Larson-Olson v. U.S.

309 A.3d 1267

Micki LARSON-OLSON, Appellant,

v.UNITED STATES, Appellee.

No. 22-CM-0778

District of Columbia Court of Appeals.

Submitted October 18, 2023

Decided February 22, 2024

Appeal from the Superior Court of the District of Columbia (2021-CMD-000454), (Hon. Michael O’Keefe, Trial Judge)

Anne Keith Walton was on the brief for appellant.

Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, Marybeth Manfreda, and Brian M. Hanley, Assistant United States Attorneys, were on the brief for appellee.

Before Howard and Shanker, Associate Judges, and Fisher,^* Senior Judge.

Fisher, Senior Judge:

On January 6, 2021, while Congress was in session to certify the results of the 2020 presidential election, a large crowd of supporters of then-President Donald J. Trump broke through several layers of fencing to enter portions of the United States Capitol grounds that were closed to the public. Appellant/defendant Micki Larson-Olson was part of the crowd but testified at trial that she did not see any signs or fencing by the time she arrived. In the course of their efforts to disperse the crowd, law enforcement officers approached appellant and instructed her to leave multiple times, but she refused repeatedly and was eventually carried off of the scaffolding on which she stood. She was later charged with violating D.C. Code § 22-3302(b), which prohibits entering public property without lawful authority or refusing to leave on the demand of one lawfully in charge of that property.¹ See Abney v. United States, 616 A.2d 856, 858 (D.C. 1992). A jury convicted appellant, and Judge O’Keefe sentenced her to 180 days of incarceration. On appeal, she argues: (1) that the evidence was insufficient for the jury to conclude that she lacked a bona fide belief in her right to be on the premises, and (2) that the trial judge’s comments at sentencing created an appearance of bias, warranting reversal of her conviction on due process grounds. We disagree and affirm appellant’s conviction.

I. Factual and Procedural Background

The evidence presented at trial included the following: on January 6, 2021, Congress held a joint session at the Capitol for the purpose of certifying the results of the presidential election. In order to protect the joint session, significant portions of the Capitol grounds were closed to the public that day. The United States Capitol Police ("USCP") built a multi-layer security perimeter around the Capitol comprised of bike racks (thick metal barriers) and snow fencing (a "mesh-type fencing" often placed behind bike racks to provide additional reinforcement and keep them from separating), They also posted approximately 500 signs on the fencing stating something to the effect of "[a]rea closed by order of the United States Capitol Police Force." The USCP increased its security presence in and around the Capitol, and units of the Metropolitan Police Department ("MPD") were staged nearby. MPD officers had the same authority as USCP officers to make arrests or to remove people from the Capitol grounds.

Of particular concern to law enforcement was an event referred to as the "stop the steal" rally occurring in the Ellipse Park near the White House. Appellant attended that rally because she believed that the 2020 election had been stolen (i.e., that President Trump had received more electoral college votes than his opponent but had been denied victory through an illicit vote-switching scheme). President Trump spoke at the rally sometime after noon. Appellant testified that President Trump instructed the crowd "to peacefully go down to the Capitol[.]" A large group of supporters, including appellant, walked toward the Capitol.

The demonstration got out of control shortly thereafter. Around 1:00 p.m., the crowd broke through the bike rack barriers and nearby MPD units were called in for assistance.² Appellant testified that, by the time she arrived at the Capitol, she did not see any bike racks or snow fencing. She stayed on the grass at first but decided at some point to ascend the stairs on scaffolding, which was being constructed in the lower west terrace area by the Capitol building to support the stage for the upcoming presidential inauguration. She testified that she saw no signs or bike racks as she made the climb and that there were no officers on or immediately around the scaffolding to try to stop her. However, other testimony indicated that one would have had to pass through at least three layers of security on the grounds in order to reach the scaffolding.

