United States v. Price ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 21-719 (JEB)
CYNTHIA BALLENGER and
CHRISTOPHER PRICE,
Defendants.
MEMORANDUM OPINION
On March 21, 2023, after a bench trial, the Court found Cynthia Ballenger and her
husband Christopher Price guilty of four counts arising from their participation in the
insurrection at the United States Capitol on January 6, 2021. Defendants have filed two
Motions: one for a judgment of acquittal and the other for a new trial. The Court will deny both.
I. Background
On the infamous date of January 6, Defendants traveled to the United States Capitol from
Emmitsburg, Maryland, walked across restricted Capitol grounds, and entered the Capitol
building through the breached Senate Wing Door. The Government consequently charged both
with four counts arising from those events: (i) Entering and Remaining in a Restricted Building
or Grounds, in violation of 18 U.S.C. § 1752(a)(1); (ii) Disorderly or Disruptive Conduct in a
Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2); (iii) Disorderly or
Disruptive Conduct in a Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D);
and (iv) Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C.
§ 5104(e)(2)(G). See ECF No. 38 (Information). After the Court denied a string of pretrial
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motions and the parties proposed instructions on each count, Defendants went to trial. See
United States v. Ballenger, No. 21-719, 2022 WL 14807767, at *1 (D.D.C. Oct. 26, 2022)
(denying motion to dismiss Information); United States v. Ballenger, No. 21-719, 2022 WL
16533872, at *1 (D.D.C. Oct. 28, 2022) (denying motion for change of venue); Trial Transcript
of Mar. 20, 2023 (Tr. I) at 4–7 (denying motions to preclude and suppress evidence); Trial
Transcript of Mar. 21, 2023 (Tr. II) at 4–5 (acknowledging areas of disagreement in proposed
instructions).
Trial began on March 20, 2023, and concluded the following day. See Minute Entries of
Mar. 20–21, 2023. The Court heard testimony from four Government witnesses and from
Defendant Ballenger. See Tr. I at 2; Tr. II at 2. It found that all Government witnesses,
including an officer who was at the Senate Wing Door when Defendants entered the building,
testified credibly. See Tr. II at 166. Ballenger, the Court found, was a “largely incredible
witness” given her recanting, denials of the obvious, and claimed failure to notice what was
plainly visible. Id. at 169–70.
The facts the Court found were as follows: Prior to traveling to the Capitol that day,
Ballenger stated in texts or Facebook posts that “the time has come” and that she “needed to do
something more than vote.” Id. at 167. She came to the Capitol armed with pepper or bear spray
and a pocket knife. Id. While attending former President Trump’s rally, Ballenger and Price
found it difficult to hear him and decided to head to a nearby café instead. Id. at 168. There,
Ballenger heard “flash bangs” and “received a text that the Capitol had been breached.” Id.Price “believed that he heard a bomb.” Id. The two “also observed a multitude of police cars, of
sirens, of officers, [and] fire engine[s] with lights flashing,” but “nonetheless decided to head up
to the Capitol grounds.” Id.2
At the time, the Court found, the Capitol was closed, for both the COVID-19 pandemic
and the joint session of Congress at which the Vice President — a Secret Service protectee —
was present to certify the election. Id. at 166. The “entire perimeter of the Capitol grounds was
restricted,” too, “via bike racks, snow fencing, and area closed signs.” Id. Hours after the Vice
President arrived, Defendants entered the Capitol grounds area by “stepping over an Olmsted
wall and pass[ing] snow fencing” and “bike racks that were down.” Id. at 167–68. Around the
same time, Price texted, “[W]e’re just taking over the Capitol.” Id. He also took a video of a
woman repeatedly banging on a Capitol window, id. at 168–69, and shared his observations of
“tear gas and explosions going off, someone on the floor, [and] CPR administered.” Id. at 169.
The two marched onwards to the Capitol building.
The Senate Wing Door was “only for fire and emergencies” and was “typically not
open.” Id. at 166. Officers “were holding off rioters” at that door, but “[p]eople were yelling”
and “breaking windows.” Id. at 167. The officers “could not stop the rioters who broke
through” the Senate Wing Door. Id. Defendants could hear alarms going off and observed tear
gas and officers in riot gear. Id. at 169.
Defendants nonetheless entered through the breached doorway. They did so “without
pushing or shoving anyone.” Id. By then, a desk was “being used as a barricade to the door”
that had not been breached, and “the officers [had] created a line to prevent people” who had
entered through the breached Senate Wing Door from crossing the foyer inside. Id. at 167.
