UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 21-719 (JEB)

CYNTHIA BALLENGER and CHRISTOPHER PRICE,

Defendants.

MEMORANDUM OPINION

Awaiting trial on a four-count Information that charges them with crimes in relation to

the January 6, 2021, insurrection at the United States Capitol, Defendants Cynthia Ballenger and

Christopher Price now move to dismiss the case against them. Although their Motion is stacked

with different legal theories, all are either infirm or premature. The Court, accordingly, will

deny it.

I. Background

According to the Affidavit filed in support of the Complaint in this matter, Ballenger and

Price traveled from their home in Emmitsburg, Maryland, to D.C. on January 6. See ECF No. 1-

1 (Aff.) at 2. They entered the Capitol at 3:22 p.m. and remained there for seven minutes. Id. at

3. Before entering, Price sent a text message stating, “We’re just taking over the capitol.” Id. at

6. He then sent one saying, “Broken glass everywhere” and “Climbing through the window.”

Id. A few minutes later, he texted, “Worth fighting for Trump.” Id. at 7.

Defendants are charged via Information with four counts: i) Entering and Remaining in a

Restricted Building or Grounds, in violation of

(a)(1); ii) Disorderly and

Disruptive Conduct in a Restricted Building or Grounds, in violation of

(a)(2);

1 iii) Disorderly Conduct in a Capitol Building or Grounds, in violation of

(e)(2)(D); and iv) Parading, Demonstrating, or Picketing in a Capitol Building, in

violation of

(e)(2)(G). See ECF No. 38 (Information).

They now move to dismiss the Information. See ECF No. 54 (MTD).

II. Legal Standard

Prior to trial, a defendant may move to dismiss an indictment or information on the basis

that there is a “defect in the indictment or information” including a “failure to state an offense.”

Fed. R. Crim P. 12(b)(3)(B)(v). “The operative question is whether the allegations, if proven,

would be sufficient to permit a jury to” conclude that the defendant committed the criminal

offense as charged. United States v. Sanford, Ltd.,

(D.D.C. 2012);

United States v. Bowdoin,

(D.D.C. 2011). Like an indictment, an

information “is sufficient if it, first, contains the elements of the offense charged and fairly

informs a defendant of the charge against which he must defend, and, second, enables him to

plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v.

United States,

(1974). A court accordingly cabins its analysis to “the face of

the indictment and, more specifically, the language used to charge the crimes.” United States v.

Sunia,

(D.D.C. 2009) (emphases and internal quotation marks omitted).

III. Analysis

In seeking dismissal, Defendants raise a series of arguments, which the Court addresses

in turn.

A. Sufficiency of Information

Ballenger and Price spend much of their Motion contending that the Information does not

lay out in detail the facts underlying each of the charged offenses. See, e.g., MTD at 9–16. This

2 is not necessary. “It is generally sufficient that an indictment [or information] set forth the

offense in the words of the statute itself, as long as ‘those words of themselves fully, directly,

and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to

constitute the offence intended to be punished.’” Hamling,

(quoting United

States v. Carll,

(1882)). “[T]o be sufficient, [it] need only inform the

defendant of the precise offense of which he is accused so that he may prepare his defense and

plead double jeopardy in any further prosecution for the same offense.” United States v.

Verrusio,

(D.C. Cir. 2014). The Information in this case does precisely this,

setting out in clear and unambiguous terms the four offenses with which Defendants are charged.

While an indictment or information need only allege “the essential facts constituting the

offense charged,” Fed. R. Crim. P. 7(c)(1), a defendant may request additional information

through a bill of particulars “to ensure that the charges brought against [him] are stated with

enough precision to allow [him] to understand the charges, to prepare a defense, and perhaps also

to be protected against retrial on the same charges.” United States v. Butler,

(D.C. Cir. 1987). Unlike a Rule 12 motion, the court may look beyond the indictment or

information to determine, in its discretion, whether to direct the Government to file a bill of

particulars. Id.; see also Fed. R. Crim. P. 7(f). If discovery would provide a defendant with

sufficiently precise information, however, then a bill of particulars is not warranted. United

States v. Mosquera-Murillo,

(D.D.C. 2015). In this case, no bill of

particulars is necessary given the voluminous discovery provided, including videos and still

photographs. Defendants have sufficient understanding of the charges against them and the

bases therefor.