MPD officers first encountered appellant around 5:00 p.m. on an upper level of the scaffolding, waving two large flags and wearing a red, white, and blue spandex costume that officers described as a "Captain America" outfit. By that point, law enforcement officers were actively dispersing the crowd around the Capitol and most people near appellant had left the scaffolding. The officers approached appellant and directed her to leave several times. She refused and insisted repeatedly that she was "not going anywhere."

When verbal commands did not work, several MPD officers then physically removed appellant. She resisted and shouted at the officers, wrapping her legs around the scaffolding to prevent being moved. It took a total of six officers to carry her down three to four flights of stairs as she continued to grab at various handholds to impede their progress. As they carried her, the MPD officers continued to ask her to get up and leave on her own, to no avail. She was carried outside a police line and handed off to officers who were to escort her off of the Capitol grounds. She was not arrested that day only because it "would have taken an officer off the street for multiple hours to process that arrest" and law enforcement did not have "the manpower" to make arrests while clearing the Capitol grounds.

Afterwards, appellant changed her profile picture on Facebook to an image showing her on the scaffolding outside of the Capitol, waving two flags and wearing her costume. She also posted a message on her Facebook profile stating that she had shown her flags from a "balcony" and "got carried down many flights of stairs by cops after getting tear gassed." When contacted by an agent of the Criminal Investigations Unit of the United States Attorney’s Office several days later, appellant admitted that she had climbed the scaffolding, but insisted that no police officers had attempted to stop her. However, she also admitted that it had taken six officers to remove her.

Appellant was charged with unlawful entry on public property in violation of D.C. Code § 22-3302(b). In a two-day jury trial in September 2022, jurors heard testimony from multiple law enforcement officers and from appellant, and also viewed video footage taken from body-worn cameras of officers’ efforts to remove appellant from the scaffolding. Appellant testified that she believed she had a right to be at the Capitol and on the scaffolding, but also admitted that police officers had instructed her to leave. She claimed that the officers "had no authority" over her because they were agents of what she believed to be an illegitimate government.³

At the close of evidence, Judge O’Keefe instructed the jurors that there were two different ways in which the government could prove the offense charged: (1) entry without authority or, (2) remaining without authority. He also instructed them that, in order to convict, they had to be convinced beyond a reasonable doubt that appellant did not have a good-faith belief of her lawful authority to enter or to remain in the area after being directed to leave. The jury returned a unanimous guilty verdict. Answering special interrogatories on the verdict form, the jurors unanimously found both: (1) that appellant entered public property without, authority, and (2) that she remained on the premises of public property without authority.

Judge O’Keefe held a sentencing hearing the next day. The government requested a sentence of 180 days of incarceration, suspended as to all but 30 days, followed by 12 months of unsupervised probation. Appellant requested 30 days of incarceration, suspended in favor of six months of unsupervised probation. Defense counsel argued that this request was consistent with sentences of probation and house arrest that had, been imposed in similar misdemeanor cases (prosecuted in federal court) arising from the events of January 6, 2021. In response, Judge O’Keefe asked if those defendants had gone to trial, and the prosecution represented that they had not. When defense counsel argued that appellant had not "den[ied] ever once on the stand that she didn’t [sic] do what she did," the judge responded by asking "[t]hen why did she go to trial? Why did she waste two days of people hav[ing] to take off of work?" Defense counsel responded that "she wanted to have her right to go to trial and that’s what she did."

After defense counsel’s presentation, appellant spoke on her own behalf and told the judge, among other things, that the police had lacked jurisdiction over her, that her military oath had "morally and ethically" prevented her from complying with officers’ orders to leave, and then repeated her claim that the officers were agents of a government with no authority over her. See supra note 3. In response, Judge O’Keefe said "I think you might be slightly delusional about some things, right?" He acknowledged that appellant had acted on her sincerely held political beliefs but commented that "they’re not grounded in any facts." The judge added that appellant had her "belief of these various conspiracy things" and that it was "pointless … to argue" with her.

Judge O’Keefe explained that appellant was "clearly … not remorseful," contrasting her with defendants who "came in, took a plea, [and] said they were sorry[.]" He then said:

And instead of just coming in and accepting the responsibility for it, you wasted

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