An opinion was released in case 22-3042, USA v. Couy Griffin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2023 Decided October 22, 2024

No. 22-3042

UNITED STATES OF AMERICA,

APPELLEE

v.

COUY GRIFFIN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00092-1)

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Tony Axam Jr., Assistant

Federal Public Defender, entered an appearance.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Chrisellen R.

Kolb and Nicholas P. Coleman, Assistant U.S. Attorneys.

James Pearce, Attorney, U.S. Department of Justice, entered

an appearance.

Before: PILLARD and KATSAS, Circuit Judges, and

ROGERS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge PILLARD.

Dissenting opinion filed by Circuit Judge KATSAS.

PILLARD, Circuit Judge: This appeal turns on

interpretation of a federal law enacted to better protect the

President and other national leaders from assassination,

kidnapping, and assault. The law creates a narrow domain of

federal trespass authority to prevent unauthorized members of

the public from getting too close to a person under Secret

Service protection. It does so by empowering the Secret

Service to prevent unauthorized people from knowingly

encroaching on “posted, cordoned off, or otherwise restricted”

safety zones where the President or Vice President (current or

past), a leading candidate for such office, or any of a handful

of other Secret Service protectees “is or will be temporarily

visiting.” 18 U.S.C. § 1752(c)(1)(B).

The defendant says a person “knowingly enters” the

restricted safety zone only if he knows that the basis of the

restriction is to safeguard a Secret Service protectee. Id.

§ 1752(a)(1). We hold that knowingly breaching the restricted

area suffices, even without knowing the basis of the

restriction—here, the presence of Vice President Pence at the

Capitol on January 6—which merely confirms that such

trespasses are within Congress’s legislative authority.

Traditional tools of statutory interpretation establish that

Congress intended to criminalize trespasses endangering

Secret Service protectees regardless of the trespasser’s

awareness of the basis for Congress’s authority to regulate

them. And a contrary interpretation would impair the Secret

Service’s ability to protect its charges. It would require Secret

Service agents preventing members of the public from

encroaching on a temporary security zone to confirm that each

intruder knows that a person under Secret Service protection is

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or is expected to be there. Neither the text nor the context of

the statute supports that reading.

Couy Griffin knowingly intruded into the area of the

United States Capitol grounds that had been restricted in order

to protect Vice President Pence on January 6, 2021, during the

counting of the electoral college votes for President. Griffin

came to the Capitol that day along with thousands of other

people to try to stop the certification of the electors’ ballots.

He breached the boundary established to prevent public access

and remained for approximately two hours in the restricted area

while the Capitol Police struggled, facing serious injury and

even death, to control the mob that overwhelmed them and

broke into the Capitol Building.

Following a bench trial, the district court convicted Griffin

of violating 18 U.S.C. § 1752(a)(1), which prohibits

“knowingly enter[ing] or remain[ing] in any restricted building

or grounds without lawful authority to do so.” “Restricted

building or grounds” refers to a limited number of “posted,

cordoned off, or otherwise restricted area[s],” including the

White House or Vice President’s residence, areas where a

Secret Service protectee “is or will be temporarily visiting,”

and areas being used for a “special event of national

significance.” Id. § 1752(c)(1). The Capitol grounds fell under

that provision on January 6 because a Secret Service protectee,

Vice President Michael Pence, was expected to be and was

present. Id. § 1752(c)(1)(B).

Griffin raises two arguments on appeal. He first asserts

that because waves of rioters ahead of him trampled much of

the fencing and signage delineating the relevant area’s

perimeter, it was no longer “posted, cordoned off, or otherwise

restricted” when he entered and remained there. But Griffin’s

main claim is that a conviction for “knowingly” entering or

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remaining in a “restricted building or grounds” under section

1752(a)(1) requires proof that the defendant not only knew that

the area was restricted, but that he knew the reason for the

restriction when he entered or remained. The government

acknowledged its obligation to prove that Griffin knew the

grounds were restricted; Griffin challenges the sufficiency of

the proof on that point. The government disagreed that the

statute also requires proof that Griffin knew precisely why the

area was restricted, and the district court held that the

government did not “have to prove [he] knew that a specific

dignitary was there.” J.A. 534.

We hold that the grounds immediately surrounding the

U.S. Capitol qualified as a “restricted building or grounds”

under section 1752, and that they were adequately “posted,

cordoned off, or otherwise restricted” when Griffin clambered

over a stone wall and jumped inside. And we hold that a

conviction for knowingly entering and remaining on such

grounds in violation of section 1752(a)(1) required only that

Griffin knew that he had entered or remained in a “posted,

cordoned off, or otherwise restricted” area where he was not

authorized to be. The government was not required to prove

that Griffin was aware that the Vice President’s presence was

the reason the grounds remained restricted. We therefore

affirm the judgment of conviction.

I.

A.

Section 1752 enables the Secret Service to protect the

people and events they guard in settings the statute refers to as

“restricted building[s] or grounds.” 18 U.S.C. § 1752(a). The

statute has three subsections. Subsection (a) prohibits a range

of conduct connected to those sites, including the trespass

offense at issue in this appeal, as well as engaging in “any act

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of physical violence” therein, and obstructing the means of

ingress and egress to those sites with the intent to impede or

disrupt government business. Id. §§ 1752(a)(1)-(5).

Subsection (b) provides for criminal penalties, including

imprisonment or a fine, or both, for those who violate

subsection (a). Id. § 1752(b). The offense is punishable as a

misdemeanor, id. § 1752(b)(2), unless a deadly or dangerous

weapon is used or significant bodily injury results, in which

case it may be punished as a felony, id. § 1752(b)(1).

Subsection (c) defines the term “restricted buildings or

grounds” as “any posted, cordoned off, or otherwise restricted

area”:

(A) of the White House or its grounds, or the Vice

President’s official residence or its grounds;

(B) of a building or grounds where the President or

other person protected by the Secret Service is

or will be temporarily visiting; or

(C) of a building or grounds so restricted in

conjunction with an event designated as a

special event of national significance.

Id. §§ 1752(c)(1)(A)-(C).

Section 1752 did not always have this three-part structure.

It was enacted in 1971 as a more streamlined statute focused

on protecting the President in the wake of a series of political

assassinations in the 1960s—particularly those of President

John F. Kennedy in Dallas and then-presidential candidate

Robert F. Kennedy in Los Angeles. In recognition of the rising

levels of violent political rhetoric and the “constant excoriation

of America’s institutions and leaders” that made holding the

office of the presidency increasingly dangerous, Congress set

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out to provide stronger and more standardized security for the

President. S. Rep. No. 91-1252, at 4 (1970). Congress

recognized the complex challenges of protecting national

leaders away from their usual offices or residences, where they

are “most vulnerable”—whether from an “isolated and

deranged individual” or from “organized premeditated

attempts” on their lives. Id. at 6.

At the time, no statute conferred federally enforceable

authority on the Secret Service to restrict entry to places

temporarily visited or used by the President. Instead, the

Service relied on “the assistance of local authorities to arrest

persons” under a patchwork of state and local criminal

statutes—an arrangement that rendered it “increasingly

difficult to maintain the necessary level of security” when local

authorities were not present and closely coordinating or when

the proper jurisdiction for arresting and prosecuting violations

was unclear. Id. at 7. To remedy that impediment to

presidential security, Congress enacted section 1752, creating

a federal offense encompassing trespasses that the Secret

Service had previously relied on state and local officials to

enforce under state and local trespass laws. Id. at 7. In this

way, Congress provided “a uniform minimum of Federal

jurisdiction for Presidential security when the President is on

temporary visits,” id. at 6, by empowering the Secret Service

to prevent “physical presence [and] physical violence within

the security perimeter” created by temporarily restricted areas

surrounding the President, id. at 9.

Over the decades, Congress has repeatedly revisited

section 1752, expanding its coverage to align with the broader

scope of the Secret Service’s protective duties. At first, the

statute protected only places designated as the President’s

temporary residence or office or any other building or grounds

where the President was or would be temporarily visiting. See

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18 U.S.C. § 1752(a)(1) (1971). In 1982, Congress amended the

statute to extend “the same ‘zone of protection’ authority”

applicable to the President to all Secret Service protectees

(which includes the Vice President). See Pub. L. No. 97-308,

96 Stat. 1451, 1451-52 (1982). In 2006, Congress again

amended the statute to apply beyond sites temporarily visited

by protectees to also shield any “event designated as a special

event of national significance.” See Pub. L. No. 109-177, 120

Stat. 192, 252 (2006). Finally, in 2012, Congress added federal

protection against intrusion into the White House or Vice

President’s residence or their grounds. See Pub. L. No. 112-

98, 126 Stat. 263, 263-64 (2012). In so doing, Congress

acknowledged that the Secret Service had previously relied on

District of Columbia trespass law to protect those sites. H.R.

Rep. 112-9, at 2 (2011). 1

B.

In January 2021, Griffin was serving as an elected

Commissioner on the Otero County Commission in southern

New Mexico and as the leader of a political committee called

“Cowboys for Trump.” He decided to travel to Washington,

D.C. to attend the Stop the Steal rally on the National Mall on

January 6, 2021—the day that Congress was set to certify the

Electoral College vote that confirmed the outcome of the 2020

presidential election. He arrived by January 5 and recorded a

video of himself in front of the U.S. Capitol’s western side,

declaring that he was “praying for” former Vice President

Pence and “trust[ed] that he would do the right

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In referencing the importance of section 1752 to the Secret

Service’s ability to shield the President, Vice President, and other

protectees, we recognize that the Secret Service works together with

other protective forces—as it did in this case—and take no position

on whether section 1752 requires the Secret Service itself to

designate or secure the “restricted buildings or grounds.”

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thing . . . tomorrow.” GX 63 at 1:00-1:13. Fencing

surrounding the grassy areas in front of the Capitol was visible

behind Griffin in the video. Id.

In anticipation of the rally and certification, the Secret

Service worked in coordination with the U.S. Capitol Police to

prepare for Vice President Pence’s visit to the Capitol. The

Secret Service informed the Capitol Police of Vice President

Pence’s anticipated schedule of arrivals and departures to and

from each location he intended to visit at the Capitol, and the

Capitol Police prepared for the certification, including Vice

President Pence’s presence at the Capitol. Pursuant to its

longstanding relationship with the Secret Service, the Capitol

Police implemented “an agreed-upon standard boundary” to

secure a perimeter on the grounds immediately surrounding the

Capitol. J.A. 450. To do so, the Capitol Police erected barriers

using temporary crowd-control fencing that they referred to as

metal “bike racks” and plastic “snow fencing” to supplement

permanent walls. They also placed temporary fencing both

immediately behind the permanent walls and midway up the

west lawn to protect the inaugural stage that was being

prepared for Inauguration Day. The racks and fencing were

posted with signs reading “Area Closed by Order of the United

States Capitol Police Board” and were patrolled by law

enforcement officers.

On January 6, Griffin attended the Stop the Steal rally on

the Ellipse adjacent to the White House and followed the crowd

as it proceeded toward the U.S. Capitol. Griffin was not at the

front of the crowd. Shortly after 2 p.m., as the first wave of

rioters to have breached the security perimeter shattered the

Capitol Building’s windows and climbed inside, Griffin was

taking photos and exchanging social media information with

other rally attendees near the Capitol Reflecting Pool adjacent

to the west lawn of the Capitol. At 2:31 p.m.—around the same

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time that Capitol Police officers were conducting emergency

evacuations of the House and Senate chambers in response to

the breach of the Capitol Building—Griffin used the seat of a

parked bicycle to boost himself over a five-foot-tall stone wall

separating a sidewalk from the Capitol’s west front lawn. He

landed on a trampled length of plastic snow fencing that the

U.S. Capitol Police had erected to cordon off the area.

Once inside the grounds, Griffin proceeded up the lawn to

the base of the inaugural stage, scaling two other walls along

the way with the help of a metal bike rack and a plywood ramp

manned by other rioters helping the crowd advance toward the

Capitol. After he ascended the bike rack, he narrated to a

camera “we’re in now” and joked to a masked rioter that he,

too, needed a face mask to obscure his identity. GX 37-1 at

1:10-28. As Griffin made his way toward the front of the

crowd, the crowd packed increasingly closely together in

pressing toward the Capitol, with rioters scaling the bannisters

of the Capitol steps, banging on the Capitol terraces with

flagpoles, pounding on the doors of the inaugural stage, and

urging the crowd forward with shouts of “this is our House”

and “break the doors down.”