“There was broken glass on the floor,” and “[s]irens were going off from inside the building
which were deafening.” Id. at 167, 169. Price texted, “[I]n and broken glass everywhere,” and
as the crowd was chanting, “[F]ight for Trump,” he texted, “[W]orth fighting for Trump[.]” Id.
at 169. The two walked around inside the building for approximately seven minutes. Id.3
Shortly afterwards, Price exclaimed, “[W]e went inside. They can’t stop you. It’s the people’s
house.” Id. at 169. Ballenger texted, “[W]e stormed the Capitol” and that they “totally owned
it.” Id.After denying two oral motions for judgment of acquittal, see Minute Entry of Mar. 21,
2023; Tr. II at 26, 31, 130, the Court convicted each Defendant of all four counts. See Tr. II at
171–73. Defendants have now filed a Renewed Motion for Judgment of Acquittal, see ECF No.
108, and a Motion for a New Trial. See ECF No. 109.
II. Legal Standard
Federal Rule of Criminal Procedure 29(c)(1) provides that “[a] defendant may move for a
judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the
court discharges the jury, whichever is later.” When considering such a motion, the Court must
“consider[] th[e] evidence in the light most favorable to the government” and uphold a guilty
verdict if “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002). Put another way,
the Court must determine whether “a reasonable juror must necessarily have had a reasonable
doubt as to the defendants’ guilt.” United States v. Weisz, 718 F.2d 413, 437 (D.C. Cir. 1983).
Federal Rule of Criminal Procedure 33(a), in turn, provides that “the court may vacate
any judgment and grant a new trial if the interest of justice so requires.” “Trial courts enjoy
broad discretion in ruling on a motion for a new trial.” United States v. Wheeler, 753 F.3d 200,
208 (D.C. Cir. 2014). This is true in part because “[t]he rules do not define ‘interests of justice’
and courts have had little success in trying to generalize its meaning.” Id. (citation and internal
quotation marks omitted). At bottom, the D.C. Circuit counsels that “granting a new trial motion
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is warranted only in those limited circumstances where a serious miscarriage of justice may have
occurred.” Id. (citation and internal quotation marks omitted).
III. Analysis
The Court will address the arguments in Defendants’ Motion for Acquittal count by count
before turning to their sundry contentions supporting a new trial.
A. Count I: Entering or Remaining in a Restricted Building or Grounds
Title 18 U.S.C. § 1752(a)(1) makes it unlawful to “knowingly enter[] or remain[] in any
restricted building or grounds without lawful authority to do so.” With respect to this first count,
the Court concluded that “on the facts that [Defendants] knew including that there had been a
breach, that there were flash bangs, that there were police sirens, that there was an alarm going
off, that there were police in riot gear, that there was broken glass, [and] that there was tear gas,
any reasonable person would have known they had no authority to enter into the Capitol
building.” Tr. II at 170–71. Although the Court acknowledged that whether Defendants
knowingly entered the grounds illegally posed a closer question, the Government “ha[d]
certainly proven beyond a reasonable doubt that they knew that the Capitol building was a
restricted area and one they could not enter, and yet they did so knowingly and willfully and
happily.” Id. at 171 (emphasis added). Indeed, Defendants “should have known they couldn’t
have even been up on the terrace” surrounding the building. Id.Price and Ballenger challenge the Court’s finding that they entered a “restricted building
or grounds” and then argue that even if they did, they did so unknowingly. The Court takes each
argument in turn.
Restricted Building or Grounds
Defendants assert that they never entered a “restricted building or grounds,” which the
statute defines to include “any posted, cordoned off, or otherwise restricted area . . . (B) of a
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building or grounds where the President or other person protected by the Secret Service is or will
be temporarily visiting; or (C) of a building or grounds so restricted in conjunction with an event
designated as a special event of national significance.” 18 U.S.C. § 1752(c)(1) (emphasis
added); see Acquittal Mot. at 7. They dispute whether the Capitol grounds they crossed and the
part of the Capitol building they entered were “posted, cordoned off, or otherwise restricted” at
the time they entered them. See Acquittal Mot. at 8. Ballenger and Price argue that this phrase
implicitly refers to “tangible, material restrictions,” and that “police cars with flashing lights” or
“noises” do not a restricted area make. Id. The Court declines to adopt this narrow construction
of the broad phrase “otherwise restricted.” The flash bangs, sirens, blaring alarm, broken glass,
and tear gas that Defendants encountered, see Tr. II at 170–71, were sufficient to mark the areas
they crossed as restricted.
Beyond this, the “bike racks and snow fencing, as well as signage indicating that the area
was closed,” adequately marked the Capitol grounds and the building within it as restricted.
