United States v. Baez

1

UNITED STATES OF AMERICA v. STEPHANIE MARYLOU BAEZ, Defendant.

CRIMINAL No. 21-0507 (PLF)

United States District Court, District of Columbia

June 6, 2023

OPINION AND ORDER

PAUL L. FRIEDMAN, UNITED STATES DISTRICT JUDGE

Defendant Stephanie Marylou Baez is charged in a four-count information (“Information”) based on conduct related to the events at the United States Capitol on January 6, 2021. See Information [Dkt. No. 10]. Pending before the Court are Ms. Baez's Motion to Dismiss Counts Two or Three on Multiplicity Grounds [Dkt. No. 27] and her Motion to Dismiss the Information on First Amendment Grounds [Dkt. No 28].^[1] The Court has carefully considered the parties' written submissions and the applicable authorities. For the following reasons, the Court concludes that Counts Two and Three are not multiplicitous and that none of the statutes that form the bases for the charges in the Information are unconstitutional under the First Amendment. The Court therefore will deny both of Ms. Baez's motions.

I. BACKGROUND

The events of January 6, 2021 are summarized in the Court's opinion in United States v. Puma. See United States v. Puma, 596 F.Supp.3d 90, 93-94 (D.D.C. 2022). The factual summary in this section is “for background purposes only,” and these facts “do not inform the Court's analysis of [Ms. Baez's] motion[s] to dismiss, which must be limited to ‘the four corners of the [information].”' United States v Montgomery, 578 F.Supp.3d 54, 59 n.l (D.D.C. 2021) (quoting United States v. Safavian, 429 F.Supp.2d 156, 161 n.2 (D.D.C. 2006)).

The United States alleges that Ms. Baez was a member of the crowd that entered the Capitol building on January 6, 2021 and engaged in certain activities while there. See Information. The Statement of Facts accompanying the criminal complaint describes video footage that depicts Ms. Baez inside the Capitol building - including the Crypt of the Capitol and other locations - on January 6. See Statement of Facts [Dkt. No. 1-1] at 3. The video footage shows Ms. Baez walking around the Capitol and holding a cell phone. See Id. at 3-4. According to the government, Ms. Baez entered the Capitol building twice - the first time, she entered at approximately 2:56 p.m., exiting at approximately 3:01 p.m., and the second time, she entered at approximately 3:07 p.m., exiting at approximately 3:24 p.m. See First. Amend. Opp. at 2-3. On April 27, 2021, an FBI agent interviewed Ms. Baez, and Ms. Baez admitted during the interview that she entered the Capitol building on January 6. See Statement of Facts ¶ 6-7. The Statement of Facts also describes Instagram messages that Ms. Baez sent on January 6, some of which stated that she witnessed “tear gas,” broken glass,” and individuals “pushing back cops” in the Capitol. See Id. at 8.

On June 4, 2021, Ms. Baez was arrested in Alabama. See Executed Arrest Warrant [Dkt. No. 5]. On August 4, 2021, the government charged Ms. Baez by information with four misdemeanor offenses: Entering and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(2); Violent Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). See Information. She moves to dismiss all four counts of the Information.

II. DISCUSSION

A. Motion to Dismiss Count Two or Count Three on Multiplicity Grounds

1. Legal Standard

A defendant in a criminal case may move to dismiss an indictment or information before trial on grounds that the document charges the same offense in more than one count, giving rise to multiplicitous counts. See FED. R. CRIM. P. 12(b)(3)(B)(ii). “Whether conduct can give rise to multiple convictions in a single trial is essentially a question of statutory construction, but it is statutory construction with constitutional implications.” United States v. McLaughlin, 164 F.3d 1, 7-8 (D.C. Cir. 1998). The Double Jeopardy Clause of the U.S. Constitution “protects against multiple punishments for the same offense,” and “analysis of prosecutions under multiple statutes under the Double Jeopardy Clause is limited to considering whether the legislature intended to allow simultaneous convictions.” Id. at 8 (quoting North Carolina v. Pearce, 395 U.S. 711,717 (1969)). “If the legislature intends to impose multiple punishment, imposition of such sentences does not violate Double Jeopardy.” Id.

In Blockburger v. United States, the Supreme Court set forth a test for determining whether the legislature intended to impose multiple punishments. See Blockburger v. United States, 284 U.S. 299 (1932). “The applicable rule is that, 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.” Id. at 304. “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).

2. Analysis Ms. Baez moves to dismiss either Count Two or Count Three of the Information on multiplicity grounds. See Multiplicity Mot. at 1 (page number citations refer to electronic case filing numbers). Count Two charges Ms. Baez with Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(2). That statute provides:

(a) Whoever-

(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; . . .

or attempts or conspires to do so, shall be punished as provided in subsection (b). . . .

(c) In this section-

(1) the term “restricted building or grounds” means any posted, cordoned off, or otherwise restricted area-

(A) of the White House or its grounds, or the Vice President's official residence or its grounds; (B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or

(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance[.]

18 U.S.C. § 1752(a), (c).

Count Three charges Ms. Baez with Violent Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D). That statute provides:

(2) Violent entry and disorderly conduct.-An individual or group of individuals may not willfully and knowingly-

(D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress[.]

40 U.S.C. § 5104(e)(2)(D).^[2]

Ms. Baez argues that Count Two and Count Three allege the same conduct “with no significant distinctions.” Multiplicity Mot. at 2. She acknowledges that Count Two pertains broadly to any “‘disorderly conduct' which disrupts ‘Government business'” and that Count Three pertains more narrowly to “crimes at the Capitol,” but she argues that “the two charges are essentially one.” Id. She contends that the multiplicity of counts will “prejudice a judge or jury” against her at trial and expose her to double jeopardy for the same alleged act. Id. at 2-3. In response, the government argues that Count Two and Count Three are not multiplicitous because the offense charged in each count “requires proof of a fact which the other does not.” Multiplicity Opp. at 3 (citing Blockburger v. United States, 284 U.S. at 304). The Court agrees with the government. “[T]he test for multiplicity is not whether two counts are based on the same set of facts; rather, it is [the Blockburger test of] whether the statutory elements of the two offenses are the same.” United States v. Manafort, 313 F.Supp.3d 311, 314 (D.D.C. 2018).

Applying the Blockburger test, the Court concludes that the offense charged in Count Two and the offense charged in Count Three each require proof of facts that the other does not require. First, to convict a defendant under 18 U.S.C. § 1752(a)(2) - the statute charged in Count Two - the government must prove that the defendant engaged in disorderly or disruptive conduct in or near a “restricted building or grounds,” which, as relevant to this case, is defined in Section 1752(c) as “any posted, cordoned off, or otherwise restricted area ... of a building or grounds where ... [a] person protected by the Secret Service is or will be temporarily visiting.” 18 U.S.C. § 1752(c). 40 U.S.C. § 5104(e)(2)(D) - charged in Count Three - does not require proof of this fact. Second, Section 1752(a)(2) also requires the government to prove that a defendant's conduct in fact impeded or disrupted the orderly conduct of government business or official functions. Section 5104(e)(2)(D) has no such requirement. Conversely, to convict a defendant under Section 5104(e)(2)(D), the government must prove that the defendant engaged in disorderly or disruptive conduct in a United States Capitol building...