Griffin proceeded to the foot of the inaugural platform,

near an emergency stairwell door, where he announced that he

would “wait until they get this door broken down” to go up on

the inaugural stage. GX 40-1 at 0:25-30. Griffin managed to

make his way onto the inaugural stage. As he climbed the

stairs, he proclaimed—in response to the smell of pepper spray

officers used to try to clear the area—that he “love[s] the smell

of napalm in the air.” GX 43-1 at 0:30-40; see also J.A. 536.

Having ascended the stage, he borrowed a bullhorn in an

attempt to lead the rioters below in prayer. Around that time,

a crowd of rioters armed with plastic riot shields and flagpoles

massed in a tunnel approximately a hundred feet away from

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Griffin, pressing against and engaging in hand-to-hand combat

with Metropolitan Police Department officers in an attempt to

gain access to the Capitol. Griffin stayed up on the inaugural

stage and the nearby terrace until at least 4:48 p.m.

As explained at trial by a member of the Secret Service

detail accompanying Vice President Pence, his wife, and their

daughter, the “unknown individuals who were breaking

through a security barrier of a site where [the Secret Service]

had protectees” posed a security risk by “potentially taking

away options for our routes out” of the Capitol. J.A. 422. Due

to breaches of security, “the Capitol went into lockdown, which

means everything has to stop, and the doors lock, and people

aren’t allowed in,” and “any official actions that are taking

place” are halted. J.A. 426. The mass security breaches on

January 6 by thousands of people, including Griffin, halted the

certification of the electoral votes while the Secret Service

sought to safeguard the Vice President and his family in a

building under attack. The Vice President, his wife, and their

daughter remained at an underground loading dock at the

Capitol under Secret Service protection for four or five hours,

not returning to the Senate Chamber until approximately 7 p.m.

J.A. 425-27.

The next day, Griffin resurfaced in Roanoke, Virginia,

where he recorded another video. He asserted that he heard

when he was “about three-quarters of the way down [to the

Capitol]” on January 6 that “Mike Pence had sold us all out.”

GX 64 at 3:20-35. Griffin went on to explain that the inaugural

stage was “set up for Joe Biden” and “roped off” on the Capitol

grounds. Id. at 3:35-4:15. As he put it, “You’re gonna have

those patriots who get in there and went over the—when the

D.C. police tells ‘em you can’t step over this because this is—

we’re getting it ready for Joe Biden. What do you think was

gonna happen?” Id.

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The following week, Griffin addressed his colleagues on

the Otero County Commission. He told them:

On the inaugural side, all those Trump people got

down there, had not got anything necessarily from the

President that was new, and then heard that Mike

Pence had certified a fraudulent election. The element

in the crowd was pretty elevated, I would say. But

when they got down to the inaugural side, there was

some fencing up, and they were saying that you

couldn’t go any further because this was being

reserved for Joe Biden and his inauguration. You tell

a million Trump supporters that, they’re going down

there. Pretty soon that crowd just pushed through. I

wasn’t anywhere in the front of it. I was in the back.

GX 78 at 2:27-3:12. Griffin said that he planned to return to

Washington, D.C. for Inauguration Day with multiple firearms.

See id. at 11:10-11:50. Days later, he was arrested in

Washington, D.C.

C.

Federal prosecutors charged Griffin with two

misdemeanors: entering and remaining in a restricted building

or grounds, in violation of 18 U.S.C. § 1752(a)(1), and

disorderly and disruptive conduct in a restricted building or

grounds, in violation of 18 U.S.C. § 1752(a)(2). He opted for

a bench trial before the district court.

Shortly before trial, the parties briefed whether the

government would be required to prove that Griffin knew Vice

President Pence was visiting the Capitol at the time Griffin was

on the Capitol grounds. Griffin argued that, because section

1752(a)(1)’s “knowingly” modifies the object of the prohibited

conduct—the “restricted building or grounds” in which a

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defendant enters or remains—a defendant must be shown to

know the characteristics of the area that qualify it as a

“restricted building or grounds” pursuant to section 1752(c)(1),

which include the presence of a Secret Service protectee. See

Griffin’s Resp. to Gov’t’s Trial Br. at 3 (J.A. 129).

At the conclusion of the bench trial, the district court

rejected Griffin’s argument, concluding that section 1752’s

condition that a defendant act “knowingly” did not require

knowledge of the presence of a Secret Service protectee. The

court noted that “it doesn’t make a lot of sense” to require proof

that the defendant “knew that a specific dignitary was there,”

and found it unimaginable that “a provision that is looking to

protect Secret Service protectees would require the Secret

Service to somehow be telling people and proving that

[defendants] knew which protectee was in the restricted area at

what time.” J.A. 534. It sufficed, the district court held, that

the area was restricted because of Vice President Pence’s

presence when Griffin entered and stayed, J.A. 530-532, and

that, “by the time [Griffin] was on the stage, he certainly knew

he shouldn’t be there. And yet, he remained.” J.A. 537. The

court accordingly convicted Griffin of violating 18 U.S.C.

§ 1752(a)(1).

As to the section 1752(a)(2) charge of disruptive or

disorderly conduct in or near a restricted building or grounds,

the court found “more than a reasonable doubt as to whether he

intended for his conduct to disrupt the certification of the

election.” J.A. 539. Despite “some close questions about

whether his mere presence impeded or disrupted government

business,” the court held the government failed to prove that

Griffin “engaged in disorderly or disruptive conduct.” J.A.

539. And it failed to establish that Griffin “acted knowingly

and with intent” to impede or disrupt congressional business,

13

because Griffin “thought the electoral certification had already

occurred prior to his entering the restricted area.” J.A. 537-38.

The district court sentenced Griffin to fourteen days of

incarceration, with credit for time served, and one year of

supervised release. He timely filed this appeal.

II.

To violate section 1752(a)(1), a defendant must

“knowingly” and “without lawful authority” enter or remain in

a “restricted building or grounds.” Griffin contends the district

court should have acquitted him for two reasons. First, he

argues that the government failed to prove beyond a reasonable

doubt that the area immediately surrounding the U.S. Capitol

was sufficiently demarcated as restricted when he entered and

remained there. Second, Griffin argues that the government

failed to prove beyond a reasonable doubt that Griffin knew not

just that the area was restricted, but also the reason for that

restriction—here, that Vice President Pence, a Secret Service

protectee, was or would be visiting.

Griffin challenges both the district court’s interpretation of

section 1752’s elements and the sufficiency of the evidence to

support his conviction. We review de novo the district court’s

interpretation of the statute. See United States v. Verrusio, 762

F.3d 1, 13 (D.C. Cir. 2014); see also United States v. Johnson,

979 F.3d 632, 636 (9th Cir. 2020) (“In a bench trial, a district

court’s legal error regarding the elements of the offense is

reviewed in the same way we review an erroneous jury

instruction regarding the elements of the offense.”). In

reviewing the sufficiency of the evidence, we defer to the

factfinder’s verdict, considering the evidence “in the light most

favorable to the government.” United States v. Robertson, 103

F.4th 1, 10-11 (D.C. Cir. 2023) (quoting United States v. Shi,

991 F.3d 198, 205 (D.C. Cir. 2021)); see also United States v.

14

Brock, 94 F.4th 39, 46 (D.C. Cir. 2024) (explaining that “this

standard is the same for both jury and non-jury cases”). We

consider the evidence taken as a whole, and with reasonable

inferences drawn in the light most favorable to the verdict.

United States v. Broda, 848 F.3d 1044, 1053 (D.C. Cir. 2017).

We will affirm a guilty verdict if “any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Musacchio v. United States, 577 U.S. 237,

243 (2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

A.

We begin with Griffin’s argument that the government

failed to prove the requisite conduct, or actus reus, under

section 1752(a)(1). The U.S. Capitol grounds are ordinarily

open to the public. J.A. 337. To qualify as a “restricted

building or grounds” protected by section 1752, those grounds

must have been “posted, cordoned off, or otherwise restricted”

at the time Griffin entered or remained there. 18 U.S.C.

§ 1752(c)(1).

Apart from his argument addressed below regarding his

knowledge of the grounds restriction, Griffin argues that, by

the time he entered, the grounds were in fact no longer

restricted within the meaning of the statute. They were neither

posted nor cordoned off, he claims, because earlier waves of

the rioters had torn down the temporary fencing and trampled

signs announcing the closure. Griffin Br. 21-22, 46-47; see

J.A. 345. And, reading “otherwise restricted” narrowly to

require demarcation “comparable to a physical ‘posting’ or

‘cordoning off,’” Griffin Br. 40, Griffin insists only a clear,

observable demarcation would suffice. He argues his

conviction cannot stand because the barriers and signs had been

trampled or pushed aside. Id.

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The statutory text imposes no such requirement.

“Otherwise” means “in another way” or “in a different

manner,” and “restricted” means deemed “accessible only to

certain authorized people.” Otherwise (adv.), Oxford English

Dictionary (2d ed. 1989); Restricted (adj.), Oxford English

Dictionary. Section 1752 thus applies to areas made nonpublic

by posting signs, cordoning off the area, or in some other way

effecting the restriction, regardless of whether the method

consistently and physically stakes out the area’s boundaries.

For example, to “otherwise restrict[]” an area, officers or

agents charged with excluding the public could position

themselves around the area occupied by a protected person or

move in coordination with the protectee, as they typically do

when the President or Vice President is on foot moving through

otherwise publicly accessible areas. Or they might use a sound

system or official briefing warning people to maintain a

specified distance as means to control the perimeter, 18 U.S.C.

§ 1752(c)(1), even without static visual demarcation of an

area’s boundaries. J.A. 444.

The drafting history confirms as much. When Congress

first promulgated section 1752, it “anticipated that the Secret

Service [would] make every effort . . . to make such restricted

areas known to the public,” S. Rep. 91-1252, at 9, but it

declined to list exhaustively the ways in which the public

would be excluded. By separately requiring proof of a

defendant’s subjective awareness that the area was “posted,

cordoned off, or otherwise restricted,” Congress ensured that

unwitting trespassers would not be punished. Id. That

approach accommodated the reality that “flexibility must be

maintained” to ensure adequate security. Id. at 2.

Griffin’s proposed physical demarcation requirement

would undermine the function of section 1752(a)(1). Under his

reading, a defendant would be entitled to acquittal so long as

16

he waited until a sufficiently strong gust of wind, a soaking

downpour—or even a less scrupulous prior intruder—disposed

of law enforcement tape, fencing, or signage before he entered

a sensitive area in full awareness he was not lawfully

authorized to do so. We decline to read the statute to allow a

mob to de-restrict an officially restricted area encompassing

persons under Secret Service protection.

With the meaning of those terms thus settled, we hold that

the evidence at trial was sufficient for a reasonable factfinder

to conclude that the U.S. Capitol grounds qualified on January

6 as a “restricted building or grounds” and were “posted,

cordoned off, or otherwise restricted” when Griffin entered and

remained there. In anticipation of then-Vice President Pence’s

presence at the Capitol to certify the electoral votes on January

6, law enforcement officers had erected barriers around the

perimeter of the closed area with layers of snow fencing and

bike racks supplementing pre-existing permanent walls to

encircle the Capitol grounds. Signs indicating the area was

closed were affixed along the barriers. By the time Griffin

entered the restricted area, many of those physical

manifestations of its closure had been largely trampled, but that

fact did not alter the status of the area as closed to the public.

The Secret Service’s protectees, then-Vice President Pence and

his wife and daughter, remained within the Capitol complex,

sheltering in the eye of the riot’s storm. Far from reopening

the grounds, law enforcement officers remained onsite battling

to secure them.

B.

We turn next to Griffin’s arguments that he lacked the

requisite knowledge to be convicted. Griffin argues that the

government failed to prove the knowledge element in two

ways. First, he contends that there is insufficient evidence to

17

support the district court’s finding that Griffin knowingly

entered or remained within a “posted, cordoned off, or

otherwise restricted” area. Second, Griffin argues that the

district court misread the statute in not requiring the

government to prove that he knew why the Capitol grounds

were restricted—namely, that former Vice President Pence was

or would be visiting the Capitol—and that the trial evidence

failed to establish his knowledge of the Vice President’s

whereabouts.

We can quickly dispose of Griffin’s first argument.

Griffin insists that a reasonable factfinder could only have

found that, when Griffin entered the Capitol grounds, he

believed that the area was no longer restricted. See Griffin Br.

