628 F.Supp.3d 169
D.D.C.2022Background
- John Nassif is charged by information with four January 6, 2021 offenses, including Count Four: willfully and knowingly "paraded, demonstrated, and picketed in a Capitol Building" in violation of 40 U.S.C. § 5104(e)(2)(G).
- Surveillance and tip evidence place Nassif inside the Capitol at about 3:13 p.m.; officers turned him back near the Rotunda and he exited at 3:23 p.m.
- Nassif moved to dismiss Count Four on facial First and Fifth Amendment grounds (overbreadth and vagueness) and argued the information fails to state an offense; he also sought transfer of venue or, alternatively, expanded voir dire procedures.
- The government opposed both motions, arguing the Capitol interior is a nonpublic forum where § 5104(e)(2)(G) is viewpoint neutral and reasonable, the information meets Rule 7(c)(1), and local prejudice does not require venue transfer.
- The Court denied both motions, holding the statute is neither facially overbroad nor unconstitutionally vague, Count Four sufficiently states an offense, and Nassif failed to show extraordinary local prejudice or need for expanded voir dire.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Nassif) | Held |
|---|---|---|---|
| Whether § 5104(e)(2)(G) is facially overbroad under the First Amendment | The statute is limited to the Capitol interior, a nonpublic forum; it is viewpoint-neutral and narrowly tailored to prevent disruption | The verbs "parade, demonstrate, picket" are broad and could criminalize protected expressive activity | Denied: statute not substantially overbroad; applied in a nonpublic forum and reasonable for that forum |
| Whether § 5104(e)(2)(G) is unconstitutionally vague | The terms (parade/demonstrate/picket) are understandable in context and require willful, knowing conduct; statute gives fair notice | "Demonstrate" is ambiguous and invites arbitrary enforcement | Denied: statute provides adequate notice and standards; not impermissibly vague |
| Whether the information fails to state an offense under Rule 7(c)(1) | The information tracks the statute and alleges time/place (Jan 6, D.C.), satisfying Hamling and Rule 7 | The information lacks particulars (no alleged expressive act) and thus is too conclusory | Denied: the information meets the low specificity bar and fairly notifies the defendant |
| Whether extraordinary local prejudice requires transfer of venue or expanded voir dire | Pretrial publicity and jury pool size do not show overwhelming local prejudice; standard voir dire can protect impartiality | Pervasive/ongoing media and D.C. demographics create presumptive prejudice; requests expanded voir dire or transfer | Denied: Nassif did not show extreme prejudice; voir dire is adequate, so no transfer or enhanced procedures needed |
Key Cases Cited
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth doctrine and requirement of substantial overbreadth)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (forum analysis framework)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (forum categories and standards)
- Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (reasonable forum restrictions in nonpublic fora)
- Kokinda, 497 U.S. 720 (1990) (speech restrictions in nonpublic forum upheld as reasonable)
- Taxpayers for Vincent v. City of Los Angeles, 466 U.S. 789 (1984) (limits on facial challenges and overbreadth)
- Spence v. Washington, 418 U.S. 405 (1974) (expressive conduct doctrine)
- Texas v. Johnson, 491 U.S. 397 (1989) (expressive conduct protected by First Amendment)
- Johnson v. United States, 576 U.S. 591 (2015) (vagueness principles in criminal statutes)
- United States v. Bronstein, 849 F.3d 1101 (D.C. Cir. 2017) (vagueness standards for terms with variable meanings)
- Skilling v. United States, 561 U.S. 358 (2010) (change-of-venue standard; presumption of prejudice only in extreme cases)
- Irvin v. Dowd, 366 U.S. 717 (1961) (jury impartiality standard despite pretrial publicity)
- Rideau v. Louisiana, 373 U.S. 723 (1963) (presumed prejudice from broadcast confession in small community)
- Russell v. United States, 369 U.S. 749 (1962) (indictment specificity principles)
- Hamling v. United States, 418 U.S. 87 (1974) (elements and notice requirements for indictments)
- Resendiz-Ponce v. United States, 549 U.S. 102 (2007) (when greater specificity is required in charging documents)