United States v. Samira Jabr ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2021 Decided July 9, 2021
No. 19-3093
UNITED STATES OF AMERICA,
APPELLEE
v.
SAMIRA JABR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00105-1)
A. J. Kramer, Federal Public Defender, argued the
cause and filed the briefs for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, Elizabeth H. Danello, and Michael J. Friedman,
Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, WILKINS, Circuit
Judge, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
2
SRINIVASAN, Chief Judge: Samira Jabr drove across the
country from California to the District of Columbia with an
intention to meet with then-President Trump in person. She
believed herself to be a victim of a conspiracy between law
enforcement and various casinos she visited on her trip, and she
felt compelled to inform the President about it face-to-face.
When her car’s GPS device marked her arrival at the White
House, she parked the car, exited it, scaled two fences, ran
across a courtyard, and sprinted up the stairs of the building
towards the entrance, where Secret Service officers intercepted
her.
However ill-conceived Jabr’s plan to attain an audience
with the President may have been in its design, it was all the
more unlikely to succeed because of a significant hiccup in its
implementation: Jabr, it turned out, had dashed up the stairs of
the wrong building. She had tried to enter the United States
Treasury Building, which sits immediately adjacent to the
White House.
The government charged Jabr under a statute that bars
entering the “White House or its grounds” without lawful
authority. But the government does not dispute on appeal that
the Treasury Building lies outside the “White House grounds”
for purposes of that statute. So whereas Jabr had mistakenly
thought the Treasury Building was the White House, the
government mistakenly thought the Treasury Building was part
of the White House grounds. And because Jabr’s alleged
conduct of attempting to enter the Treasury Building did not
violate the statute, the district court acquitted Jabr of
committing the charged offense. But the court then found her
guilty of attempting to commit the charged crime, explaining
that the statute prohibits attempted entries onto the White
House grounds as well as successful ones.
3
Jabr challenges her conviction on a number of grounds,
including a contention that the flaw in the charge against her
left the district court without jurisdiction. We reject Jabr’s
various challenges to her conviction. But we vacate the
restitution order entered against her, which the government
now agrees was erroneous.
I.
On April 20, 2018, having followed GPS directions to the
White House, Samira Jabr parked her car on 15th Street N.W.
in D.C., next to the U.S. Treasury Building. She thought she
had been victimized by a conspiracy between law enforcement
and casinos she had visited en route to D.C. from California,
and “she wanted to speak with President Trump to ‘let him
know what’s going on.’” United States v. Jabr, No. 18-cr-105,
slip op. at 4 (D.D.C. May 16, 2019), J.A. 206 (quoting
interview).
Jabr exited her car on 15th Street and scaled the fence
lining the eastern perimeter of the Treasury Building. She ran
across the building’s courtyard with her head ducked down
because “she ‘saw a cop car parked.’” Id. (quoting interview).
She then jumped over a second, shorter fence “that was about
the height of her waist and locked with a padlock.” Id. Once
on the other side of the second fence, she ran up a set of stairs
to the locked door of the Treasury Building. There, she was
arrested at gunpoint by Secret Service officers.
Jabr gave a recorded interview, which was admitted into
evidence at trial. In the interview, she stated that she “knew
that nobody was supposed to go up there,” but she thought she
would be safer in jail than in the hands of the people she
believed were conspiring against her. Id. at 5, J.A. 207
(quoting interview). When asked if she had known that the
4
building she was running towards was the Treasury Building
and not the White House, Jabr said, “No, the female cop told
me, she’s like, ‘But you know that’s not the White House
right?’ and I was like, well I feel silly now.” Id. at 6, J.A. 208
(quoting interview).
The government charged Jabr in an information with one
count of “Entering or Remaining in [a] Restricted Building or
Grounds, in violation of Title 18, United States Code, Section
1752(a)(1),” a federal misdemeanor. Information at 1, United
States v. Jabr, No. 18-cr-105 (D.D.C. Apr. 23, 2018), J.A. 1.
The information specifically alleged that Jabr “did knowingly
enter and remain in a restricted building and grounds, that is,
the White House Complex and United States Department of
Treasury Building and Grounds, without lawful authority to do
so.” Id. The provision referenced in the information, 18 U.S.C.
§ 1752(a)(1), prohibits “knowingly enter[ing] or remain[ing] in
any restricted building or grounds without lawful authority to
do so.” The statute defines “restricted buildings or grounds” to
include, among other things, any “restricted area . . . of the
White House or its grounds.” Id. § 1752(c)(1)(A).