60 (describing Griffin’s view of the trampled fencing as “akin

to seeing rolled up fencing after a 4th of July concert”).

The evidence does not support that claim. Viewed in the

light most favorable to the government, the trial evidence

showed that Griffin knew he had entered or remained without

authorization in a “posted, cordoned off, or otherwise

restricted” area. The district court found “ample evidence that

Mr. Griffin knowingly entered or remained within the

restricted area.” J.A. 536. The government proved that Griffin

saw the rings of fencing and signage encircling the Capitol

grounds on January 5, when he recorded a video with the

grounds as his backdrop. J.A. 536 (district court’s oral ruling);

see also GX 63. And it showed that, the next day, when Griffin

scaled the stone wall that partially delineated the grounds, he

landed on trampled snow fencing and signs, GX 33-1, which

the district court observed would suggest to a reasonable

person “that perhaps you should not be entering the area.” J.A.

536. The evidence that Griffin knew he was trespassing only

mounted as he continued to progress across the grounds.

Arriving at the base of the inaugural stage, he announced,

18

“we’re in now,” and joked that he should hide his identity with

a face mask. GX 37-1 at 1:10-28. When Griffin quipped that

he loved the “smell of napalm in the air,” he showed he knew

that law enforcement officers were using teargas as they battled

to expel the mob—a clear sign that the area remained restricted.

GX 43-1 at 0:30-40; see also J.A. 536.

Griffin’s public statements in the days after January 6

confirm that Griffin knew when he entered and stayed on the

Capitol grounds that the area was “restricted” within the

meaning of section 1752(c)(1). See J.A. 536-37. On January

7, Griffin recalled that the inaugural stage that he climbed was

“roped off,” and that “D.C. police” had told the rioters “you

can’t step over this.” GX 64 at 3:20-4:15. And, on January 14,

Griffin reiterated that “there was some fencing up” that alerted

the rioters they “couldn’t go any further,” but the crowd—

including Griffin—“just pushed through.” GX 78 at 2:27-3:12.

Accordingly, a rational factfinder could conclude—as,

indeed, the district court did, see J.A. 536-37—that Griffin was

aware that the U.S. Capitol grounds were “posted, cordoned

off, or otherwise restricted” and his presence was unauthorized

when he remained there during the afternoon of January 6,

2021.

C.

To prevail, then, Griffin must persuade us that the district

court misinterpreted section 1752(a)(1)’s knowledge

requirement. Section 1752(a)(1) prohibits “knowingly

enter[ing] or remain[ing] in any restricted building or grounds

without lawful authority to do so.” 18 U.S.C. § 1752(a)(1).

And, as relevant here, section 1752(c)(1) defines the term

“restricted buildings or grounds” to mean “any posted,

cordoned off, or otherwise restricted area . . . of a building or

grounds where the President or other person protected by the

19

Secret Service is or will be temporarily visiting.” Id.

§ 1752(c)(1)(B).

As we explained, the district court reasonably found that

the Capitol grounds were “posted, cordoned off, or otherwise

restricted” when he entered, and that Griffin knew that they

were. But Griffin argues that the statute demands something

more: In his view, the statute also requires proof that he knew

why the Capitol grounds were so restricted when he entered or

remained there—i.e., that Griffin knew that a Secret Service

protectee was or would be temporarily visiting the Capitol

grounds. We decline to adopt such a rule, which would

contravene the statute’s text as read in accord with binding

precedent of the Supreme Court and this court, and would

undermine the statute’s context and purpose. Every indicator

points in the same direction: A person trespassing on grounds

he knows are restricted, where he knows he lacks permission

to be, may be convicted of a federal misdemeanor trespass

under section 1752(a)(1) even if he does not know that a Secret

Service protectee is within.

1.

“Whether a criminal statute requires the Government to

prove that the defendant acted knowingly is a question of

congressional intent.” Rehaif v. United States, 588 U.S. 225,

228 (2019) (citing Staples v. United States, 511 U.S. 600, 605

(1994)). Griffin contends that Congress’s intent is clear—and

“dictated by text.” Griffin 28(j) Ltr. at 2 (Feb. 19, 2024). He

argues that section 1752(a) uses “restricted building or

grounds” as a defined term, so its appearances across the text

of subsection (a)(1) must be treated as shorthand for every

detail of the term’s definition. In Griffin’s view, because

“knowingly” modifies “restricted building or grounds,” the

government must prove that he had knowledge not just that

20

access was restricted, but the precise reason why it was

restricted. Griffin Br. 48-57. Otherwise, Griffin urges, the

government would have failed to prove that the defendant

knew he entered a “restricted building or grounds” as the

statute requires.

In support of this argument, Griffin cites McFadden v.

United States, 576 U.S. 186 (2015), in which the Supreme

Court held that violation of the Controlled Substances Act’s

prohibition of “knowingly . . . distribut[ing] . . . a controlled

substance” required the defendant to know that he distributed

something that qualified as a “controlled substance” as

elsewhere defined by the Act. 576 U.S. at 191-92. “[J]ust as

it is not enough to know that a substance is generically

‘controlled’ (antibiotics are ‘controlled’),” Griffin urges, “it is

not enough to know that a building or grounds is generically

‘restricted’ (any place bearing an ‘area closed’ sign is

‘restricted’).” Griffin Br. 54.

Griffin’s reading of the extent of the statute’s knowledge

requirement fails because it is contrary to both Supreme Court

precedent and contextual evidence of Congress’s purpose.

Grammatical rules and presumptions regarding statutory

knowledge requirements and “jurisdictional only” elements all

weigh against extending the “knowingly” requirement in

section 1752(a)(1) to the specific reason that the area is

“posted, cordoned off, or otherwise restricted.”

Griffin is correct that a handful of Supreme Court cases,

including McFadden, hold that, at least for relatively short

statutory phrases, “[a]s a matter of ordinary English grammar,

it seems natural to read the statute’s word ‘knowingly’ as

applying to all the subsequently listed elements of the crime.”

Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009).

The Court in Flores-Figueroa, for example, interpreted the

21

phrase “knowingly transfers, possesses, or uses, without lawful

authority, a means of identification of another person,” 18

U.S.C. § 1028A(a)(1), to require that the defendant knew the

identification he used belonged to “another person.” Id.

That precedent does not resolve this case. To begin with,

the Court has adopted that understanding of ordinary usage

inconsistently even as applied to relatively short and

straightforward statutory phrases. For instance, in Liparota v.

United States, 471 U.S. 419 (1985), the Court analyzed

whether, in a statutory phrase concerning someone who

“knowingly uses, transfers, acquires, alters, or possesses

coupons or authorization cards in any manner not authorized

by [the statute],” the “knowingly” requirement extends to the

fact that the use was unauthorized. Id. at 420-21. The Court

concluded that “the words themselves provide little guidance,”

as “[e]ither interpretation would accord with ordinary usage.”

Id. at 424. Instead, to determine that “knowingly” extended to

the unauthorized nature of the use, the Court relied on the

judicial presumptions that elements criminalizing otherwise

innocent conduct are subject to a mens rea requirement and that

ambiguous statutes should be interpreted leniently. Id. at 424-

27.

More to the point, “where the modifier ‘knowingly’

introduces a long statutory phrase,” the ordinary meaning

Griffin asserts loses its clarity, “such that questions may

reasonably arise about how far into the statute the modifier

extends.” Rehaif, 588 U.S. at 230. And when a statutory

phrase is long enough, the ordinary usage presumption flips, so

that the “most natural grammatical reading . . . suggests that the

term ‘knowingly’ modifies only the surrounding verbs” and

does not travel down to modify elements “set forth in

independent clauses separated by interruptive

22

punctuation.” United States v. X-Citement Video, Inc., 513

U.S. 64, 68 (1994).

The Court in X-Citement Video accordingly had to reach

beyond rules of grammar to interpret a statute penalizing “[a]ny

person who—(1) knowingly transports or ships [using any

means or facility of] interstate or foreign commerce by any

means including by computer or mails, any visual depiction,

if—(A) the producing of such visual depiction involves the use

of a minor engaging in sexually explicit conduct.” Id. It

recognized that, in the most natural reading of that long text

string, “the word ‘knowingly’ would not modify the elements

of the minority of the performers, or the sexually explicit nature

of the material.” Id. The Court ultimately rejected that “most

natural grammatical reading” because of “anomalies which

[would] result,” and to ensure that “some form of scienter”

would apply to avoid criminalizing conduct that was not only

“otherwise innocent” but protected by the First Amendment.

Id. at 68-69, 72-73.

Here, the statutory phrase—“knowingly enters or remains

in 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,” where “other person protected by the Secret Service”

is further defined as “any person whom the United States Secret

Service is authorized to protect under section 3056 of this title

or by Presidential memorandum, when such person has not

declined such protection,” 18 U.S.C. §§ 1752(a), (c)—is

sufficiently long to raise “questions . . . about how far into the

statute the modifier extends.” Rehaif, 588 U.S. at 230. The

statutory definition of “restricted building or grounds” requires

not just following section 1752(a)’s reference to subsection

(c)(1), and then to either (A), (B), or (C), but also, if (B) applies,

flipping to section 3056 to find the list of protectees under the

23

Secret Service’s care. Some protectees defined by the section

are straightforward—e.g., the “President [and] the Vice

President.” 18 U.S.C. § 3056(a)(1). But others are contingent

on further facts, such as the Secret Service’s protection of

children of former Presidents only until their sixteenth

birthday, or its protection of “distinguished foreign

visitors . . . when the President directs that such protection be

provided.” Id. § 3056(a)(6).

The “most natural grammatical reading” of that

matryoshka doll of nested statutory references is that “the word

‘knowingly’ would not modify” all elements in each reference.

X-Citement Video, 513 U.S. at 68. No grammatical rule

requires that “knowingly” be read to apply, for example, to

elements that are not only “set forth in independent clauses

separated by interruptive punctuation,” but span multiple,

separate statutory provisions. Id. (holding that the “most

natural grammatical reading” would not extend “knowingly” to

subsections listing further specifications of the offense, and

describing em-dashes introducing those requirements as

“interruptive punctuation”). And here, unlike in X-Citement

Video, the grammatically natural reading neither produces

“anomalies” nor fails to require a culpable state of mind—and

certainly not in a way that raises a risk of punishing

constitutionally protected conduct. Id. To the contrary, it is

Griffin’s construction that would produce absurd results. It

would require a defendant to know that the protectee “has not

declined” Secret Service protection. See 18 U.S.C.

§ 1752(c)(2). If the protectee is a visiting official from abroad,

it would require a defendant charged under section 1752(a) to

know that the President saw fit to grant that visitor Secret

Service protection pursuant to section 3056(a)(7). And if the

basis for a restriction is a “special event of national

significance,” see 18 U.S.C. § 1752(c)(1)(C), a defendant

would have to know that it has been so designated. If we read

24

the knowledge requirement to jump the em-dash into

subsection (c)(1)(B) as Griffin urges, we would by all

indications have to do the same for those qualifiers. See, e.g.,

Clark v. Martinez, 543 U.S. 371, 378 (2005) (“The operative

language . . . applies without differentiation to all three

categories . . . that are its subject. To give these same words a

different meaning for each category would be to invent a statute

rather than interpret one.”). This is no far-fetched reductio ad

absurdum, post at 10-12; it is a direct consequence of Griffin’s

own syntactic logic and suggests that Griffin’s interpretation—

which is not required by any interpretive rule and defies

common sense—cannot be correct.

Although the plain text makes clear that “knowingly” does

not apply all the way down the definitional line, the text alone

“provide[s] little guidance” regarding how far “knowingly”

extends. Liparota, 471 U.S. at 424. To answer that question,

we turn to longstanding judicial presumptions, Supreme Court

precedent, and the statute’s context and purpose. Because

those interpretive tools reveal the answer—“knowingly” does

not extend to the reason for the restriction listed in subsection

(c)(1)(B)—we have no occasion to apply the rule of lenity,

which “applies only when, after consulting traditional canons

of statutory construction, we are left with an ambiguous

statute.” Shular v. United States, 589 U.S. 154, 165 (2020)

(quoting United States v. Shabani, 513 U.S. 10, 17 (1994)); see

also Ocasio v. United States, 578 U.S. 282, 295 (2016)

(explaining that the rule of lenity “applies only when a criminal

statute contains a ‘grievous ambiguity or uncertainty,’ and

‘only if, after seizing everything from which aid can be

derived,’ the Court ‘can make no more than a guess as to what

Congress intended.’”) (quoting Muscarello v. United States,

524 U.S. 125, 138-39 (1998)).

25

2.

