United States v. Elizalde
| Docket Number | CRIMINAL ACTION 1:23-cr-00170 (CJN) |
| Decision Date | 01 December 2023 |
| Parties | UNITED STATES OF AMERICA, v. DAVID ELIZALDE, Defendant. |
| Court | U.S. District Court — District of Columbia |
The parties disagree on what the government must prove to establish that a defendant acted “knowingly” within the meaning of 18 U.S.C. §§ 1752(a)(1) and (a)(2). The government's proposed reading gives a single term in a single sentence two different meanings, which would be highly anomalous in any circumstance, but especially here where Congress expressly defined the term. The Court will therefore issue bench instructions in line with the defendant's more natural reading of the statute.
At issue are two 18 U.S.C. § 1752 counts relating to Defendant David Elizalde's alleged conduct in a “restricted building or grounds” on January 6 2021. Count 1 of the Indictment charges Elizalde with “knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so.” 18 U.S.C. § 1752(a)(1). Count 2 charges him with “knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions engag[ing] in disorderly or disruptive conduct in . . . any restricted building or grounds.” See id. § 1752(a)(2).
Section 1752(c)(1) defines the term “restricted building or grounds.” It says the term “means any posted, cordoned off, or otherwise restricted area” of (A) “the White House or its grounds, or the Vice President's official residence or its grounds”; (B) “a building or- grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or (C) “a building or grounds so restricted in conjunction with an event designated as a special event of national significance.” The statute in turn defines “other person protected by the Secret Service” as “any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.” Id. § 1752(c)(2). Section 3056 lists the Vice President as one such person. As a result, the parties agree that in this case the government must prove beyond a reasonable doubt that (1) the U.S. Capitol and its grounds were “posted, cordoned off, or otherwise restricted” and (2) a “person protected by the Secret Service” (here, the then-Vice President) was temporarily visiting the Capitol. The parties also agree that the government must prove (for actus reus purposes) that Elizalde “enter[ed] or remain[ed]” (§ 1752(a)(1)) or “engag[ed] in disorderly or disruptive conduct” (§ 1752(a)(2)) in a “restricted building or grounds,” so defined.
But the parties disagree over what the government must prove Elizalde knew about the Capitol on January 6. According to the government, Elizalde need only have known that the area was restricted in the colloquial sense-i.e., that there were barriers or other indicators that the public was not allowed to enter. See Nov. 27, 2023 Pretrial Conf. (affirming that the government's view is that defendants need only know that an area is restricted “in a colloquial, layperson sense”). Elizalde argues that the government must prove that he knew that the area was a “restricted building or ground” as that term is statutorily defined-that is, that he knew (1) that the area was “posted, cordoned off, or otherwise restricted” and (2) that a “person protected by the Secret Service” (here, the then-Vice President) “[was] or [would] be temporarily visiting.” See 18 U.S.C. § 1752(c)(1).
To resolve the dispute, the Court must determine what “knowingly” in §§ 1752(a)(1) and (a)(2) applies to.
“Knowingly” might modify only those verbs that most closely follow it-i.e., “enters” and “remains” in § 1752(a)(1) and “engages” in § 1752(a)(2). If so, the government would not have to prove that Elizalde knew anything about the area in which he allegedly entered or remained, or in or around which he allegedly engaged in disorderly or disruptive conduct; instead, it would need to prove only that Elizalde knowingly took his physical actions.
