UNITED STATES OF AMERICA, APPELLEE v. COUY GRIFFIN, APPELLANT
No. 22-3042
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2023 Decided October 22, 2024
Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb and Nicholas P. Coleman, Assistant U.S. Attorneys. James Pearce, Attorney, U.S. Department of Justice, entered an appearance.
Before: PILLARD and KATSAS, Circuit Judges, and ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
Dissenting opinion filed by Circuit Judge KATSAS.
PILLARD, Circuit Judge: This appeal turns on interpretation of a federal law enacted to better protect the President and other national leaders from assassination, kidnapping, and assault. The law creates a narrow domain of federal trespass authority to prevent unauthorized members of the public from getting too close to a person under Secret Service protection. It does so by empowering the Secret Service to prevent unauthorized people from knowingly encroaching on “posted, cordoned off, or otherwise restricted” safety zones where the President or Vice President (current or past), a leading candidate for such office, or any of a handful of other Secret Service protectees “is or will be temporarily visiting.”
The defendant says a person “knowingly enters” the restricted safety zone only if he knows that the basis of the restriction is to safeguard a Secret Service protectee.
Couy Griffin knowingly intruded into the area of the United States Capitol grounds that had been restricted in order to protect Vice President Pence on January 6, 2021, during the counting of the electoral college votes for President. Griffin came to the Capitol that day along with thousands of other people to try to stop the certification of the electors’ ballots. He breached
Following a bench trial, the district court convicted Griffin of violating
Griffin raises two arguments on appeal. He first asserts that because waves of rioters ahead of him trampled much of the fencing and signage delineating the relevant area‘s perimeter, it was no longer “posted, cordoned off, or otherwise restricted” when he entered and remained there. But Griffin‘s main claim is that a conviction for “knowingly” entering or remaining in a “restricted building or grounds” under section 1752(a)(1) requires proof that the defendant not only knew that the area was restricted, but that he knew the reason for the restriction when he entered or remained. The government acknowledged its obligation to prove that Griffin knew the grounds were restricted; Griffin challenges the sufficiency of the proof on that point. The government disagreed that the statute also requires proof that Griffin knew precisely why the area was restricted, and the district court held that the government did not “have to prove [he] knew that a specific dignitary was there.” J.A. 534.
We hold that the grounds immediately surrounding the U.S. Capitol qualified as a “restricted building or grounds” under section 1752, and that they were adequately “posted, cordoned off, or otherwise restricted” when Griffin clambered over a stone wall and jumped inside. And we hold that a conviction for knowingly entering and remaining on such grounds in violation of section 1752(a)(1) required only that Griffin knew that he had entered or remained in a “posted, cordoned off, or otherwise restricted” area where he was not authorized to be. The government was not required to prove that Griffin was aware that the Vice President‘s presence was the reason the grounds remained restricted. We therefore affirm the judgment of conviction.
I.
A.
Section 1752 enables the Secret Service to protect the people and events they guard in settings the statute refers to as “restricted building[s] or grounds.”
Subsection (c) defines the term “restricted buildings or grounds” as “any posted, cordoned off, or otherwise restricted area“:
(A) of the White House or its grounds, or the Vice President‘s official residence or its grounds;
(B) of a 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.
Section 1752 did not always have this three-part structure. It was enacted in 1971 as a more streamlined statute focused on protecting the President in the wake of a series of political assassinations in the 1960s—particularly those of President John F. Kennedy in Dallas and then-presidential candidate Robert F. Kennedy in Los Angeles. In recognition of the rising levels of violent political rhetoric and the “constant excoriation of America‘s institutions and leaders” that made holding the office of the presidency increasingly dangerous, Congress set out to provide stronger and more standardized security for the President. S. Rep. No. 91-1252, at 4 (1970). Congress recognized the complex challenges of protecting national leaders away from their usual offices or residences, where they are “most vulnerable“—whether from an “isolated and deranged individual” or from “organized premeditated attempts” on their lives. Id. at 6.
At the time, no statute conferred federally enforceable authority on the Secret Service to restrict entry to places temporarily visited or used by the President. Instead, the Service relied on “the assistance of local authorities to arrest persons” under a patchwork of state and local criminal statutes—an arrangement that rendered it “increasingly difficult to maintain the necessary level of security” when local authorities were not present and closely coordinating or when the proper jurisdiction for arresting and prosecuting violations was unclear. Id. at 7. To remedy that impediment to presidential security, Congress enacted section 1752, creating a federal offense encompassing trespasses that the Secret Service had previously relied on state and local officials to enforce under state and local trespass laws. Id. at 7. In this way, Congress provided “a uniform minimum of Federal jurisdiction for Presidential security when the President is on temporary visits,” id. at 6, by empowering the Secret Service to prevent “physical presence [and] physical violence within the security perimeter” created by temporarily restricted areas surrounding the President, id. at 9.
Over the decades, Congress has repeatedly revisited section 1752, expanding its coverage to align with the broader scope of the Secret Service‘s protective duties. At first, the statute protected only places designated as the President‘s temporary residence or office or any other building or grounds where the President was or would be temporarily visiting. See
B.
In January 2021, Griffin was serving as an elected Commissioner on the Otero County Commission in southern New Mexico and as the leader of a political committee called “Cowboys for Trump.” He decided to travel to Washington, D.C. to attend the Stop the Steal rally on the National Mall on January 6, 2021—the day that Congress was set to certify the Electoral College vote that confirmed the outcome of the 2020 presidential election. He arrived by January 5 and recorded a video of himself in front of the U.S. Capitol‘s western side, declaring that he was “praying for” former Vice President Pence and “trust[ed] that he would do the right
thing... tomorrow.” GX 63 at 1:00-1:13. Fencing surrounding the grassy areas in front of the Capitol was visible behind Griffin in the video. Id.
In anticipation of the rally and certification, the Secret Service worked in coordination with the U.S. Capitol Police to prepare for Vice President Pence‘s visit to the Capitol. The Secret Service informed the Capitol Police of Vice President Pence‘s anticipated schedule of arrivals and departures to and from each location he intended to visit at the Capitol, and the Capitol Police prepared for the certification, including Vice President Pence‘s presence at the Capitol. Pursuant to its longstanding relationship with the Secret Service, the Capitol Police implemented “an agreed-upon standard boundary” to secure a perimeter on the grounds immediately surrounding the Capitol. J.A. 450. To do so, the Capitol Police erected barriers using temporary crowd-control fencing that they referred to as metal “bike racks” and plastic “snow fencing” to supplement permanent walls. They also placed temporary fencing both immediately behind the permanent walls and midway up the west lawn to protect the inaugural stage that was being prepared for Inauguration Day. The racks and fencing were posted with signs reading “Area Closed by Order of the United States Capitol Police Board” and were patrolled by law enforcement officers.
On January 6, Griffin attended the Stop the Steal rally on the Ellipse adjacent to the White House and followed the crowd as it proceeded toward the U.S. Capitol. Griffin was not at the front of the crowd. Shortly after 2 p.m., as the first wave of rioters to have breached the security perimeter shattered the Capitol Building‘s windows and climbed inside, Griffin was taking photos and exchanging social media information with other rally attendees near the Capitol Reflecting Pool adjacent to the west lawn of the Capitol. At 2:31 p.m.—around the same time that Capitol Police officers were conducting emergency evacuations of the House and Senate chambers in response to the breach of the Capitol Building—Griffin used the seat of a parked bicycle to boost himself over a five-foot-tall
Once inside the grounds, Griffin proceeded up the lawn to the base of the inaugural stage, scaling two other walls along the way with the help of a metal bike rack and a plywood ramp manned by other rioters helping the crowd advance toward the Capitol. After he ascended the bike rack, he narrated to a camera “we‘re in now” and joked to a masked rioter that he, too, needed a face mask to obscure his identity. GX 37-1 at 1:10-28. As Griffin made his way toward the front of the crowd, the crowd packed increasingly closely together in pressing toward the Capitol, with rioters scaling the bannisters of the Capitol steps, banging on the Capitol terraces with flagpoles, pounding on the doors of the inaugural stage, and urging the crowd forward with shouts of “this is our House” and “break the doors down.”
