UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 23-429 (CKK) JOSEPH VAGLICA, Defendant.

MEMORANDUM OPINION (September 19, 2024)

Defendant Joseph Vaglica is one of hundreds of individuals charged with federal crimes

for alleged conduct during the insurrection at the United States Capitol on January 6, 2021. See

ECF Nos. 1-1, 9. This Court summarized Vaglica’s alleged role in the events of that day in a

previous [37] Memorandum Opinion and Order. For this conduct, the Government charged

Vaglica by Information with—among other misdemeanor offenses—Entering and Remaining in a

Restricted Building, in violation of

(a)(1), and Disorderly and Disruptive Conduct

in a Restricted Building, in violation of

(a)(2). See ECF No. 9.

The parties disagree about the mens rea required to commit these two offenses.

Specifically, they disagree about whether each offense requires that Vaglica knew that a “person

protected by the Secret Service” was or would be present in the relevant “restricted building or

grounds.” Upon consideration of the pleadings,1 the relevant legal authority, and the entire record,

the Court concludes that knowledge of a Secret Service protectee’s presence is an element of each

of these two charged offenses.

1 The Court’s consideration has focused on Defendant Vaglica’s Brief Regarding Mens Rea Requirement in

(a), Def.’s Br., ECF. No. 44; the Government’s Response and Memorandum on the Mens Rea Requirement under Counts One and Two, Gov’t Br., ECF No. 50, the Government’s Proposed [Jury] Instruction for the Elements, ECF No. 42-1, Vaglica’s Proposed Jury Instructions, ECF No. 43, the Statement of Facts in support of the Government’s Criminal Complaint, ECF. No. 1-1; and the Information, ECF No. 9.

1 I. BACKGROUND

Section 1752(a) of Title 18 makes it an offense to “knowingly” engage in certain prohibited

conduct in a “restricted building or grounds.”

(a)(1)–(2). The phrase “restricted

building or grounds” is a term of art defined elsewhere in Section 1752 to mean “any posted,

cordoned off, or otherwise restricted area” in which one of three triggering conditions is satisfied.

§ 1752(c). One of those triggering conditions is at issue in Counts One and Two the [9]

Information in this case: that “the President or other person protected by the Secret Service is or

will be temporarily visiting.” Id. § 1752(c)(1)(B).

The Government and Vaglica disagree about whether, to convict Vaglica on Counts One

and Two, the jury must find beyond a reasonable doubt that Vaglica knew that a “person protected

by the Secret Service”—such as former Vice President Michael R. Pence—was or would be

present at the U.S. Capitol at the time of the charged conduct. Vaglica contends that such

knowledge is an element of the offense. Def.’s Br. at 1. The Government reads Section 1752’s

mens rea requirement more narrowly. Gov’t Br. at 1–2. In the Government’s view, the jury need

only find that Vaglica knowingly engaged in the conduct described in

(a); that

Vaglica knew the area was “posted, cordoned off, or otherwise restricted”; and that a “person

protected by the Secret Service” was in fact present.

Consistent with their respective positions,

Vaglica and the Government have proposed differing jury instructions on the elements of the

Section 1752 offenses charged in Counts One and Two. See ECF Nos. 42-1, 43.

II. ANALYSIS

Courts in this District have “split nearly down the middle” on the issue of whether offenses

under Section 1752(a) require knowledge of a Secret Service protectee’s presence. See United

States v. Easterday, No. 22-cr-404, __ F. Supp. 3d __,

, at *10 (D.D.C. Apr. 8,

2024) (JEB) (collecting cases). Several have concluded, consistent with Vaglica’s position, that

2 knowledge of the presence of a Secret Service protectee is an element of the offense for which the

Government must prove that the defendant acted “knowingly.” See, e.g., United States v. Samsel,

No. 21-cr-537, ECF No. 345, at 32–33 (D.D.C. Feb. 9, 2024) (JMC); United States v. Groseclose,