Jabr waived her right to a jury, and the district court
presided over a bench trial. At the close of the government’s
case, Jabr moved for a judgment of acquittal. She first argued
that the Treasury Building was not part of the “White House or
its grounds” covered by the statute, and that the government
thus had presented no evidence that she had entered a
prohibited area under the statute. Second, she contended that
the government had failed to show that she was “without lawful
authority” to enter the area, as is required by the statute. Later,
she argued that the district court lacked jurisdiction over the
case because the “areas named in the information are not within
the specific Congressional definition.” Defendant’s Reply Re:
5
Motion for Judgment of Acquittal at 3, United States v. Jabr,
No. 18-cr-105 (D.D.C. Sept. 10, 2018), J.A. 147.
The district court issued an opinion in which it both
addressed Jabr’s legal challenges and fulfilled its factfinding
role in the bench trial. The court initially held that it had
jurisdiction over the case because the information charged a
federal crime. The court then determined that, as a matter of
law, the government had failed to prove a completed violation
of 18 U.S.C. § 1752(a)(1) because there was no evidence that
Jabr went into “the White House or its grounds”: that area, the
court held, was smaller than the “White House Complex”
charged in the information and did not encompass the Treasury
Building.
The district court then took up the government’s
alternative contention that, because the statute also
criminalized attempts, see 18 U.S.C. § 1752(a), Jabr could be
found guilty of attempting to enter the “White House or its
grounds.” The court first explained that Federal Rule of
Criminal Procedure 31 permitted it to consider an attempt
charge even though it was not expressly mentioned in the
information. The court then rejected Jabr’s argument that she
was entitled to a judgment of acquittal on that charge based on
the government’s ostensible failure to demonstrate that she
lacked “lawful authority” to enter the restricted area.
The district court then “transition[ed] to its role as
factfinder” on the attempt charge. Jabr, slip op. at 35, J.A. 237.
The court found “beyond a reasonable doubt that Ms. Jabr is
guilty of attempting to violate Section 1752(a)(1).” Id. The
court observed that “factual impossibility is no defense to the
crime” in this case, and then explained: “If the circumstances
had been what Ms. Jabr perceived them to be, her conduct
would have qualified as a violation of the underlying
6
substantive crime. Ms. Jabr verbalized her intent to reach the
White House to speak with President Trump. And her actions
exemplified her criminal intent to ‘enter[] or remain[] in [a]
restricted building or ground without lawful authority to do
so.’” Id. at 36, J.A. 238 (alterations in original).
The court sentenced Jabr to time served followed by 12
months of supervised release. The court also granted the
government’s request to order her to pay restitution in the
amount of $480 for a wallet she had stolen on her way to D.C.
After Jabr contested the restitution order, the government
declined to defend it. The court then determined that it lacked
continuing authority to vacate the order but stayed the payment
obligation, indicating that it would have vacated the order if it
retained authority to do so.
II.
On appeal, Jabr argues that her conviction should be
vacated for three reasons. First, she contends that the
information did not allege a federal crime. Second, she submits
that the district court impermissibly effected a constructive
amendment of the information. Third, she argues that there
was insufficient evidence to show that she had acted “without
lawful authority.” 18 U.S.C. § 1752(a)(1). Finally, Jabr also
renews her contention that the district court erred in entering
the restitution order.
A.
We begin with Jabr’s argument that the charging
instrument against her—here, an information—did not
adequately allege a federal offense. She frames that objection
primarily as a challenge to the district court’s jurisdiction.
7
The federal criminal code vests district courts with original
and exclusive jurisdiction over “all offenses against the laws of
the United States.” 18 U.S.C. § 3231. “If an indictment or
information alleges the violation of a crime set out in Title 18
or in one of the other statutes defining federal crimes, that is
the end of the jurisdictional inquiry.” United States v.
Fahnbulleh, 752 F.3d 470, 476 (D.C. Cir. 2014) (alteration and
internal quotation marks omitted). That is the case here.
Jabr’s jurisdictional objection is grounded in her
contention that the acts alleged in the information did not
constitute a federal offense. Recall that section 1752(a)(1), the
provision expressly invoked in the charging document,
requires that the defendant have “knowingly enter[ed] or
remain[ed] in any restricted building or grounds without lawful
authority to do so.” 18 U.S.C. § 1752(a)(1). And the statute
goes on to define “restricted building or grounds” to include
“any posted, cordoned off, or otherwise restricted area . . . of
the White House or its grounds.” Id. § 1752(c)(1)(A). The
information in this case, though, charged Jabr with “knowingly
enter[ing] and remain[ing] in a restricted building and grounds,
that is, the White House Complex and United States
Department of Treasury Building and Grounds, without lawful
authority to do so.” Information, supra, at 1, J.A. 1 (emphasis
added). For purposes of this appeal, all parties agree that the
area described in the information ranges beyond the “White
House or its grounds” specified in the statute. And Jabr
submits that, because the information did not necessarily allege
facts constituting a federal crime, the district court lacked
jurisdiction.
The jurisdictional inquiry, however, asks only whether the
information alleges the violation of a federal crime, not
whether the facts it alleges in fact constitute such a violation.