As noted above, “[w]hether a criminal statute requires the

Government to prove that the defendant acted knowingly is a

question of congressional intent.” Rehaif, 588 U.S. at 228

(citing Staples, 511 U.S. at 605). “In determining Congress’

intent, we start from a longstanding presumption . . . that

Congress intends to require a defendant to possess a culpable

mental state regarding ‘each of the statutory elements that

criminalize otherwise innocent conduct.’” Id. (quoting X-

Citement Video, 513 U.S. at 72). But that presumption is both

limited and rebuttable.

Two interpretive rules confirm that section 1752(a)(1)

requires only that a defendant “knowingly enter[] or remain[]

in” an area that is “posted, cordoned off, or otherwise

restricted.” For one thing, the presumption “flips” for the

jurisdictional elements of a federal offense, so courts presume

that a criminal statute’s knowledge requirement is typically

inapplicable to such jurisdictional elements. Torres v. Lynch,

578 U.S. 452, 468 (2016). And, more generally, contextual

clues may rebut the presumption in favor of scienter. Applying

those rules here confirms that section 1752(a)(1) does not

require that the defendant further know which of the subsection

(c)(1) requirements is the reason for the restriction.

a.

Federal criminal prohibitions, unlike their state

counterparts, contain jurisdictional elements that “connect[]

the law to one of Congress’s enumerated powers, thus

establishing legislative authority.” Torres, 578 U.S. at 467-68.

Those jurisdictional elements must be proven beyond a

reasonable doubt, as with any element of a criminal offense.

See id. But they are also distinctive as subjects of statutory

interpretation: When Congress has not explicitly applied a

26

mental state requirement to a jurisdictional element, we

“assume that Congress wanted such an element to stand outside

the otherwise applicable mens rea requirement.” Id. at 468. In

other words, we presume that “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.” United States v. Feola, 420 U.S. 671, 676 n.9

(1975). That rule applies even when textual cues might cut the

other way. In Rehaif, for example, the Supreme Court

eschewed what it described as the most grammatical reading of

a criminal statute in order to exempt a jurisdictional element

from a knowledge requirement that it held applied to textually

preceding and succeeding statutory terms. Rehaif, 588 U.S. at

230.

Section 1752(c)(1) supplies the jurisdictional elements for

Griffin’s statute of conviction. As described above, Section

1752(c)(1) defines “restricted buildings or grounds” to include

“any posted, cordoned off, or otherwise restricted area” of the

White House, the Vice President’s official residence, or their

grounds; a building or grounds where the President or other

Secret Service protectee is or will be temporarily visiting; or a

building or grounds restricted in conjunction with a special

event of national significance. 18 U.S.C. § 1752(c)(1)(A)-(C).

Those elements are jurisdictional; they “ensure that the Federal

Government has the constitutional authority to regulate the

defendant’s conduct.” Rehaif, 588 U.S. at 230.

The subsection (c)(1)(A)-(C) requirements narrow the

criminal offense’s applicability to a small subset of trespassing

offenses that implicate both the personal security of the most

high-profile federal officials and their foreign counterparts

when they visit the United States, and also, necessarily, the

national security of the United States. See Wood v. Moss, 572

U.S. 744, 748 (2014) (citing Watts v. United States, 394 U.S.

27

705, 707 (1969)) (recognizing that “safeguarding the

President” is “of overwhelming importance in our

constitutional system”). Those requirements thus tie the

criminal prohibition to Congress’s power to “provide for the

common Defense and general Welfare of the United States.”

U.S. Const. art. I, § 8, cl. 1; see H. R. Rep. No. 112-9, at 4

(2011) (identifying this basis of Congress’s constitutional

authority in the 2012 amendment to the section).

The jurisdictional status of the subsection (c)(1)

requirements is confirmed by their essential role in

distinguishing a violation of section 1752(a)(1) from the

familiar, state-law crime of trespass. Without them, section

1752(a)(1) would impermissibly federalize garden-variety

trespass—entering or remaining in a restricted area without

lawful authority—which is “historically a concern of state

law.” Taggart v. Weinacker’s, Inc., 397 U.S. 223, 227 (1970)

(Burger, J., concurring); cf. United States v. Lopez, 514 U.S.

549, 567-68 (1995) (emphasizing federalism’s requirement

that Congress distinguish between “what is truly national and

what is truly local,” and only legislate regarding the former).

With or without the satisfaction of a (c)(1)(A), (B), or (C)

requirement, the underlying conduct is the same knowing

trespass. It is the satisfaction of one of the required connections

to federal national security interests that elevates the conduct

to a matter upon which Congress has authority to legislate.

Those subsection (c)(1) requirements are therefore

jurisdictional in nature. And, under binding Supreme Court

precedent, if they are “jurisdictional only” they “need not be

one in the mind of the actor at the time he perpetrates the act

made criminal by the federal statute.” Feola, 420 U.S. at 676

n.9.

28

Griffin contends that the subsection (c)(1) requirements

are not jurisdictional at all, let alone “jurisdictional only,”

because they play a substantive role in defining the prohibited

conduct. The presence of a Secret Service protectee is “the

very reason Congress cares to punish such conduct as wrongful

at all,” Reply Br. 21, Griffin insists, so it cannot be

jurisdictional. That argument misunderstands the Court’s

admittedly “mislead[ing]” jurisdictional elements terminology.

Feola, 420 U.S. at 676 n.9.

It is often the case that jurisdictional elements “have

nothing to do with the wrongfulness of the defendant’s

conduct.” Rehaif, 588 U.S. at 230. The classic example is “a

standard interstate commerce element, of the kind appearing in

a great many federal laws.” Torres, 578 U.S. at 471. That

element “is almost always a simple jurisdictional hook” used

to “connect[] the congressional exercise of legislative authority

with . . . the Commerce Clause[] that grants Congress that

authority.” Id. at 457, 471.

But things are not always so straightforward. Sometimes,

an element of a federal crime both “makes evident Congress’s

regulatory power” and also “play[s] a role in defining the

behavior Congress thought harmful.” Id. at 471. The Supreme

Court has recognized that such dual-role elements present

“tough questions” concerning whether they are treated as both

jurisdictional and substantive or as jurisdictional only. Id. at

470-71. And it has squarely held that the mere fact that a

statutory element has something to do with the wrongfulness

of the defendant’s conduct does not necessarily mean that the

element is not “jurisdictional only.” Feola, 420 U.S. at 676

n.9. As the Court has explained, “[t]he significance of labeling

a statutory requirement as ‘jurisdictional’ is not that the

requirement is viewed as outside the scope of the evil Congress

intended to forestall.” Id. Rather, as illustrated by Feola, dual-

29

role elements are nonetheless treated as “jurisdictional only”

when they (a) implement Congress’s purpose to federalize pre-

existing state law rather than defining a new substantive crime,

and (b) do not transform innocent conduct into criminal

conduct. Id.

In Feola, the Supreme Court considered the scope of the

knowledge requirement in 18 U.S.C. § 111, which makes it a

crime to assault a federal officer engaged in the performance of

his official duties. Feola tried to sell counterfeit drugs to

undercover federal officers and, when the deal went south,

assaulted one of them. Feola, 420 U.S. at 674. Feola did not

know that his victim was a federal officer—or an officer at

all—so he was “undoubted[ly] surprise[d]” when he was

charged with, and later convicted of, assaulting a federal

officer. Id. at 675. But his surprise did not undermine his

conviction. Deeming the “federal officer” requirement

jurisdictional, the Court held that section 111 “cannot be

construed as embodying an unexpressed requirement that an

assailant be aware that his victim is a federal officer.” Id. at

684. “All the statute requires is an intent to assault, not an

intent to assault a federal officer.” Id.

In holding that the victim’s federal officer status was

“jurisdictional only,” the Court acknowledged that a

jurisdictional requirement could also be “an element of the

offense Congress intended to describe and to punish.” Id. at

676 n.9. Indeed, “a requirement is sufficient to confer

jurisdiction on the federal courts for what otherwise are state

crimes precisely because it implicates factors that are an

appropriate subject for federal concern.” Id. (emphasis added).

The Court explained that “a mere general policy of deterring

assaults would probably prove to be an undesirable or

insufficient basis for federal jurisdiction; but where Congress

seeks to protect the integrity of federal functions and the safety

30

of federal officers, the interest is sufficient to warrant federal

involvement.” Id. So, “[t]he significance of labeling a

statutory requirement as ‘jurisdictional’ is not that the

requirement is viewed as outside the scope of the evil Congress

intended to forestall, but merely that 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.” Id.

The Court thus concluded that the federal-nexus

requirement was “jurisdictional only” because, in enacting

section 111, Congress aimed to create a federal forum for the

prosecution of already-criminalized conduct, rather than to

create new substantive criminal law. Id. at 683-84. The law

“in large part . . . duplicat[ed] state proscriptions” with the

goal of ensuring that “those who killed or assaulted federal

officers were brought to justice” under the uniform standards

of federal court, rather than state courts where “state officials

would not always or necessarily share congressional feelings

of urgency as to the necessity of prompt and vigorous

prosecutions of those who violate the safety of the federal

officer.” Id. Therefore, because the “concept of criminal intent

does not extend so far as to require that the actor understand

not only the nature of his act but also its consequence for the

choice of a judicial forum,” the Court declined to require

knowledge of federal officers’ status. Id. at 685. Rather,

despite the fact that Congress’s interest in establishing a federal

forum was born of its specific concern for “protect[ing] the

integrity of federal functions and the safety of federal officers,”

id. at 676 n.9, the Court held that the federal officers’ status

was “no more germane to the nature of [the assault] than the

color of the victim’s hair,” id. at 693.

The Court also emphasized that its “interpretation poses

no risk of unfairness to defendants.” Id. at 685. Even though

31

Feola may have been “surprised to find that his intended victim

[was] a federal officer in civilian apparel, he nonetheless

[knew] from the very outset that his planned course of conduct

[was] wrongful.” Id. The Court distinguished the case from

“one where legitimate conduct becomes unlawful solely

because of the identity of the individual or agency affected.”

Id.; cf. Ruan v. United States, 597 U.S. 450, 460-61 (2022)

(applying the knowledge requirement in a statute criminalizing

dispensing of a controlled substance to the element of lack of

authorization because that “is often the critical thing

distinguishing wrongful from proper conduct”). In that kind of

case, the Court suggested, the identity of the victim may not be

treated as jurisdictional. Feola, 420 U.S. at 685. But where

the defendant’s planned course of conduct is wrongful from the

outset, “the offender takes his victim as he finds him.” Id.

The rule from Feola is thus clear: When an element of a

criminal offense serves as the basis for Congress’s authority to

legislate; the offense merely provides federal jurisdiction over

what was previously a state law offense; and knowledge of the

element is not “essential to the existence of any crime,” United

States v. Hicks, 15 F.4th 814, 818 (7th Cir. 2021) (emphasis

added), the element is treated as “jurisdictional only” and

courts presume that knowledge of that element is not required.

Feola thus resolves the “tough question” presented by the

statutory text alone in favor of treating the element regarding a

Secret Service protectee’s presence as “jurisdictional only.”

As in Feola, section 1752(a)(1) does not create a substantively

new criminal offense. Rather, Congress designed it to ensure

that Secret Service officers did not have to “rely upon the

assistance of local authorities to arrest persons” who entered

restricted areas around a protectee. See S. Rep. No. 91-1252,

at 7 (1970).

32

When it first enacted section 1752 in 1971, Congress

recognized that “almost everything proscribed in [section

1752] is presently outlawed in some form or other at the State

or local level.” Id. Similarly, in amending the statute in 2012

to include prohibitions on entering the grounds of the White

House and Vice President’s residence, Congress stressed that

the Secret Service had previously relied on D.C. trespass law

to exclude and prosecute White House and Naval Observatory

intruders. H.R. Rep. No. 112-9, at 2 (2011). Before section

1752’s enactment, Secret Service officers found it “difficult to

tell exactly which jurisdiction bears the responsibility for

detention and prosecution,” and the patchwork of relevant state

laws that applied depending on the protectee’s location made

“Secret Service agents unsure of the legal extent of their

authority and [made] uniform enforcement impossible.”

