UNITED STATES OF AMERICA, APPELLEE v. SAMIRA JABR, APPELLANT
No. 19-3093
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2021 Decided July 9, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:18-cr-00105-1)
A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Elizabeth H. Danello, and Michael J. Friedman, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, WILKINS, Circuit Judge, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN,
However ill-conceived Jabr‘s plan to attain an audience with the President may
The government charged Jabr under a statute that bars entering the “White House or its grounds” without lawful authority. But the government does not dispute on appeal that the Treаsury Building lies outside the “White House grounds” for purposes of that statute. So whereas Jabr had mistakenly thought the Treasury Building was the White House, the government mistakenly thought the Treasury Building was part of the White House grounds. And because Jabr‘s alleged conduct of attempting to enter the Treasury Building did not violate the statute, the district court acquitted Jabr of committing the charged offense. But the court thеn found her guilty of attempting to commit the charged crime, explaining that the statute prohibits attempted entries onto the White House grounds as well as successful ones.
Jabr challenges her conviction on a number of grounds, including a contention that the flaw in the charge against her left the district court without jurisdiction. We reject Jabr‘s various challenges to her conviction. But we vacate the restitution order entered against her, which the government now agrees was erroneous.
I.
On April 20, 2018, having followed GPS directions to the White House, Samira Jabr parked her car on 15th Street N.W. in D.C., next to the U.S. Treasury Building. She thought she had been victimized by a conspiracy between law enforcement and casinos she had visited en route to D.C. from California, and “she wanted to speak with President Trump to ‘let him know what‘s going on.‘” United States v. Jabr, No. 18-cr-105, slip op. at 4 (D.D.C. May 16, 2019), J.A. 206 (quoting interview).
Jabr exited her car on 15th Street and scaled the fence lining the eastern perimeter of the Treasury Building. She ran across the building‘s courtyard with her head ducked down because “she saw a cop car parked.” Id. (quoting interview). She then jumped over a second, shorter fence “that was about the height of her waist and locked with a pаdlock.” Id. Once on the other side of the second fence, she ran up a set of stairs to the locked door of the Treasury Building. There, she was arrested at gunpoint by Secret Service officers.
Jabr gave a recorded interview, which was admitted into evidence at trial. In the interview, she stated that she “knew that nobody was supposed to go up there,” but she thought she would be safer in jail than in the hands of the people she believed were conspiring against her. Id. at 5, J.A. 207 (quoting interview). When asked if she had known that the building she was running towards was the Treasury Building and not the White House, Jabr said, “No, the female cop told me, she‘s like, ‘But you know that‘s not the White House right?’ and I was like, well I feel silly now.” Id. at 6, J.A. 208 (quoting interview).
The government charged Jabr in an information with one count of “Entering or Remaining in [a] Restricted Building or Grounds, in violation of
Jabr waived her right to a jury, and the district court presided over a bench trial. At the close of the government‘s case, Jabr moved for a judgment of acquittal. She first argued that the Treasury Building was not part of the “White House or its grounds” covered by the statute, and that the government thus had presented no evidence that she had entered a prohibited аrea under the statute. Second, she contended that the government had failed to show that she was “without lawful authority” to enter the area, as is required by the statute. Later, she argued that the district court lacked jurisdiction over the case because the “areas named in the information are not within the specific Congressional definition.” Defendant‘s Reply Re: Motion for Judgment of Acquittal at 3, United States v. Jabr, No. 18-cr-105 (D.D.C. Sept. 10, 2018), J.A. 147.
The district court issued an opinion in which it both addressed Jabr‘s legal challenges and fulfilled its factfinding role in the bench trial. The court initially held that it had jurisdiction over the case because the information charged a federal crime. The court then determined that, as a matter of law, the government had failed to prove a completed violation of
The district court then took up the government‘s alternative contention that, because the statute also criminalized attempts, see
The district court then “transition[ed] to its role as factfinder” on the attempt charge. Jabr, slip op. at 35, J.A. 237. The court found “beyond a reasonable doubt that Ms. Jabr is guilty of attempting to violate
The court sentenced Jabr to time served followed by 12 months of supervised release. The court also granted thе government‘s request to order her to pay restitution in the amount of $480 for a wallet she had stolen on her way to D.C. After Jabr contested the restitution order, the government declined to defend it. The court then determined that it lacked continuing
II.
On appeal, Jabr argues that her conviction should be vacated for three reasons. First, she contends that the information did not allege a federal crime. Second, she submits that the district court impermissibly effected a constructive amendment of the information. Third, she argues that there was insufficient evidence to show that she had acted “without lawful authority.”
A.
We begin with Jabr‘s argument that the charging instrument against her here—an information—did not adequately allege a federal offense. She frames that objection primarily as a challenge to the district court‘s jurisdiction.
