United States v. MaCandrew

1

UNITED STATES OF AMERICA, v. DANEAN MACANDREW, Defendant.

CRIMINAL ACTION No. 21-730 (CKK)

United States District Court, District of Columbia

January 17, 2023

FINDINGS OF FACT AND CONCLUSIONS OF LAW

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

A three-day bench trial in this criminal matter concluded on January 12, 2023. For her actions at the insurrection of January 6, 2021, the Government charged Defendant Danean MacAndrew (“Defendant” or “MacAndrew”) by Information with: (1) Entering and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); (2) Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C § 1752(a)(2); (3) Violent Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D); and (4) Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). Superseding Information, ECF No. 21. In support of its case, the Government introduced testimony from three witnesses: (1) Inspector Lanelle Hawa of the United States Secret Service; (2) Captain Jessica Baboulis of the United States Capitol Police Department; and (3) Special Agent Braden Ballantyne of the Federal Bureau of Investigation. Additionally, the Court admitted fifty exhibits into evidence in full and one exhibit into evidence with redactions.

At the close of the Government's case, Defendant moved for a judgment of acquittal as a matter of law. That motion remains pending before the Court. Defendant also presented evidence calling one witness, herself.

Based on the following findings of fact and conclusions of law Court DENIES Defendant's Rule 29 motion by separate order.

The Court finds Defendant Danean MacAndrew GUILTY on Counts 1, 2, 3, and 4, the Government having carried their burden beyond a reasonable doubt as to each element of each charge.

In reaching a decision on the following findings of fact and conclusions of law, the Court has considered the pleadings, the record, testimony, the parties' stipulations, the demeanor of the witnesses while testifying, the reasonableness of or unreasonableness of the testimony, the probability or improbability of the testimony, and all reasonable inferences to be drawn therefrom, among all other matters bearing on the credibility of the witnesses and the facts, and exhibits in evidence. The Court credits the following testimony and evidence as undisputed and/or unrebutted.

I. Findings of Fact

Clad in a “MAGA” hat, wearing a red scarf, and wielding a “Trump” flag, Danean MacAndrew knew she was not permitted to be in or around the Capitol on January 6, 2021. That knowledge, like a snowball rolling down a ski slope, accumulated that day. Her suspicions undoubtedly started when, contrary to her testimony, she passed “Area Closed” signs affixed to strewn fencing. If she did not know at that time her presence on Capitol grounds was unlawful, her awareness must have been stronger when she clambered over dismantled bike racks and snow fencing even closer to the Capitol building with their own “Area Closed” signs. If, after seeing those signs, she did not know her presence was unlawful after those signs, then surely she knew she was unlawfully present when she encountered a line of armored Metropolitan Police Department (“MPD”) officers marching past Capitol Police officers guarding the Capitol building behind bike racks affixed, again, with “Area Closed” signs.

Assuming, for sake of argument, that she still did not know she was not permitted on Capitol grounds or in the Capitol building, she must have known when she arrived to the Upper West Terrace and met four individuals she testified she knew to have been pepper sprayed. Or, to enter the realm of the fabulist, perhaps it was only when she entered the Capitol through a broken door, an emergency siren blaring. These signs, and others detailed below, undoubtedly endowed MacAndrew with the knowledge that her presence and protest in the Capitol was unlawful. Nevertheless, she remained.

A. The Certification of the Electoral College Vote and the Insurrection Generally

The Court restates a number of background facts that it has found over the course of two prior bench trials.^[1]These facts are important context for the circumstances leading up to Defendant's participation in the events at the Capitol on January 6, 2021 and contrast with her experience of security screening at the Ellipse earlier in the day.