No. 21-cr-311, __ F.Supp.3d __,

, at *9 (D.D.C. Jan. 5, 2024) (CRC); United

States v. Elizalde,

, 254 (D.D.C. Dec. 1, 2023) (CJN); United States v. Hostetter,

No. 21-cr-391,

, at *1, *4 (D.D.C. July 13, 2023) (RCL). Several others have

held, consistent with the Government’s position, that the presence of a Secret Service protectee is

not an element of the offense, concluding instead that such presence is merely a jurisdictional hook

to which Section 1752’s mens rea requirement does not attach. See, e.g., Easterday,

, at *10; United States v. Meacham, No. 23-287 (D.D.C. June 18, 2024) (JDB) (oral

ruling); United States v. Daniele, No. 23-cr-143 (D.D.C. June 14, 2024) (APM) (oral ruling);

United States v. Warnagiris, No. 21-cr-382,

, at *2 (D.D.C. Mar. 28, 2024)

(PLF); United States v. Chambers, No. 23-cr-300, ECF No. 45 at 13–14 (D.D.C. Mar. 14, 2024)

(DLF); United States v. Kenyon, No. 21-cr-101 (D.D.C. Mar. 12, 2024) (ABJ) (oral ruling); United

States v. Nester, No. 22-cr-183-2 (D.D.C. Mar. 5, 2024) (TSC) (oral ruling); United States v.

Carnell, No. 23-cr-139,

, at *14 (D.D.C. Feb. 15, 2024) (BEH); United States v.

Rhine, No. 21-cr-687, ECF No. 104, at 4 (D.D.C. Apr. 24, 2023) (RC); United States v. Griffin,

No. 21-cr-092, ECF No. 106, at 330–32 (D.D.C. Mar. 22, 2022) (TNM).

Whether a criminal statute’s mens rea attaches to an element of an offense “is a question

of congressional intent.” Rehaif v. United States,

, 228 (2019). Because “statutory

text is the ‘best evidence’ of congressional intent,” the Court begins with the text. Tataranowicz v.

Sullivan,

(D.C. Cir. 1992) (quoting W. Virginia Univ. Hosps., Inc. v. Casey,

(1991)).

3 The text supports Vaglica’s position that the statute’s mens rea of “knowingly” applies to

everything that follows it, including the reference to the presence of a “person protected by the

Secret Service.” See

(a), (c)(1)(B). “[C]ourts 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.” Flores-Figueroa v. United States,

(2009). Similarly,

courts generally presume that “the word ‘knowingly’ applies not just to the statute’s verbs but also

to the object of those verbs.” McFadden v. United States,

(2015). And when a

statute includes an explicit definition of a term, courts interpret the statute by considering the

definition in place of the defined term. Tanzin v. Tanvir,

(2020). Applying these

rules, and incorporating both the definition of “restricted building or grounds” and the relevant

triggering condition into the definitions of the offenses at issue here, Section 1752(a) prohibits

“knowingly” engaging in certain prohibited conduct in “any posted, cordoned off, or otherwise

restricted area” that “the President or other person protected by the Secret Service is or will be

temporarily visiting.”

§ 1752(a), (c)(1)(B). Because the presence of a Secret Service protectee

follows the word “knowingly” and is part of the definition of the object of the offense—that is, the

“restricted building or grounds”—the most natural reading of the text is that the mens rea of

“knowingly” applies to the element that a Secret Service protectee is or will be present.

But the analysis does not end there. Because “congressional intent can be understood only

in light of the context in which Congress enacted a statute and of the policies underlying its

enactment,” the Court must also consider factors beyond the plain text to decide whether the mens

rea of “knowingly” attaches to the presence of a Secret Service protectee. See Tataranowicz,

. Here, the context and policy considerations are mixed but ultimately support the

4 conclusion that Section 1752(a) requires knowledge that a Secret Service protectee is or will be

present in the restricted area at issue.

First among these contextual factors is the “longstanding presumption, traceable to the

common law, that Congress intends to require a defendant to possess a culpable mental state

regarding ‘each of the statutory elements that criminalize otherwise innocent conduct.’” Rehaif,

588 U.S. at 228–29 (quoting United States v. X-Citement Video, Inc.,

(1994)).

