Saturday, October 17, 2009

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

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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


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