UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 24-458 (BAH)

JUSTINA NICOLE GUARDINO, Judge Beryl A. Howell

Defendant.

MEMORANDUM AND ORDER

The United States government moves to dismiss, with prejudice, the four-count

Information, ECF No. 15, against defendant Justina Nicole Guardino. Govt’s Mot. to Dismiss

Indictment with Prejudice Pursuant to Federal Rule Criminal Procedure 48(a) (“Govt’s MTD”),

ECF No. 24. For the reasons explained below, the government’s motion is granted in part and

denied in part, and the pending indictment against defendant is dismissed without prejudice.

I. BACKGROUND

Defendant is charged with four misdemeanors for her alleged conduct on January 6,

2021: knowingly entering and remaining in the U.S. Capitol, in violation of

(a)(1); knowingly, and with intent to impede and disrupt the orderly conduct of official

functions, engaging in disorderly and disruptive conduct in the Capitol, and actually so impeding

those functions, in violation of

(a)(2); willfully and knowingly engaging in

disorderly and disruptive conduct in the Capitol with the intent to impede, disrupt, and disturb

the orderly conduct of Congress, in violation of

(e)(2)(D); and willfully and

knowingly parading, demonstrating, and picketing in a Capitol building, in violation of

(e)(2)(G). See Information.

1 These charges are supported by an investigation by the Federal Bureau of Investigation

(FBI), which retrieved photographs and video footage used to identify defendant. The FBI’s

findings allege that defendant entered the Capitol building through a window adjacent to the

Senate Wing door. Complaint, Statement of Facts at 6, ECF No. 1-1. She then allegedly took

photos and videos once inside but was forced to leave by officers shortly thereafter.

.

Defendant, according to the FBI, nevertheless re-entered the building only four minutes later via

the Senate Wing door.

. She allegedly continued taking photos and videos until she

was blocked by a line of officers and forced to leave again.

.

Defendant planned to exercise her right to contest these charges before a jury of her peers

in a trial set to begin on February 18, 2025. See Min. Order (Nov. 19, 2024). The government

has already filed a pretrial motion. See Govt’s Mot. in Limine, ECF No. 23. Despite this

preparation for trial and the preceding FBI investigation, the government now, just weeks before

the pretrial conference, seeks to dismiss the pending Information against defendant, under

Federal Rule of Criminal Procedure 48(a). See Govt’s MTD.

II. DISCUSSION

Courts have limited power when the federal government decides to stop prosecuting a

criminal defendant. See, e.g., Wayte v. United States,

(1985) (recognizing

the government’s broad prosecutorial discretion); United States v. Fokker Servs. B.V.,

(D.C. Cir. 2016) (recognizing same prosecutorial discretion in “decisions to dismiss

pending criminal charges”). At the same time, the Supreme Court and D.C. Circuit have both

recognized that the “leave of court” requirement in Rule 48(a) “obviously vest[s] some discretion

in the court.” Rinaldi v. United States,

, 29 n.15 (1977); United States v. Ammidown,

(D.C. Cir. 1973) (noting that this rule “gives the court a role in dismissals

2 following indictment”). This discretion is granted in part to “guard[] against abuse of prosecutorial

discretion.” Ammidown,

. To ensure that the government’s request for dismissal

of criminal charges “sufficiently protects the public,” the government may be required to submit

“a statement of reasons and underlying factual basis,” which must be “substantial” to justify the

dismissal and not “a mere conclusory statement.”

Here, the government’s cursory motion provides no factual basis for dismissal. Instead,

the single paragraph explanation included in the one-page dismissal motion cites “as the reason

for this dismissal,” only a presidential proclamation “dated January 20, 2025, Granting Pardons

and Commutation of Sentences for Certain Offenses Relating to the Events at Or Near the United

States Capitol on January 6, 2021.” Govt’s MTD at 1. This cited proclamation, inter alia, directs

the Attorney General “to pursue [the] dismissal with prejudice to the government of all pending

indictments against individuals for their conduct related to the events at or near the United States

Capitol on January 6, 2021.” See PROCLAMATION, (Jan. 20, 2025) (capitalization in original),

available at https://www.whitehouse.gov/presidential-actions/2025/01/granting-pardons-and-

commutation-of-sentences-for-certain-offenses-relating-to-the-events-at-or-near-the-united-

states-capitol-on-january-6-2021/. The only reason provided for this instruction, as set out in the

proclamation’s introduction, is the assertion that this action “ends a grave national injustice that

has been perpetrated upon the American people over the last four years and begins a process of

national reconciliation.”