The Supreme Court has described this rule as a “presumption in favor of scienter,” meaning “a

presumption that criminal statutes require the degree of knowledge sufficient to ‘mak[e] a person

legally responsible for the consequence of his . . . act or omission.’” Id. at 229 (first alteration in

original) (quoting Scienter, Black’s Law Dictionary (10th ed. 2014)).

This presumption applies not only when a criminal statute is silent on the mens rea required

to commit an offense, but also “with equal or greater force” when Congress has articulated a mens

rea for an offense with multiple elements without specifying how it applies to each element. Id.

Under those circumstances, the general mens rea provision applies “to all the material elements of

the offense, unless a contrary purpose plainly appears.” Id. (quoting Model Penal Code § 2.02(4)

(Am. L. Inst. 1985)). Because Section 1752 is one such statute, the mens rea of “knowingly”

applies to all material elements of the offenses defined in Section 1752(a).

However, not every provision in a criminal statute is a “material” element of the offense.

Id. Some provisions are purely “jurisdictional.” are not subject to the presumption in favor of

scienter. Id. at 230; see also United States v. Feola,

, 677 n.9 (1975) (explaining that

this rule applies to elements that are “jurisdictional only”). Unlike “substantive elements,” which

“describe the evil Congress seeks to prevent,” “jurisdictional elements connect[] the law to one of

Congress’s enumerated powers, thus establishing legislative authority.” Torres v. Lynch,

(2016). The presumption of scienter does not attach to these jurisdictional elements

because they “normally have nothing to do with the wrongfulness of the defendant’s conduct.”

Rehaif, 588 U.S. at 230. For that reason, “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.” Feola,

n.9; see also United States v. Yermian,

, 68–

69 (1984).

There are sound arguments that the presence of a Secret Service protectee is a

“jurisdictional only” element of the offenses defined in Section 1752 and that the presumption in

favor of scienter therefore does not apply to it. Several courts in this District have reached that

conclusion. See, e.g., Carnell,

, at *6, *14; Easterday,

, at

*10. However, based on the text, structure, and history of § 1752, this Court concludes that this

element is substantive, rather than purely jurisdictional.

The question of whether the protectee-presence element is substantive or jurisdictional is

close because, unlike many substantive elements of crimes, the presence of a Secret Service

protectee is not a bright line that “separat[es] legal innocence from wrongful conduct” in the

context of the offenses defined in § 1752(a). See Ruan v. United States,

(2022)

(quoting X-Citement Video, Inc., 513 U.S. at 72–73). The conduct described in Section 1752(a)

would be wrongful regardless of whether the defendant knew that a Secret Service protectee was

present. For example, it is clearly wrongful for a person to “knowingly enter[] or remain[] in” an

area that is “posted, cordoned off, or otherwise restricted” without having “lawful authority to do

so.” See

(a)(1), (c)(1). Local law in the District of Columbia prohibits that

conduct, making it a misdemeanor to enter or remain on any public or private property “against

6 will of the lawful occupant or of the person lawfully in charge thereof . . . without lawful

authority.”

.

However, the presence of a Secret Service protectee is integral to “the evil Congress

[sought] to prevent” when it enacted Section 1752. See Torres,

. The statute

originally protected only the President, which it did in part by making it an offense to “willfully

and 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.”

Stat. 1880, 1891–92 (1971). Congress later amended the statute to expand its protections to

cover any “person protected by the Secret Service.”

Stat 1451 (1982).

Thirty years later, “to correct and simplify the drafting” of the statute, Congress moved the

reference to the President and other Secret Service protectees into a definitional subsection and

expanded the statute’s protections to cover the White House, the residence of the Vice President,

and the grounds of those buildings.

Stat 263 (2012). The House Judiciary

Committee’s report recommending these amendments makes clear that Congress remained

primarily concerned with the protection of the President and Vice President. See H.R. Rep.

No. 112-9, at 2 (2011). The Committee noted that Section 1752, as amended, would help the

Secret Service address trespasses and attempted trespasses “upon the grounds of the White House

or Vice President’s residence or, worse, breaches [of] the White House or Vice President’s

residence itself.”