The federal criminal code vests district courts with original and exclusive jurisdiction over “all offenses against the laws of the United States.”
Jabr‘s jurisdictional objection is grounded in her contention that the acts alleged in the information did not constitute a federal offense. Recall that
The jurisdictional inquiry, however, asks only whether the information alleges the violation of a federal crime, not whether the facts it alleges in fact constitute such a violation. See Fahnbulleh, 752 F.3d at 476. The latter question can matter when we cоnsider whether an information or indictment is defective—that is, whether the charging instrument “does not charge all the elements of the offense.” United States v. Pickett, 353 F.3d 62, 68 (D.C. Cir. 2004); see
We need not decide whether the information in this case was defective in that regard because any defect was harmless. The Federal Rules require us to “disregard[]” any “error, defect, irregularity, or variance that does not affect substantial rights.”
Even assuming arguendo that any defect in Jabr‘s information would be subject to that stricter standard, the error was harmless. The district court, in its role as factfinder, specifically found that Jabr was guilty of attempted trespass “of the ‘White House or its grounds.‘” Jabr, slip op. at 36, J.A. 238. The court thus made its finding of guilt under a proper conception of the restricted area under the statute, rather than the broader area described in the information. And indеed, the court made that finding only after examining at length the difference between the area listed in the statute and that described in the information. In addition, Jabr had ample notice of the possibility of an attempt conviction given that the government had argued for one in an initial oral argument before the district court, in a written brief on the issue, and in a second oral argument. And Jаbr does not (and could not) deny that the statute by its terms encompasses attempts. See
B.
Jabr next contends that, by convicting her of attempted entry onto the White House grоunds when she was charged only with the completed crime of entry, the district court constructively amended the information, which Jabr argues is impermissible. We perceive no error in the district court‘s consideration of an attempt charge.
The circumstances in which a charging document may be amended vary depending on whether the charging instrument is an indictment or an information. In thе case of an indictment, our court “recognizes two types of impermissible divergences between indictment and proof.” United States v. Lorenzana-Cordon, 949 F.3d 1, 4 (D.C. Cir. 2020). The first, called
Here, Jabr seeks to apply the notion that constructive amendments of indictments are impermissible. This case, however, involves an information, not an indictment. And in the case of an information, the district court “may permit an information to be amended at any time before the verdict or finding,” “[u]nless an additional or different offense is charged or a substantial right of the defendant is prejudiced.”
Jabr thus errs in relying on the constructive-amendment prohibition applicable to indictments. Assuming that the district court‘s decision to consider (and ultimately convict on) an attempt theory amounted to an amendment of the information, the amendment was permissible.
First, the amendment occurred “before the verdict or finding.”
Second, the amendment did not charge “an additional or different offense.”
Finally, the amendment did not prejudice “a substantial right of the defendant.”
It is true that the language of Rule 7(e), in stating that “the court may permit аn information to be amended,” appears to contemplate the court‘s permitting an amendment by the prosecution rather than amending the charge of its own accord, as occurred here. But any procedural irregularity in that regard worked no prejudice against Jabr, for the same reasons that, as
C.
Jabr next contends that there was insufficient evidence to prove beyond a reasonable doubt that she was “without lawful authority” to “enter” the White House or its grounds,
A rational trier of fact could have found, based on all the evidence, that Jabr lacked lawful authority to enter the White House or its grounds. As an initial matter, a rational trier of fact could presume as a matter of common knowledge that an ordinary citizen without any known authorization would not be allowed inside the White House or on its grounds. And indeed, Jabr acknowledged, in statements admitted into evidence, that she “knew that nobody was supposed to go up there.” Jabr, slip op. at 5, J.A. 207 (quoting interview). Jabr‘s actions corroborate her acknowledgment. Not only did she need to scale two fences, one of whiсh contained a padlock, but once she got past the fences, she ran with her head ducked down because she “saw a cop car parked.” Id. at 4, J.A. 206 (quoting interview). In light of that evidence, a rational trier of fact could readily find beyond a reasonable doubt that Jabr attempted to enter the White House grounds “without lawful authority.”
D.
Jabr lastly contends, and the government now concedes, that the restitution order imposed against her by the district court (at the government‘s request) was entered in error. The district court itself would have vacated its restitution award if it thought it had authority to do so. We agree that the award was erroneous.
Restitution may be imposed only when authorized by statute. United States v. Papagno, 639 F.3d 1093, 1096 (D.C. Cir. 2011). The statute that would authorize restitution for the crime in this case,
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For the foregoing reasons, we vacate the district court‘s restitution order and we affirm the judgment in all other respects.
So ordered.