S. Rep. No. 91-1252, at 7 (1970). Just as in Feola, the fact that

section 1752(a)(1) merely federalizes preexisting state or local

prohibitions makes the basis for restricting the prohibited area

“jurisdictional only.” That remains true even though the

enacting Congress was of course motivated by a desire to

safeguard federal Secret Service protectees, just as the

Congress that enacted section 111 in Feola was motivated to

shield federal officers.

Also as in Feola, the prohibited conduct (here, trespass) is

wrongful regardless of whether it is restricted by federal, state,

or local law, and it is therefore sufficient that the defendant

knowingly trespassed on a restricted area. Just as Feola did not

need to know that the target of his assault was a federal officer,

so Griffin need not have known that the restriction was

predicated on the presence of the Vice President. As in Feola,

our interpretation of section 1752 “poses no risk of unfairness

to defendants” because a trespasser knows “from the very

outset that his planned course of conduct is wrongful.” 420

U.S. at 685. That is true even if he “may be surprised to find”

33

that the restricted area on which he is trespassing is protected

by federal rather than state law. Id.

Contrary to the dissent’s view that mens rea requirements

presumptively apply to each element distinguishing “greater

and lesser evils,” post at 15-16, the Supreme Court has recently

reaffirmed that “the purpose of scienter” is to “help[] to

separate wrongful from innocent acts,” Rehaif, 588 U.S. at 231-

32, and described the mens rea presumption as one that

normally applies to “statutory elements that criminalize

otherwise innocent conduct,” id. at 229 (quoting X-Citement

Video, 513 U.S. at 72). Applying Griffin’s contrary rule would

also be in tension with decisions of many other courts that

regularly apply Feola to hold that jurisdictional elements that

do not criminalize otherwise innocent conduct are

“jurisdictional only.” Consider just a few examples.

In United States v. Evans, 74 F.4th 597 (4th Cir. 2023), the

Fourth Circuit addressed the scope of the knowledge

requirement in 18 U.S.C. § 1855, which makes it a crime to

“willfully and without authority, set[] on fire any timber,

underbrush, or grass or other inflammable material . . . upon

any lands owned or leased by . . . the United States.” Id. at 601,

605. The court held that the government need not prove that

the defendant knew that the land on which he set fire was

federally owned; it was sufficient that he knowingly set a fire

on the property of another. Id. The court explained that the

“proscribed arson [wa]s the culpable conduct”; the statutory

requirement that the fire be set ablaze on federally owned lands

merely brought that “culpable conduct within the United

States’ jurisdiction” by tying the offense to Congress’s

constitutional power to regulate federal land. Evans, 74 F.4th

at 605, 606. And the jurisdictional nature of the federal-

ownership element was “confirm[ed]” by the fact that it “is not

an element that ‘separate[s] wrongful conduct from innocent

34

acts.’” Id. (quoting Ruan, 597 U.S. at 458). So, too, here,

subsection (c)(1)(B) ties the trespassing offense to Congress’s

authority to regulate in the national security arena, and

trespassing on an area that one knows is restricted is wrongful,

regardless of why the area is restricted. See also United States

v. Quarrell, 310 F.3d 664, 671-74 (10th Cir. 2002) (holding

that a defendant convicted of knowingly and without

authorization excavating archaeological resources from public

or Indian lands was not required to know the specified

ownership of the land because “[o]ne would anticipate that

excavating for archaeological resources on another person’s

land, whether private or public, would not be viewed as an

innocent act”).

The Second Circuit in United States v. Escalera, 957 F.3d

122 (2d Cir. 2020), adopted the same approach to a statute that

criminalizes “knowingly” engaging in conduct “with intent to

retaliate” against a witness in an “official proceeding,” 18

U.S.C. § 1513(b)(1), and that separately defines “official

proceeding” as certain federal proceedings, id. § 1515(a)(1).

The court held that, for purposes of the conduct or actus reus,

the government had to prove that the victim of the defendant’s

retaliation had testified in an “official proceeding” as defined

in the statute—“a proceeding before a judge or court of the

United States.” Escalera, 957 F.3d at 128-34. But for the

mental state or mens rea, the government needed only to prove

the defendant knew the witness had testified in a “court.” Id.

In so holding, the Second Circuit emphasized that “[i]t is not as

if Congress deemed retaliatory assaults on witnesses in state

proceedings to be innocent conduct which would be worthy of

prohibition only if a federal proceeding were involved.” Id. at

133. Rather, the purpose of section 1513 is to “ensure that the

Federal Government does all that is possible . . . to assist

victims and witnesses of crime.” Id. (quoting Victim and

35

Witness Protection Act of 1982, Pub. L. No. 97-291 § 2(b), 96

Stat. 1248 (1982)).

Under the Feola line of cases, the requirements in section

1752(c)(1)(A)-(C) serve as jurisdictional hooks, and

knowledge that any of those requirements is satisfied is

unnecessary to render criminal the underlying conduct:

knowing trespass on property where the defendant is aware he

is not authorized to be. As in the above cases, the defendant

must know he is engaged in culpable conduct—trespassing—

but he need not know the precise basis for federal regulation of

that conduct.

Griffin contends that, even if attaching “knowingly” to the

subsection (c)(1) requirements is not necessary to avoid

criminalizing otherwise innocent conduct, the satisfaction of

those requirements increases the severity of the conduct and

resulting penalty. He thus argues that the government should

be required to prove he was aware of the presence of a Secret

Service protectee because knowledge of that fact would

increase his culpability. See Griffin 28(j) Ltr. at 2 (Jan. 6,

2024). But there is no doctrinal basis for presuming that a

knowledge requirement attaches to every factor that might

render a crime more serious. And, in any event, the penalties

under section 1752(a)(1) are not categorially more severe than

under state trespass laws.

Consider the statute at issue in Feola. Assaulting an

officer is generally a more serious crime than assaulting a

private citizen. Both are plainly wrongful, but assaulting a

federal officer imperils the success of the federal objectives he

is serving as well as his own personal safety. So, too, with the

statute prohibiting false statements within the jurisdiction of

the federal government at issue in United States v. Yermian,

468 U.S. 63 (1984). Because of its high stakes for the public

36

trust, lying to a federal agency on a security clearance

application is generally culpable in a way that lying about

similar matters to a private employer is not. Yet the Supreme

Court held in each of those cases that facts establishing the

federal nexus were jurisdictional and not subject to the statute’s

knowledge requirements.

In United States v. Burwell, 690 F.3d 500 (D.C. Cir. 2012)

(en banc), we rejected the same argument now raised by

Griffin. In that case, the court held that 18 U.S.C.

§ 924(c)(1)(B)(ii), which imposes a “term of imprisonment of

not less than 30 years” for a person who “possess[es] . . . a

machinegun” “during . . . any crime of violence”—a

substantive rather than jurisdictional provision—does not

require “the government to prove that the defendant knew the

weapon he was carrying was capable of firing automatically.”

Id. at 502. That was so, we held, even though the fact that the

firearm could fire automatically, and was therefore a

machinegun, ratcheted up the defendant’s crime of conviction

to a mandatory 30-year sentence. Id. at 516.

In a dissenting opinion, then-Judge Kavanaugh argued that

the presumption in favor of scienter “applies both when

necessary to avoid criminalizing apparently innocent conduct

(when the defendant would be innocent if the facts were as the

defendant believed) and when necessary to avoid convicting

the defendant of a more serious offense for apparently less

serious criminal conduct.” Burwell, 690 F.3d at 529

(Kavanaugh, J., dissenting). (His dissent did not address

whether his analysis would be any different if the machinegun

element were jurisdictional.) But the en banc majority rejected

that proposed rule as unsupported by Supreme Court precedent.

Id. at 516 (maj. op.). The fact that the type of firearm defendant

Burwell used increased the offense’s severity did not mean the

government had to prove that he knew it was a machinegun.

37

Id. We similarly held in United States v. Morgan, 45 F.4th 192,

205-09 (D.C. Cir. 2022), that a conviction under 18 U.S.C.

§ 2423(a), which prohibits “knowingly transport[ing] an

individual who has not attained the age of 18 years” interstate

to engage in sex offenses, did not require proof of the

defendant’s knowledge of the victim’s minor age, even though

a sex offense involving a minor typically carries harsher

penalties than one involving an adult. That principle applies

with all the more force here, where the element increasing

sentence severity is jurisdictional only.

Nor is it apparent that defendants like Griffin will be

exposed to sentences disproportionate to their culpability.

Barring aggravating factors not applicable to Griffin, section

1752 imposes a maximum of one year’s imprisonment for

violating subsection (a). See 18 U.S.C. § 1752(b). Similar

penalties attach to state trespassing laws on which the Secret

Service would otherwise have to rely for arrest and prosecution

of those who breach a security perimeter around a protectee.

For example, the District of Columbia imposes a six-month

maximum for trespass, see D.C. Code § 22-3302(b), and

trespassing in Virginia is punishable by up to one year of

imprisonment, see Va. Code Ann. §§ 18.2-11, -119.

To the extent that the maximum period of incarceration

under section 1752 is higher than state trespassing laws

typically provide, the same was true in Feola, where the

maximum penalties imposed by section 111 exceeded states’

penalties for simple assault. See Feola, 420 U.S. at 702-03

(Stewart, J., dissenting). The Court’s analysis in Feola was

unaffected by that maximum-penalty disparity because “the

offender takes his victim as he finds him.” Id. at 685. So too

in Burwell, where the status of a firearm as a machinegun

“skyrocket[ed]” the mandatory sentence from five to thirty

years’ imprisonment, Burwell, 690 F.3d at 503, and Morgan,

38

where the juvenile status of the transported individual boosted

the sentence imposed from a maximum of ten years’

imprisonment to a minimum of ten years and up to life. See

Morgan, 45 F.4th at 205, 208-09.

The availability of up to a year’s incarceration does not

support Griffin’s dramatically narrowed reading of section

1752(a)(1). Concerns about ensnaring relatively mild conduct,

such as “stepping over temporary plastic fencing just outside

the Capitol grounds on January 5, 2021, to save a few steps on

a walk home from work,” post at 10, could equally be levelled

at the ordinary trespass laws of myriad states and localities with

similar terms of incarceration. But we can readily assume that

people in Virginia ignore “no trespassing” signs with some

frequency “to save a few steps” without doubting that the

Virginia legislature intended to criminalize simple trespass.

Recent experience in this Circuit demonstrates that

violators of section 1752(a) are typically sentenced to far less

time than the statutory maximum. The Sentencing Guidelines

recommend imposing a sentence of zero to six months for a

defendant without prior criminal history convicted of violating

section 1752(a)(1). Nearly every defendant charged in

connection with the events of January 6 and sentenced solely

for violation of section 1752(a) has been sentenced to fewer

than six months’ incarceration—to the extent they were

sentenced to jail time at all. See U.S. Attorney’s Office for the

District of Columbia, Sentences Imposed in Cases Arising out

of the Events of January 6, 2021 (updated October 7, 2024),

available at https://www.justice.gov/usao-dc/capitol-breach-

cases [https://perma.cc/6PYL-KAB7]. Griffin was sentenced

to fourteen days’ imprisonment. Even those January 6-related

defendants convicted of a section 1752 offense involving

possession of “deadly or dangerous weapon[s] or firearm[s],”

18 U.S.C. § 1752(b)(1)(A), carrying a ten-year maximum

39

prison sentence, have all been sentenced to less than one year

of imprisonment or to probation alone. See id.

In sum, the basis of the Secret Service’s authority to

prevent access to designated areas for the safety of its

protectees is a “jurisdictional only” element of a section

1752(a)(1) federal trespass offense. It need not be in the mind

of the trespasser. The relative seriousness of trespass in an area

protected by the Secret Service, and the potential for somewhat

greater punishment than for typical trespass, does not alter the

analysis where, as here, the prohibited conduct is wrongful

whether or not federal criminal law applies.

b.

In addition to the jurisdictional character of the subsection

(c)(1) requirements, a second rule guiding our interpretation of

criminal statutes’ state-of-mind requirements similarly

disfavors requiring proof of knowledge of a Secret Service

protectee’s presence in the restricted area. Courts decline to

extend even explicit state-of-mind requirements to statutory

elements when “context” disfavors doing so. Morgan, 45 F.4th

at 206-08; see also Rehaif, 588 U.S. at 229-30 (noting that there

can be a “convincing reason to depart from the ordinary

presumption in favor of scienter”); Hicks, 15 F.4th at 817-18

(holding that a defendant’s knowledge that the money he stole

belonged to the government was jurisdictional only, in part

because a contrary interpretation would undercut the statute’s

purpose of protecting federal property used in an undercover

operation). The context of section 1752—a law originally

enacted to create Secret Service-controlled security zones

around the President in response to nationwide alarm over a

spate of high-profile political assassinations—demonstrates

that Congress intended the statute to cover all knowing

trespasses into those restricted areas.