Griffin proceeded to the foot of the inaugural platform, near an emergency stairwell door, where he announced that he would “wait until they get this door broken down” to go up on the inaugural stage. GX 40-1 at 0:25-30. Griffin managed to make his way onto the inaugural stage. As he climbed the stairs, he proclaimed—in response to the smell of pepper spray officers used to try to clear the area—that he “love[s] the smell of napalm in the air.” GX 43-1 at 0:30-40; see also J.A. 536. Having ascended the stage, he borrowed a bullhorn in an attempt to lead the rioters below in prayer. Around that time, a crowd of rioters armed with plastic riot shields and flagpoles massed in a tunnel approximately a hundred feet away from Griffin, pressing against and engaging in hand-to-hand combat with Metropolitan Police Department officers in an attempt to gain access to the Capitol. Griffin stayed up on the inaugural stage and the nearby terrace until at least 4:48 p.m.
As explained at trial by a member of the Secret Service detail accompanying Vice President Pence, his wife, and their daughter, the “unknown individuals who were breaking through a security barrier of a site where [the Secret Service] had protectees” posed a security risk by “potentially taking away options for our routes out” of the Capitol. J.A. 422. Due to breaches of security, “the Capitol went into lockdown, which means everything has to stop, and the doors lock, and people aren‘t allowed in,” and “any official actions that are taking place” are halted. J.A. 426. The mass security breaches on January 6 by thousands of people, including Griffin, halted the certification of the electoral votes while the Secret Service sought to safeguard the Vice President and his family in a building under attack. The Vice President, his wife, and their daughter remained at an underground loading dock at the Capitol under Secret Service protection for four or five hours, not returning to the Senate Chamber until approximately 7 p.m. J.A. 425-27.
The next day, Griffin resurfaced in Roanoke, Virginia, where he recorded another video. He asserted that he heard when he was “about three-quarters of the way down [to the Capitol]” on January 6 that “Mike Pence had sold us all out.” GX 64 at 3:20-35. Griffin went on to explain that the inaugural stage was “set up for Joe Biden” and “roped off” on the Capitol grounds. Id. at 3:35-4:15. As he put it, “You‘re gonna have those patriots who get in there and went over the—when the D.C. police tells ‘em you can‘t step over this because this is—we‘re getting it ready for Joe Biden. What do you think was gonna happen?” Id.
The following week, Griffin addressed his colleagues on the Otero County Commission. He told them:
On the inaugural side, all those Trump people got down there, had not got anything necessarily from the President that was new, and then heard that Mike Pence had certified a fraudulent election. The element in the crowd was pretty elevated, I would say. But when they got down to the inaugural side, there was some fencing up, and they were saying that you couldn‘t go any further because this was being reserved for Joe Biden and his inauguration. You tell a million Trump supporters that, they‘re going down there. Pretty soon that crowd just pushed through. I wasn‘t anywhere in the front of it. I was in the back.
GX 78 at 2:27-3:12. Griffin said that he planned to return to Washington, D.C. for Inauguration Day with multiple firearms. See id. at 11:10-11:50. Days later, he was arrested in Washington, D.C.
C.
Federal prosecutors charged Griffin with two misdemeanors: entering and remaining in a restricted building or grounds, in violation of
Shortly before trial, the parties briefed whether the government would be required to prove that Griffin knew Vice President Pence was visiting the Capitol at the time Griffin was on the Capitol grounds. Griffin argued that, because section 1752(a)(1)‘s “knowingly” modifies the object of the prohibited conduct—the “restricted building or grounds” in which a defendant enters or remains—a defendant must be shown to know the characteristics of the area that qualify it as a “restricted building or grounds” pursuant to section 1752(c)(1), which include the presence of a Secret Service protectee. See Griffin‘s Resp. to Gov‘t‘s Trial Br. at 3 (J.A. 129).
At the conclusion of the bench trial, the district court rejected Griffin‘s argument, concluding that section 1752‘s condition that a defendant act “knowingly” did not require knowledge of the presence of a Secret Service protectee. The court noted that “it doesn‘t make a lot of sense” to require proof that the defendant “knew that a specific dignitary was there,” and found it unimaginable that “a provision that is looking to protect Secret Service protectees would require the Secret Service to somehow be telling people and proving that [defendants] knew which protectee was in the restricted area at what time.” J.A. 534. It sufficed, the district court held, that the area was restricted because of Vice President Pence‘s presence when Griffin entered and stayed, J.A. 530-532, and that, “by the time [Griffin] was on the stage, he certainly knew he shouldn‘t be there. And yet, he remained.” J.A. 537. The court accordingly convicted Griffin of violating
As to the section 1752(a)(2) charge of disruptive or disorderly conduct in or near a restricted building or grounds, the court found “more than a reasonable doubt as to whether he intended for his conduct to disrupt the certification of the election.” J.A. 539. Despite “some close questions about whether his mere presence impeded or disrupted government business,” the court held the government failed to prove that Griffin “engaged in disorderly or disruptive conduct.” J.A. 539. And it failed to establish that Griffin “acted knowingly and with intent” to impede or disrupt congressional business, because Griffin “thought the electoral certification had already occurred prior to his entering the restricted area.” J.A. 537-38.
II.
To violate section 1752(a)(1), a defendant must “knowingly” and “without lawful authority” enter or remain in a “restricted building or grounds.” Griffin contends the district court should have acquitted him for two reasons. First, he argues that the government failed to prove beyond a reasonable doubt that the area immediately surrounding the U.S. Capitol was sufficiently demarcated as restricted when he entered and remained there. Second, Griffin argues that the government failed to prove beyond a reasonable doubt that Griffin knew not just that the area was restricted, but also the reason for that restriction—here, that Vice President Pence, a Secret Service protectee, was or would be visiting.
Griffin challenges both the district court‘s interpretation of section 1752‘s elements and the sufficiency of the evidence to support his conviction. We review de novo the district court‘s interpretation of the statute. See United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014); see also United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020) (“In a bench trial, a district court‘s legal error regarding the elements of the offense is reviewed in the same way we review an erroneous jury instruction regarding the elements of the offense.“). In reviewing the sufficiency of the evidence, we defer to the factfinder‘s verdict, considering the evidence “in the light most favorable to the government.” United States v. Robertson, 103 F.4th 1, 10-11 (D.C. Cir. 2023) (quoting United States v. Shi, 991 F.3d 198, 205 (D.C. Cir. 2021)); see also United States v. Brock, 94 F.4th 39, 46 (D.C. Cir. 2024) (explaining that “this standard is the same for both jury and non-jury cases“). We consider the evidence taken as a whole, and with reasonable inferences drawn in the light most favorable to the verdict. United States v. Broda, 848 F.3d 1044, 1053 (D.C. Cir. 2017). We will affirm a guilty verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Musacchio v. United States, 577 U.S. 237, 243 (2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
A.