See Fahnbulleh, 752 F.3d at 476. The latter question can
8
matter when we consider whether an information or indictment
is defective—that is, whether the charging instrument “does not
charge all the elements of the offense.” United States v.
Pickett, 353 F.3d 62, 68 (D.C. Cir. 2004); see Fed. R. Crim. P.
7(c)(1). But those sorts of defects in an information or
indictment do not deprive a district court of jurisdiction.
United States v. Pettigrew, 346 F.3d 1139, 1145 (D.C. Cir.
2003). The information in this case alleges a violation of
section 1752(a)(1), and that suffices to substantiate the district
court’s jurisdiction.
To the extent Jabr contends that the allegedly defective
information in this case requires setting aside her conviction
even apart from any effect on the district court’s jurisdiction,
any such defect was harmless. An information, like an
indictment, must state “the essential facts constituting the
offense charged.” Fed. R. Crim. P. 7(c)(1). We have
interpreted that rule, in conjunction with a defendant’s
constitutional right to notice of the charges against her, see
Cole v. Arkansas, 333 U.S. 196, 201 (1948), to require the
charging instrument to “charge all the elements of the offense,”
Pickett, 353 F.3d at 68. A charging document that does not
charge all elements of the offense is thus defective. Id. at 67–
68.
We need not decide whether the information in this case
was defective in that regard because any defect was harmless.
The Federal Rules require us to “disregard[]” any “error,
defect, irregularity, or variance that does not affect substantial
rights.” Fed. R. Crim. P. 52(a). “The Supreme Court has
articulated two versions of this rule, one for nonconstitutional
errors and one for errors of constitutional dimension.” United
States v. Powell, 334 F.3d 42, 45 (D.C. Cir. 2003). The stricter
(more defendant-friendly) standard governs constitutional
errors, as to which an error “is harmless if it appears ‘beyond a
9
reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Id. (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)).
Even assuming arguendo that any defect in Jabr’s
information would be subject to that stricter standard, the error
was harmless. The district court, in its role as factfinder,
specifically found that Jabr was guilty of attempted trespass “of
the ‘White House or its grounds.’” Jabr, slip op. at 36, J.A.
238. The court thus made its finding of guilt under a proper
conception of the restricted area under the statute, rather than
the broader area described in the information. And indeed, the
court made that finding only after examining at length the
difference between the area listed in the statute and that
described in the information. In addition, Jabr had ample
notice of the possibility of an attempt conviction given that the
government had argued for one in an initial oral argument
before the district court, in a written brief on the issue, and in a
second oral argument. And Jabr does not (and could not) deny
that the statute by its terms encompasses attempts. See 18
U.S.C. § 1752(a). In those circumstances, it is plain that any
defect in the charging instrument did not contribute to the
verdict or affect Jabr’s substantial rights. Cf. United States v.
Mechanik, 475 U.S. 66, 73 (1986) (holding that “the petit jury’s
verdict rendered harmless any [Rule 6(d)] error in the [grand
jury’s] charging decision”).
B.
Jabr next contends that, by convicting her of attempted
entry onto the White House grounds when she was charged
only with the completed crime of entry, the district court
constructively amended the information, which Jabr argues is
impermissible. We perceive no error in the district court’s
consideration of an attempt charge.
10
The circumstances in which a charging document may be
amended vary depending on whether the charging instrument
is an indictment or an information. In the case of an indictment,
our court “recognizes two types of impermissible divergences
between indictment and proof.” United States v. Lorenzana-
Cordon, 949 F.3d 1, 4 (D.C. Cir. 2020). The first, called an
amendment or a constructive amendment, “occurs when the
charging terms of the indictment are altered, either literally or
in effect, by prosecutor or court after the grand jury has last
passed upon them.” Gaither v. United States, 413 F.2d 1061,
1071 (D.C. Cir. 1969) (footnotes omitted). The second, called
a variance, “occurs when the charging terms of the indictment
are left unaltered, but the evidence offered at trial proves facts
materially different from those alleged in the indictment.” Id.;
see Lorenzana-Cordon, 949 F.3d at 4.
Here, Jabr seeks to apply the notion that constructive
amendments of indictments are impermissible. This case,
however, involves an information, not an indictment. And in
the case of an information, the district court “may permit an
information to be amended at any time before the verdict or
finding,” “[u]nless an additional or different offense is charged
or a substantial right of the defendant is prejudiced.” Fed. R.
Crim. P. 7(e). The distinction between indictments and
informations in that regard reflects that indictments are issued
by grand juries and informations are issued by the government:
“Since the prosecutor is the sole source of the charge he or she
is equally free to change it, and the restrictive rules forbidding
an amendment of an indictment have no application to an
information.” Charles A. Wright & Arthur R. Miller, 1 Fed.
Prac. & Proc. Crim. § 129 (4th ed.) (footnote omitted).