United States v. Bingert, No. 21-91-1, 2023 WL 3613237, at *5 (D.D.C. May 24, 2023).
Defendants appear to acknowledge these barriers as material restrictions but maintain that
because other rioters had cast them aside by the time Ballenger and Price crossed the Capitol
grounds, the area was no longer effectively restricted. See Acquittal Mot. at 8–9. Rioters’
success in knocking down barriers and doors, however, does not strip an area of its restrictions.
Although Defendants challenge the foundation for and consistency of Capitol Police Captain
Jessica Baboulis’s testimony describing the placement of specific barricades, see id. at 8–10,
Ballenger admitted on the stand that she and her husband encountered these barriers along their
path as they crossed the Capitol grounds. See Tr. II at 95–96, 99.
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If that did not suffice, Defendants certainly entered a restricted area when they walked
into the Capitol building, even under their definition. Their only challenge to that finding is that
police were cordoned within, rather than outside, the Senate Wing Door, and that this cordon was
not pushing back against the crowd that entered through the breached doorway. See Acquittal
Mot. at 12. Ballenger, however, admitted on the stand that an additional “line of Metropolitan
Police Department officers in bright yellow jackets” stood outside the Capitol, guarding it from
the outside. See Tr. II at 101. That rioters had pushed the additional line of officers within the
building further back by the time Defendants entered makes no difference; their cordon made
sufficiently clear that entry into the building was forbidden.
Knowing Entry
Defendants next argue that even if they entered a restricted building, they did so
unknowingly. See Acquittal Mot. at 34. Even under their proposed definition, “[a] person acts
‘knowingly’ if he acts voluntarily, realizes what he is doing, and is aware of the nature of his
conduct.” ECF No. 99 (Notice of Joint Proposed Elements of Law) at 2. Video and
photographic evidence demonstrated that Defendants, who moved through the Capitol grounds
together that day, observed the evidence of restrictions detailed above. See, e.g., Tr. II at 98
(describing video of Ballenger confronting restrictions). Although Defendants contest whether
they noticed (1) bicycle racks with “area closed” signs, (2) tear gas, and (3) a blaring alarm
inside the Senate Wing, see Acquittal Mot. at 36–37, ample evidence supports the Court’s
finding that they observed these and other restrictions. See Tr. II at 99 (Ballenger testifying to
“walk[ing] right past” bicycle racks and an “area closed” sign); id. at 145 (Special Agent
describing text from Price warning of “tear gas and explosions going off”); id. at 105, 111, 129(Ballenger testifying alarm “was loud” and “definitely going”); see also United States v. Griffith,
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No. 21-244-2, 2023 WL 3477249, at *4 (D.D.C. May 16, 2023) (describing “earsplitting alarm”
inside Senate Wing Door at approximately 2:50 p.m.). Nor does the Court’s mens rea finding
depend on these three observations in light of the other restrictions, such as police cordons and
snow fencing, that Defendants observed. Were there any doubt, Defendants contemporaneously
expressed their knowledge that their entry was unauthorized: Price exclaimed, “[W]e’re just
taking over the Capitol,” Tr. II at 119, and Ballenger texted, “[W]e stormed the Capitol.” Id.at 117–18.
Defendants maintain that the Court failed to consider two additional facts, but neither is
relevant to their knowledge. First, they point out that “[d]ozens and dozens of people entered the
door and exited in approximately the same manner as the Prices.” Acquittal Mot. at 34–35. That
others were engaging in the same conduct has little bearing on Defendants’ own knowledge that
they (and their companions) were not permitted to be there. Defendants cannot rely on monkey-
see-monkey-do logic where the signs that their presence was prohibited were so glaring. Second,
Defendants emphasize that they “got in line to exit” the Capitol building “within a very short
time” after entering. Id. at 35. That Ballenger and Price decided not to linger has no bearing on
whether they entered knowingly.
B. Count II: Disorderly and Disruptive Conduct in a Restricted Building or Grounds
Count II charges a violation of 18 U.S.C. § 1752(a)(2), which prohibits “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, or within such proximity to, any
restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the
orderly conduct of Government business or official functions.” The Court found that Defendants
engaged in “disruptive” conduct “by going into the Capitol as well as by being on the upper west
terrace.” Tr. II at 171–72. It first acknowledged that “if th[eir] conduct had taken place in a
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vacuum, it might well not be disruptive,” but explained that “the mob clearly . . . did, in fact,
impede and disrupt the orderly conduct of government business and that” Defendants joined that
group “with the intent to impede or disrupt th[at] business because they didn’t want the election
to be certified.” Id.As the Court has already established that Defendants were in a “restricted building or
grounds,” see Section III.A.1, supra, it will move to their contentions that they did not engage or
intend to engage in disorderly or disruptive conduct while there before turning to their assertion
that they did not in fact impede or disrupt government business.