We begin with Griffin‘s argument that the government failed to prove the requisite conduct, or actus reus, under section 1752(a)(1). The U.S. Capitol grounds are ordinarily open to the public. J.A. 337. To qualify as a “restricted building or grounds” protected by section 1752, those grounds must have been “posted, cordoned off, or otherwise restricted” at the time Griffin entered or remained there.
Apart from his argument addressed below regarding his knowledge of the grounds restriction, Griffin argues that, by the time he entered, the grounds were in fact no longer restricted within the meaning of the statute. They were neither posted nor cordoned off, he claims, because earlier waves of the rioters had torn down the temporary fencing and trampled signs announcing the closure. Griffin Br. 21-22, 46-47; see J.A. 345. And, reading “otherwise restricted” narrowly to require demarcation “comparable to a physical ‘posting’ or ‘cordoning off,‘” Griffin Br. 40, Griffin insists only a clear, observable demarcation would suffice. He argues his conviction cannot stand because the barriers and signs had been trampled or pushed aside. Id.
The drafting history confirms as much. When Congress first promulgated section 1752, it “anticipated that the Secret Service [would] make every effort . . . to make such restricted areas known to the public,” S. Rep. 91-1252, at 9, but it declined to list exhaustively the ways in which the public would be excluded. By separately requiring proof of a defendant‘s subjective awareness that the area was “posted, cordoned off, or otherwise restricted,” Congress ensured that unwitting trespassers would not be punished. Id. That approach accommodated the reality that “flexibility must be maintained” to ensure adequate security. Id. at 2.
Griffin‘s proposed physical demarcation requirement would undermine the function of section 1752(a)(1). Under his reading, a defendant would be entitled to acquittal so long as he waited until a sufficiently strong gust of wind, a soaking downpour—or even a less scrupulous prior intruder—disposed of law enforcement tape, fencing, or signage before he entered a sensitive area in full awareness he was not lawfully authorized to do so. We decline to read the statute to allow a mob to de-restrict an officially restricted area encompassing persons under Secret Service protection.
With the meaning of those terms thus settled, we hold that the evidence at trial was sufficient for a reasonable factfinder to conclude that the U.S. Capitol grounds qualified on January 6 as a “restricted building or grounds” and were “posted, cordoned off, or otherwise restricted” when Griffin entered and remained there. In anticipation of then-Vice President Pence‘s presence at the Capitol to certify the electoral votes on January 6, law enforcement officers had erected barriers around the perimeter of the closed area with layers of snow fencing and bike racks supplementing pre-existing permanent walls to encircle the Capitol grounds. Signs indicating the area was closed were affixed along the barriers. By the time Griffin entered the restricted area, many of those physical manifestations of its closure had been largely trampled, but that fact did not alter the status of the area as closed to the public. The Secret Service‘s protectees, then-Vice President Pence and his wife and daughter, remained within the Capitol complex, sheltering in the eye of the riot‘s storm. Far from reopening the grounds, law enforcement officers remained onsite battling to secure them.
B.
We turn next to Griffin‘s arguments that he lacked the requisite knowledge to be convicted. Griffin argues that the government failed to prove the knowledge element
We can quickly dispose of Griffin‘s first argument. Griffin insists that a reasonable factfinder could only have found that, when Griffin entered the Capitol grounds, he believed that the area was no longer restricted. See Griffin Br. 60 (describing Griffin‘s view of the trampled fencing as “akin to seeing rolled up fencing after a 4th of July concert“).
The evidence does not support that claim. Viewed in the light most favorable to the government, the trial evidence showed that Griffin knew he had entered or remained without authorization in a “posted, cordoned off, or otherwise restricted” area. The district court found “ample evidence that Mr. Griffin knowingly entered or remained within the restricted area.” J.A. 536. The government proved that Griffin saw the rings of fencing and signage encircling the Capitol grounds on January 5, when he recorded a video with the grounds as his backdrop. J.A. 536 (district court‘s oral ruling); see also GX 63. And it showed that, the next day, when Griffin scaled the stone wall that partially delineated the grounds, he landed on trampled snow fencing and signs, GX 33-1, which the district court observed would suggest to a reasonable person “that perhaps you should not be entering the area.” J.A. 536. The evidence that Griffin knew he was trespassing only mounted as he continued to progress across the grounds. Arriving at the base of the inaugural stage, he announced, “we‘re in now,” and joked that he should hide his identity with a face mask. GX 37-1 at 1:10-28. When Griffin quipped that he loved the “smell of napalm in the air,” he showed he knew that law enforcement officers were using teargas as they battled to expel the mob—a clear sign that the area remained restricted. GX 43-1 at 0:30-40; see also J.A. 536.
Griffin‘s public statements in the days after January 6 confirm that Griffin knew when he entered and stayed on the Capitol grounds that the area was “restricted” within the meaning of section 1752(c)(1). See J.A. 536-37. On January 7, Griffin recalled that the inaugural stage that he climbed was “roped off,” and that “D.C. police” had told the rioters “you can‘t step over this.” GX 64 at 3:20-4:15. And, on January 14, Griffin reiterated that “there was some fencing up” that alerted the rioters they “couldn‘t go any further,” but the crowd—including Griffin—“just pushed through.” GX 78 at 2:27-3:12.
Accordingly, a rational factfinder could conclude—as, indeed, the district court did, see J.A. 536-37—that Griffin was aware that the U.S. Capitol grounds were “posted, cordoned off, or otherwise restricted” and his presence was unauthorized when he remained there during the afternoon of January 6, 2021.
C.
To prevail, then, Griffin must persuade us that the district court misinterpreted section 1752(a)(1)‘s knowledge requirement. Section 1752(a)(1) prohibits “knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so.”
As we explained, the district court reasonably found that the Capitol grounds were “posted, cordoned off, or otherwise restricted” when he entered, and that Griffin knew that they were. But Griffin argues that the statute demands something more: In his view, the statute also requires proof that he knew why the Capitol grounds were so restricted when he entered or remained there—i.e., that Griffin knew that a Secret Service protectee was or would be temporarily visiting the Capitol grounds. We decline to adopt such a rule, which would contravene the statute‘s text as read in accord with binding precedent of the Supreme Court and this court, and would undermine the statute‘s context and purpose. Every indicator points in the same direction: A person trespassing on grounds he knows are restricted, where he knows he lacks permission to be, may be convicted of a federal misdemeanor trespass under section 1752(a)(1) even if he does not know that a Secret Service protectee is within.
1.
“Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent.” Rehaif v. United States, 588 U.S. 225, 228 (2019) (citing Staples v. United States, 511 U.S. 600, 605 (1994)). Griffin contends that Congress‘s intent is clear—and “dictated by text.” Griffin 28(j) Ltr. at 2 (Feb. 19, 2024). He argues that section 1752(a) uses “restricted building or grounds” as a defined term, so its appearances across the text of subsection (a)(1) must be treated as shorthand for every detail of the term‘s definition. In Griffin‘s view, because “knowingly” modifies “restricted building or grounds,” the government must prove that he had knowledge not just that access was restricted, but the precise reason why it was restricted. Griffin Br. 48-57. Otherwise, Griffin urges, the government would have failed to prove that the defendant knew he entered a “restricted building or grounds” as the statute requires.
