Showing posts with label dGlacier National Park. Show all posts
Showing posts with label dGlacier National Park. Show all posts

Friday, November 6, 2009

Motion to Amend Conditions of Release and Advance Hearing Date

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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.
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Sunday, October 18, 2009

False Government Allegations to the court.

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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.


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