Grogan v. United States

271 A.3d 196

Rives Miller GROGAN, Appellant,

v.UNITED STATES of America, Appellee.

No. 19-CM-1030

District of Columbia Court of Appeals.

Argued Sept. 17, 2021

Decided March 17, 2022

Mark L. Goldstone for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Michael R. Sherwin, Acting United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Andy Wang, and Joshua Gold, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman, Easterly, and Deahl, Associate Judges.

Deahl, Associate Judge:

Seconds after the fall of the gavel to end the Senate's session on November 27, 2018, Rives Grogan stood up from his seat in the Senate gallery and began to preach loudly about the evils of abortion. He was promptly arrested and escorted, still shouting, into a nearby corridor. There, a plainclothes Capitol Police officer instructed him to "stop" and to "knock it off." Contrary to the officer's instructions, Grogan continued to shout as he was led down the hall. Grogan was tried before a jury for demonstrating within a United States Capitol building, D.C. Code § 10-503.16(b)(7) (2019 Repl.), and unlawful demonstration, D.C. Code § 22-1307(b) (2021 Supp.). The jury found him guilty on both counts, and Grogan was sentenced to two seven-day terms of imprisonment, to be served concurrently.

On appeal, Grogan makes the following five arguments: (1) that his dual punishment under § 10-503.16(b)(7) and § 22-1307(b) violates the Double Jeopardy Clause; (2) that the government substantially burdened his religious exercise in violation of the Religious Freedom Restoration Act (RFRA); (3) that both § 10-503.16(b)(7) and § 22-1307(b) are facially overbroad; (4) that the government failed to produce sufficient evidence to support a finding under § 22-1307(b) that Grogan continued to demonstrate after being instructed to cease by a law enforcement officer; and (5) that § 10-503.16(b)(7) is unconstitutional as applied to Grogan because the Senate gallery is a public forum.

Because we conclude that the legislature did not intend to authorize duplicative punishment for violations of § 22-1307(b) and § 10-503.16(b)(7), those offenses should merge and we remand with instructions to vacate Grogan's conviction for unlawful demonstration under § 22-1307(b). Accordingly, we do not reach Grogan's argument that § 22-1307(b) is overbroad or his argument that the government failed to produce sufficient evidence to sustain his conviction under § 22-1307(b). Because we are unpersuaded by Grogan's other arguments, we affirm his conviction for demonstrating within a United States Capitol building under § 10-503.16(b)(7).

I.

On the afternoon of November 27, 2018, Rives Grogan—a preacher at New Beginnings Christian discipleship—obtained a visitor pass and was escorted to the public Senate gallery inside the United States Capitol. For the rest of the afternoon, while the Senate was in session, he sat quietly and created no disturbance. However, "within seconds" of the fall of the gavel at the close of the day's session—while Senators and staff were still on the floor—Grogan stood up from his seat and began to preach loudly about his beliefs that abortion is "wrong." Doorkeeper Thomas Ford testified that in his eight years working in the Senate he had never heard anybody yell so loudly. Doorkeeper Todd Trautman agreed that Grogan's "outburst" was "as loud as [he] ha[d] heard" in his twenty years working in the Senate. Capitol Police Officer Gene Aversano described Grogan's volume as "a shock to your system," and "like jumping in a cold pool of water."

"Almost immediate[ly]" after Grogan began to shout, Officer Governor Latson restrained Grogan and escorted him into an adjacent hallway. Grogan continued to yell as he was led from the gallery. In the hallway, Officer Aversano, a plainclothes Capitol Police officer who arrived to assist Latson, instructed Grogan to "stop" and to "knock it off." Grogan continued to yell, in defiance of Aversano's instructions, later testifying he did so because "I don't surrender my First Amendment right, even when I am detained." Grogan kept shouting as he was escorted away down the corridor.

