United States v. Nassif
| Docket Number | Criminal Action No. 21-421 (JDB) |
| Decision Date | 12 September 2022 |
| Citation | 628 F.Supp.3d 169 |
| Parties | UNITED STATES of America v. John Maron NASSIF, Defendant. |
| Court | U.S. District Court — District of Columbia |
Graciela Rodriguez Lindberg, Assistant U.S. Attorney, United States Attorney's Office, Laredo Division, Laredo, TX, Brian Morgan, Assistant U.S. Attorney, Human Rights & Special Prosecutions, Washington, DC, Elizabeth Nash Eriksen, Assistant U.S. Attorney, DOJ-CRM, Washington, DC, for United States of America.
James T. Skuthan, Public Defender, Federal Public Defender Florida Middle, Orlando, FL, for Defendant.
Defendant John Nassif is charged by information with four offenses related to his alleged participation in the riot at the U.S. Capitol on January 6, 2021. See generally Information [ECF No. 12]. In advance of the jury trial scheduled to begin on December 5, 2022, Nassif moves to dismiss Count Four of the information, which charges that he "willfully and knowingly paraded, demonstrated, and picketed in a Capitol Building" in violation of 40 U.S.C. § 5104(e)(2)(G). See generally Def.'s Mot. to Dismiss Count Four of the Information [ECF No. 30] ("Mot. to Dismiss"). Nassif also seeks a change of venue or, in the alternative, expanded examination of potential jurors. See generally Def.'s Mot. for Transfer of Venue or, in the Alternative, to Allow Expanded Examination of Prospective Jurors Before & During Voir Dire [ECF No. 31] ("Venue Mot."). For the reasons explained below, the Court will deny both of Nassif's motions.
At 1:00 p.m. on January 6, 2021, a joint session of Congress assembled to certify the Electoral College vote of the 2020 Presidential Election. Opp'n to Mot. to Dismiss at 1. A crowd began to gather outside the U.S. Capitol. Id. "The mob . . . scaled walls, smashed through barricades, and shattered windows to gain access to the interior of the Capitol," with the first rioters entering shortly after 2:00 p.m. Trump v. Thompson, 20 F.4th 10, 18 (D.C. Cir. 2021); Opp'n to Mot. to Dismiss at 1. Members of the House and Senate evacuated at around 2:20 p.m. Opp'n to Mot. to Dismiss at 2. "All told, the riot caused millions of dollars of damage to the Capitol, and approximately 140 law enforcement officers were injured in the fighting—the January 6th riot was, in short, 'the most significant assault on the Capitol since the War of 1812." McHugh I, 583 F.Supp.3d at 8 (quoting Trump, 20 F.4th at 18-19).
On January 9 and January 20, 2021, the Federal Bureau of Investigation ("FBI") received two separate tips that Nassif had posted videos and pictures of himself inside the Capitol building on January 6. Aff. in Supp. of Compl. ¶¶ 11, 14. In subsequent interviews with the FBI, the tipsters identified Nassif in photos taken from closed-circuit surveillance video footage from within the Capitol. Aff. in Supp. of Compl. ¶¶ 17-18; Opp'n to Mot. to Dismiss at 2. That surveillance footage, and video from other individuals inside the Capitol on January 6, shows "Nassif chanting outside the East Rotunda doors" at around 3:00 p.m. before entering the Capitol through those doors at 3:13 p.m. Opp'n to Mot. to Dismiss at 2. Officers prevented Nassif from moving further into the building, turning him back as he approached the Rotunda; Nassif exited at 3:23 p.m. Id.
