Case No. _________________


    COMES NOW the defendant, by and through his undersigned attorney and asks the Court to dismiss the indictment in this cause pursuant to Federal Rule of Criminal Procedure 12 and gives as cause therefore the following:


    On June 26, 2003, the decision issued in Lawrence v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W. 4574 (2003);  
    A sentence of violent imprisonment and the denial of any motion for downward departure should be unconstitutional under Lawrence.  The motions above regarding  the constitutionality of the charges,  jurisdiction, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) etc., are also enhanced and relevant in light of the Lawrence decision.
    The Defendant’s so-called criminal behavior was non-violent private behavior among consenting adults in a motel room.
    Each person has the right to do as he wishes so long as he doesn’t use violence or theft against others.   Each person has the right to defend himself against violence and theft.  The purpose of government is to protect people and their property from violence and theft --to do what people have the right to do themselves in self-defense.  When the government strays from its proper purpose it becomes the violent violator of rights, the perpetrator of violence and theft.  And that is what the government did in this case to the defendant.
    Government at all levels is slowly beginning to understand fundamental concepts of liberty, albeit in very limited ways.  On July 4, 2003, Superior Court Judge Richard Savell of Fairbanks Alaska dismissed Scott A. Thomas' marijuana conviction, ruling that the Alaska Constitution guarantees the right to possess marijuana for personal use in the home.
    Next, there is the following opening paragraph in Lawrence from Justice Kennedy’s majority opinion:  “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”  (Lawrence,  http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf  page 1).
    As Scott McPherson said in a column at the “Future of Freedom Foundation” http://www.fff.org/comment/com0307k.asp “An improvement could certainly be made, specifically by adding “or anything else that does not violate the rights of another person” at the end, but to say the least, it ain’t a bad start. And note Justice Kennedy’s reference to the American tradition of government, which places the individual on a plane above the state and limits government’s domain over individual preferences.  Many of McPherson’s comments are repeated herein.
    The Lawrence opinion continued, “It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” (page 6) and “The State cannot demean their existence or control their destiny by making their private ... conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ [the word “sexual” removed for emphasis] (at page 18).
    The words make an excellent libertarian argument, lay a brilliant philosophical  foundation, and easily open the door for greater future expansions of personal and economic freedom and the nullification of the “intervention of the government” in the ability of free men and women to “control their destiny.”

Respectfully submitted,
Rex Curry,
Attorney for Defendant
Tampa, Florida