UNITED STATES OF AMERICA, APPELLEE v. JOHN MARON NASSIF, APPELLANT
No. 23-3069
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 29, 2023 Decided April 9, 2024
PILLARD, WILKINS and GARCIA, Circuit Judges.
Melissa Fussell, Assistant Federal Defender, argued the cause for appellant. With her on the briefs were A. Fitzgerald Hall, Federal Defender, and James T. Skuthan, First Assistant Federal Defender.
Timothy R. Cahill, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb and John P. Mannarino, Assistant U.S. Attorneys.
Before: PILLARD, WILKINS and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
The challenged conviction is for demonstrating in a United States Capitol building. Nassif does not argue that his conviction under
Nassif challenges his sentence on two distinct grounds. He argues that the district court applied an incorrect Sentencing Guideline to calculate the base offense level. And he contends that, in imposing the sentence, the court unconstitutionally penalized him for exercising his Sixth Amendment right to trial. We reject both challenges and affirm Nassif‘s sentence.
BACKGROUND
On January 6, 2021, the United States Congress convened to certify the Electoral College vote and declare the winner of the 2020 presidential election. See
The following summary of the events most relevant to Nassif‘s appeal is based on the record in this case, including the evidence introduced at trial.
Nassif was among the many people who entered the Capitol on January 6, 2021. He had traveled the previous day from Seminole County, Florida with two friends to “be there to support the [P]resident” in Washington, D.C. Appellant‘s Appendix (App.) 203-05. On January 6, Nassif and three companions joined President Trump‘s rally near the Washington Monument, where they heard the President speak. Nassif then brought his friends back to their hotel before going to the Capitol without them. At the Capitol, Nassif joined hundreds of people congregating outside the east front doors of the historic Capitol Building. Glass panes in the doors had been smashed, alarms were ringing, and members of the crowd were cursing the police and shouting to be let in. Nassif joined the crowd and led a call-and-response chant, yelling, “Whose house?” “Our house!” App. 116-17, 294. When, minutes later,
The government charged Nassif with four misdemeanor offenses in connection with his conduct on January 6, 2021: entering or remaining in a restricted building in violation of
Before trial, Nassif unsuccessfully moved to dismiss Count Four, challenging the statute‘s prohibition on demonstrating as unconstitutionally overbroad in violation of the First Amendment and unconstitutionally vague in violation of the Fifth Amendment. Nassif, 628 F. Supp. 3d at 176. In rejecting Nassif‘s overbreadth claim, the district court held that the interior of the Capitol building is a nonpublic forum “where the government may limit First Amendment activities so long as the restrictions ‘are reasonable in light of the purpose [served by] the forum and are viewpoint neutral.‘” Id. at 180 (quoting Cornelius v. NAACP Leg. Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)). The court reasoned that, in enacting section
The case proceeded to a bench trial. The district court found Nassif guilty on all four counts and sentenced him to a total of seven months’ imprisonment followed by 12 months of supervised release. That sentence was below the guidelines range of 10 to 16 months, which the court calculated based on Nassif‘s total offense level of 12 and his Category I criminal history. The district court, over Nassif‘s objection, computed the offense level by reference to the Guideline for “obstructing or impeding officers.”
DISCUSSION
Nassif raises three issues on appeal. First, he seeks vacatur of his conviction for demonstrating inside the Capitol, arguing that section
We review de novo Nassif‘s challenges to the facial constitutionality of
I.
First enacted in 1967 to address “a substantial increase in the number of incidents of excessive disruption or disorderly conduct” in the Capitol buildings, H. Rep. 90-745, at 1 (Oct. 9, 1967), section
Nassif challenges section
A.
