City Hall: 955 School Street, Napa CA 94559 Mailing Address: P.O. Box 660, Napa CA 94559 (707) 257-9500 www.cityofnapa.org
FOR IMMEDIATE RELEASE MAIN CONTACT
April 6th, 2021 Sgt. Aaron Medina
(707) 257-9560
amedina@cityofnapa.org
Media Release
Case Number: NPD21-001546
Date/Time: 04/06/2021 11:45 am
Location: Napa Police Department, 1539 First Street, Napa
Arrested: Jonathan Travis Moore AKA Jonathan Kasprowicz, Vacaville Resident
Charges: 602(o)PC Trespass and refusing to leave
On 04/06/2021 at 11:45 am, Napa Central Dispatch received a call regarding a suspicious subject
in an area designated for City of Napa employee parking. The caller described the subject, later
identified as Jonathan Moore, as taking photos of employee vehicles and possibly using a drone.
About the same time, employees in the Police Department building noticed Moore on the fence
of the secured police parking lot. Moore was taking video and using a drone. Moore continued
his activity unchallenged as he was outside the restricted area in an area that allows for
constitutionally protected activities.
At approximately 12:14 pm, Moore entered a restricted area between the Police Department and
Fire Station 1. This area is posted for no trespassing with a warning of arrest or citation. A Napa
Police Officer contacted Moore and advised him he was trespassing in the restricted area. Moore
ignored the Officer and remained in the restricted area. The Officer continued to give direction
to Moore and gave him an opportunity to leave the area. Moore continued to ignore the Officer
for approx. 3 minutes. An additional cover Officer arrived, and Moore was arrested for
Trespassing. Moore was booked at the Napa County Department of Corrections.
Moore is known to the Police Department for visiting bay area law enforcement agencies and
posting the interactions on Youtube. The Napa Police Department respects the rights of all to
engage in their constitutional rights. However, we also have a responsibility to protect our
employees, City infrastructure and City property by restricting areas of the station from public
access. This area is limited to access by employees, parking for police units, fire equipment,
employee parking and an area for victims to access the station more discreetly. Recent events
not related to today, including the tampering with a Napa Police vehicle, have highlighted this
need.
The public can submit confidential tips at Tip411 or text a tip to Tip411. It is an option that you can use
at any time to provide us information without identifying yourself. Anyone with a cell phone can send an
anonymous tip to the Napa Police Department by texting the word 707NPD and the tip information to
847411 (tip411)
Presently pending before this court are the following three motions: 1) defendant's motion to dismiss; 2) government's motion in limine seeking to excludeFirst Amendment arguments and evidence; and 3) government's motion in limine seeking to admit prior acts evidence.(ECF Nos. 16, 24, 25.)As set forth below, the court DENIES each of these motions.
On July 19, 2022, defendantJonathan Travis Moore was charged with violating 41 C.F.R. § 102-74.385, failure to conform with signs and directions, after he allegedly entered a Social Security Administration (“SSA”) building while recording on his phone and continued to do so despite signs prohibiting filming and instructions from security officers.(ECF No. 1.)A bench trial is scheduled for August 30, 2023, before the undersigned.[1]
I.Background
On July 19, 2022, defendant allegedly entered the SSA office in West Sacramento, California while recording with his telephone inside the facility.(ECF No. 1.)Two protective security officers informed defendanthe could not record, noting signage prohibiting such recording, but defendant continued to record.(Id.)Defendant was detained and released outside with a warning.(Id.)Just a few moments later, defendant tried to force his way into the facility to record again and was detained again.(Id.)A citation issued on September 19, 2022, charging defendant with violating 41 C.F.R. § 102-74.385, conformity with signs and directions, a Class C misdemeanor and a petty offense.(Id.)
The matter was set for an initial appearance on October 11, 2022 before Magistrate Judge Claire.(ECF No. 2.)Defendant failed to appear at the initial hearing.(ECF No. 3.)On October 18 2022, defendant contacted the court, and the matter was scheduled for an initial appearance on November 8, 2022.(ECF No. 4.)On December 13, 2022, defendant appeared before the undersigned, entered a plea of not guilty, and demanded a bench trial, which was set for February 13, 2023.(ECF No 8.)
Defendant emailed counsel for the government on December 21, 2022, and requested a continuance for trial preparation and pretrial motions.(ECF No. 9.)The bench trial was reset for April 10, 2023.(ECF No. 10.)Before trial, the defendant indicated more time was needed to prepare his defense and the parties jointly requested a continuance.(ECF No. 12.)(But seeECFNo. 16-1at 1, defendant's motion attributing responsibility for the continuances to the government, stating that the government needed more time to provide “requested discovery.”)A bench trial was scheduled for July 17, 2023.
On July 6, 2023, defendant, appearing without the aid of counsel, filed the instant motion to dismiss.(ECF No. 16.)Defendant primarily argues that his right to a speedy trial has been violated and that 41 C.F.R. § 102-74.385 violates the First Amendment.(See generallyECF Nos. 16, 16-1.)During an informal telephonic conference on July 7, 2023, the parties continued the hearing to August 30, 2023, and set a briefing schedule for defendant's motion to dismiss.(ECF No. 17.)