No “national injustice” occurred here, just as no outcome-determinative election fraud

occurred in the 2020 presidential election. No “process of national reconciliation” can begin when

sore losers, whose preferred candidate loses an election, are glorified for disrupting a

constitutionally mandated proceeding in Congress and doing so with impunity. That merely raises

3 the dangerous specter of future lawless conduct by other sore losers and undermines the rule of

law. Yet, this presidential pronouncement of a “national injustice” is the sole justification provided

in the government’s motion to dismiss the pending indictment. See Govt’s MTD.

Having presided over scores of criminal cases charging defendants for their criminal

conduct both outside and inside the U.S. Capitol Building on January 6, 2021, which charges were

fully supported by evidence in the form of extensive videotapes and photographs, admissions by

defendants in the course of plea hearings and in testimony at trials, and the testimony of law

enforcement officers and congressional staff present at the Capitol on that day, this Court cannot

let stand the revisionist myth relayed in this presidential pronouncement. The prosecutions in this

case and others charging defendants for their criminal conduct at the U.S. Capitol on January 6,

2021, present no injustice, but instead reflect the diligent work of conscientious public servants,

including prosecutors and law enforcement officials, and dedicated defense attorneys, to defend

our democracy and rights and preserve our long tradition of peaceful transfers of power—which,

until January 6, 2021, served as a model to the world—all while affording those charged every

protection guaranteed by our Constitution and the criminal justice system. Bluntly put, the

assertion offered in the presidential pronouncement for the pending motion to dismiss is flatly

wrong.

Still, the D.C. Circuit has cautioned that a district court judge has “no power” “to deny a

prosecutor’s Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution’s

exercise of charging authority.” Fokker,

;

(“It has long been settled that

the Judiciary generally lacks authority to second-guess those Executive determinations, much less

to impose its own charging preferences.”). Despite finding that the sole reason relied upon by the

government to dismiss the charges in this case—i.e., an incorrect assertion in the presidential

4 proclamation—is neither substantial nor factually correct, the government’s view of the public

interest does not clearly fall within the types of reasons found to provide legitimate grounds to

deny the government’s Rule 48(a) motion to dismiss charges. See United States v. Flynn,

, 130-31 (D.D.C. 2020) (collecting examples where a government motion to dismiss

should be denied as not serving “legitimate prosecutorial interests,” because the motion “was a

sham or deception,” “was based on ‘acceptance of a bribe, personal dislike of the victim, and

dissatisfaction with the jury impaneled,’” or was meant to favor “politically well-connected

individuals” (citations omitted)). Therefore, the government’s motion to dismiss the indictment is

GRANTED.

Nothing about the government’s reasoning for dismissal warrants entry of dismissal with

prejudice, however. Dismissal with prejudice is a complete adjudication of the matter and would

bar any further prosecution of defendant for her offense conduct at issue. See Brown v. Amtrak

Corp., No. 03-7003,

, at *1 (D.C. Cir. Oct. 27, 2023) (“A dismissal ‘with

prejudice’ is a final judgment on the merits which bars further litigation between the same parties.”

(citing Bd. of Trs. of the Hotel & Rest. Emps. Local 25 v. Madison Hotel, Inc.,

, 1489

n.20 (D.C. Cir. 1996))); Reed v. Farley,

(1994) (Blackmun, J., dissenting)

(“The dismissal with prejudice of criminal charges is a remedy rarely seen in criminal law, even

for constitutional violations.”). This result would be improper here, particularly given the strength

of the evidence supporting defendant’s illegal entry into the Capitol building, which evidence

provides ample basis for criminal prosecution. See also Thorp v. District of Columbia,

(D.D.C. 2015) (noting that dismissal with prejudice “reflect[s] on the merits of

the underlying action” (quoting Brown v. Carr,

(D.C. Cir. 1986), and citing

Kenley v. District of Columbia,

(D.D.C. 2015)). Instead, the government’s

5 reliance on a policy assertion made in the presidential proclamation that such prosecutions should

not be continued warrants only “render[ing] the proceedings a nullity and leav[ing] the parties as

if the action had never been brought,” Magliore v. Brooks,

(D.D.C. 2012)

(quoting Thoubboron v. Ford Motor Co.,

(D.C. Ct. App. 2002)), which is

achieved by granting the government’s motion to dismiss without prejudice, see

III. CONCLUSION AND ORDER

For the reasons above, the government’s motion to dismiss, ECF No. 24, is granted to the

extent that the Information, ECF No. 15, against defendant is dismissed, but denied as to the

request that this dismissal be “with prejudice.” Accordingly, it is hereby—

ORDERED that Information against defendant, ECF No. 15, is dismissed without

prejudice; it is further

ORDERED that all scheduled proceedings, including the pretrial conference and trial

date, and all related deadlines are VACATED; it is further

ORDERED that the government’s pending motion in limine, ECF No. 23, is DENIED

AS MOOT; and it is further

ORDERED that the Clerk of the Court is directed to close this case.

Date: January 23, 2025

__________________________ BERYL A. HOWELL United States District Judge

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