We begin with Nassif‘s overbreadth challenge. The overbreadth doctrine instructs a court to hold a statute facially unconstitutional if it prohibits a substantial amount of protected speech, even if the statute “has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.” United States v. Hansen, 599 U.S. 762, 769 (2023). But “[b]ecause it destroys some good along with the bad, ‘invalidation for overbreadth is strong medicine that is not to be casually employed.‘” Id. at 770 (alterations and quotation marks omitted) (quoting United States v. Williams, 553 U.S. 285, 293 (2008)). Only where the statute‘s overbreadth is “substantial, not only in an absolute sense, but also relative to
Section
Courts use “forum analysis as a means of determining when the Government‘s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.” Cornelius, 473 U.S. at 800. Speech restrictions in a public forum must be “content-neutral” and “narrowly tailored to serve a significant governmental interest,” and “leave open ample alternative channels of communication.” Cmty. for Creative Non-Violence v. Kerrigan, 865 F.2d 382, 387 (D.C. Cir. 1989). In a nonpublic forum, our review is “much more limited.” Int‘l Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 679 (1992). There, a restriction on speech “need only be reasonable, as long as the regulation is not an effort to suppress the speaker‘s activity due to disagreement with the speaker‘s view.” Id.
We therefore assess whether the Capitol buildings are a public forum before considering whether section
1.
Nassif argues that some portion of the Capitol buildings, including the Rotunda at the center of the historic Capitol, is a public forum because it has been “traditionally publicly accessible.” Nassif Br. 15.
The quintessential “traditional” public fora are streets, sidewalks, and parks, which, “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45 (1983) (quoting Hague v. Comm. for Indust. Org., 307 U.S. 496, 515 (1939)). The character of these sites, “without more,” supports treating them as public, United States v. Grace, 461 U.S. 171, 177 (1983), unless the government can establish that certain streets, sidewalks, or parks have a “specialized use” that “outweigh[s] the attributes that would otherwise mark them as public forums.” Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992); see also Lederman v. United States, 291 F.3d 36, 46 (D.C. Cir. 2002) (“[S]ome areas within a large public forum may be nonpublic if their ‘use’ is ‘specialized.‘” (quoting Henderson, 964 F.2d at 1182)).
We have long recognized the Capitol grounds—a series of lawns, only partially walled, surrounding the Capitol buildings—as a traditional public forum. Lederman, 291 F.3d at 39, 41-42. Indeed, “[t]here is no doubt that the Capitol Grounds are a public forum.” Cmty. for Creative Non-Violence, 865 F.2d at 387. The same is true of the sidewalks wrapping around the Capitol, which are “continually open, often uncongested, and . . . a place where people may enjoy the open air or the company of friends and neighbors.” Lederman, 291 F.3d at 44 (quoting Heffron v. Int‘l Soc‘y for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981)).
The Capitol buildings themselves, as defined in
Even government property that does not resemble a street, sidewalk, or park may be rendered a public forum by “specific designation (rather than tradition) when ‘government property that has not traditionally been regarded as a public forum is intentionally opened up’ as a place for expressive activity.” Hodge, 799 F.3d at 1157 (quoting Pleasant Grove v. Summum, 555 U.S. 460, 469 (2009)). The government need not indefinitely keep a designated public forum open to the public, but “as long as it does so it is bound by the same standards as apply in a traditional public forum.” Perry Educ. Ass‘n, 460 U.S. at 46.