Without this statute, the committee explained, the Secret Service would be

forced to “rely upon a provision in the District of Columbia Code, which addresses only minor

misdemeanor infractions,” to address those serious offenses.

This history demonstrates that throughout the evolution of Section 1752, Congress has

been principally concerned with punishing and deterring trespasses that threaten the safety of

7 Secret Service protectees, rather than with preventing trespasses into restricted areas more

generally. This focus supports the conclusion that the presence of a Secret Service protectee is a

substantive element of the offense, rather than a “jurisdictional only” element to which the mens

rea requirement does not attach.

Section 1752’s statutory penalties also support the conclusion that the presence of a Secret

Service protectee is a substantive element of the offense. Unlike a simple trespass offense in the

District of Columbia, a violation of Section 1752(a) is punishable by a fine and imprisonment for

up to one year, or by a fine and imprisonment for up to 10 years if the offense is committed with

a “deadly or dangerous weapon or firearm” or “results in significant bodily injury.”2

(b); cf.

(providing penalty of imprisonment for not more than six

months for simple trespass offenses).

Congress enacted these penalties in 2006, doubling the prior penalty of six months’

imprisonment for the base offenses under Section 1752(a).

Stat 192

(2006). The legislative history shows that the purpose of this change was to make the penalty for

these offenses consistent with the penalty for “knowingly and willfully obstruct[ing], resist[ing],

or interfer[ing] with a Federal law enforcement agent engaged in the performance of the protective

functions.” H.R. Rep. No. 109-333, at 110 (2005) (Conf. Rep.) (citing

(d)).

Congress’s decision to align the penalties for offenses under Section 1752(a) to those for the

offense of “willfully obstruct[ing]” the protective functions of a federal law enforcement official,

rather than to the penalties for simple trespass in the District of Columbia, supports the conclusion

2 The Government correctly notes that this penalty is no more severe than the state-law penalties for “trespass on posted property” in some jurisdictions other than the District of Columbia, such as Virginia. Gov’t Br. at 15 (citing Va. Code §§ 18.2-11, 18.2-119). However, the legislative history of § 1752(a) shows that Congress has been especially concerned with offenses committed in this District—including trespasses at the White House and the residence of the Vice President—that would otherwise be charged under the D.C. Code. See H.R. Rep. No. 112-9, at 2 (2011). Accordingly, the penalties relative to the D.C. Code are especially probative of Congress’s intent.

8 that Congress was focused on offenses in which people knowingly threaten protectee safety, rather

than on trespasses into restricted areas more generally.

The Government argues persuasively that statutory penalties are entitled to less weight than

other evidence of congressional intent when determining whether an element is “jurisdictional

only.” Gov’t Br. at 13–15. The Government relies primarily on Feola v. United States,

(1975), in which the Court concluded that the so-called “officer-victim” requirement in the

criminal statute prohibiting assaulting or impeding certain federal officers,

, is

“jurisdictional only,” even though the penalties for certain offenses under Section 111 are harsher

than many states’ penalties for comparable offenses not involving federal officers. See Feola,

. But Feola does not preclude consideration of statutory penalties in the determination

of whether an element is substantive rather than purely jurisdictional. Instead, the decision is silent

on this issue, holding only that there is no requirement that a defendant understand how his conduct

may affect “the choice of a judicial forum” in a later prosecution.

. This silence is at

least instructive. Gov’t Br. at 8, 13. The Feola dissent compared Section 111’s penalties to similar

state-law offenses. 420 U.S. at 702–03 (Stewart, J., dissenting). The Court’s decision to take a

different path leads this Court to give somewhat less weight to the statutory penalties than to other

considerations based on text, structure, and history when evaluating whether the protectee-

presence requirement in § 1752 is “jurisdictional only.”

However, the Government’s arguments and authorities do not persuade the Court to

disregard penalties entirely. Whether Section 1752’s mens rea attaches to the protectee-presence

requirement is fundamentally “a question of congressional intent.” Rehaif, 588 U.S. at 228.

Because penalty provisions are an important part of the statutory scheme that Congress has

enacted, they are probative of how Congress intended the statute to operate. Therefore, the Court

9 concludes that the penalty provisions of Section 1752 are entitled to some weight in the analysis

of whether the protectee-presence element is “jurisdictional only.”

