 mph. In fact, back in March, I was already hit and almost killed riding my bicycle on US-2, by a car that did not see me. To begin with, the restriction did not even say that I was allowed to enter Glacier National Park only if it was strictly necessary to attend a court hearing, but just "if it was to attend a court hearing". Unfortunately, I was not allowed to speak and instead spent the weekend again in jail.

In 2010 Glacier park celebrates one hundred years since it was first opened. For the centennial, Glacier National Parks wants to be an inspiration to the world. I hope the horrifying experience I went through in Glacier park will never inspire the world. I strongly believe visitors do not travel hundreds, thousands of miles to a national park to break the law. National Park Services' work should not be to keep citizens out of national parks, but rather the opposite. I do not understand how in the United States of America, the authorities find it acceptable that law enforcement harasses and coerces citizens to admit an accusation, regardless of whether that accusation is right or wrong. I do not understand how government representatives, public servants, allow their personal feeling interfere with their work and go as far as filing a false report and lying to the court to fabricate false evidence, when they learn their assumptions were wrong and cannot find any true evidence against the defendant. In a country that takes pride to be free, everybody should be assumed innocent, until proven otherwise in a court of law. I do not understand how the government can ask a citizen, even if it is from another nationality, to pay a settlement of $500 and continue prosecution, after they verified that he did not brake the law and made no false statement. I don't understand how a judge can dismiss a motion without even reading it and throw you in jail not even allowing you to speak. I don't know if it is Glacier National Park, National Park Services, the state of Montana or the whole United States of America, but what happened to me was wrong and somebody, somewhere, needs to do something so that it does not happen again. I hope this letter will help putting an end to the practices I was a victim of in Glacier National Park.