40

First, section 1752’s drafting and legislative history make

clear that Congress never intended “knowingly” to extend to

the reason for the area’s restriction. The original version of

section 1752(a)(1)(ii) made it unlawful “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.” 18 U.S.C. § 1752(a)(1) (1971). In

describing the wording of that provision, the Senate Judiciary

Committee addressed the concern that the public would lack

adequate notice of a restricted area’s boundary because there

would be no “written public notice” in the Federal Register

defining the temporarily restricted areas (as the statute requires

for the President’s official residences and offices). S. Rep. No.

91-1252, at 9 (1970). In the Committee’s view, that concern

was adequately allayed by the fact that the Secret Service “will

make every effort, consistent with Presidential security, to

make such restricted areas known to the public (i.e., by posting

or cordoning off),” and that individuals would be subject to

criminal prosecution only if they “‘knowingly and willfully’

violate[] the restricted area.” Id.

The Senate Committee’s expressed satisfaction with the

requisite actual knowledge as to the boundary of the restricted

area makes clear that prosecution under section 1752(a)(1)(ii)

is inappropriate if an individual does not know that the area is

“posted, cordoned off, or otherwise restricted.” The lack of any

mention of an individual’s knowledge of the reason for the

restriction—the President’s actual or expected presence—

makes equally clear that Congress did not intend the

“knowingly” requirement to extend to the reason for the

restriction. Indeed, the Committee’s reference to the

requirement of subjective knowledge of an area’s restriction,

and to the Secret Service making “every effort” at providing

public notice only to the extent “consistent with Presidential

security,” reinforces that Congress did not intend to also

41

require the Secret Service to announce to the public the precise

location of the President in order to be able to enforce access

restrictions on areas surrounding him.

As discussed above, in 1982, Congress expanded section

1752(a)(1)(ii) to cover other Secret Service protectees in

addition to the President. See Pub. L. No. 97-308, 96 Stat.

1451, 1451-52 (1982). As part of its 2012 amendments,

Congress also implemented a “technical improvement[]” to

streamline the increasingly cumbersome statutory language by

moving into subsection (c) the identification of the three Secret

Service-protected areas justifying federal restriction. H.R.

Rep. No. 112-9, at 1-2; see also Pub. L. No. 112-98, 126 Stat.

263, 263-64 (2012). That change yielded the statute’s current

form, which spells out criminal offense conduct in subsection

(a) and defines the term “restricted buildings or grounds” in

subsection (c)(1). But neither that act of legislative

housekeeping, nor Congress’s addition of other Secret Service

protectees to section 1752(a)(1)(ii) in 1982, changes the mens

rea requirement of that section to encompass the reason that

the building or grounds is “posted, cordoned off, or otherwise

restricted.”

Second, applying a mens rea requirement to the reason for

the restriction would undercut section 1752(a)(1)’s manifest

protective purpose. To require proof that a defendant “know”

that a Secret Service protectee is or would be in the restricted

area would pointlessly hinder the Secret Service’s ability to

defend national leaders from would-be assassins and encumber

prosecution of persons whose knowing trespasses endanger

persons under Secret Service protection. Section 1752

empowers the Secret Service to ensure a secure perimeter

around the President, other national leaders, and their families

wherever they may travel. The nature of the risk against which

42

section 1752 guards strongly disfavors Griffin’s interpretation

of the statute.

Requiring proof that a defendant knew the reason for his

exclusion would render the statute ineffective in circumstances

in which Congress plainly intended it to apply. In enacting and

amending section 1752, Congress’s particular concern was to

empower the Secret Service to arrest and expel those who

breach security perimeters—so-called “zones of protection”—

around the nation’s leaders. See S. Rep. 91-1252, at 7 (1970);

Zones of Protection: Hearing on H.R. 4468 Before the H.

Comm. on the Judiciary, 97th Cong. 5, at 11 (1981). As the

district court reasoned, it is “[un]imagin[able] that a provision

that is looking to protect Secret Service protectees would

require the Secret Service to somehow be telling people and

proving that people knew which protectee was in the restricted

area at what time.” J.A. 534.

But, under Griffin’s reading, officers could not necessarily

rely on section 1752 to stop and arrest anyone who breaches a

restricted area; before doing so, they would need “at least some

evidence supporting” the trespasser’s knowledge of the

protectee’s presence. Hall v. Dist. of Columbia, 867 F.3d 138,

154 (D.C. Cir. 2017). In effect, Griffin would burden Secret

Service agents protecting the perimeter around the President or

other leader with the additional task of alerting members of the

public who might breach the area that a Secret Service

protectee is inside. Even an instruction from someone clearly

identifiable as a Secret Service agent not to cross the perimeter

would not suffice under Griffin’s reading of the statute to

ensure a potential intruder “knows” a protectee is present.

Griffin minimizes the constraint his reading imposes by

suggesting that officers could post “Secret Service ‘restricted

building or grounds’ signage” around the areas they secure.

43

Griffin Br. 54-55. It is not clear, however, that a generic

“Secret Service—Keep Out” sign could prove knowledge of

the facts identified in subsection (c)(1)(B). The requirements

of the statute as Griffin reads it would be unmet by proof that a

defendant knowingly entered or remained without lawful

authority in any building or grounds that he generally knew to

have been placed under restriction by the Secret Service. His

own logic is more demanding, calling for proof that the

defendant knew the distinct facts supporting the restriction he

violated: that the restricted area he entered was the White

House or Vice President’s residence or their grounds

(subsection (c)(1)(A)); or that a Secret Service protectee was

or would be temporarily visiting the restricted area (subsection

(c)(1)(B)); or that the area was restricted in conjunction with a

“special event of national significance” (subsection (c)(1)(C)).

His suggestion of a less cumbersome way to meet it tacitly

acknowledges the implausibility of his highly detailed

knowledge requirement. Griffin cannot have it both ways.

In any event, Griffin’s suggestion of generic Secret

Service signage underscores the defect of his argument. To

provide security for its protectees as they travel throughout the

United States, the Secret Service often works with other federal

law enforcement entities like the Capitol Police, and with state

and local law enforcement agencies. Griffin’s interpretation

would require the Secret Service to call on local partners to use

specialized “Secret Service” notices, rather than the signage

they routinely use, like the “Area Closed by Order of the United

States Capitol Police Board” notices posted on January 6.

Congress could not have intended that the security perimeters

it authorized to protect the nation’s top political leadership

would function only if the Secret Service provided signs

specifying the particular reason for the Secret Service’s

involvement and prevailed on its state and local partners to use

them.

44

Griffin’s approach would surely hinder the Secret

Service’s capacity to handle the full range of potential threats.

Congress’s intent in enacting and amending the statute was to

provide the Secret Service with consistent and effective

federal-law tools so it would no longer have to rely on uneven

protections of state law. But, by requiring proof that each

intruder knew “the President or other person protected by the

Secret Service is or will be temporarily visiting,” Griffin’s

reading would make a section 1752(a)(1) violation

significantly harder to prove than its state-law counterparts.

That added proof burden might not hinder the Secret Service’s

ability to detain and prosecute someone who breached a

security perimeter with the avowed intent to confront a

particular protectee. But, as the events of January 6 illustrate,

Griffin’s reading would substantially undercut the Secret

Service’s ability to fulfill its protective mission in volatile

situations where potential intruders outnumber agents. More

broadly, his reading would embolden people to breach Secret

Service zones of protection with confidence that, so long as no

agent tells them the reason the area is cordoned off (and they

keep under wraps such knowledge they might have from other

sources), section 1752(a)(1) will not reach them.

***

In sum, Congress’s clear purpose in enacting section

1752(a)(1) was to establish a uniform federal trespass

misdemeanor to help the Secret Service protect national

leadership from harm. We reject Griffin’s reading, which is so

squarely at odds with that clear purpose. We have no basis to

conclude that Congress intended to undermine its vital aim by

requiring proof that an intruder knew, when he breached a

federally restricted area, that a Secret Service protectee was or

would be present. The statutory text does not compel that

reading, facts that support Congress’s authority to legislate are

45

assumed to “stand outside the otherwise applicable mens rea

requirement,” Torres, 578 U.S. at 468, and the conduct is

independently culpable.

III.

To recap, we hold that the trial evidence sufficed to prove

that the Capitol grounds were “posted, cordoned off, or

otherwise restricted” under section 1752(c)(1), and that Griffin

knew they were so restricted when he entered and remained

there. We further hold that the government was not required to

prove that Griffin knew when he entered and remained in the

restricted area that Vice President Pence was still there.

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

KATSAS, Circuit Judge, dissenting: This appeal turns on

the scope of an express knowledge requirement in a criminal

statute that protects the President, the Vice President, and other

high officials from trespassers. The statute prohibits

knowingly entering a “restricted building or grounds,” 18

U.S.C. § 1752(a)(1), which is a defined term. First, the area

must be “posted, cordoned off, or otherwise restricted.” Id.

§ 1752(c)(1). Second, as relevant here, it must be one where

“the President or other person protected by the Secret Service

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

question presented is whether a defendant, to be convicted

under section 1752(a)(1), must know that the “restricted

building or grounds” satisfies one or both elements of this

statutory definition. My colleagues hold that a defendant must

know that the area satisfies the first element of the definition

but need not know that it satisfies the second. In my view, the

defendant must know that the area satisfies both elements.

I

During the riot on January 6, 2021, Couy Griffin entered

the grounds of the United States Capitol and made his way onto

the inaugural stage. At that time, entry into the grounds was

restricted because Congress was scheduled to count the votes

of the presidential electors. When Griffin entered the restricted

grounds, Vice President Michael Pence, a Secret Service

protectee, was inside the Capitol to preside over the vote count.

Griffin was charged with knowingly entering a “restricted

building or grounds,” in violation of section 1752(a)(1), and

with knowingly engaging in disorderly conduct inside a

“restricted building or grounds” with intent to disrupt

government business, in violation of section 1752(a)(2).

During a bench trial, the district court held that these offenses

do not require proof that the defendant knew the “restricted

building or grounds” satisfies the statutory definition of that

term. The court found that Griffin had entered an area where

2

he “knew he shouldn’t be,” J.A. 537, but it made no finding

whether Griffin knew that the Vice President was or would

soon be present. The court further found that Griffin had

neither engaged in any disorderly conduct nor intended to

disrupt Congress. Based on these findings, the court convicted

Griffin on the first count and acquitted him on the second.

Griffin appealed the conviction.

II

Section 1752 of Title 18 creates five criminal offenses

requiring acts inside a “restricted building or grounds.” 18

U.S.C. § 1752(a). The first offense covers anyone who

“knowingly enters or remains in any restricted building or

grounds without lawful authority to do so.” Id. § 1752(a)(1).

Section 1752 expressly defines the term “restricted building or

grounds.” As used in that provision:

[T]he term “restricted buildings or grounds” means any

posted, cordoned off, or otherwise restricted area—

(A) of the White House or its grounds, or the Vice

President’s official residence or its grounds;

(B) of a building or grounds where the President

or other person protected by the Secret Service is

or will be temporarily visiting; or

(C) of a building or grounds so restricted in

conjunction with an event designated as a special

event of national significance[.]

3

Id. § 1752(c)(1). 1

The parties dispute the extent of knowledge a defendant

must have about the “restricted building or grounds” to be

properly convicted under section 1752. They agree the

defendant must know that the area satisfies the first element of

the statutory definition—i.e., he must know that the area was

“posted, cordoned off, or otherwise restricted.” 18 U.S.C.

§ 1752(c)(1); see Appellee Br. at 42–43. According to Griffin,

the defendant also must know that the restricted area satisfies

the second element of the definition. Here, in other words,

Griffin had to know that the restricted area was one where the

Vice President, who is protected by the Secret Service, was or

would be “temporarily visiting.” 18 U.S.C. § 1752(c)(1)(B). 2

A

In my view, statutory text, history, and basic interpretive

presumptions all point in the same direction: To be convicted

1

In section 1752, the substantive offenses involve misconduct

in any “restricted building or grounds,” while the definition covers

the term “restricted buildings or grounds,” with buildings in the

plural. The slight difference appears to be a scrivener’s error, and no

party suggests that it makes any difference here.

