United States v. Barnes

481 F.Supp.3d 15

UNITED STATES of America

v.Shailly BARNES, et al., Defendants.

Criminal Action No. 18-mj-54

United States District Court, District of Columbia.

Signed August 24, 2020

Lisa N. Walters, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Jason Gregory Downs, Downs Collins PA, Baltimore, MD, Jeffrey D. Robinson, Karima Tawfik, Lewis Baach Kaufmann Middlemiss PLLC, Washington, DC, for Defendant Shailly Barnes.

David Barry Benowitz, Price Benowitz LLP, Washington, DC, for Defendant Graylan S. Ellis Hagler.

Carmen D. Hernandez, Highland, MD, for Defendant Jimmie Hawkins.

Nathan I. Silver, II, Law Offices of Nathan I. Silver, Bethesda, MD, for Defendant William Lamar.

Mark John Carroll, Mark John Carroll Esquire, P.C., Potomac, MD, for Defendant Hershey A. Mallette.

Jeffrey D. Robinson, Karima Tawfik, Pro Hac Vice, Lewis Baach Kaufmann Middlemiss PLLC, Washington, DC, for Defendant Rosalyn Woodward Pelles.

Mary Manning Petras, Ubong E. Akpan, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant Noam Sandweiss-Back.

Dwight E. Crawley, Law Office of Dwight E. Crawley, Washington, DC, for Defendant Robert T. Stephens.

Ronald S. Sullivan, Jr., Cambridge, MA, for Defendant Elizabeth Theoharis.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge Defendant-appellants Shailly Barnes, Rosalyn Woodward Pelles, and Elizabeth Theoharis, appeal the $100 fines and time-served sentences they each received upon pleading guilty to violating 40 U.S.C. § 6135. Notice of Appeal by Shailly Barnes and Rosalyn Woodward Pelles, ECF No. 185; Notice of Appeal by Elizabeth Theoharis, ECF No. 186. That statute makes it unlawful to "parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." 40 U.S.C. § 6135. They contend that the Magistrate Judge who accepted those pleas erred by refusing to dismiss the charge against them as a violation of their First Amendment rights. Appeal from the United States Dist. Court for the Dist. of Columbia Magistrate Decision Denying Defendants’ Joint Mot. to Dismiss ("Defs.’ Br.") at 3, ECF No. 203. Finding no such error, the defendants’ judgments of conviction and sentences are affirmed.

I. BACKGROUND

On June 11, 2018, defendants participated in a demonstration that had made its way to the street in front of the United States Supreme Court. Gov't Opp'n to the Appeal of the U.S. Magistrate's Decision Denying the Appellants’ Joint Mot. to Dismiss ("Gov't Br.") at 1, ECF No. 204. According to defendants, the demonstration was associated with the "Poor People's Campaign: A National Call for Moral Revival," an organization they say is "continu[ing] ... the economic justice advocacy that was central to Reverend Martin Luther King's work." Defs.’ Joint Mot. to Dismiss ("Defs.’ Mot. to Dismiss") at 2, ECF No. 108. In response United States Capitol Police ("USCP") closed the street to vehicles and attempted to clear the area. Gov't Br. at 1. USCP officers issued warnings to the demonstrators in the street and eventually made several arrests. Id.

Although USCP officers successfully cleared the street, they did not end the demonstration. Id. While over a hundred people stood on the sidewalk, the three defendants party to this appeal and six other individuals climbed the steps onto the plaza in front of the Supreme Court. Id. Defendant Theoharis carried a megaphone with her, gave a speech, and passed the megaphone to others. Id. As the megaphone was passed around, defendants and their six fellow demonstrators joined hands and bowed their heads in prayer. Defs.’ Mot. to Dismiss at 1. Their prayer "address[ed] voter suppression, economic inequality, and persistent poverty in the United States." Defs.’ Br. at 1. They each wore various items of clothing indicating their association with the Poor People's Campaign. Gov't Br. at 1.

United States Supreme Court Police Department ("USSCPD") Chief Jeff Smith, using a megaphone of his own, issued a warning to the nine demonstrators that failure to vacate the Supreme Court plaza would result in their arrest. Id. at 2. The demonstrators did not move. Four minutes later, Smith issued another warning. Id. Again, defendants and their associates stood pat. Id. Following a final warning, USSCPD began arresting defendants and the six others. Id.

Defendants remained in detention until the following day, when all nine of the demonstrators who had been praying on the Supreme Court plaza were charged in a single criminal information with one count of "unlawfully parad[ing], stand[ing], or mov[ing] in processions or assemblages on the Supreme Court Grounds, or display[ing] on the Grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement" in violation of 40 U.S.C. § 6135. Information at 1–2, ECF No. 1. They made their initial appearances that day and were all released on personal recognizance, pending trial. Min. Entry (June 12, 2018).

