United States v. Price

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
Awaiting trial on a four-count Information that charges them with crimes in relation to
the January 6, 2021, insurrection at the United States Capitol, Defendants Cynthia Ballenger and
Christopher Price now move to dismiss the case against them. Although their Motion is stacked
with different legal theories, all are either infirm or premature. The Court, accordingly, will
deny it.
I. Background
According to the Affidavit filed in support of the Complaint in this matter, Ballenger and
Price traveled from their home in Emmitsburg, Maryland, to D.C. on January 6. See ECF No. 1-
1 (Aff.) at 2. They entered the Capitol at 3:22 p.m. and remained there for seven minutes. Id. at
3. Before entering, Price sent a text message stating, “We’re just taking over the capitol.” Id. at
6. He then sent one saying, “Broken glass everywhere” and “Climbing through the window.”
Id. A few minutes later, he texted, “Worth fighting for Trump.” Id. at 7.
Defendants are charged via Information with four counts: i) Entering and Remaining in a
Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); ii) Disorderly and
Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2);
1
iii) Disorderly 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).
They now move to dismiss the Information. See ECF No. 54 (MTD).
II. Legal Standard
Prior to trial, a defendant may move to dismiss an indictment or information on the basis
that there is a “defect in the indictment or information” including a “failure to state an offense.”
Fed. R. Crim P. 12(b)(3)(B)(v). “The operative question is whether the allegations, if proven,
would be sufficient to permit a jury to” conclude that the defendant committed the criminal
offense as charged. United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012);
United States v. Bowdoin, 770 F. Supp. 2d 142, 146 (D.D.C. 2011). Like an indictment, an
information “is sufficient if it, first, contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v.
United States, 418 U.S. 87, 117 (1974). A court accordingly cabins its analysis to “the face of
the indictment and, more specifically, the language used to charge the crimes.” United States v.
Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphases and internal quotation marks omitted).
III. Analysis
In seeking dismissal, Defendants raise a series of arguments, which the Court addresses
in turn.
A. Sufficiency of Information
Ballenger and Price spend much of their Motion contending that the Information does not
lay out in detail the facts underlying each of the charged offenses. See, e.g., MTD at 9–16. This
2
is not necessary. “It is generally sufficient that an indictment [or information] set forth the
offense in the words of the statute itself, as long as ‘those words of themselves fully, directly,
and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to
constitute the offence intended to be punished.’” Hamling, 418 U.S. at 117 (quoting United
States v. Carll, 105 U.S. 611, 612 (1882)). “[T]o be sufficient, [it] need only inform the
defendant of the precise offense of which he is accused so that he may prepare his defense and
plead double jeopardy in any further prosecution for the same offense.” United States v.
Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014). The Information in this case does precisely this,
setting out in clear and unambiguous terms the four offenses with which Defendants are charged.
While an indictment or information need only allege “the essential facts constituting the
offense charged,” Fed. R. Crim. P. 7(c)(1), a defendant may request additional information
through a bill of particulars “to ensure that the charges brought against [him] are stated with
enough precision to allow [him] to understand the charges, to prepare a defense, and perhaps also
to be protected against retrial on the same charges.” United States v. Butler, 822 F.2d 1191,
1193 (D.C. Cir. 1987). Unlike a Rule 12 motion, the court may look beyond the indictment or
information to determine, in its discretion, whether to direct the Government to file a bill of
particulars. Id.; see also Fed. R. Crim. P. 7(f). If discovery would provide a defendant with
sufficiently precise information, however, then a bill of particulars is not warranted. United
States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 152 (D.D.C. 2015). In this case, no bill of
particulars is necessary given the voluminous discovery provided, including videos and still
photographs. Defendants have sufficient understanding of the charges against them and the
bases therefor.
3
B. Legal Challenges
Defendants also raise multiple legal challenges to various counts, almost all of which
have been rejected by other courts in this district in relation to January 6 defendants.
First, they assert that only the U.S. Secret Service, not the U.S. Capitol Police, can
designate restricted areas under 18 U.S.C. § 1752. See MTD at 16–19. This Court, though, has
previously held, “The text [of § 1752] plainly does not require that the Secret Service be the
entity to restrict or cordon off a particular area.” United States v. Mostofsky, 579 F. Supp. 3d 9,
28 (D.D.C. 2021).
Ballenger and Price also believe that they did not violate § 1752 because Vice President
Pence was not “temporarily visiting” the Capitol on January 6. See MTD at 19–21. Section
1752(c)(1)(B) defines “restricted buildings or grounds,” in relevant part, as “any posted,
cordoned off, or otherwise restricted area . . . of a building or grounds where the President or
other person protected by the Secret Service is or will be temporarily visiting” (emphasis added).
Many judges in this district have disagreed with Defendants’ suggestion that Vice President
Pence was not temporarily visiting the Capitol, given that this term logically describes what he
was doing on January 6. See ECF No. 64 (Gov’t Opp.) at 12 (collecting myriad cases).
Defendants next raise overbreadth and vagueness challenges under the First and Fifth
Amendments to the charge under 40 U.S.C. § 5104(e)(2)(G). See MTD at 34–36. The Court has
already rejected those in a recent Order relating to their stand-alone Motion to Dismiss Count IV.
See ECF No. 70.
Ballenger and Price also maintain that the Superseding Information violates the
prohibitions against double jeopardy and multiplicity. See MTD at 36–38. “The applicable rule
is that, where the same act or transaction constitutes a violation of two distinct statutory
4
provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1932). “A single act may be an offense against two statutes; and if
each statute requires proof of an additional fact which the other does not, an acquittal or
conviction under either statute does not exempt the defendant from prosecution and punishment
under the other.” Id. (citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871)). Here,
§ 1752(a)(1) criminalizes “enter[ing] or remain[ing] in any restricted building or grounds without
lawful authority,” while (a)(2) penalizes “engag[ing] in disorderly or disruptive conduct in, or
within such proximity to, any restricted building or grounds.” As a result, the former is not a
lesser-included offense of the latter since violating (a)(1) requires one to be in the restricted area,
while (a)(2) does not; and violating (a)(2) requires that one engage in disruptive conduct, while
the same is not true for (a)(1). Similarly, 40 U.S.C. § 5104(e)(2)(G), which forbids one to
“parade, demonstrate, or picket in any of the Capitol Buildings,” is not duplicative of § 1752
since the former does not require entry into or proximity to a restricted area, while the latter
does; in addition, § 1752(a)(2) requires disorderly or disruptive conduct, which § 5104 does not.
Finally, Defendants’ Motion is replete with other contentions that the Affidavit does not
sufficiently establish violations of certain counts. See, e.g., MTD at 24–25, 28–29. While
Ballenger and Price largely rely on the facts contained in the Affidavit, the Government is not
limited to those facts at trial. Indeed, it may introduce any admissible evidence that it wishes,
whether contained in the Affidavit or not. It is thus premature for the Court to rule on
Defendants’ challenges without seeing the evidence. After the Government rests, Defendants are
welcome to move for judgment of acquittal under Federal Rule of Criminal Procedure 29 and,
5
depending on what the evidence is, make some of the same arguments they advance here. That
will be the time for the Court to decide these issues.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order denying
Defendants’ Motion to Dismiss.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 26, 2022
6