The Government also analogizes the protectee-presence requirement in Section 1752 to

other offense elements that courts have concluded are “jurisdictional only,” but these analogies

ultimately fail. Gov’t Br. 8–9, 20–22. The government cites four statutes that it argues contain

analogous “jurisdictional only” elements: the statute prohibiting stealing or converting “any . . .

thing of value of the United States,”

; the statute prohibiting making false

statements about “any matter within the jurisdiction of any department or agency of the United

States,”

; the statute prohibiting injuring “any property of the United States,”

; and the statute prohibiting willfully setting fires without authority “upon any lands

owned or leased by . . . the United States,”

. Gov’t Br. at 20–22. The

Government is correct that courts have concluded that the elements that connect each of these

statutes to Congress’s enumerated powers are “jurisdictional only” and not subject to the mens rea

provisions that apply to the offenses’ other elements. See, e.g., United States v. Baker,

(D.C. Cir. 1982) (analyzing § 641); United States v. Yermian,

, 74–75 (1984)

(analyzing § 1001); United States v. Krause,

(8th Cir. 2019) (analyzing

§ 1361); United States v. Evans,

(4th Cir. 2023) (analyzing § 1855). However,

unlike the protectee-presence requirement in Section 1752, the jurisdictional element of each of

these statutes is drawn broadly, sweeping in nearly all conduct within the reach of Congress’s

enumerated powers, regardless of its wrongfulness. By contrast, the protectee-presence

requirement in Section 1752 targets a narrow slice of the conduct that Congress may permissibly

regulate, addressing a form of trespass that is particularly wrongful and that has unusual potential

to harm the interests of the United States. These considerations distinguish the protectee-presence

10 requirement in Section 1752 from the “jurisdictional only” provisions of the other statutes the

Government cites and support the conclusion that the protectee-presence requirement is

substantive, rather than purely jurisdictional.

Finally, the Government argues that extending the mens rea of “knowingly” to the

protectee-presence requirement would lead to absurd and unworkable results that frustrate the

purpose of Section 1752. Gov’t Br. at 26–27. Specifically, it argues that this interpretation may

present difficult problems of proof in cases involving trespasses in areas restricted for the safety

of Secret Service protectees who are not widely known, such as family members of visiting foreign

dignitaries. Id. But as the Supreme Court held in a different context, when Congress uses the

word “knowingly” followed by a list of elements, “concerns about practical enforceability are

insufficient to outweigh the clarity of the text.” Flores-Figueroa v. United States,

(2009). Although the Government may be correct that being required to prove knowledge of

a Secret Service protectee’s presence may impair the usefulness of Section 1752 in cases involving

threats or potential threats to Secret Service protectees, that is an issue for Congress—not this

Court—to address in the first instance.

In sum, the Court concludes that the textual, structural, and historical evidence that the

protectee-presence requirement is a substantive element of the offenses defined in Section 1752(a)

outweighs the evidence that this element is purely jurisdictional. Accordingly, the Court concludes

that to prove an offense defined in Section 1752(a) under the circumstances presented in this case,

the Government must prove beyond a reasonable doubt that the defendant knew that a “person

protected by the Secret Service” was or would be present in the “restricted building or grounds.”

The D.C. Circuit Court of Appeals is expected to decide this issue soon, and its decision

will bind this Court and others in this District. See United States v. Griffin, No. 22-3042 (D.C.

11 Cir. argued Dec. 4, 2023). Therefore, this Court shall not delve any further into the remaining

arguments developed in the thoughtful briefs and opinions that have already addressed this issue.

As Chief Judge James E. Boasberg has observed, “[w]ith guidance from the D.C. Circuit

forthcoming, any additional exposition would be like writing on the beach at low tide, soon to be

washed away.” Easterday,

, at *10.

III. CONCLUSION

For the foregoing reasons, the Court shall instruct the jury that it is an element of the

offenses charged in Counts One and Two that the defendant knew that a person protected by the

Secret Service was or would be present in the restricted building or grounds.

Dated: September 19, 2024 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

12