In support of this argument, Griffin cites McFadden v. United States, 576 U.S. 186 (2015), in which the Supreme Court held that violation of the Controlled Substances Act‘s prohibition of “knowingly . . . distribut[ing] . . . a controlled substance” required the defendant to know that he distributed something that qualified as a “controlled substance” as elsewhere defined by the Act. 576 U.S. at 191-92. “[J]ust as it is not enough to know that a substance is generically ‘controlled’ (antibiotics are ‘controlled‘),” Griffin urges, “it is not enough to know that a building or grounds is generically ‘restricted’ (any place bearing an ‘area closed’ sign is ‘restricted‘).” Griffin Br. 54.
Griffin‘s reading of the extent of the statute‘s knowledge requirement fails because it is contrary to both Supreme Court precedent and contextual evidence of Congress‘s purpose. Grammatical rules and presumptions regarding statutory knowledge requirements and “jurisdictional only” elements all weigh against extending the “knowingly” requirement in section 1752(a)(1) to the specific reason that the area is “posted, cordoned off, or otherwise restricted.”
Griffin is correct that a handful of Supreme Court cases, including McFadden, hold that, at least for relatively short statutory
phrase “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,”
That precedent does not resolve this case. To begin with, the Court has adopted that understanding of ordinary usage inconsistently even as applied to relatively short and straightforward statutory phrases. For instance, in Liparota v. United States, 471 U.S. 419 (1985), the Court analyzed whether, in a statutory phrase concerning someone who “knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute],” the “knowingly” requirement extends to the fact that the use was unauthorized. Id. at 420-21. The Court concluded that “the words themselves provide little guidance,” as “[e]ither interpretation would accord with ordinary usage.” Id. at 424. Instead, to determine that “knowingly” extended to the unauthorized nature of the use, the Court relied on the judicial presumptions that elements criminalizing otherwise innocent conduct are subject to a mens rea requirement and that ambiguous statutes should be interpreted leniently. Id. at 424-27.
More to the point, “where the modifier “knowingly” introduces a long statutory phrase,” the ordinary meaning Griffin asserts loses its clarity, “such that questions may reasonably arise about how far into the statute the modifier extends.” Rehaif, 588 U.S. at 230. And when a statutory phrase is long enough, the ordinary usage presumption flips, so that the “most natural grammatical reading . . . suggests that the term “knowingly” modifies only the surrounding verbs” and does not travel down to modify elements “set forth in independent clauses separated by interruptive punctuation.” United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994).
The Court in X-Citement Video accordingly had to reach beyond rules of grammar to interpret a statute penalizing “[a]ny person who (1) knowingly transports or ships [using any means or facility of] interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” Id. It recognized that, in the most natural reading of that long text string, “the word “knowingly” would not modify the elements of the minority of the performers, or the sexually explicit nature of the material.” Id. The Court ultimately rejected that “most natural grammatical reading” because of “anomalies which [would] result,” and to ensure that “some form of scienter” would apply to avoid criminalizing conduct that was not only “otherwise innocent” but protected by the First Amendment. Id. at 68-69, 72-73.
Here, the statutory phrase—“knowingly enters or remains in 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,” where “other person protected by the Secret Service” is further defined as “any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential
The “most natural grammatical reading” of that matryoshka doll of nested statutory references is that “the word “knowingly” would not modify” all elements in each reference. X-Citement Video, 513 U.S. at 68. No grammatical rule requires that “knowingly” be read to apply, for example, to elements that are not only “set forth in independent clauses separated by interruptive punctuation,” but span multiple, separate statutory provisions. Id. (holding that the “most natural grammatical reading” would not extend “knowingly” to subsections listing further specifications of the offense, and describing em-dashes introducing those requirements as “interruptive punctuation“). And here, unlike in X-Citement Video, the grammatically natural reading neither produces “anomalies” nor fails to require a culpable state of mind—and certainly not in a way that raises a risk of punishing constitutionally protected conduct. Id. To the contrary, it is Griffin‘s construction that would produce absurd results. It would require a defendant to know that the protectee “has not declined” Secret Service protection. See
Although the plain text makes clear that “knowingly” does not apply all the way down the definitional line, the text alone “provide[s] little guidance” regarding how far “knowingly” extends. Liparota, 471 U.S. at 424. To answer that question, we turn to longstanding judicial presumptions, Supreme Court precedent, and the statute‘s context and purpose. Because those interpretive tools reveal the answer—“knowingly” does not extend to the reason for the restriction listed in subsection (c)(1)(B)—we have no occasion to apply the rule of lenity, which “applies
2.
As noted above, “[w]hether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent.” Rehaif, 588 U.S. at 228 (citing Staples, 511 U.S. at 605). “In determining Congress’ intent, we start from a longstanding presumption . . . that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct.‘” Id. (quoting X-Citement Video, 513 U.S. at 72). But that presumption is both limited and rebuttable.
Two interpretive rules confirm that section 1752(a)(1) requires only that a defendant “knowingly enter[] or remain[] in” an area that is “posted, cordoned off, or otherwise restricted.” For one thing, the presumption “flips” for the jurisdictional elements of a federal offense, so courts presume that a criminal statute‘s knowledge requirement is typically inapplicable to such jurisdictional elements. Torres v. Lynch, 578 U.S. 452, 468 (2016). And, more generally, contextual clues may rebut the presumption in favor of scienter. Applying those rules here confirms that section 1752(a)(1) does not require that the defendant further know which of the subsection (c)(1) requirements is the reason for the restriction.
a.
Federal criminal prohibitions, unlike their state counterparts, contain jurisdictional elements that “connect[] the law to one of Congress‘s enumerated powers, thus establishing legislative authority.” Torres, 578 U.S. at 467-68. Those jurisdictional elements must be proven beyond a reasonable doubt, as with any element of a criminal offense. See id. But they are also distinctive as subjects of statutory interpretation: When Congress has not explicitly applied a mental state requirement to a jurisdictional element, we “assume that Congress wanted such an element to stand outside the otherwise applicable mens rea requirement.” Id. at 468. In other words, we presume that “the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.” United States v. Feola, 420 U.S. 671, 676 n.9 (1975). That rule applies even when textual cues might cut the other way. In Rehaif, for example, the Supreme Court eschewed what it described as the most grammatical reading of a criminal statute in order to exempt a jurisdictional element from a knowledge requirement that it held applied to textually preceding and succeeding statutory terms. Rehaif, 588 U.S. at 230.
Section 1752(c)(1) supplies the jurisdictional elements for Griffin‘s statute of conviction. As described above, Section
The subsection (c)(1)(A)-(C) requirements narrow the criminal offense‘s applicability to a small subset of trespassing offenses that implicate both the personal security of the most high-profile federal officials and their foreign counterparts when they visit the United States, and also, necessarily, the national security of the United States. See Wood v. Moss, 572 U.S. 744, 748 (2014) (citing Watts v. United States, 394 U.S. 705, 707 (1969)) (recognizing that “safeguarding the President” is “of overwhelming importance in our constitutional system“). Those requirements thus tie the criminal prohibition to Congress‘s power to “provide for the common Defense and general Welfare of the United States.”
The jurisdictional status of the subsection (c)(1) requirements is confirmed by their essential role in distinguishing a violation of section 1752(a)(1) from the familiar, state-law crime of trespass. Without them, section 1752(a)(1) would impermissibly federalize garden-variety trespass—entering or remaining in a restricted area without lawful authority—which is “historically a concern of state law.” Taggart v. Weinacker‘s, Inc., 397 U.S. 223, 227 (1970) (Burger, J., concurring); cf. United States v. Lopez, 514 U.S. 549, 567-68 (1995) (emphasizing federalism‘s requirement that Congress distinguish between “what is truly national and what is truly local,” and only legislate regarding the former). With or without the satisfaction of a (c)(1)(A), (B), or (C) requirement, the underlying conduct is the same knowing trespass. It is the satisfaction of one of the required connections to federal national security interests that elevates the conduct to a matter upon which Congress has authority to legislate.