Engaging in Disruptive Conduct
In a pretrial Motion, Defendants challenged the Government’s proposed definition of
disruptive conduct (“a disturbance that interrupts an event, activity, or the normal course of a
process”), see Joint Elements at 5 (citing 1 Crim. Jury Instructions for DC Instruction 6.643), as
“confus[ing]” their conduct “with an event” (the insurrection), and as “imput[ing] the actions of
others” to them. See ECF No. 99-1 (Def. Mem. on Jury Instruction Requests) at 11–12. They
proposed that the Court use “the common meaning of the term disorderly conduct” to define
disruptive conduct. See id. at 12. Perhaps recognizing that this would conflate “disruptive
conduct” with “disorderly conduct,” Defendants also proposed an alternative, but ultimately
circular, definition of “disruptive.” See Joint Elements at 5 (proposing “disruptive conduct” to
mean “specific conduct of the defendant which would itself be identified as disruptive conduct
within common and ordinary meaning in a variety of such public settings”); Def. Mem. on
Instructions at 12 (acknowledging Defendants’ “proposal does not answer many questions”). In
light of Defendants’ unworkable alternative, the Court has adopted the model instruction the
Government proposed.
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At trial, the Government acknowledged that Defendants did not “yell[], break[] things,
block[] people, jostl[e],” or “threaten[] in some manner,” and that their disruptive conduct
consisted of their “being part of th[e] mob” that stormed the Capitol, even if their outward
contribution to that mob consisted of little more than “walk[ing] in” with its members. See Tr. II
at 137. Although this presents a closer question than Count I, a rational finder of fact would
agree that Defendants’ conduct violated the statute. In United States v. Rivera, 607 F. Supp. 3d 1(D.D.C. 2022), for example, Judge Colleen Kollar-Kotelly found a defendant who entered the
Capitol building and “spent approximately twenty minutes roaming the halls of the Capitol,
videoing, livestreaming, and taking selfies” guilty of “disorderly and disruptive conduct.” Id. at
7, 9. “Even mere presence in an unlawful mob or riot,” she explained, is “‘disruptive’ insofar as
it disturbs the normal and peaceful condition of the Capitol grounds and buildings, its official
proceedings, and the safety of its lawful occupants.” Id. at 8; see also Griffith, 2023 WL
3477249, at *6 (“[E]ven mere presence in these circumstances is in fact disruptive.”) (citing
Rivera, 607 F. Supp. 3d at 9). Context and circumstances always matter. A person standing on a
public sidewalk scanning the street commits no crime, but he certainly does so if he is acting as a
lookout for others committing a burglary next door.
Defendants were not merely present: they actively participated in the riot. They latch
onto the Court’s emphasis on their “being on the upper west terrace” and its reference to their
participation in the “mob” as evidence that the Court focused on Defendants’ location or the
conduct of others instead of their own conduct that day. See, e.g., Acquittal Mot. at 14–15, 18,
22–23. That language, however, incorporated the Court’s specific factual findings. In defying
restrictions and remaining “on the upper west terrace” — in Ballenger’s case, armed with bear
spray and a pocket knife — including by stopping to “t[ake] a video of a woman banging on [a]
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window,” blowing past deployments to clear the area, and then following the group that pushed
through the Senate Wing Door, the two disrupted the certification of the electoral votes. See
Tr. II at 167–69. Just as with the lookout above, their conduct might be innocent enough if they
had acted alone, but that is not what occurred on January 6.
Although Ballenger and Price list a litany of constitutional complaints with this
reasoning, they do not develop them. See Acquittal Mot. at 19 (stating that Court’s finding
“offends all notions of Separation of Powers, First Amendment rights of assembly, Fifth
Amendment Due Process, Fifth Amendment Vagueness, and Sixth Amendment rights”); id. at 21
(quoting United States v. Lanier, 520 U.S. 259, 266–67 (1997), without more). Given the
Court’s individualized finding of guilt, Defendants’ invocation of Scales v. United States, 367
U.S. 203 (1961), leads nowhere. See id. at 225 (explaining that Fifth Amendment requirement of
“personal guilt” does not “put[] beyond the reach of the criminal law all individual associational
relationships”); Acquittal Mot. at 20–21 (quoting Scales with no analysis). Considering the long
list of decisions in this district rejecting overbreadth and vagueness challenges to the “disruptive
conduct” provision, Defendants’ First Amendment argument is equally unsuccessful. See United
States v. GossJankowski, No. 21-123, 2023 WL 130817, at *7 (D.D.C. Jan. 9, 2023) (surveying
cases).