On April 29, 2021, Nassif was charged by complaint with entering and remaining in a restricting building or grounds and violent and disorderly conduct on Capitol grounds. See Compl. [ECF No. 1]. He was arrested and, after an initial appearance on May 17, 2021, released on personal recognizance. Min. Entry, May 17, 2021. On June 22, the government filed an information charging Nassif with four counts, including parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G). Information at 1-3. Nassif has pleaded not guilty to all four charges. See Min. Entry, June 30, 2021. Nassif now moves to dismiss Count Four, charging him with parading, demonstrating, or picketing in a Capitol building, see Mot. to Dismiss at 1, and for a transfer of venue or for the expanded examination of potential jurors, see Venue Mot. at 1. The government opposes both requests. See Opp'n to Mot. to Dismiss at 1; Gov't's Opp'n to Venue Mot. [ECF No. 35] ("Opp'n to Venue Mot.") at 1. Nassif's motions are fully briefed and ripe for decision. See generally Def.'s Reply to Opp'n to Mot. to Dismiss [ECF No. 39] ("Reply").2
Before trial, a criminal defendant may move to dismiss the information against him for, among other reasons, "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). Because the main purpose of a charging document is to inform the defendant of the nature of the accusation against him, Ballestas, 795 F.3d at 148-49, an information need contain only "a plain, concise, and definite written statement of the essential facts constituting the offense charged," Fed. R. Crim. P. 7(c)(1). An information may fail to state an offense in two relevant ways: if the charged statutory provision is unconstitutional, McHugh I, 583 F.Supp.3d at 9, or the if the offense charged does not apply to the defendant's conduct, United States v. Montgomery, 578 F. Supp. 3d 54, 58-59 (D.D.C. 2021). In considering Nassif's motion to dismiss, "the sole question before the court is the legal sufficiency of the" information. Montgomery, 578 F. Supp. 3d at 58.
Nassif moves to dismiss Count Four, which charges that he "paraded, demonstrated, and picketed in a Capitol Building" in violation of 40 U.S.C. § 5104(e)(2)(G). Information at 3. He argues that § 5104(e)(2)(G) is "unconstitutional on its face" because it is "both overbroad and unconstitutionally vague" in violation of the First Amendment. Mot. to Dismiss at 2.3 He also contends that Count Four does not apply to his alleged conduct and so "fails to state an offense" against him. Id. at 11. The Court will address Nassif's arguments in turn.
Under the First Amendment, "a statute is facially invalid if it prohibits a substantial amount of protected speech." United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). A statute may be "facially invalid even if [it] also ha[s] legitimate application," City of Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), but the overbreadth must be "substantial": "the mere fact that one can conceive of some impermissible applications of a statute is not enough to render it susceptible to an overbreadth challenge," Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). "[T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Taxpayers for Vincent, 466 U.S. at 801, 104 S.Ct. 2118, To maintain the appropriate balance between protecting free speech and avoiding the "harmful effects" of "invalidating a law that in some of its applications is perfectly constitutional," courts have "vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Williams, 553 U.S. at 292, 128 S.Ct. 1830. Thus, "[i]nvalidation for overbreadth is 'strong medicine' that is not to be 'casually employed.' " Id. at 293, 128 S.Ct. 1830 (cleaned up) (quoting L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999)); accord Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ().
Because "it is impossible to determine whether a statute reaches too far without first knowing what the statute covers," a court's "first step in overbreadth analysis is to construe the challenged statute." Williams, 553 U.S. at 293, 128 S.Ct. 1830. Section 5104(e)(2)(G) provides that "[a]n individual . . . may not willfully and knowingly . . . parade, demonstrate, or picket in any of the Capitol Buildings." Focusing first on the operative verbs—parade, demonstrate, and picket—Nassif argues that this "plain language itself is strikingly broad, covering enormous swaths of protected First Amendment activity," and that the statute is not limited to "disruptive speech, protests, gatherings, or even audible oral expressions of ideas." Mot. to Dismiss at 3.4
When considering a statute's constitutionality under the First Amendment, the forum to which the statute applies is of great importance. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 805-06, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The Supreme Court has identified three types of public property for First Amendment analysis: (1) the traditional public forum, (2) the designated public forum, and (3) the nonpublic forum. Perry Educ. Ass'n v. Perry Loc. Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948 (1983). Traditional public forums include locations like "streets and parks which 'have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Id. at 45, 103 S.Ct. 948 (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)). In a public forum, "the rights of the state to limit expressive activity are sharply circumscribed," limited to regulations "necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end." Id.5 A designated public forum "consists of public property which the state has opened for use by the public as a place for expressive activity." Id. In a designated public...
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