Those subsection (c)(1) requirements are therefore jurisdictional in nature. And, under binding Supreme Court precedent, if they are “jurisdictional only” they “need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.” Feola, 420 U.S. at 676 n.9.
Griffin contends that the subsection (c)(1) requirements are not jurisdictional at all, let alone “jurisdictional only,” because they play a substantive role in defining the prohibited conduct. The presence of a Secret Service protectee is “the very reason Congress cares to punish such conduct as wrongful at all,” Reply Br. 21, Griffin insists, so it cannot be jurisdictional. That argument misunderstands the Court‘s admittedly “mislead[ing]” jurisdictional elements terminology. Feola, 420 U.S. at 676 n.9.
It is often the case that jurisdictional elements “have nothing to do with the wrongfulness of the defendant‘s conduct.” Rehaif, 588 U.S. at 230. The classic example is “a standard interstate commerce element, of the kind appearing in a great many federal laws.” Torres, 578 U.S. at 471. That element “is almost always a simple jurisdictional hook” used to “connect[] the congressional exercise of legislative authority with the Commerce Clause[] that grants Congress that authority.” Id. at 457, 471.
But things are not always so straightforward. Sometimes, an element of a federal crime both “makes evident Congress‘s regulatory power” and also “play[s] a role in defining the behavior Congress thought harmful.” Id. at 471. The Supreme Court has recognized that such dual-role elements present “tough questions” concerning whether they are treated as both jurisdictional and substantive or as jurisdictional only. Id. at 470-71. And it has squarely held that the mere fact that a statutory element has something to do with the wrongfulness of the defendant‘s conduct does not necessarily mean that the element is not “jurisdictional only.” Feola, 420 U.S. at 676 n.9. As the Court has explained, “[t]he significance of labeling a statutory requirement as ‘jurisdictional’ is not that the requirement is viewed as outside the scope of the evil Congress intended to forestall.” Id. Rather, as illustrated by Feola, dual-role elements are nonetheless treated as “jurisdictional only” when they (a) implement Congress‘s purpose to federalize pre-existing state law rather than defining a new substantive crime, and (b) do not transform innocent conduct into criminal conduct. Id.
In Feola, the Supreme Court considered the scope of the knowledge requirement in
In holding that the victim‘s federal officer status was “jurisdictional only,” the Court acknowledged that a jurisdictional requirement could also be “an element of the offense Congress intended to describe and to punish.” Id. at 676 n.9. Indeed, “a requirement is sufficient to confer jurisdiction on the federal courts for what otherwise are state crimes precisely because it implicates factors that are an appropriate subject for federal concern.” Id. (emphasis added). The Court explained that “a mere general policy of deterring assaults would probably prove to be an undesirable or insufficient basis for federal jurisdiction; but where Congress seeks to protect the integrity of federal functions and the safety of federal officers, the interest is sufficient to warrant federal involvement.” Id. So, “[t]he significance of labeling a statutory requirement as ‘jurisdictional’ is not that the requirement is viewed as outside the scope of the evil Congress intended to forestall, but merely that the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.” Id.
The Court also emphasized that its “interpretation poses no risk of unfairness to defendants.” Id. at 685. Even though Feola may have been “surprised to find that his intended victim [was] a federal officer in civilian apparel, he nonetheless [knew] from the very outset that his planned course of conduct [was] wrongful.” Id. The Court distinguished the case from “one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected.” Id.; cf. Ruan v. United States, 597 U.S. 450, 460-61 (2022) (applying the knowledge requirement in a statute criminalizing dispensing of a controlled substance to the element of lack of authorization because that “is often the critical thing distinguishing wrongful from proper conduct“). In that kind of case, the Court suggested, the identity of the victim may not be treated as jurisdictional. Feola, 420 U.S. at 685. But where the defendant‘s planned course of conduct is wrongful from the outset, “the offender takes his victim as he finds him.” Id.
The rule from Feola is thus clear: When an element of a criminal offense serves as the basis for Congress‘s authority to legislate; the offense merely provides federal jurisdiction over what was previously a state law offense; and knowledge of the element is not “essential to the existence of any crime,” United States v. Hicks, 15 F.4th 814, 818 (7th Cir. 2021) (emphasis added), the element is treated as “jurisdictional only” and courts presume that knowledge of that element is not required.
Feola thus resolves the “tough question” presented by the statutory text alone in favor of treating the element regarding a Secret Service protectee‘s presence as “jurisdictional only.” As in Feola, section 1752(a)(1) does not create a substantively new criminal offense. Rather, Congress designed it to ensure that Secret Service officers did not have to “rely upon the assistance of local authorities to arrest persons” who entered restricted areas around a protectee. See S. Rep. No. 91-1252, at 7 (1970). When it first enacted section 1752 in 1971, Congress recognized that “almost everything proscribed in [section 1752] is presently outlawed in some form or other
Also as in Feola, the prohibited conduct (here, trespass) is wrongful regardless of whether it is restricted by federal, state, or local law, and it is therefore sufficient that the defendant knowingly trespassed on a restricted area. Just as Feola did not need to know that the target of his assault was a federal officer, so Griffin need not have known that the restriction was predicated on the presence of the Vice President. As in Feola, our interpretation of section 1752 “poses no risk of unfairness to defendants” because a trespasser knows “from the very outset that his planned course of conduct is wrongful.” 420 U.S. at 685. That is true even if he “may be surprised to find” that the restricted area on which he is trespassing is protected by federal rather than state law. Id.
Contrary to the dissent‘s view that mens rea requirements presumptively apply to each element distinguishing “greater and lesser evils,” post at 15-16, the Supreme Court has recently reaffirmed that “the purpose of scienter” is to “help[] to separate wrongful from innocent acts,” Rehaif, 588 U.S. at 231-32, and described the mens rea presumption as one that normally applies to “statutory elements that criminalize otherwise innocent conduct,” id. at 229 (quoting X-Citement Video, 513 U.S. at 72). Applying Griffin‘s contrary rule would also be in tension with decisions of many other courts that regularly apply Feola to hold that jurisdictional elements that do not criminalize otherwise innocent conduct are “jurisdictional only.” Consider just a few examples.
In United States v. Evans, 74 F.4th 597 (4th Cir. 2023), the Fourth Circuit addressed the scope of the knowledge requirement in
The Second Circuit in United States v. Escalera, 957 F.3d 122 (2d Cir. 2020), adopted the same approach to a statute that criminalizes “knowingly” engaging in conduct “with intent to retaliate” against a witness in an “official proceeding,”
Under the Feola line of cases, the requirements in section 1752(c)(1)(A)-(C) serve as jurisdictional hooks, and knowledge that any of those requirements is satisfied is unnecessary to render criminal the underlying conduct: knowing trespass on property where the defendant is aware he is not authorized to be. As in the above cases, the defendant must know he is engaged in culpable conduct—trespassing—but he need not know the precise basis for federal regulation of that conduct.