Jabr thus errs in relying on the constructive-amendment
prohibition applicable to indictments. Assuming that the
11
district court’s decision to consider (and ultimately convict on)
an attempt theory amounted to an amendment of the
information, the amendment was permissible.
First, the amendment occurred “before the verdict or
finding.” Fed. R. Crim. P. 7(e). The district court identified
the error in the information’s description of the restricted area
and determined that it could proceed on an attempt theory
before it “transition[ed] to its role as factfinder.” Jabr, slip op.
at 35, J.A. 237.
Second, the amendment did not charge “an additional or
different offense.” Fed. R. Crim. P. 7(e). The district court did
not change the offense from the one listed in the information
but merely convicted her of an attempt to commit that same
offense. The Federal Rules of Criminal Procedure specifically
allow for “a defendant [to] be found guilty of . . . an attempt to
commit the offense charged,” which is precisely what
happened here. Fed. R. Crim. P. 31(c)(2).
Finally, the amendment did not prejudice “a substantial
right of the defendant.” Fed. R. Crim. P. 7(e). Jabr makes no
argument that she was prejudiced by the court’s decision to
consider whether she had committed an attempted violation of
18 U.S.C. § 1752(a)(1). To be sure, she had a constitutional
entitlement to “notice of the specific charge” brought against
her. Cole, 333 U.S. at 201. But as just explained, the offense
charged in Jabr’s information did not change. And insofar as
she was entitled to notice of the correction of a defect in the
geographic area listed in the information, she of course had full
notice of the possibility of that correction: it was she who
argued that the information was faulty in that respect in the first
place.
12
It is true that the language of Rule 7(e), in stating that “the
court may permit an information to be amended,” appears to
contemplate the court’s permitting an amendment by the
prosecution rather than amending the charge of its own accord,
as occurred here. But any procedural irregularity in that regard
worked no prejudice against Jabr, for the same reasons that, as
we have explained, any defect in the information was harmless.
C.
Jabr next contends that there was insufficient evidence to
prove beyond a reasonable doubt that she was “without lawful
authority” to “enter” the White House or its grounds, 18 U.S.C.
§ 1752(a)(1). The question for us is whether any rational trier
of fact, viewing the evidence in the light most favorable to the
prosecution, “could have found the essential elements of the
crime”—here, that Jabr acted without lawful authority—
“beyond a reasonable doubt.” Coleman v. Johnson, 566 U.S.
650, 654 (2012) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). “Given our standard of review, the key question
is what ‘rational juror[s]’ could conclude, not what they had to
conclude.” United States v. Bikundi, 926 F.3d 761, 787 (D.C.
Cir. 2019) (alteration in original) (quoting United States v.
Williams, 836 F.3d 1, 7 (D.C. Cir. 2016)).
A rational trier of fact could have found, based on all the
evidence, that Jabr lacked lawful authority to enter the White
House or its grounds. As an initial matter, a rational trier of
fact could presume as a matter of common knowledge that an
ordinary citizen without any known authorization would not be
allowed inside the White House or on its grounds. And indeed,
Jabr acknowledged, in statements admitted into evidence, that
she “knew that nobody was supposed to go up there.” Jabr,
slip op. at 5, J.A. 207 (quoting interview). Jabr’s actions
corroborate her acknowledgment. Not only did she need to
13
scale two fences, one of which contained a padlock, but once
she got past the fences, she ran with her head ducked down
because she “saw a cop car parked.” Id. at 4, J.A. 206 (quoting
interview). In light of that evidence, a rational trier of fact
could readily find beyond a reasonable doubt that Jabr
attempted to enter the White House grounds “without lawful
authority.”
D.
Jabr lastly contends, and the government now concedes,
that the restitution order imposed against her by the district
court (at the government’s request) was entered in error. The
district court itself would have vacated its restitution award if
it thought it had authority to do so. We agree that the award
was erroneous.
Restitution may be imposed only when authorized by
statute. United States v. Papagno, 639 F.3d 1093, 1096 (D.C.
Cir. 2011). The statute that would authorize restitution for the
crime in this case, 18 U.S.C. § 3663, “compensate[s] victims
only for losses caused by the conduct underlying the offense of
conviction.” Hughey v. United States, 495 U.S. 411, 418
(1990); see id. at 413 n.1 (noting that § 3579, about which the
Hughey Court wrote, had been recodified as § 3663 by the time
of the opinion). Here, the award of restitution related to Jabr’s
theft of a wallet in a casino in Nevada while en route to D.C.
As the parties agree, that conduct cannot fairly be characterized
as conduct underlying her conviction for attempted entry onto
the White House grounds. We will thus vacate the restitution
order.
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* * * * *
For the foregoing reasons, we vacate the district court’s
restitution order and we affirm the judgment in all other
respects.
So ordered.