2

The question presented has often arisen in the prosecution of

individuals who trespassed on Capitol grounds on January 6, 2021.

According to the Department of Justice, prosecutors have obtained

over 470 convictions under section 1752. In all of these cases,

criminal liability may turn on whether the defendant had to know that

Vice President Pence was present at the time of the trespass. The

district judges in our circuit are deeply divided on that question; six

have answered yes, while ten have answered no. See United States

v. Vaglica, No. 23-cr-429, 2024 WL 4244279, at *2 (D.D.C. Sept.

4

of knowingly entering a “restricted building or grounds,” the

defendant must know that the area in question satisfies the

statutory definition of that term.

1

Start with text, grammar, and ordinary English usage.

These considerations drive the interpretation of federal

statutes—including criminal ones. See, e.g., Flores-Figueroa

v. United States, 556 U.S. 646, 650–52 (2009); Jones v. United

States, 529 U.S. 848, 855 (2000). And here, they strongly

support Griffin.

a

“As a matter of ordinary English grammar, it seems natural

to read” the word knowingly, if it introduces a criminal

prohibition, “as applying to all the subsequently listed elements

of the crime.” Flores-Figueroa, 556 U.S. at 650; see Rehaif v.

United States, 588 U.S. 225, 230 (2019) (courts “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” (quoting Flores-Figueroa, 556 U.S. at 652));

United States v. X-Citement Video, Inc., 513 U.S. 64, 79 (1994)

(Stevens, J., concurring) (“the normal, commonsense reading

of a subsection of a criminal statute introduced by the word

‘knowingly’ is to treat that adverb as modifying each of the

elements of the offense identified in the remainder of the

subsection”).

Examples prove this point. An obvious one involves

knowingly followed by a series of verbs. A provision making

19, 2024) (collecting rulings); Hr’g Tr., United States v. Mauck, No.

23-cr-339 (Sept. 27, 2024).

5

it unlawful to “knowingly harass, bother, or intimidate” does

not reach someone who unknowingly intimidates. See A.

Scalia & B. Garner, Reading Law: The Interpretation of Legal

Texts 147–48 (2012) (describing prepositive modifiers).

Another example involves knowingly followed by a transitive

verb, then a direct object, then a further limiting prepositional

phrase. In that instance, the introductory adverb “tells the

listener how the subject performed the entire action, including

the object” as limited. Flores-Figueroa, 556 U.S. at 650; see

also McFadden v. United States, 576 U.S. 186, 191 (2015)

(“the word ‘knowingly’ applies not just to the statute’s verbs

but also to the object of those verbs”); Flores-Figueroa, 556

U.S. at 657 (Scalia, J., concurring in part and concurring in the

judgment) (once knowingly “is understood to modify the object

of those verbs, there is no reason to believe it does not extend

to the phrase which limits that object”). So, “if a bank official

says, ‘Smith knowingly transferred the funds to his brother’s

account,’ we would normally understand the bank official’s

statement as telling us that Smith knew the account was his

brother’s.” Flores-Figueroa, 556 U.S. at 650. For unless

context dictates otherwise, it would make little sense to extend

knowingly only to the verb (transferred), rather than carrying it

through to the direct object (funds) and the limiting

prepositional phrase (to the brother’s account). See id. at 650–

51. These principles vary and combine—often in obvious

ways. Consider one other quotidian example: “He knowingly

pulled over and parked in a no-parking zone.” An ordinary

English speaker would understand that knowingly applies to

both verbs (pulled over and parked) and to the particular

circumstance in which those actions occurred (in a no parking

zone). Nobody would think that the driver had knowingly

6

pulled over and parked, but may not have known whether he

was doing so in a prohibited area.

The Supreme Court repeatedly has applied these principles

in construing introductory knowledge requirements. For

example, United States v. Liparota, 471 U.S. 419 (1985),

involved a statute imposing criminal liability on anyone who

“knowingly uses, transfers, acquires, alters, or possesses

coupons or authorization cards in any manner not authorized

by” the governing positive law. See id. at 420. The Court held

that this provision reaches only individuals who know that their

conduct is “not authorized” by law. See id. at 425–28. Flores-

Figueroa construed a statute imposing criminal liability on

anyone who “knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person.”

See 556 U.S. at 647. The Court held that this provision reaches

only individuals who know that their conduct involves a means

of identifying “another person.” See id. Invoking “ordinary

English,” the Court explained that it would make “little sense”

to criminalize knowingly possessing “a something” unless the

defendant also knows what that something is. See id. at 650.

The same principles support extending knowledge

requirements into defined terms and across different statutory

provisions. Rehaif involved a statute imposing criminal

liability on anyone who “knowingly violates” certain separate

offenses including 18 U.S.C. § 922(g), which prohibits any

alien (1) “unlawfully in the United States” from (2) possessing

any “firearm.” The Supreme Court held that the statute reaches

only someone who knows he is violating all “material

elements” of the predicate offense, and it found “no basis to

interpret ‘knowingly’ as applying to the second § 922(g)

element but not the first.” 588 U.S. at 230–31; see also United

States v. Games-Perez, 667 F.3d 1136, 1143 (10th Cir. 2012)

7

(Gorsuch, J., concurring) (such an interpretation “defies

linguistic sense—and not a little grammatical gravity”).

Likewise, McFadden addressed the knowledge

requirement in the Controlled Substances Act. That statute

makes it unlawful to “knowingly … manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). And

it separately defines the term “controlled substance” as “a drug

or other substance, or immediate precursor, included in

schedule I, II, III, IV, or V” of the Act. Id. § 802(6). The

Supreme Court explained that the substantive prohibition, by

its “ordinary meaning,” reaches only individuals who know

that the substance at issue is “listed on the federal drug

schedules.” See 576 U.S. at 192. In other words, the

introductory mens rea extends to the elements of the defined

term, even when they appear in different statutory provisions.

Finally, United States v. Lucero, 989 F.3d 1088 (9th Cir.

2021), involved criminal liability under the Clean Water Act.

One section of that Act imposes criminal liability for

“knowingly” violating a second section, which prohibits the

“discharge of any pollutant” without a permit. See id. at 1093.

A third section defines “discharge of pollutants” as adding any

“pollutant” to “navigable waters” from any “point source.” See

id. Three other subsections of that section separately define

each of those three terms. See id. at 1093–94. Faced with these

terms strung together “like Russian nesting dolls,” id. at 1093,

the Ninth Circuit held that the criminal provision requires

knowledge of all “substantive elements” set forth in the

definition and sub-definitions—thus excluding only a purely

8

“jurisdictional element” that the polluted water must also be

“waters of the United States.” See id. at 1095–97.

b

These textual and grammatical principles are dispositive

here. As noted above, the governing statute punishes anyone

who “knowingly enters or remains in any restricted building or

grounds.” 18 U.S.C. § 1752(a)(1). The introductory adverb

knowingly applies not only to the two verbs but also to the

phrase that immediately follows—“any restricted building or

grounds,” which functions either as the direct object of “enters”

or as part of a prepositional phrase modifying “remains.” In

other words, a defendant must know not only that he is entering

somewhere off-limits; he must know that he is entering a

“restricted building or grounds” as statutorily defined. See,

e.g., McFadden, 576 U.S. at 188–89; Flores-Figueroa, 556

U.S. at 650. And that requires both knowing that the relevant

area is “posted, cordoned off, or otherwise restricted,” 18

U.S.C. § 1752(c)(1), and, for January 6 Capitol trespassers,

also knowing that the Vice President was or would be

“temporarily visiting” at the time of the trespass, id.

§ 1752(c)(1)(B).

My colleagues try to split the difference. They agree the

defendant must know that the relevant area satisfies the first

part of the statutory definition—i.e., that the area was “posted,

cordoned off, or otherwise restricted” at the time of the

trespass. Ante at 4. But there is no textual or contextual basis

for projecting the knowledge requirement only halfway

through the definition. As shown above, it is routine to project

an introductory adverb like knowingly past the following verbs

and direct object to prepositional phrases that limit one or the

other. Faced with a request to do otherwise, the Court in

Flores-Figueroa asked rhetorically: “But how are we to square

9

this reading with the statute’s language?” 556 U.S. at 651–52.

Likewise, it is common to project knowingly from operative

text into statutory definitions, as happened in Rehaif,

McFadden, and Lucero.

My colleagues object that a mens rea need not travel

through a “long statutory phrase,” especially one “set forth in

independent clauses separated by interruptive punctuation.”

Ante at 21–22 (citing X-Citement Video, 513 U.S. at 68).

Perhaps not, but section 1752 presents none of those features.

All agree that knowingly must extend beyond the operative

verbs (“enters or remains”) to the immediately following

qualifier (“restricted building or grounds”), which is a defined

term. And all agree that knowingly must then extend a short

distance from the prohibition in section 1752(a)(1) to at least

the first half of the definition in section 1752(c)(1)—a leap

much smaller than the one recognized in McFadden, from a

prohibition in section 841 of Title 21 to a definition in section

802. See 576 U.S. at 192. And once extended into section

1752(c), why would knowingly stop halfway through the

definition, immediately after the phrase “any posted, cordoned

off, or otherwise restricted area—”? That phrase neither stands

on its own nor adds much to the prohibition on entering or

remaining in “any restricted building or grounds.” Moreover,

the second half of the definition, which elaborates on where

individuals must not trespass, does not feature independent

clauses. Just the opposite: The three descriptions all begin

with the preposition “of” and would be sentence fragments if

severed from the first half of the definition. Finally, the em-

dash separating the two elements of the definition does not

serve as interruptive punctuation. In the abstract, an em-dash

might mark an interruption, a connection, or simply a stylistic

choice to replace a comma or a colon. See B. Garner, Garner’s

Modern English Usage 899–900 (5th ed. 2022); Mitchell v.

Chapman, 343 F.3d 811, 830 (6th Cir. 2003) (em-dash

10

“introduces related provisions”). Here, inserted after a largely

redundant noun phrase and before several limiting

prepositional phrases, the em-dash clearly serves to connect.

Moreover, the ensuing prepositional phrases impose

significant limits. So, excluding them from the knowledge

requirement substantially broadens the underlying prohibition.

For example, it ensnares a hotel guest who walks past an “area

closed for private event” sign in search of an open bar if,

unbeknownst to the thirsty interloper, the First Lady is

expected to attend. See 18 U.S.C. § 3056(a) (Secret Service

protectees). Likewise, it ensnares an individual who stepped

over temporary plastic fencing just outside the Capitol grounds

on January 5, 2021, to save a few steps on a walk home from

work, even if he was unaware of the impending arrival of the

Vice President. And if that person did so while lawfully

carrying a firearm, he would face imprisonment of up to ten

years. See id. § 1752(b)(1)(A). Such improbable breadth

suggests that something has gone awry. See, e.g., Fischer v.

United States, 144 S. Ct. 2176, 2189 (2024); Bond v. United

States, 572 U.S. 844, 860 (2014).

My colleagues further object with a reductio ad absurdum.

If section 1752(a)(1) incorporates any element of the defined

term “restricted building or grounds,” then why not incorporate

every element “all the way down” the entire “definitional line”?

Ante at 24. After all, the definition of “restricted building or

grounds” contains three alternative elements after its internal

em-dash. See 18 U.S.C. § 1752(c)(1). The alternative at issue

here contains the term “other person protected by the Secret

Service,” which is separately defined. Id. § 1752(c)(1)(B),

(c)(2). And the separate definition incorporates yet another

statute listing eligible protectees. See id. § 1752(c)(2) (citing

18 U.S.C. § 3056(a)). Plucking out elements from this

“matryoshka doll of nested statutory references,” ante at 23,

11

one might ask questions such as: For areas meeting the

definition of “restricted building or grounds” based on an

“event designated as a special event of national significance,”

id. § 1752(c)(1)(C), must the defendant know about the

designation? Because the defined term “other person protected

by the Secret Service” excludes certain individuals who have

declined such protection, id. § 1752(c)(2), must the defendant

know that the individual has not declined the protection? And

for individuals whose protection depends on obscure details

such as the age of children of a former President, see id.

§ 3056(a)(4), must the defendant know those details?

In my view, the reductio is unpersuasive. Of course, the

extension of an introductory mens rea requirement is a question

of degree. Adverbs do not necessarily modify everything that

follows. So when knowingly “introduces a long statutory

phrase,” questions “may reasonably arise about how far into

the statute the modifier extends.” Rehaif, 588 U.S. at 230.