This was not Grogan's first encounter with the Capitol Police. Grogan testified that he had been arrested "multiple times" for his conduct outside the Capitol building, including "twice outside on the steps" and once on a nearby sidewalk. Additionally, Grogan had previously been convicted of disorderly conduct for preaching about abortion within the Capitol Rotunda, and for disrupting the Senate while in session. Grogan testified that he and Latson were familiar with each other from previous encounters in the Senate: "[H]e knows how I react. I know how he reacts. I speak, he escorts me out." Aversano testified that, on the day in question, he had recognized Grogan from their "previous interactions" and anticipated Grogan might "pop off" and disturb proceedings on the floor.

Grogan was no stranger to Senate gallery itself. Grogan testified he had visited the Senate multiple times before the day in question, and each time obtained a visitor pass. Printed on the back of each pass are the "rules" for spectators in the Senate gallery, including the following: "No one in the gallery is permitted to applaud or can commit any other type of demonstration either by sound or sign." Additionally, each pass warns that "[a]ny disturbance or infraction of these rules is justification for expulsion and/or arrest." While Grogan testified that he did not read the rules on the back of his visitor pass on this particular occasion, he was generally familiar with them. He expected to be removed from the gallery as a result of his actions, even though he did not believe he was breaking the law when he waited until after the Senate adjourned to speak.

The government initially charged Grogan with disorderly and disruptive conduct on United States Capitol Grounds, in violation of D.C. Code § 10-503.16(b)(4) (Count 1). It eventually dropped that charge and, in its place, charged Grogan with two other offenses: demonstration within a United States Capitol building, in violation of § 10-503.16(b)(7)¹ (Count 2); and unlawful demonstration, in violation of § 22-1307(b)² (Count 3). On October 3, 2019, Grogan went to trial on Counts 2 and 3. After a two-day jury trial before the Honorable Robert Salerno, Grogan was found guilty of both counts. On October 24, 2019, Judge Salerno sentenced Grogan to seven days’ incarceration for each count, to run concurrently.

On appeal, Grogan argues: (1) that his dual punishment under § 10-503.16(b)(7) and § 22-1307(b) violates the Double Jeopardy Clause; (2) that the government substantially burdened his religious exercise in violation of the Religious Freedom Restoration Act (RFRA); (3) that both § 10-503.16(b)(7) and § 22-1307(b) are facially overbroad; (4) that the evidence was insufficient to support a finding under § 22-1307(b) that Grogan continued to demonstrate after being instructed to cease by a law enforcement officer, and (5) that § 10-503.16(b)(7) is unconstitutional as applied to Grogan because the Senate gallery is a public forum. Grogan raised only the first three arguments before the trial court.³ We address his arguments in turn, though because we conclude his § 22-1307(b) conviction merges into his § 10-503.16(b)(7) conviction, we ultimately do not resolve his overbreadth and sufficiency challenges to the former conviction.

II.

"The Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also against multiple punishments for the same offense." Whalen v. United States , 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (internal quotation marks omitted). "Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent." Ohio v. Johnson , 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (citations omitted); see also Byrd v. United States , 598 A.2d 386, 388-89 (D.C.1991) (en banc) ("The role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense."). When a defendant, in a single trial, is convicted under multiple provisions the legislature intended to punish as a single offense, Double Jeopardy requires that those convictions "merge" for the purpose of sentencing. Mooney v. United States , 938 A.2d 710, 724 (D.C. 2007) (requiring the trial court to vacate one of two merged convictions); see also Robinson v. United States , 946 A.2d 334, 340 (D.C. 2008) (applying Blockburger to concurrent sentences); Doepel v. United States , 434 A.2d 449, 459 (D.C. 1981) (merger is required even where, as here, duplicative punishments run concurrently).

To determine whether the legislature intended to impose multiple punishments, we begin with the default rule articulated by the Supreme Court in Blockburger v. United States : "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; see also D.C. Code § 23-112 (2012 Repl.) (codifying Blockburger as an "express declaration of legislative intent," Thomas v. United States , 602 A.2d 647, 649 (D.C. 1992) ). But the Blockburger test is not dispositive. If "the legislature has clearly indicated a contrary intent with respect to the particular offense at issue," then that legislative intent—rather than the Blockburger analysis—controls. In re M.S. , 171 A.3d 155, 158 (D.C. 2017). Therefore, our merger inquiry consists of two...