Griffin contends that, even if attaching “knowingly” to the subsection (c)(1) requirements is not necessary to avoid criminalizing otherwise innocent conduct, the satisfaction of those requirements increases the severity of the conduct and resulting penalty. He thus argues that the government should be required to prove he was aware of the presence of a Secret Service protectee because knowledge of that fact would increase his culpability. See Griffin 28(j) Ltr. at 2 (Jan. 6, 2024). But there is no doctrinal basis for presuming that a knowledge requirement attaches to every factor that might render a crime more serious. And, in any event, the penalties under section 1752(a)(1) are not categorially more severe than under state trespass laws.
Consider the statute at issue in Feola. Assaulting an officer is generally a more serious crime than assaulting a private citizen. Both are plainly wrongful, but assaulting a federal officer imperils the success of the federal objectives he is serving as well as his own personal safety. So, too, with the statute prohibiting false statements
In United States v. Burwell, 690 F.3d 500 (D.C. Cir. 2012) (en banc), we rejected the same argument now raised by Griffin. In that case, the court held that
In a dissenting opinion, then-Judge Kavanaugh argued that the presumption in favor of scienter “applies both when necessary to avoid criminalizing apparently innocent conduct (when the defendant would be innocent if the facts were as the defendant believed) and when necessary to avoid convicting the defendant of a more serious offense for apparently less serious criminal conduct.” Burwell, 690 F.3d at 529 (Kavanaugh, J., dissenting). (His dissent did not address whether his analysis would be any different if the machinegun element were jurisdictional.) But the en banc majority rejected that proposed rule as unsupported by Supreme Court precedent. Id. at 516 (maj. op.). The fact that the type of firearm defendant Burwell used increased the offense‘s severity did not mean the government had to prove that he knew it was a machinegun. Id. We similarly held in United States v. Morgan, 45 F.4th 192, 205-09 (D.C. Cir. 2022), that a conviction under
Nor is it apparent that defendants like Griffin will be exposed to sentences disproportionate to their culpability. Barring aggravating factors not applicable to Griffin, section 1752 imposes a maximum of one year‘s imprisonment for violating subsection (a). See
To the extent that the maximum period of incarceration under section 1752 is higher than state trespassing laws typically provide, the same was true in Feola, where the maximum penalties imposed by section 111 exceeded states’ penalties for simple assault. See Feola, 420 U.S. at 702-03 (Stewart, J., dissenting). The Court‘s analysis in Feola was unaffected
The availability of up to a year‘s incarceration does not support Griffin‘s dramatically narrowed reading of section 1752(a)(1). Concerns about ensnaring relatively mild conduct, such as “stepping over temporary plastic fencing just outside the Capitol grounds on January 5, 2021, to save a few steps on a walk home from work,” post at 10, could equally be levelled at the ordinary trespass laws of myriad states and localities with similar terms of incarceration. But we can readily assume that people in Virginia ignore “no trespassing” signs with some frequency “to save a few steps” without doubting that the Virginia legislature intended to criminalize simple trespass.
Recent experience in this Circuit demonstrates that violators of section 1752(a) are typically sentenced to far less time than the statutory maximum. The Sentencing Guidelines recommend imposing a sentence of zero to six months for a defendant without prior criminal history convicted of violating section 1752(a)(1). Nearly every defendant charged in connection with the events of January 6 and sentenced solely for violation of section 1752(a) has been sentenced to fewer than six months’ incarceration to the extent they were sentenced to jail time at all. See U.S. Attorney‘s Office for the District of Columbia, Sentences Imposed in Cases Arising out of the Events of January 6, 2021 (updated October 7, 2024), available at https://www.justice.gov/usao-dc/capitol-breach-cases [https://perma.cc/6PYL-KAB7]. Griffin was sentenced to fourteen days’ imprisonment. Even those January 6-related defendants convicted of a section 1752 offense involving possession of “deadly or dangerous weapon[s] or firearm[s],”
In sum, the basis of the Secret Service‘s authority to prevent access to designated areas for the safety of its protectees is a “jurisdictional only” element of a section 1752(a)(1) federal trespass offense. It need not be in the mind of the trespasser. The relative seriousness of trespass in an area protected by the Secret Service, and the potential for somewhat greater punishment than for typical trespass, does not alter the analysis where, as here, the prohibited conduct is wrongful whether or not federal criminal law applies.
b.
In addition to the jurisdictional character of the subsection (c)(1) requirements, a second rule guiding our interpretation of criminal statutes’ state-of-mind requirements similarly disfavors requiring proof of knowledge of a Secret Service protectee‘s presence in the restricted area. Courts decline to extend even explicit state-of-mind requirements to statutory elements when “context” disfavors doing so. Morgan, 45 F.4th at 206-08; see also Rehaif, 588 U.S. at 229-30 (noting that there can be a “convincing reason to depart from the ordinary presumption in favor of scienter“); Hicks, 15 F.4th at 817-18 (holding that a defendant‘s knowledge that the money he stole belonged to the government was jurisdictional
First, section 1752‘s drafting and legislative history make clear that Congress never intended “knowingly” to extend to the reason for the area‘s restriction. The original version of section 1752(a)(1)(ii) made it unlawful “knowingly to enter or remain in . . . any posted, cordoned off, or otherwise restricted area of a building or grounds where the President is or will be temporarily visiting.”
The Senate Committee‘s expressed satisfaction with the requisite actual knowledge as to the boundary of the restricted area makes clear that prosecution under section 1752(a)(1)(ii) is inappropriate if an individual does not know that the area is “posted, cordoned off, or otherwise restricted.” The lack of any mention of an individual‘s knowledge of the reason for the restriction—the President‘s actual or expected presence—makes equally clear that Congress did not intend the “knowingly” requirement to extend to the reason for the restriction. Indeed, the Committee‘s reference to the requirement of subjective knowledge of an area‘s restriction, and to the Secret Service making “every effort” at providing public notice only to the extent “consistent with Presidential security,” reinforces that Congress did not intend to also
require the Secret Service to announce to the public the precise location of the President in order to be able to enforce access restrictions on areas surrounding him.As discussed above, in 1982, Congress expanded
Requiring proof that a defendant knew the reason for his exclusion would render the statute ineffective in circumstances in which Congress plainly intended it to apply. In enacting and amending
But, under Griffin‘s reading, officers could not necessarily rely on
Griffin minimizes the constraint his reading imposes by suggesting that officers could post “Secret Service ‘restricted building or grounds’ signage” around the areas they secure. Griffin Br. 54-55. It is not clear, however, that a generic “Secret Service—Keep Out” sign could prove knowledge of the facts identified in
In any event, Griffin‘s suggestion of generic Secret Service signage underscores
Griffin‘s approach would surely hinder the Secret Service‘s capacity to handle the full range of potential threats. Congress‘s intent in enacting and amending the statute was to provide the Secret Service with consistent and effective federal-law tools so it would no longer have to rely on uneven protections of state law. But, by requiring proof that each intruder knew “the President or other person protected by the Secret Service is or will be temporarily visiting,” Griffin‘s reading would make a
***
In sum, Congress‘s clear purpose in enacting
III.
To recap, we hold that the trial evidence sufficed to prove that the Capitol grounds were “posted, cordoned off, or otherwise restricted” under
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.
I
During the riot on January 6, 2021, Couy Griffin entered the grounds of the United States Capitol and made his way onto the inaugural stage. At that time, entry into the grounds was restricted because Congress was scheduled to count the votes of the presidential electors. When Griffin entered the restricted grounds, Vice President Michael Pence, a Secret Service protectee, was inside the Capitol to preside over the vote count.
Griffin was charged with knowingly entering a “restricted building or grounds,” in violation of
II
[T]he term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area—
(A) of the White House or its grounds, or the Vice President‘s official residence or its grounds;
(B) of a 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[.]