But the government affirmatively disclaims that reading, expressly taking the position that “knowingly” does apply to “restricted building or grounds.” See Nov. 27, 2023 Pretrial Conf.; Gov.'s Notice of Additional Suppl. Authority ( ) at 14, ECF No. 35 () (emphasis added); Ex. A, Gov.'s Notice of Suppl. Authority, (“Gov.'s Br.”) at 9, 14, 16, ECF No. 32-1 (). Indeed, the government's position is that “knowingly” applies to the entirety of the offenses-in § 1752(a)(1), for example, the government acknowledges it applies all the way to the phrase “without lawful authority.” See Ex. A, Gov.'s Br. at 14; Gov.'s Suppl. Br. 14. In other words, both parties agree that for purposes of § 1752(a)(1) the government must prove (1) that Elizalde knowingly entered or remained in an area; (2) that he knew that area was a restricted building or grounds; and (3) that he knew he lacked legal authority to do so. Similarly for Count 2, the parties agree the government must prove, among other things, (1) that Elizalde knowingly engaged in disorderly or disruptive conduct in or within proximity to an area, and (2) that he knew that area was a restricted building or grounds.
That seems correct. As the Supreme Court has explained, “[a]s a matter of ordinary English grammar, we normally read the statutory term ‘knowingly' as applying to all the subsequently listed elements of the crime.” Rehaif v. United States, 139 S.Ct. 2191, 2196 (2019) (quotation marks omitted). Grammatically speaking, that is because an adverb like “knowingly” often modifies more than its most proximate verb. “[W]hen a transitive verb” (like “enters”) “has an object,” (e.g., “any restricted building or grounds”), “listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009).
We all understand the concept. As the Supreme Court has illustrated, if a bank official says “Smith knowingly transferred the funds to the account of his brother,” “we would normally understand the bank official's statement as telling us that Smith knew the account was his brother's.” Id. at 560-61. And if a bank official says “Smith knowingly sent a bank draft to the capital of Honduras,” the official has suggested that Smith knew where he sent the bank draft. Id. at 561. The same way, when Congress forbids “knowingly . . . engaging in disorderly or disruptive conduct in . . . any restricted building or grounds,” 18 U.S.C. § 1752(a)(2), the ordinary understanding is that Congress has prohibited disorderly or disruptive conduct by those who know they are in a restricted building or grounds. “Account of his brother,” “capital of Honduras,” and “restricted building or grounds” each play a similar role in their respective sentences, and “knowingly” modifies them all.
The government's concession that “knowingly” modifies “restricted building or grounds” gives up the ballgame. After all, the government concedes that it must prove that Elizalde in fact entered or remained in a statutorily defined “restricted building or grounds”-i.e., that for actus reus purposes, “restricted building or grounds” means what the statutory definition says. See supra pp. 2, 3. But the government argues that that very term has a different meaning for mens rea purposes. Such a result would be highly anomalous in any circumstance, but especially here, where Congress expressly defined the term.[1] Because Congress has done so, “we must follow that definition, even if it varies from [the] term's ordinary meaning.” Van Buren v. United States, 141 S.Ct. 1648, 1657 (2021) (quotation omitted).
Thus, to know that an area is a “restricted building or grounds,” one must know that the area is of the sort described in the statutory definition. After all, a building or grounds is not a “restricted building or grounds” unless the building or grounds meets all the requirements of the statutory definition. See id. A defendant therefore lacks the requisite knowledge if all he knows is that the building or grounds is “restricted” in the colloquial sense. Here, that means Elizalde must know that the area was a “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.” Id.
The government levies a series of arguments to justify its counterintuitive reading, but none is availing.
1. The government makes two main textual arguments. First, it contends that Elizalde's reading requires “carrying ‘knowingly' all the way through to the definition” in a separate subsection of the statute beyond the particular “subsection defining the offense.” Ex. A, Gov.'s Br. 12; see Gov.'s Suppl. Br. 5, 9. And “[k]nowingly,” the government says (in this case at least),[2] cannot be read to travel so far. Id. But Elizalde's reading does not impute “knowingly” to far-away subsections. Instead, Elizalde's reading simply incorporates the statutory definition where (a)(1) and (a)(2) use the defined term. Thus, “knowingly” does not travel down from (a)(1) or (a)(2) to modify (c)(1). Rather, it applies to the phrase “restricted building or grounds” in (a)(1) and (a)(2)...
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