Intent to Disrupt
Without acknowledging the forest of evidence that they intended to disrupt congressional
proceedings on January 6, Defendants fixate on two trees. They argue first that they were not
aware that the loud noises they heard coming from the Capitol were flash bangs, see Acquittal
Mot. at 39–40, and second, that the Court would have found three of their communications to
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reflect sarcasm if the emojis included in them had been admitted. Id. at 40–41; Tr. II at 3–4
(parties representing that only three messages in the exhibits omitted emojis).
As to the first, the evidence that Defendants heard flash bangs, while amply supported,
see Tr. II at 91 (Ballenger admitting to hearing a loud sound), was not necessary to the Court’s
verdict, id. 168–69 (listing hearing flash bangs as one of nine observations of disruption). As to
the second, no credible evidence supports the argument that the three messages from which
emojis were omitted were meant to be sarcastic. See, e.g., id. at 116 (Prosecutor: “How do you
know th[e emojis] were supposed to indicate [‘we stormed the Capitol’] wasn’t a serious
statement?” Ballenger: “Because I know it wasn’t a serious statement.”). Nor would any
sarcastic messages make a dent in the myriad communications displaying Defendants’ intent to
disrupt congressional proceedings that day. See, e.g., id. at 72, 167 (Ballenger: “[T]he time has
come. It’s January 6!!!”); id. at 119, 168 (Price: “[W]e’re just taking over the Capitol.”).
In Fact Impeding or Disrupting
Defendants last argue that their conduct did not “in fact, impede[] or disrupt[] the orderly
conduct of Government business or official functions,” 18 U.S.C.§ 1752(a)(2), because the
electoral certification was “already suspended” before they crossed the grounds and entered the
Capitol. See Acquittal Mot. at 28. They cite to a different January 6 trial in which Judge Trevor
McFadden found that a defendant’s “presence alone in fact did” not “disrupt the proceedings,”
which “had been halted well before he entered the Capitol building.” United States v. Martin,
No. 21-394, ECF No. 41 at 270 (D.D.C. Apr. 6, 2022).
“Even the presence of one unauthorized person in the Capitol,” however, can be “reason
to suspend” — and to extend the suspension of — “Congressional proceedings.” Rivera, 607 F.
Supp. 3d at 9; see also Bingert, 2023 WL 3613237, at *6 (finding § 1752(a)(2) violation where
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defendants “impeded the ability for law enforcement to regain control of the area”). In this case,
regardless of precisely when the proceedings were halted, the Court found that “Congress was
not able to reconvene while the rioters,” including Defendants, were in and around the Senate
Wing. See Tr. II at 167; Tr. I at 48 (Captain Baboulis: “[A]ny individual could present a threat.
We had no idea of who was there, what they were in possession of.”). No more is required.
Ballenger and Price also resort to the rule of lenity and to the requirement that courts
construe results-based statutory elements to require but-for causation. See Acquittal Mot. at 29–
30; Bittner v. United States, 143 S. Ct. 713, 724–25 (2023) (describing rule of lenity); Burrage v.
United States, 571 U.S. 204, 210 (2014) (“When a crime requires not merely conduct but also a
specified result of conduct, a defendant generally may not be convicted unless his conduct is
both (1) the actual cause, and (2) the legal cause (often called the proximate cause) of the
result.”) (internal quotation marks and citation omitted). The upshot, Defendants argue, is that a
conviction under § 1752(a)(2) requires that Government business would not have been impeded
or disrupted but for their individual conduct.
Judge Kollar-Kotelly has considered and rejected that argument, explaining that the text
of § 1752(a)(2) contains “no language that would suggest but-for causation, such as ‘results
from’ or ‘because of.’” Rivera, 607 F. Supp. 3d at 9 n.15; cf. United States v. Rhine, No. 21-
687, 2023 WL 2072450, at *6 (D.D.C. Feb. 17, 2023) (“[T]he presence of other sufficient causes
of congressional disruption does not defeat liability under § 1752(a)[(2)].”). The Court is
inclined to hew to that analysis (which Defendants have not addressed) and declines to adopt
their argument that the statutory phrase “in fact” suggests but-for causation. That term requires
at most that Defendants’ conduct actually disrupt the proceedings, not that the disruption be
traceable solely to them. See In Fact, Black’s Law Dictionary (8th ed. 2004) (“Actual or real;
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resulting from the acts of parties rather than by operation of law”). Indeed, under Defendants’
reasoning, no one individual who participated in the riot on January 6 could ever be prosecuted
for this offense. The actual-causation gloss Burrage calls for need not apply where, as in this
case, “[t]he open-endedness of the statutory language allows” the “adoption of a demanding but
still practicable causal standard.” Maslenjak v. United States, 582 U.S. 335, 351 (2017).