The “touchstone for determining whether government property is a designated public forum is the government‘s intent in establishing and maintaining the property.” Stewart v. D.C. Armory Bd., 863 F.2d 1013, 1016 (D.C. Cir. 1998). It is not enough that “members of the public are permitted freely to visit” a government building. Lee, 505 U.S. at 680 (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)). Nor does the government “create a public forum by inaction or by permitting limited discourse” therein. Cornelius, 473 U.S. at 802. We
In discerning whether a public school district intended to designate its internal mail system as a public forum, the Supreme Court in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), looked for indications in the record that “permission ha[d] been granted as a matter of course to all who s[ought] to distribute material” via that internal mail system. Id. at 47. Finding none, the Court held that the school mailboxes and interschool delivery system were not any kind of public forum. Id. In Stewart v. District of Columbia Armory Board, 863 F.2d 1013 (D.C. Cir. 1988), by contrast, we held that the plaintiffs adequately alleged that RFK Stadium was a designated public forum potentially open to banners of all kinds, not only those related to the games it hosted. In so holding, we recognized that “the question of whether RFK Stadium is a public forum is inherently a factual one,” and that the ultimate result might differ depending on whether plaintiffs could adduce evidence to establish that “the government did indeed through its practices and/or policies ‘intend’ to create a public forum.” Id. at 1019. We noted that evidence relevant to that inquiry could include “the compatibility of the commercial purposes of the Stadium with expressive activity, a consistent pattern of such activity at the
The record before us contains no evidence that Congress intended to open any portion of the Capitol buildings as a public forum for assembly and discourse. To be sure, expressive activity by people other than members and staff happens every day in the Capitol buildings—in constituent meetings, lobbying sessions, committee hearings, and the like. But the communications that take place in the Capitol are typically “scheduled and controlled by Senators or Representatives, and they may or may not be open to observation or (less frequently) participation by the public.” Bynum v. U.S. Capitol Police Bd., 93 F. Supp. 2d 50, 56 (D.D.C. 2000); cf. City of Madison, Joint Sch. Dist. No. 8 v. Wis. Emp. Rels. Comm‘n, 429 U.S. 167, 175 (1976) (explaining that, where a state board of education “opened a forum for direct citizen involvement,” it could not justify excluding specific teachers based on the concerns they sought to express). Entry to the Capitol buildings is, moreover, strictly regulated: A visitor wishing to tour the historic Capitol Building that encompasses the Capitol Rotunda, for example, must book a tour, enter through the Capitol visitor center between 8:30 a.m. and 4:30 p.m., proceed through security, and subject all carried items to inspection. See Frequently Asked Questions, visitthecapitol.gov.1 Against that backdrop, Nassif has not established that the Capitol buildings are, by policy or practice, generally open for use by members of the public to voice whatever concerns they may have—much less to use for protests, pickets, or demonstrations.
Nassif cites two examples of “historic demonstrations of monumental importance” inside Capitol buildings that he says
Moreover, the congressional work the Capitol buildings are designed to house is not so naturally compatible with the presence of parades, demonstrations, and pickets therein to show, on that basis alone, that Congress intended to designate the Capitol as public forum. Cornelius, 473 U.S. at 802-03. We have held that “‘the primary purpose for which the Capitol was designed—legislating‘—is entirely consistent ‘with the existence of all parades, assemblages, or processions which may take place on the grounds‘” of the Capitol complex. Lederman, 291 F.3d at 42 (emphasis added) (quoting Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575, 584 (D.D.C.), aff‘d mem., 409 U.S. 972 (1972)). But that designation does not extend to the interior of the buildings, which serve as a workplace for Senators, Representatives, and their staffs. The park-like Capitol grounds are uniquely situated to host “the marketplace of ideas.” Widmar, 454 U.S. at 269 n.5. But inviting myriad parades, demonstrations, and pickets inside the Capitol buildings would disrupt the very legislative process that the buildings are designed to accommodate.
In a last effort to establish that some portion of the Capitol buildings is a public forum, Nassif cites a decision of the D.C. Court of Appeals for the proposition that “the United States
The D.C. Court of Appeals in Wheelock invalidated misdemeanor convictions of two demonstrators arrested in the Capitol Rotunda, making general reference to the “United States Capitol” as “a place traditionally open to the public.” Id. at 506. Like Berg, however, Wheelock did not cite any historical evidence of the Rotunda‘s openness to public discourse. Instead, Wheelock relied on Kroll v. United States, 590 F. Supp. 1282 (D.D.C. 1983), rev‘d on other grounds, 847 F.2d 899 (D.C. Cir. 1988), for the notion that “access” to the Capitol “cannot be denied broadly or absolutely.” See 552 A.2d at 506. Kroll, for its part, considered only the public-forum status of the historic Capitol‘s exterior steps, without opining on the status of any interior portion of the Capitol, id. at 1289-90. The statement Nassif quotes from Berg, then, seems to derive more from an imprecise daisy chain of reasoning than from a considered assessment of the Capitol Rotunda‘s history.