Over the next year and a half, the nine defendants and the government contested what that trial would look like, and, for that matter, whether there should be a trial at all. On August 10, 2018, eight of the nine defendants moved for a jury trial, which the government opposed. Defs.’ Mot. for Jury Trial at 1, ECF No. 61; Gov't Omnibus Opp'n to Defs.’ Mot. for Jury Trial at 1, ECF No. 75. Holding that "Congress clearly intended that Defendants’ charge be considered a petty offense" not subject to the Sixth Amendment's jury trial guarantee, the Magistrate Judge denied that motion on May 3, 2019. Mem. Opinion & Order (May 3, 2019), ECF No. 133. As the motion for a Jury trial was pending, on February 14, 2018, all nine defendants moved to dismiss the charge against them, arguing that "as applied to their conduct and on its face, the statute under which they are being prosecuted, 40 U.S.C. § 6135, violates the First Amendment of the United States Constitution." Defs.’ Mot. to Dismiss at 1. The next day, a single defendant, Jimmie Hawkins, moved to dismiss the information for an alternative reason, namely that he was being "selectively prosecut[ed] ... based on impermissible grounds." Hawkins’ Mot. to Dismiss at 1, ECF No. 109. Both motions were denied on October 24, 2019, four days before trial was scheduled to commence. See Mem. Opinion & Order (Oct. 24, 2019), ECF No. 164.

Their bench trial scheduled to begin on October 28, 2019, never occurred. That day, six of the nine defendants entered into deferred prosecution agreements with the government, by which they admitted that their conduct violated 40 U.S.C. § 6135 and agreed, inter alia , to "[s]tay away from the United States Supreme Court building and grounds, including the plaza." See, e.g. , Jimmie Hawkins’ Deferred Prosecution Agreement at 2, ECF No. 178; see also Min. Entry (Oct. 28, 2019). The three defendants party to this appeal, however, did not enter such an agreement. Instead, they plead guilty to the offense and were sentenced that same day to time served and each fined $100. Judgment as to Shailly Barnes, ECF No. 195; Judgment as to Rosalyn Woodward Pelles, ECF No. 197; Judgment as to Elizabeth Theoharis, ECF No. 199.

Those three defendants timely filed their appeal with this Court and proposed a briefing schedule. Joint Proposed Briefing Schedule, ECF No. 201. With briefing complete, their appeal is now ripe for review.

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 58 "appl[ies] in petty offense and other misdemeanor cases and on appeal to a district judge in a case tried by a magistrate judge." FED. R. CRIM. P. 58(a)(1).¹

Subsection (g) of the rule provides that "[a] defendant may appeal a magistrate judge's judgment of conviction or sentence to a district judge within 14 days of its entry." FED. R. CRIM. P. 58(g)(2)(B). That right to appeal does not entitle a defendant "to a trial de novo by a district judge," but rather, "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." FED. R. CRIM. P. 58(g)(2)(D). To the extent a motion to dismiss the charging instrument requires the trial court to make factual findings, those findings are reviewed for clear error. See, e.g. , United States v. Meadows , 867 F.3d 1305, 1312 (D.C. Cir. 2017). When a motion to dismiss an information raises "only ‘pure questions of law,’ " however, appellate review is de novo. United States v. Bronstein , 849 F.3d 1101, 1106 (D.C. Cir. 2017) (quoting Hodge v. Talkin , 799 F.3d 1145, 1171 (D.C. Cir. 2015) ).²

Under Federal Rule of Criminal Procedure 12(b)(1), a party may "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Indeed, objections that an information "fail[s] to state an offense," Fed. R. Crim. P. 12(b)(3)(B)(v), "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits," Fed. R. Crim. P. 12(b)(3). "The defense of failure of an indictment to charge an offense includes the claim that the statute apparently creating the offense is unconstitutional." United States v. Eshetu , 863 F.3d 946, 952 (D.C. Cir. 2017), vacated on other grounds 898 F.3d 36 (D.C. Cir. 2018) (quoting United States v. Seuss , 474 F.2d 385, 387 n.2 (1st Cir. 1973) ). In ruling on a pretrial motion to dismiss the trial court must presume the truth of the facts alleged in the charging instrument, United States v. Park , 938 F.3d 354, 358 (D.C. Cir. 2019), and may accept any "undisputed facts" proffered by the government, United States v. Yakou , 428 F.3d 241, 247 (D.C. Cir. 2005) (explaining that "undisputed facts obviate[ ] the need for [a] district court to make factual...