C. Count III: Disorderly or Disruptive Conduct in a Capitol Building or Grounds
Count Three relies on 40 U.S.C. §5104(e)(2)(D), which prohibits “willfully and
knowingly . . . utter[ing] loud, threatening, or abusive language, or engag[ing] in disorderly or
disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent
to impede, disrupt, or disturb the orderly conduct of a session of Congress.” With respect to this
count, the Court found that Defendants “engaged in [] disruptive conduct for the reasons [it] set
forth” in its discussion of Count Two. See Tr. II at 172. It focused for this count on the building
rather than the grounds, id. (“Count 3 relates just to the building, not the grounds.”), and found
that Defendants acted “with the intent to impede by entering the building.” Id. It added that
“again, they would not be guilty if they had acted by themselves. But, of course, you can’t go
into that Senate Wing Door by yourself because it’s not open during normal circumstances.” Id.(capitalization modified). Defendants’ Motion challenges the Court’s findings that they engaged
in disruptive conduct and that they did so willfully. See Acquittal Mot. at 18, 38. The Court will
address each in turn.
Disruptive Conduct
Defendants mostly rehash their arguments with respect to Count Two. They do,
however, separately maintain that § 5104(e)(2)(D)’s “disorderly or disruptive conduct” provision
must target only that conduct that reaches beyond merely entering and remaining in the building.
See Acquittal Mot. at 18. They further argue that “disorderly or disruptive conduct” in this
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provision must be read in context with the clause that precedes it, which prohibits “utter[ing]
loud, threatening, or abusive language.” See id.; Rhine, 2023 WL 372044, at *13.
Defendants are guilty of violating § 5104(e)(2)(D) not merely because they entered and
remained in the Capitol building. They did so together with, and thereby further strengthened
and encouraged, a throng of rioters. See United States v. MacAndrew, No. 21-730, 2023 WL
196132, at *3, *8 (D.D.C. Jan. 17, 2023) (finding “supportive, though noncombative, member of
the riot” who spent a few minutes in Capitol guilty of violating § 5104(e)(2)(D)). The same
conduct that violates § 1752(a)(2) also violates § 5104(e)(2)(D), and Defendants agree that the
term “disruptive” should be defined the same way in both statutes. See Joint Elements at 6
(agreeing with Government that § 5104(e)(2)(D)’s reference to “‘disorderly or disruptive
conduct’ should have the same meaning as the instruction for Count Two”); Acquittal Mot. at 18
(again equating disruptive with disorderly conduct).
For the reasons explained in Section III.B, supra, a reasonable factfinder could find
Defendants guilty of disruptive conduct in a Capitol building.
Knowingly and Willfully
This count, unlike Count Two, requires that Defendants acted not only knowingly, but
also “willfully.” United States v. Baez, No. 21-507, 2023 WL 3846169, at *3 (D.D.C. June 2,
2023). “[A] person acts willfully when [she] act[s] with knowledge that [her] conduct was
unlawful.” United States v. Grider, No. 21-22, 2022 WL 17829149, at *14 (D.D.C. Dec. 21,
2022) (internal quotation marks and citation omitted). The sheer number of barriers coupled
with the substantial police presence that Defendants observed that day should have made
eminently clear to any reasonable person that her breaching the Capitol and supporting other
rioters was not merely discouraged, but unlawful. See, e.g., Griffith, 2023 WL 3477249, at *6
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(finding defendant acted willfully where he “knew his presence around and in the Capitol was
unauthorized[] and that his continued presence was disruptive”). Defendants challenge this
finding with the same arguments the Court rejected in its mens rea analysis for Count Two, and
those arguments garner no better results here. See Acquittal Mot. at 38–39.
D. Count IV: Parading, Demonstrating, or Picketing in a Capitol Building
Count Four invokes 40 U.S.C. § 5104(e)(2)(G), which prohibits “willfully and
knowingly . . . parad[ing], demonstrat[ing], or picket[ing] in any of the Capitol Buildings.” As to
this count, the Court explained that “if [Defendants] had acted by themselves in a tourist area,
they might well not be guilty. But again, . . . what this was, to put it mildly, was a mass
demonstration, to put it more accurately, probably it was an insurrection, but their knowingly
being part of this demonstration by being in the building as part of this group means they
violated” § 5104(e)(2)(G). See Tr. II at 172–73.