We do not foreclose the possibility that a future case might find that there is a designated public forum somewhere inside the Capitol buildings. The record before us, however, does not support such a characterization. Indeed, in the proceedings
2.
Treating the Capitol buildings as a nonpublic forum, we next assess whether the prohibition on parading, demonstrating, and picketing within those buildings survives the “limited review” governing speech restrictions in a nonpublic forum. Hodge, 799 F.3d at 1162 (internal quotation marks omitted). So long as the restrictions on speech are not viewpoint-based, that review requires only that we determine whether the regulation is “reasonable” in light of the purpose of the forum. Lee, 505 U.S. at 679; see also Cornelius, 473 U.S. at 806.
There is no serious assertion that section
The question, then, is whether the restriction is reasonable in light of the government‘s interest in preserving the Capitol buildings for “the use to which [they are] lawfully dedicated.” Perry Educ. Ass‘n, 460 U.S. at 46. As the government itself describes the relevant interest, section
Against that backdrop, Congress reasonably sought to prevent the hundreds of demonstration groups that descend on the nation‘s capital each year from treating the Capitol buildings as a sheltered extension of the ample public fora provided on the adjacent parklands. See Lederman, 291 F.3d at 39 (noting that the grounds immediately surrounding the Capitol alone span approximately sixty acres). Like any
3.
The core of Nassif‘s objection is that, even if Congress may constitutionally restrict some parades, pickets, and demonstrations in the Capitol buildings, section
Nassif‘s premise that the statute reaches a substantial amount of speech protected by the First Amendment rests on a strained, maximalist reading of the statutory text. He highlights broad definitions of “demonstration” as “an outward expression or display” or “a public display of group feelings toward a person or cause.” Nassif Br. 7 (citing an unidentified edition of “Merriam-Webster“). Based on those definitions, he asserts that the statute imposes an “outright ban on expressive activity” that he insists covers expression entirely unlike parades or pickets. Reply Br. 16 (quoting Lederman, 89 F. Supp. 2d at 41). He contends, for example, that the statute prohibits lawmakers from wearing red ribbons for AIDS Awareness Week and precludes Capitol visitors from bowing their heads in unison to recognize victims of a tragedy. Nassif Br. 7; Reply Br. 16; see also Reply Br. 11-12. Even if that broad prohibition would “incidentally prevent some disruptions,” Nassif argues, it sweeps in too much protected
A categorical prohibition on all expressive activity within Capitol buildings would likely not pass constitutional muster even under the relaxed standard applicable to a nonpublic forum. For example, treating open space inside the Los Angeles airport as a public forum, the Supreme Court invalidated a sweeping prohibition on all “First Amendment activities,” including talking, reading, or wearing campaign buttons or symbolic clothing. Bd. of Airport Comm‘rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). Such a ban could not be justified “even if [the airport] were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.” Id. at 575.
Contrary to Nassif‘s characterization, section
In a nonpublic forum, Congress has the latitude to prohibit demonstrations beyond those that are most likely to disrupt the business of Congress; it may legislate to prevent disruptive activity without requiring case-specific proof of actual or imminent disruption. Indeed, “Congress may prophylactically frame prohibitions at a level of generality as long as the lines it draws are reasonable, even if particular applications within those lines would implicate the government‘s interests to a greater extent than others.” Hodge, 799 F.3d at 1167; see also Cornelius, 473 U.S. at 809. “[R]estrictions of expressive activity in a nonpublic forum need not satisfy any least-restrictive-means threshold, and a ‘finding of strict incompatibility between the nature of the speech . . . and the functioning of the nonpublic forum is not mandated.‘” Hodge, 799 F.3d at 1166 (quoting Cornelius, 473 U.S. at 808-09). In this context, Congress was entitled to decide that opening the Capitol doors to parading, demonstrating, or picketing would detract from the efficacy of the Capitol buildings as the workplaces of the legislative branch.