The government filed its opposition to defendant's motion on July 17, 2023, to which defendant filed a reply.(ECF Nos. 18, 19, 27.)On July 24, 2023, the government filed a motion in limine seeking to exclude evidence related to defendant's First Amendment arguments and a motion in limine seeking to admit evidence related to other acts.(ECF Nos. 24, 25.)Defendant filed responses to each of the government's motions.(ECF Nos. 28, 29).
II.Defendant's Motion to Dismiss
In evaluating a motion to dismiss pursuant to Rule 12 of the Federal Rules of Criminal Procedure, a court must view the factual allegations in the indictment as true and decide only those issues capable of resolution without invading the province of the trier of fact.Costello v. United States,350 U.S. 359, 363(1956);United States v. Nukida,8 F.3d 665, 669(9th Cir.1993).
Defendant seeks dismissal of the pending charge under the Speedy Trial Act and the Sixth Amendment.(ECF No. 16.)The court rejects both arguments.
To begin with, the court rejects defendant's argument that the charges should be dismissed under the Speedy Trial Act.As the Speedy Trial Act does not apply to petty offenses, and defendant has been charged with a Class C Misdemeanor, the Speedy Trial Act does not apply to defendant's case.See, e.g., United States v. Nickerson,731 F.3d 1009, 1013(9th Cir.2013).
Further, defendant's Sixth Amendment right to a speedy trial has not been violated.The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy trial.United States v. Beamon,992 F.2d 1009, 1012(9th Cir.1993) (quoting Doggett v. United States,505 U.S. 647, 651(1992).The constitutional right to a speedy trial protects against prejudicial delay regardless of whether a defendant can show a violation of the Speedy Trial Act.See, e.g., United States v. Gearhart,576 F.3d 459, 462(7th Cir.2009), United States v. Dessesaure,556 F.3d 83, 86(1st Cir.2009)(per curiam).Sixth Amendment speedy trial challenges are assessed under a four-part balancing test that evaluates: (1) whether delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for that delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice' because of the delay.Id.(quotingDoggett,505 U.S. at 651, 112).
Under the first factor, the defendant“must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial' delay.”Doggett,505 U.S. at 651-52.See alsoUnited States v. Gregory,322 F.3d 1157, 1161-62(9th Cir.2003)().Here, a citation issued on September 19, 2022, and the trial is scheduled for August 30, 2023.This nearly one year delay slightly favors dismissal.
The second inquiry seeks to assess whether the government or defendant“is more to blame for th[e] delay.”Doggett,505 U.S. at 651.Here, an initial appearance was set for October 11, 2022.Defendant failed to appear and did not contact the court until a week later.(ECF No. 3.)At the December 13, 2022 conference, defendant informed the court of the possibility that he would obtain counsel and file a motion to dismiss.(ECF No. 8.)Defendant contacted the government to pursue additional time to find counsel on two occasions between December 2022 and March 2023.Defendant did not obtain counsel and did not file the motion to dismiss until ten days before the scheduled hearing date.
Defendant argues the continuances were due to the “prosecution needing more time to provide the requested discovery.”(ECFNo. 16-1at 1.)However, defendant's motion does not state what discovery he was seeking, and it is therefore unclear whether he is even entitled to it.SeeWeatherford v. Bursey,429 U.S. 545, 559(1977)().Thus, the court is not persuaded that the government bears responsibility for the continuances.Therefore, this factor weighs against dismissal.
The third factor evaluates whether the defendant has asserted his right to a speedy trial.The “strength of [a defendant's] efforts” in asserting his right to a speedy trial “will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences.”Barker v. Wingo,407 U.S. 514, 531(1972).In United States v. Corona-Verbera, the Ninth Circuit concluded that, because the defendant asserted his right to a speedy trial after requesting eight continuances, the third factor “weighs neither in favor of dismissal nor in favor of the government.”509 F.3d 1105, 1117(9th Cir.2007).Here, defendant asserted his right to a speedy trial only after requesting multiple continuances.Accordingly, the third factor is, at best for defendant, neutral.
To warrant dismissal based on a Sixth Amendment violation, plaintiff must assert actual prejudice, not the mere “possibility of prejudice.”Beamon,992 F.2d at 1014.“Actual prejudice can be shown in three ways: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused's defense will be impaired.”Id.Here, defendant does not claim prejudice under any of these categories.Accordingly, this factor favors the government.
Upon consideration of these factors, the court finds that the Sixth Amendment does not demand dismissal.
Defendant's motion also asserts, in a heading, that 41 C.F.R. § 102-74.385 is “vague, ambiguous and applied unconstitutionally in this instance.”(ECF No. 16 at 4.)To the extent defendant argues this regulation is unconstitutionally overbroad or vague, this argument is foreclosed by the Ninth Circuit's decision in United States v. Stansell,847 F.2d 609, 616(9th Cir.1988).There, the Ninth Circuit, analyzed the regulation at issue for overbreadth under the First Amendment and determined that because a reasonable limiting construction could be placed on the challenged regulation, the...
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