Defendants argue that while they were in the Capitol building, they “walked briefly,
stood in line, took pictures and texted,” and were not “part of any group,” and that this conduct
could not have constituted parading, demonstrating, or picketing, in part because they were not
“connect[ed] . . . to a specific organized effort in the Capitol buildings.” Acquittal Mot. at 25–
28. Before trial, both parties agreed that “parade” and “picket” carry their ordinary meanings,
and Defendants proposed that “demonstrate” be read to refer only to “outwardly demonstrative
conduct” that is “itself[] disruptive of the orderly business of Congress” and excludes “ordinary
activities at a Capitol building such as peacefully walking.” Joint Elements at 8–9. Even under
their own proposed definitions, Defendants both paraded and demonstrated inside the Capitol,
either of which is sufficient to sustain their conviction here.
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Parading
To parade can in ordinary parlance mean “[t]o march in procession or with great display
or ostentation” or “to walk up and down, promenade, etc., in a public place, esp[ecially] in order
to be seen.” United States v. Nassif, 628 F. Supp. 3d 169, 183 n.7 (D.D.C. 2022) (quoting
Parade, Oxford English Dictionary (3d ed. 2005)) (formatting modified). Defendants marched
through a breached doorway and then through the Senate Wing foyer, together with a large group
— to summarize in Price’s words, they “stormed the Capitol.” Tr. II at 169. Even if that is
exaggeration, their joining and remaining in the building with others who had broken into the
Capitol is not “peaceful[] walking,” Joint Elements at 9, and it constitutes parading in the Capitol
building.
Demonstrating
Even if Defendants did not parade, they certainly demonstrated. Although Price and
Ballenger spill much ink on the argument that § 5104(e)(2)(G) should not be read to impute the
actions of others onto them, see, e.g., Acquittal Mot. at 27 (quoting definition of “demonstration”
in unrelated statute), ample evidence supports the Court’s individualized finding that Defendants
engaged in a demonstration.
As Judge John Bates explained in Nassif, dictionary definitions of “demonstrate” make
“clear that § 5104(e)(2)(G) prohibits taking part in an organized demonstration or parade that
advocates a particular viewpoint — such as, for example, the view that the 2020 U.S.
Presidential Election was in some way flawed.” 628 F. Supp. 3d at 183; see also id. (quoting
Oxford English Dictionary definition of a “demonstration” as “protest[ing] against or agitat[ing]
for something”) (internal quotation marks and citation omitted). That is the conduct Defendants
engaged in.
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They nonetheless maintain their analogy to Martin, in which Judge McFadden found that
a defendant who engaged in conduct similar to Ballenger and Price in the Capitol building was
not guilty of violating 40 U.S.C. § 5104(e)(2)(G). See Martin, ECF No. 41 at 271. That
defendant, however, according to Judge McFadden, encountered “a very different situation” at
the Capitol rotunda, where he entered and remained, “than the situation that largely unfolded on
the other side of the Capitol building” — i.e., the Senate Wing. Id. at 264; see also id. at 261(“[A] reasonable person could believe officers were allowing people to gather on the central
stairs, but not the Senate stairs.”). Even were this Court to subscribe to Judge McFadden’s
conclusion, Ballenger and Price entered through the Senate Wing Door alongside a group of
protesters facing a police cordon, see Tr. II at 167, expressly associated themselves with that
group (Ballenger, for example, testified that she and other rioters were “gathered together in
support of the country,” id. at 36), identified with its political cause (Ballenger carried a pro-
Trump flag with her), and recorded the violence they observed. See id. at 37, 168–69. A
reasonable factfinder would have no trouble finding that conduct a demonstration. See Rivera,
607 F. Supp. 3d at 6, 10 (finding defendant who livestreamed and shouted slogans but did not
cross police cordon still “went further than mere presence in a demonstration”).
Defendants propose adding a requirement that conduct be disruptive in order to qualify as
a demonstration. See Acquittal Mot. at 26. The Government counters that “mere presence in a
protest, along with other words or conduct that ratify interest in demonstrating, is
demonstrating.” ECF No. 112 (Gov’t Opp.) at 11 (quoting Rivera, 607 F. Supp. 3d at 10 n.16).
The Court need not go so far, as it has already found that Defendants’ actions (including their
armed walk through the Capitol building) exceeded mere presence. See Section III.B.1, supra.
Defendants both paraded and demonstrated in the Capitol.