The parties dispute the extent of knowledge a defendant must have about the “restricted building or grounds” to be properly convicted under
A
In my view, statutory text, history, and basic interpretive presumptions all point in the same direction: To be convicted of knowingly entering a “restricted building or grounds,” the defendant must know that the area in question satisfies the statutory definition of that term.
1
Start with text, grammar, and ordinary English usage. These considerations drive the interpretation of federal statutes—including criminal ones. See, e.g., Flores-Figueroa v. United States, 556 U.S. 646, 650–52 (2009); Jones v. United States, 529 U.S. 848, 855 (2000). And here, they strongly support Griffin.
a
“As a matter of ordinary English grammar, it seems natural to read” the word knowingly, if it introduces a criminal prohibition, “as applying to all the subsequently listed elements of the crime.” Flores-Figueroa, 556 U.S. at 650; see Rehaif v. United States, 588 U.S. 225, 230 (2019) (courts “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element” (quoting Flores-Figueroa, 556 U.S. at 652)); United States v. X-Citement Video, Inc., 513 U.S. 64, 79 (1994) (Stevens, J., concurring) (“the normal, commonsense reading of a subsection of a criminal statute introduced by the word ‘knowingly’ is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection“).
Examples prove this point. An obvious one involves knowingly followed by a series of verbs. A provision making it unlawful to “knowingly harass, bother, or intimidate” does not reach someone who unknowingly intimidates. See A. Scalia &
The Supreme Court repeatedly has applied these principles in construing introductory knowledge requirements. For example, United States v. Liparota, 471 U.S. 419 (1985), involved a statute imposing criminal liability on anyone who “knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by” the governing positive law. See id. at 420. The Court held that this provision reaches only individuals who know that their conduct is “not authorized” by law. See id. at 425–28. Flores-Figueroa construed a statute imposing criminal liability on anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” See 556 U.S. at 647. The Court held that this provision reaches only individuals who know that their conduct involves a means of identifying “another person.” See id. Invoking “ordinary English,” the Court explained that it would make “little sense” to criminalize knowingly possessing “a something” unless the defendant also knows what that something is. See id. at 650.
The same principles support extending knowledge requirements into defined terms and across different statutory provisions. Rehaif involved a statute imposing criminal liability on anyone who “knowingly violates” certain separate offenses including
Likewise, McFadden addressed the knowledge requirement in the Controlled Substances Act. That statute makes it unlawful to “knowingly ... manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
Finally, United States v. Lucero, 989 F.3d 1088 (9th Cir. 2021), involved criminal liability under the Clean Water Act. One section of that Act imposes criminal liability for “knowingly” violating a second section, which prohibits the “discharge of any pollutant” without a permit. See id. at 1093. A third section defines “discharge of pollutants” as adding any “pollutant” to “navigable waters” from any “point source.” See id. Three other subsections of that section separately define each of those three terms. See id. at 1093-94. Faced with these terms strung together “like Russian nesting dolls,” id. at 1093, the Ninth Circuit held that the criminal provision requires knowledge of all “substantive elements” set forth in the definition and sub-definitions—thus excluding only a purely “jurisdictional element” that the polluted water must also be “waters of the United States.” See id. at 1095–97.
b
These textual and grammatical principles are dispositive here. As noted above, the governing statute punishes anyone who “knowingly enters or remains in any restricted building or grounds.”
My colleagues try to split the difference. They agree the defendant must know that the relevant area satisfies the first part of the statutory definition—i.e., that the area was “posted, cordoned off, or otherwise restricted” at the time of the trespass. Ante at 4. But there is no textual or contextual basis for projecting the knowledge requirement only halfway through the definition. As shown above, it is routine to project an introductory adverb like knowingly past the following verbs and direct object to prepositional phrases that limit one or the other. Faced with a request to do otherwise, the Court in Flores-Figueroa
My colleagues object that a mens rea need not travel through a “long statutory phrase,” especially one “set forth in independent clauses separated by interruptive punctuation.” Ante at 21-22 (citing X-Citement Video, 513 U.S. at 68). Perhaps not, but
Moreover, the ensuing prepositional phrases impose significant limits. So, excluding them from the knowledge requirement substantially broadens the underlying prohibition. For example, it ensnares a hotel guest who walks past an “area closed for private event” sign in search of an open bar if, unbeknownst to the thirsty interloper, the First Lady is expected to attend. See
My colleagues further object with a reductio ad absurdum. If
In my view, the reductio is unpersuasive. Of course, the extension of an introductory mens rea requirement is a question of degree. Adverbs do not necessarily modify everything that follows. So when knowingly “introduces a long statutory phrase,” questions “may reasonably arise about how far into the statute the modifier extends.” Rehaif, 588 U.S. at 230. Likewise for nested statutory references, reaching the first one does not necessarily require reaching all of them. But here, there is nothing extravagant about extending the knowledge requirement to the simple verb-object phrase that immediately follows (“enters or remains in any restricted building or grounds“) and then to the straightforward incorporated definition (requiring, as relevant here, an area “posted, cordoned off, or otherwise restricted” in connection with a current or impending visit by someone “protected by the Secret Service“). As shown above, the Supreme Court has routinely done at least that much, and the Ninth Circuit has done more.
Moreover, the reductio highlights elements for which knowledge may be difficult or impossible to prove—the existence of a presidential designation not announced in advance, an individual‘s acceptance or declination of protection, and the age of individuals protected only while they are children. For those elements, closer questions might arise. Perhaps the near-impossibility of proving knowledge of some element is a contextual clue suggesting that no mens rea requirement applies to it. See Scalia & Garner, supra, at 307. But those questions, involving definitional elements not at issue here, should not obscure what is at issue: knowledge about restrictions imposed in connection with a current or impending visit by the Vice President, who may not decline Secret Service protection and whose status as a protectee is not contingent on anything. See
2
Statutory history reinforces these points. As originally enacted,
Two other changes warrant a brief mention. In 2006, Congress increased the maximum authorized penalty for violations of
3
If any doubt on this point remained, two interpretive principles would resolve it against the government—the presumption of mens rea and the rule of lenity.
The Supreme Court has long recognized a presumption that criminal statutes “include broadly applicable scienter requirements.” X-Citement Video, 513 U.S. at 70; see, e.g., Ruan v. United States, 597 U.S. 450, 457–59 (2022); Staples v. United States, 511 U.S. 600, 605–06 (1994); United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978). The presumption reflects a view that crime usually requires the “concurrence of an evil-meaning mind with an evil-doing hand,” which originated in English common law and “took deep and early root in American soil.” Morissette v. United States, 342 U.S. 246, 251-52 (1952). The presumption “is no provincial or transient notion“; rather, it “is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Id. at 250.
The presumption applies in two distinct contexts. First, courts will read mens rea requirements into criminal statutes that “are silent on the required mental state.” Elonis v. United States, 575 U.S. 723, 736 (2015); see, e.g., Staples, 511 U.S. at 605. In doing so, “we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Elonis, 575 U.S. at 736 (cleaned up); see United States v. Burwell, 690 F.3d 500, 505 (D.C. Cir. 2012) (en banc). Second, if text and grammar are not dispositive, courts will construe express mens rea requirements broadly as opposed to narrowly. When a statute is not silent as to the mens rea but instead includes a general scienter provision, “‘the presumption applies with equal or greater force’ to the scope of that provision.” Ruan, 597 U.S. at 458 (quoting Rehaif, 588 U.S. at 229). Moreover, the Supreme Court has “rejected the government‘s argument that the absence of innocence should circumscribe the reach of an explicit mens rea requirement.” Burwell, 690 F.3d at 516 (citing Flores-Figueroa, 556 U.S. at 650–52). So while express mens rea terms “often” separate wrongful and innocent conduct, Ruan, 597 U.S. at 458, they can also separate greater and lesser evils.