The Government's first two witnesses, Inspector Hawa and Captain Baboulis, largely repeated the background offered in Rivera. As they explained, the Capitol, guarded twenty-four hours a day, was open only to those with official business (along with Members and staff) from March 2020 to January 6, 2021. Had the Capitol been open to the public, all members of the public would be required to enter through the Capitol Visitor's Center. Additionally, aside from Members, anyone seeking to enter the Capitol must show identification, go through a metal detector, put their belongings through an x-ray machine, and are otherwise subject to search by United States Capitol Police (“Capitol Police”) officers. Were someone to enter the Capitol without passing through security, Capitol Police would work to find and detain that person; if necessary, Capitol Police would lock down portions of the Capitol in such a way that could include stopping certain Congressional proceedings.

In preparation for Vice President Michael R. Pence's visit to preside over the counting of the votes of the Electoral College on January 6, Inspector Hawa coordinated the Vice President's visit with the Capitol Police. In partnership with the Capitol Police, the United States Secret Service (“Secret Service”) set up a protective perimeter around the entire grounds of the United States Capitol. Only those with credentials or with permission from either agency were permitted beyond that point. The security perimeter is standard for visits by heads of state (in which category the Secret Service includes the Vice President) but was also implemented in light of security concerns arising from then-President Donald J. Trump's scheduled “Stop the Steal” rally near the White House. At various places, the protected area had successive lines of barriers made of snow barriers, interconnected bike racks, or mesh fencing. Most of these barriers included at regular intervals “Area Closed” signs printed in large font. See also Gov.'s Ex. 414.

Inspector Hawa, as the head of the Vice President's coordinating detail at the United States Capitol, arrived at the Capitol building in the morning on January 6 to coordinate the Vice President's visit that day. Vice President Pence arrived approximately at 12:30 p.m. with his wife and daughter, and Inspector Hawa escorted the Vice President and his family to the Vice President's Ceremonial Office in the Capitol. The Joint Session for the count of the Electoral College votes began at 1:00 p.m. with Vice President Pence presiding. Fifteen minutes later, the two Houses of Congress retired to their respective chambers to debate the certification of the votes from the state of Arizona.

After 1:15 p.m., which was fifteen minutes after the Vice President returned to the Senate, the Secret Service learned of breaches to its protective area, i.e., the mob had made its way through barriers and onto the Capitol grounds by that time. At that time, the Secret Service began to discuss moving the Vice President and his family to a more secure location. At around 2:30 p.m., when the rioters first breached the Senate side of the Capitol itself, the Secret Service evacuated the Vice President and his family to a more secure location in the Capitol. Shortly thereafter, with multiple police lines overrun and the several entrances to the Capitol breached, the Senate recessed for its own safety; the House shortly followed.

On the west side of the Capitol, the farthest edge of the security line was Peace Circle. That line was breached at around 12:55 p.m. The mob began to tear down fencing across the West Front of the Capitol at that same time. At the time of these initial breaches, Captain Mendoza and other Capitol Police officers surged to support surviving police lines, mainly on the Upper and Lower Terraces on the West Front of the Capitol. MPD officers joined Capitol Police on these lines in stages. See also Gov.'s Ex. 414; 425. Over the course of the following hour, various sections of the police line broke in the face of heavy violent resistance, including the northwestern stairway on the West Front leading from the Lower Terrace to the Upper Terrace at 2:09 p.m. Just a few minutes later, the rioters smashed through the Senate Wing Door and its windows. Capitol Police officers briefly reclaimed the Senate Wing Door, only for rioters to overwhelm that line again at 2:49 p.m. Meanwhile, another door with access to the Senate side of the Capitol, the Parliamentarian Door, was breached at 2:42 p.m. For some period of time after 1:00 p.m. and before 2:42 p.m., MPD deployed chemical spray (pepper spray or something similar) to disperse the insurrectionists who had yet to join the portion of the riot that had captured the Upper West Terrace, ultimately to little effect.

When rioters entered the Capitol, they were met with a loud PA system urging Capitol visitors and staff to take shelter due to an incursion into the Capitol. Although Capitol Police officers engaged in hand-to-hand combat with the rioters to maintain portions of police lines throughout Capitol grounds Capitol Police officers were ultimately unsuccessful. At that point, the focus of the Capitol Police shifted to convincing rioters to leave the Capitol and stemming particularly...