In rejecting Nassif‘s facial challenge, we do not foreclose future as-applied challenges to section
B.
Nassif also challenges section
Significantly, Nassif does not claim the statute is vague as applied to his own conduct at the Capitol on January 6, 2021. Nor could he. Under any plausible definition of the term, Nassif was “demonstrating” when he joined a group of hundreds of people, many carrying signs, banners, or flags, who shouted or chanted as they descended on and entered into the Capitol seeking to halt the certification of the 2020 election. Nassif himself led a series of call-and-response chants and pushed his way into the Capitol Rotunda with a mob that forced open the doors and overwhelmed the police.
Nassif‘s own conduct forecloses his vagueness challenge, because an individual “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law
In sum, Nassif‘s vagueness claim fails because section
We turn next to Nassif‘s sentencing challenges.
A.
Nassif first claims that the district court applied the wrong sentencing guideline to his conviction on Count Two.
Count Two charged Nassif with disorderly and disruptive conduct in a restricted building in violation of
“To arrive at a Guidelines sentence, a district court must first determine,” by reference to the Guidelines’ statutory index, “the offense guideline section from Chapter Two [of the Sentencing Guidelines] applicable to the offense of conviction.” United States v. Flores, 912 F.3d 613, 621 (D.C. Cir. 2019). As relevant here, the Guidelines’ statutory index references two offense guideline sections applicable to
Where, as here, the statutory index references more than one applicable guideline for a particular statute, the Sentencing
Nassif challenges that decision on appeal, arguing that section
But section
Section
It is not determinative, then, that some of the statutory provisions cross-referenced by section
B.
Nassif also contends that, in imposing his sentence, the district court unconstitutionally penalized him for going to trial rather than accepting a guilty plea. He bases this claim on a short exchange between the district court and defense counsel at his sentencing hearing. In his sentencing memorandum and at the ensuing hearing, Nassif highlighted that many other January 6 misdemeanants had received sentences of probation or one-to-four-month sentences of incarceration, even where the government had requested much higher sentences. In imposing Nassif‘s sentence, the court noted that it had “reviewed a lot of other cases, including the chart” of January 6 misdemeanor sentences that Nassif provided. The court distinguished Nassif‘s proposed comparator misdemeanants on the ground that “[m]ost of those cases are guilty pleas, and, therefore, do not involve a situation like [Nassif‘s] where there‘s no acceptance of responsibility, no remorse, and [where] the defendant . . . testified . . . inaccurately or falsely” at his trial. App. 394. At the time, Nassif objected that the court “cannot penalize somebody for going to trial.” App. 383. The court responded: “Well, they are penalized for going to trial in terms of the acceptance of responsibility.” App. 383. Nassif renews his objection on appeal, arguing that his seven-month sentence is an unconstitutional trial penalty.
The record does not support that claim. The district court correctly observed that, unlike the misdemeanants Nassif identified whose sentences were lower, Nassif did not accept responsibility, so was not afforded the corresponding two-point downward adjustment to his sentencing range. App. 383; see
Nassif counters that the district court in fact “considered that Mr. Nassif had gone to trial in addition to the lack of acceptance of responsibility,” Nassif Br. 29 (emphasis added), because, in preparing to impose his sentence, the court characterized Nassif as a defendant who “went to trial, who testified falsely, . . . and who has shown not only no acceptance of responsibility but no remorse,” App. 387. Read in context, the district court‘s reference to Nassif going “to trial” is the backdrop for his false testimony and his refusal to accept responsibility. And, just as the district court reasonably denied Nassif the two-point downward adjustment for acceptance of responsibility, it permissibly imposed a two-point sentencing enhancement because Nassif “willfully obstructed or impeded . . . the administration of justice” when he testified falsely at trial.
* * *
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.