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E. Motion for New Trial
As an alternative to acquittal, Defendants present five arguments as to why they should
receive a new trial. See Mot. New Trial. The Court examines each, grouping them as
appropriate.
Imputing Group Conduct
They first argue that the Court improperly incorporated the word “mob” into its analysis
for Counts Two through Four even though that word did not appear in the parties’ Joint Proposed
Elements for those counts. See Mot. New Trial at 1, 2, 4. This, they argue, violated their Fifth
and Sixth Amendment rights because it deprived them of the opportunity to prepare for a trial in
which the conduct of others would be relevant to their criminal liability. See id. at 2. As the
Court has explained in detail above with respect to each count, it did not impute the conduct of
others present at the Capitol that day to Defendants.
Ballenger and Price also raise a related procedural complaint. They argue that since the
parties’ Joint Proposed Elements contained points of disagreement, the Court should have
provided a “resolution before the trial” or “before closing statements” on the appropriate
instructions. Id. at 3; Fed. R. Crim. P. 30(b) (“The court must inform the parties before closing
arguments how it intends to rule on the requested instructions.”). The Court made clear at trial
that it had received and considered Defendants’ proposed instructions and their Memorandum in
support of their proposals. See Tr. II at 4–5 (confirming receipt). At no point did Defendants
request a ruling on the proposed instructions, let alone explain why one would be necessary in
this bench trial. See Shepard v. United States, 544 U.S. 13, 20 (2005) (“In cases tried without a
jury, the closest analogs to jury instructions would be a bench-trial judge’s formal rulings of law
and findings of fact . . . .”). Defendants do not explain, furthermore, why that procedural
decision constituted “a serious miscarriage of justice” warranting a new trial. See Wheeler, 753
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F.3d at 208. Nor could they: the Court offered the parties an opportunity to answer questions
about both sets of proposed instructions throughout closing argument, see, e.g., Tr. II at 149
(asking about Defendants’ proposal); id. at 164 (acknowledging differing proposals), and it has
again considered Defendants’ proposals throughout this Opinion. That procedural approach does
not warrant a new trial.
Reliance on Exhibits Containing Facebook Content
Defendants next argue that the Government “violated the terms of a Facebook search
warrant and included exhibits in violation of that Warrant” at trial. See Mot. New Trial at 2.
Although their precise argument eludes the Court, they appear to take issue with a set of
Government exhibits (308A, 308B, and 309A) that contain content obtained from Facebook.
The argument appears to be that these exhibits contain so much content that the Government
must have reached beyond the terms of the search warrant, which required it to filter and retain
only relevant content. See ECF No. 85-1 (Search Warrant) at 5 (describing filtering
requirement).
In advancing a third and related basis for a new trial, Defendants further argue that the
Government violated its Brady obligations to provide them with exculpatory evidence. See
Brady v. Maryland, 373 U.S. 83 (1963); Mot. New Trial at 9–10. Specifically, they argue that
“the government tried to state Cynthia Price was sympathetic to” an article that contemplated
executing then-Vice President Pence “when the Government had Brady material buried in a
14,637 page Facebook document that states the opposite.” Mot. New Trial at 2.
Even if these underdeveloped allegations held water, no miscarriage of justice would
have occurred. At trial, Defendants did not object to the admission of any of the three exhibits
they now express concerns with. See Tr. I at 115–116 (admitting exhibits without objection).
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Neither the Government nor the Court heavily relied on them. During cross-examination, the
Government referred only to Exhibit 308B, and only to question Ballenger about Facebook
exchanges in which she shared the article that contemplated executing Pence. See Tr. II at 81–
82. Although Ballenger’s evasive responses during that exchange contributed to the Court’s
finding that she was not credible, see id. at 170 (referring to this exchange), they were hardly
necessary to that credibility determination (which resulted from Ballenger’s multiple
mischaracterizations and evasive answers on the stand), let alone to the Court’s determination of
intent.
Reliance on Evidence of Tear Gas and Statements Omitting Emojis
Defendants lodge their fourth challenge to the Court’s finding that Defendants
encountered tear gas at the Capitol, and their fifth to its consideration of exhibits that displayed
their written exchanges but omitted emojis those exchanges contained. See Mot. New Trial at 3,
11–12. As the Court explained in Section III.A.2, supra, the evidence admitted at trial supports
its tear-gas finding and its interpretation of Defendants’ written exchanges. Exclusion of such
evidence, moreover, would not have altered the Court’s result. A new trial is not warranted.
IV. Conclusion
For these reasons, the Court will deny Defendants’ Motion for Acquittal and their Motion
for a New Trial. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: July 18, 2023
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