Needless to say, a trespass that threatens the life or safety of the President or the Vice President is substantially more culpable than a simple trespass consisting of nothing more than knowingly entering an area “posted, cordoned off, or otherwise restricted,”
Finally, consider the rule of lenity. In cases addressing the scope of mens rea requirements in criminal statutes, the presumption and the rule of lenity work as companion principles, both supporting narrow constructions over broad ones. See, e.g., U.S. Gypsum Co., 438 U.S. at 437; Liparota, 471 U.S. at 427–28. On the cutting edge, jurists may disagree about which doctrine should predominate. Compare Wooden v. United States, 595 U.S. 360, 378–79 (2022) (Kavanaugh, J., concurring) (stressing presumption of mens rea), with id. at 388-92 (Gorsuch, J., concurring in the judgment) (stressing lenity). But where the defendant‘s proposed construction is as textually plausible as it is here, one or both doctrines should remove any lingering doubt.
B
My colleagues reason that the definition of “restricted building or grounds” is merely jurisdictional and that a broad reading of
1
Start with the proper treatment of assertedly jurisdictional elements of federal criminal statutes.
a
The Supreme Court has distinguished between substantive and jurisdictional elements. Substantive elements “describe the evil Congress seeks to prevent.” Torres v. Lynch, 578 U.S. 452, 467 (2016). On the other hand, jurisdictional elements connect the statute “to one of Congress‘s enumerated powers,” such as its powers to regulate interstate commerce and federal property. Id. Because jurisdictional elements “have nothing to do with the wrongfulness of the defendant‘s conduct,” they “are not subject to the presumption in favor of scienter.” Rehaif, 588 U.S. at 230. To the contrary, “when Congress has said nothing about the mental state pertaining to a jurisdictional element, the default rule flips: Courts assume that Congress wanted such an element to stand outside the otherwise applicable mens rea requirement.” Torres, 578 U.S. at 468.
Statutory elements sometimes serve both jurisdictional and substantive ends, for “an element that makes evident Congress‘s regulatory power also might play a role in defining the behavior Congress thought harmful.” Torres, 578 U.S. at 470–71. In considering such an element, the right question is “whether it is jurisdictional only,” not whether it is jurisdictional in part. United States v. Feola, 420 U.S. 671, 676 n.9 (1975); see also United States v. Evans, 74 F.4th 597, 605–06 (4th Cir. 2023) (“a jurisdictional element only“). In other words, so long as a statutory element has something to do “with the wrongfulness of the defendant‘s conduct,” Rehaif, 588 U.S. at 230, courts should not abandon the presumption of mens rea let alone impose the opposite presumption. Of course, “tough questions may lurk on the margins” if it is unclear whether a jurisdictional element “also” serves substantive ends. Torres, 578 U.S. at 470–71. But this is not such a case.
The statutory definition of “restricted building or grounds” is not “jurisdictional only.” The first element of the definition—
b
My colleagues rest their contrary conclusion mainly on Feola, which involved a statute prohibiting assaults on federal officers performing official duties. See 420 U.S. at 673. The Court held that this statute, which includes no express mens rea element, does not require knowledge of the victim‘s status as a federal officer. In concluding that the identity of the victim was “jurisdictional only,” id. at 676 n.9, the Court relied heavily on a letter from the Attorney General to the Chairman of the Senate Judiciary Committee, id. at 680–84. Based on that letter, the Court concluded that Congress‘s primary objective was to create a “federal forum” for prosecuting assaults on federal officers, id. at 682, in order to avoid any risk that state officials might not prosecute such crimes with sufficient “urgency,” id. at 684. The Court specifically concluded that Congress had neither intended to “fill a gap in existing substantive state law” nor to create a substantive “federal aggravated assault statute.” id. at 683. And if Congress had so intended, the Court strongly suggested, the statute would presumptively “require[] knowledge of the victim‘s office.” id. Finally, in extending its holding to conspiracies predicated on the assault statute, the Court reiterated its view that the “identity of the proposed victim” was “no more germane to the nature” of the assault “than the color of the victim‘s hair.” id. at 692–93.
Feola does not support my colleagues’ position. For one thing, it involved the question whether to impose a court-made mens rea requirement, not any question about the scope of a statutory one. For another,
My colleagues do not dispute that
My colleagues invoke other precedents besides Feola, but none helps their case. United States v. Yermian, 468 U.S. 63 (1984), turned on the “clear” textual separation between a jurisdictional element and a statutory mens rea requirement, which appeared after and “in a phrase separate from” the jurisdictional element. See id. at 68–69. United States v. Morgan, 45 F.4th 192 (D.C. Cir. 2022), turned on a special presumption against knowledge requirements regarding the age of victims in “sex crimes involving minors,” which does not involve jurisdictional elements at all. Id. at 206. Burwell involved the mens rea requirement for a firearms offense requiring the weapon at issue to be capable of firing automatically, 690 F.3d at 502, which was also not a jurisdictional element. And the out-of-circuit precedents involved provisions held to be “jurisdictional element[s] only,” Evans, 74 F.4th at 606—i.e., elements with no substantive significance for the offense at issue. See id. (arson on federal lands, assessed relative to background state arson law); United States v. Hicks, 15 F.4th 814, 817–18 (7th Cir. 2021) (stealing federal property, assessed relative to background state theft statutes); United States v. Escalera, 957 F.3d 122, 132–33 (2d Cir. 2020) (witness-protection statute for federal proceedings, assessed relative to background state witness-protection statutes). These decisions do not control a statute that, as enacted, afforded singular and special protection to the President.
One final point. Long after Feola, the Supreme Court flagged that jurisdictional elements which “also” serve substantive ends may pose “tough questions.” Torres, 578 U.S. at 470–71. If that is a fair characterization of the interpretive issues surrounding dual-purpose elements, then the rule of lenity would resolve this case in Griffin‘s favor.
2
Finally, my colleagues seek to avoid any interpretation of
The argument also falters on its own terms. Trespassers unaware that someone like the President or Vice President is present are much less likely to pose a threat to those officials than are individuals who knowingly trespass into an area restricted to protect them. My colleagues suggest that the January 6 riot reveals a significant practical problem with Griffin‘s position, given the difficulty of proving that any particular trespasser knows a protectee is present. Ante at 43–44. That concern strikes me as overstated, particularly given the number of Capitol trespassers boasting about their desire to influence (whether peacefully or otherwise) the Vice President‘s performance of his official duties. Moreover, the seriousness of an offense is reason to insist on, not depart from, a mens rea requirement. See, e.g., Staples, 511 U.S. at 616–19. And “concerns about practical enforceability are insufficient to outweigh the clarity of the text.” Flores-Figueroa, 556 U.S. at 656. We should not jettison these principles here.
III
Given its erroneous legal ruling, the district court did not make a finding whether Griffin knew that the Vice President was still present at the Capitol when Griffin trespassed. Some evidence suggests Griffin did not know, such as his later, mistaken statement that the Vice President had already certified the election before Griffin arrived at the Capitol. Because an essential element of the
IV
On the question of mens rea,