Motion to Amend Conditions of Release and Advance Hearing Date

See also:

• 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, hereby moves, pursuant to Rule 46(a) of the Federal Rules of Criminal Procedure and l8 U.S.C. $3142,1 to amend the conditions of release imposed by the Justice Court of Flathead County, Montana. In addition, in an effort to expeditiously resolve this matter, Defendant moves to advance the arraignment date presently set for August 21, 2009. In support of this motion, Defendant states as follows:

1. The Defendant is being charged with "Misappropriation of Property and Services' pursuant to 36 C.F.R. $ 2.30(a)(3).


2. The government's basis for this charge is discussed in the attached brief.

3. On May 26, 2009, the Defendant appeared without counsel before the Justice Court of Flathead County, Montana for his Initial Appearance. The presiding Justice of the Peace released the Defendant upon execution of a bond in the amount of $200.00. The Justice of the Peace also imposed five conditions on release, including that "Defendant shall not enter Glacier National Park except to make Court appearances or for purposes of employment."

4. By law, a judicial officer "shall order the pretrial release of [a] person. . . subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community . . . ." 18 U.S.C.$ 3l42(c)(l)(B) (emphasis added.)

5. As discussed in more detail in the attached brief, the condition that restricts the Defendant from entering Glacier National Park does not serve to assure the appearance of the Defendant at future proceedings, nor is it necessary for the safety of any person or member of the community. The Defendant is not being charged with a dangerous crime, nor has he ever been charged with a dangerous crime.

6. By statute, a "judicial officer may at any time amend [an] order to impose additional or different conditions of release." l8 U.S.C. $ 3142(c)(3).

7. Because the condition barring the Defendant from entering Glacier National Park is not the least restrictive condition necessary under 18 U.S.C. $ 3l42(c)(l)(B), the Defendant requests that this condition be removed.

8. In addition the Defendant seeks to expeditiously resolve this matter. The Defendant's arraignment is presently set for August 21, 2009 at 9:00 a.m. To allow for quick disposition of this matter, the Defendant requests that his date be advanced as the Court's schedule permits.

9. The government has been contacted regarding this motion and has stated its opposition to amending the conditions of release.

WHEREFORE, for the reasons stated herein and in the attached brief in support of this motion, the Defendant respectfully requests that (1) the conditions of release be amended to remove any restriction on entering Glacier National Park and (2) that the next hearing date be advanced to the earliest practicable date.

DATED this 11th day of June 2009.




BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO AMEND CONDITIONS OF RELEASE AND ADVANCE HEARING DATE

Defendant Javier Bautista, through counsel, hereby submits the following brief in support of his motion, pursuant to Rule 46(a) of the Federal Rules of Criminal Procedure and 18 U.S.C. $3142, to amend the conditions of release imposed by the Justice Court of Flathead County, Montana and to advance the arraignment date presently set for August 21, 2009.

This action arises out of Mr. Bautista's use of an allegedly incorrect park pass to enter Glacier National Park. Mr. Bautista is legally blind as a result of cataracts and optic nerve damage that occurred in 1998. He now has less than ten percent vision in one eye, and is blind in the other eye. A particular park pass, called the "AccessPass," is made available for free to individuals with permanent disabilities. By comparison an "AnnualPass" is $35.00. Mr. Bautista applied for and obtained an Access Pass from the U.S. Forest Service after presenting proof of his permanent disability.

The government alleges that Mr. Bautista was ineligible for an Access Pass because he is not a U.S. citizen or legal permanent resident. Therefore the government has charged Mr. Bautista with "Misappropriation of Property and Services" under 36 C.F.R. $2.30(a)(3). This regulation prohibits:

Obtaining property or services offered for sale or compensation by means of deception or a statement of past, present or future fact that is instrumental in causing the wrongful transfer of property or services, or using stolen, forged, expired revoked or fraudulently obtained credit cards or paying with negotiable paper on which payment is refused.

36 C.F.R. $ 2.30(a)(3). Mr. Bautista did not obtain an Access Pass through deception or other wrongful conduct, and will plead "Not Guilty" to the government's charges. On May 26, 2009, Mr. Bautista appeared without counsel before the Justice Court of Flathead County, Montana for his Initial Appearance. The presiding Justice of the Peace released Mr. Bautista upon execution of a bond in the amount of $200.00. However, the Justice of the Peace also imposed five conditions on release, including a condition that "Defendant shall not enter Glacier National Park except to make Court appearances or for purposes of employment.' Mr. Bautista challenges the propriety of this condition and requests that it be removed.

By law, a judicial officer "shall order the pretrial release of [a] person. . . subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community . . . .' l8 U.S.C. $ 3l42(c)(l)(B) (emphasis added).

Prohibiting Mr. Bautista from entering Glacier National Park does not serve to further assure his appearance at further proceedings. Furthermore, Mr. Bautista has not been charged with a dangerous crime, and has never been charged with a dangerous crime. Therefore, the restriction on entering Glacier National Park is not necessary for the safety of any person or member of the community.

The prohibition on entering Glacier National Park is wholly unnecessary for any purpose - much less the least restrictive condition that should be imposed to ensure Mr. Bautista's appearance or the safety of others. See 18 U.S.C. $ 3l42(c)(1)(B). Upon purchasing a park pass, there is no legitimate basis to prohibit Mr. Bautista from entering Glacier National Park.

Statute provides that "[t]he judicial officer may at aoy time amend the order to impose additional or different conditions of release." 18 U.S.C. $ 3l42(c)(3). Because the challenged condition is not the least restrictive condition necessary under 18 U.S.C. $ 3l42(c)(l)(B), Mr. Bautista requests that it be removed. To impose this condition without legal basis would violate Mr. Bautista's constitutional rights.

In addition, Mr. Bautista seeks to expeditiously resolve this matter. The arraignment is presently set for August 21, 2009 at 9:00 a.m. However, to allow for quick disposition of this matter, Mr. Bautista requests that his arraignment date be advanced as the Court's schedule permits.

For the reasons stated above, Mr. Bautista respectfully requests that his conditions of release be amended to remove any restriction on entering Glacier National Park. Further, Mr. Bautista requests that his next hearing date be advanced to an earlier date, if possible.

DATED this 11th day of June 2009.