3 B. Legal Challenges

Defendants also raise multiple legal challenges to various counts, almost all of which

have been rejected by other courts in this district in relation to January 6 defendants.

First, they assert that only the U.S. Secret Service, not the U.S. Capitol Police, can

designate restricted areas under

. See MTD at 16–19. This Court, though, has

previously held, “The text [of § 1752] plainly does not require that the Secret Service be the

entity to restrict or cordon off a particular area.” United States v. Mostofsky,

,

28 (D.D.C. 2021).

Ballenger and Price also believe that they did not violate § 1752 because Vice President

Pence was not “temporarily visiting” the Capitol on January 6. See MTD at 19–21. Section

1752(c)(1)(B) defines “restricted buildings or grounds,” in relevant part, as “any posted,

cordoned off, or otherwise restricted area . . . of a building or grounds where the President or

other person protected by the Secret Service is or will be temporarily visiting” (emphasis added).

Many judges in this district have disagreed with Defendants’ suggestion that Vice President

Pence was not temporarily visiting the Capitol, given that this term logically describes what he

was doing on January 6. See ECF No. 64 (Gov’t Opp.) at 12 (collecting myriad cases).

Defendants next raise overbreadth and vagueness challenges under the First and Fifth

Amendments to the charge under

(e)(2)(G). See MTD at 34–36. The Court has

already rejected those in a recent Order relating to their stand-alone Motion to Dismiss Count IV.

See ECF No. 70.

Ballenger and Price also maintain that the Superseding Information violates the

prohibitions against double jeopardy and multiplicity. See MTD at 36–38. “The applicable rule

is that, where the same act or transaction constitutes a violation of two distinct statutory

4 provisions, the test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other does not.” Blockburger v. United

States,

(1932). “A single act may be an offense against two statutes; and if

each statute requires proof of an additional fact which the other does not, an acquittal or

conviction under either statute does not exempt the defendant from prosecution and punishment

under the other.”

(citing Morey v. Commonwealth,

(1871)). Here,

§ 1752(a)(1) criminalizes “enter[ing] or remain[ing] in any restricted building or grounds without

lawful authority,” while (a)(2) penalizes “engag[ing] in disorderly or disruptive conduct in, or

within such proximity to, any restricted building or grounds.” As a result, the former is not a

lesser-included offense of the latter since violating (a)(1) requires one to be in the restricted area,

while (a)(2) does not; and violating (a)(2) requires that one engage in disruptive conduct, while

the same is not true for (a)(1). Similarly,

(e)(2)(G), which forbids one to

“parade, demonstrate, or picket in any of the Capitol Buildings,” is not duplicative of § 1752

since the former does not require entry into or proximity to a restricted area, while the latter

does; in addition, § 1752(a)(2) requires disorderly or disruptive conduct, which § 5104 does not.

Finally, Defendants’ Motion is replete with other contentions that the Affidavit does not

sufficiently establish violations of certain counts. See, e.g., MTD at 24–25, 28–29. While

Ballenger and Price largely rely on the facts contained in the Affidavit, the Government is not

limited to those facts at trial. Indeed, it may introduce any admissible evidence that it wishes,

whether contained in the Affidavit or not. It is thus premature for the Court to rule on

Defendants’ challenges without seeing the evidence. After the Government rests, Defendants are

welcome to move for judgment of acquittal under Federal Rule of Criminal Procedure 29 and,

5 depending on what the evidence is, make some of the same arguments they advance here. That

will be the time for the Court to decide these issues.

IV. Conclusion

For the foregoing reasons, the Court will issue a contemporaneous Order denying

Defendants’ Motion to Dismiss.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 26, 2022

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