Likewise for nested statutory references, reaching the first one

does not necessarily require reaching all of them. But here,

there is nothing extravagant about extending the knowledge

requirement to the simple verb-object phrase that immediately

follows (“enters or remains in any restricted building or

grounds”) and then to the straightforward incorporated

definition (requiring, as relevant here, an area “posted,

cordoned off, or otherwise restricted” in connection with a

current or impending visit by someone “protected by the Secret

Service”). As shown above, the Supreme Court has routinely

done at least that much, and the Ninth Circuit has done more.

Moreover, the reductio highlights elements for which

knowledge may be difficult or impossible to prove—the

existence of a presidential designation not announced in

advance, an individual’s acceptance or declination of

protection, and the age of individuals protected only while they

12

are children. For those elements, closer questions might arise.

Perhaps the near-impossibility of proving knowledge of some

element is a contextual clue suggesting that no mens rea

requirement applies to it. See Scalia & Garner, supra, at 307.

But those questions, involving definitional elements not at

issue here, should not obscure what is at issue: knowledge

about restrictions imposed in connection with a current or

impending visit by the Vice President, who may not decline

Secret Service protection and whose status as a protectee is not

contingent on anything. See 18 U.S.C. § 3056(a)(1). The reach

of the knowledge requirement is necessarily a line-drawing

exercise—which my colleagues must recognize in extending

the knowledge requirement from section 1752(a)(1) to the first

half of the statutory definition in section 1752(c). Precisely for

that reason, the reductio falls flat. The only question here is

whether the knowledge requirement comes to a full stop at the

em-dash halfway through the definition. As explained above,

it does not—regardless of how much farther the knowledge

requirement might or might not extend into nested statutory

sections besides section 1752(c)(1)(B).

2

Statutory history reinforces these points. As originally

enacted, section 1752 made it unlawful for any person

“willfully and knowingly to enter or remain in” either of two

areas, one of which was “any posted, cordoned off, or

otherwise restricted area of a building or grounds where the

President is or will be temporarily visiting.” Omnibus Crime

Control Act of 1970, Pub. L. No. 91-644, § 18, 84 Stat. 1880,

1891–92 (1971). Under the grammatical principles and

caselaw discussed above, the introductory mens rea

requirements (“willfully and knowingly”) plainly extended to

the relevant verbs (“enter or remain”), object (“area”), and

immediately ensuing qualifier (“where the President is or will

13

be temporarily visiting”). And the argument for that extension

would have avoided all of the textual complications invoked

here by my colleagues: The relevant text was strung together

without interruption, so there was no question about extending

an introductory mens rea requirement from a substantive

prohibition to an incorporated definition, compare ante at 23–

24, with Lucero, 989 F.3d at 1095–97, or, within that definition,

about extending the mens rea to text after an intervening em-

dash, compare United States v. Palomares, 52 F.4th 640, 643

(5th Cir. 2022) (opinion of Jolly, J.), with id. at 653–54

(Willett, J., dissenting) and Pulsifer v. United States, 601 U.S.

124, 171 n.4 (2024) (Gorsuch, J., dissenting).

Section 1752 has become broader and more complex over

time, but none of the changes helps the government. Congress

has extended the statute to Secret Service protectees other than

the President, see Pub. L. No. 97-308, 96 Stat 1451, 1451

(1982), and to events designated as nationally significant, see

Pub. L. No. 109-177, § 602, 120 Stat. 192, 252 (2006). But as

explained above, those amendments (other than the extension

of section 1752 to the Vice President) are neither directly at

issue here nor helpful in understanding the provisions that are.

Moreover, Congress did not move the key requirement at

issue—that a Secret Service protectee “is or will be temporarily

visiting” the restricted area—from operative text into a separate

definition until 2012, when the statute assumed roughly its

current form. See Pub. L. No. 112-98, § 2, 126 Stat. 263, 263–

64. In the 2012 amendments, use of a separate definition

avoided the need to repeat the operative text in each of four

separate paragraphs setting forth four separate offenses. See

id. And use of an em-dash in the definition avoided the need

to repeat the phrase “any posted, cordoned off, or otherwise

restricted area” to describe each of the three categories of

protected areas. See id. As my colleagues explain, these

changes served merely to “streamline” a statute that had

14

become “increasingly cumbersome” as its coverage expanded.

Ante at 41. Such “legislative housekeeping,” id., did not work

a sea change by severing the mens rea from offense elements

to which it had previously applied.

Two other changes warrant a brief mention. In 2006,

Congress increased the maximum authorized penalty for

violations of section 1752 from six months of imprisonment to

one year, and it authorized ten years of imprisonment for

violations while the defendant is carrying a “deadly or

dangerous weapon or firearm.” Pub. L. No. 109-177, § 602,

120 Stat. at 252; see 18 U.S.C. § 1752(b). This change

underscored the substantive difference between section

1752(a)(1) and simple trespass, thus weakening the

government’s position even more. See United States v.

Groseclose, 710 F. Supp. 3d 1, 9 (D.D.C. 2024). Finally, in

2012, Congress eliminated the separate mens rea requirement

of acting willfully. See Pub. L. No. 112-98, § 2, 126 Stat. at

263. But that says nothing about the scope of the knowledge

requirement, which has remained unchanged since 1971.

In sum, the knowledge requirement in the original version

of section 1752 applied to the requirement of a current or

impending visit by a protected individual, and none of the later

amendments undercuts that conclusion.

3

If any doubt on this point remained, two interpretive

principles would resolve it against the government—the

presumption of mens rea and the rule of lenity.

The Supreme Court has long recognized a presumption

that criminal statutes “include broadly applicable scienter

requirements.” X-Citement Video, 513 U.S. at 70; see, e.g.,

Ruan v. United States, 597 U.S. 450, 457–59 (2022); Staples v.

15

United States, 511 U.S. 600, 605–06 (1994); United States v.

U.S. Gypsum Co., 438 U.S. 422, 436 (1978). The presumption

reflects a view that crime usually requires the “concurrence of

an evil-meaning mind with an evil-doing hand,” which

originated in English common law and “took deep and early

root in American soil.” Morissette v. United States, 342 U.S.

246, 251–52 (1952). The presumption “is no provincial or

transient notion”; rather, it “is as universal and persistent in

mature systems of law as belief in freedom of the human will

and a consequent ability and duty of the normal individual to

choose between good and evil.” Id. at 250.

The presumption applies in two distinct contexts. First,

courts will read mens rea requirements into criminal statutes

that “are silent on the required mental state.” Elonis v. United

States, 575 U.S. 723, 736 (2015); see, e.g., Staples, 511 U.S. at

605. In doing so, “we read into the statute only that mens rea

which is necessary to separate wrongful conduct from

otherwise innocent conduct.” Elonis, 575 U.S. at 736 (cleaned

up); see United States v. Burwell, 690 F.3d 500, 505 (D.C. Cir.

2012) (en banc). Second, if text and grammar are not

dispositive, courts will construe express mens rea requirements

broadly as opposed to narrowly. When a statute is not silent as

to the mens rea but instead includes a general scienter

provision, “‘the presumption applies with equal or greater

force’ to the scope of that provision.” Ruan, 597 U.S. at 458

(quoting Rehaif, 588 U.S. at 229). Moreover, the Supreme

Court has “rejected the government’s argument that the

absence of innocence should circumscribe the reach of an

explicit mens rea requirement.” Burwell, 690 F.3d at 516

(citing Flores-Figueroa, 556 U.S. at 650–52). So while

express mens rea terms “often” separate wrongful and innocent

16

conduct, Ruan, 597 U.S. at 458, they can also separate greater

and lesser evils.

Needless to say, a trespass that threatens the life or safety

of the President or the Vice President is substantially more

culpable than a simple trespass consisting of nothing more than

knowingly entering an area “posted, cordoned off, or otherwise

restricted,” 18 U.S.C. § 1752(c)(1). The latter is a local

misdemeanor offense, D.C. Code § 22-3302, which, if it were

to occur in the states, Congress would not and could not

regulate at all, see, e.g., United States v. Morrison, 529 U.S.

598 (2000); United States v. Lopez, 514 U.S. 549 (1995). The

former is an urgent matter, which my colleagues aptly describe

as implicating “the national security of the United States.”

Ante at 26. And so too are trespasses that threaten the lives of

other Secret Service protectees, who are leading national

officials, their immediate families, and their foreign

counterparts. See 18 U.S.C. § 3056(a).

Finally, consider the rule of lenity. In cases addressing the

scope of mens rea requirements in criminal statutes, the

presumption and the rule of lenity work as companion

principles, both supporting narrow constructions over broad

ones. See, e.g., U.S. Gypsum Co., 438 U.S. at 437; Liparota,

471 U.S. at 427–28. On the cutting edge, jurists may disagree

about which doctrine should predominate. Compare Wooden

v. United States, 595 U.S. 360, 378–79 (2022) (Kavanaugh, J.,

concurring) (stressing presumption of mens rea), with id. at

388–92 (Gorsuch, J., concurring in the judgment) (stressing

lenity). But where the defendant’s proposed construction is as

17

textually plausible as it is here, one or both doctrines should

remove any lingering doubt.

B

My colleagues reason that the definition of “restricted

building or grounds” is merely jurisdictional and that a broad

reading of section 1752(a) would best advance its underlying

purpose. Neither argument seems to me persuasive.

1

Start with the proper treatment of assertedly jurisdictional

elements of federal criminal statutes.

a

The Supreme Court has distinguished between substantive

and jurisdictional elements. Substantive elements “describe

the evil Congress seeks to prevent.” Torres v. Lynch, 578 U.S.

452, 467 (2016). On the other hand, jurisdictional elements

connect the statute “to one of Congress’s enumerated powers,”

such as its powers to regulate interstate commerce and federal

property. Id. Because jurisdictional elements “have nothing to

do with the wrongfulness of the defendant’s conduct,” they

“are not subject to the presumption in favor of scienter.”

Rehaif, 588 U.S. at 230. To the contrary, “when Congress has

said nothing about the mental state pertaining to a jurisdictional

element, the default rule flips: Courts assume that Congress

wanted such an element to stand outside the otherwise

applicable mens rea requirement.” Torres, 578 U.S. at 468.

Statutory elements sometimes serve both jurisdictional

and substantive ends, for “an element that makes evident

Congress’s regulatory power also might play a role in defining

the behavior Congress thought harmful.” Torres, 578 U.S. at

18

470–71. In considering such an element, the right question is

“whether it is jurisdictional only,” not whether it is

jurisdictional in part. United States v. Feola, 420 U.S. 671, 676

n.9 (1975); see also United States v. Evans, 74 F.4th 597, 605–

06 (4th Cir. 2023) (“a jurisdictional element only”). In other

words, so long as a statutory element has something to do “with

the wrongfulness of the defendant’s conduct,” Rehaif, 588 U.S.

at 230, courts should not abandon the presumption of mens rea

let alone impose the opposite presumption. Of course, “tough

questions may lurk on the margins” if it is unclear whether a

jurisdictional element “also” serves substantive ends. Torres,

578 U.S. at 470–71. But this is not such a case.

The statutory definition of “restricted building or grounds”

is not “jurisdictional only.” The first element of the

definition—that the area in question must be “posted, cordoned

off, or otherwise restricted”—is entirely substantive; it defines

the area into which entry is prohibited, and it does not make

evident the constitutional basis for federal legislation. The

second element of the governing definition—that a Secret

Service protectee “is or will be visiting”—serves both

jurisdictional and substantive ends. It is partly jurisdictional,

because Congress could not enact a national prohibition on

simple trespass. And it is partly substantive, because it reflects

an obvious judgment that trespasses endangering the life or

safety of the President, the Vice President, or other Secret

Service protectees are substantially more culpable than is

trespassing simpliciter. Given that obviously substantive

purpose, there is no basis for excepting this provision from the

statutory mens rea requirement.

b

My colleagues rest their contrary conclusion mainly on

Feola, which involved a statute prohibiting assaults on federal

19

officers performing official duties. See 420 U.S. at 673. The

Court held that this statute, which includes no express mens rea

element, does not require knowledge of the victim’s status as a

federal officer. In concluding that the identity of the victim

was “jurisdictional only,” id. at 676 n.9, the Court relied

heavily on a letter from the Attorney General to the Chairman

of the Senate Judiciary Committee, id. at 680–84. Based on

that letter, the Court concluded that Congress’s primary

objective was to create a “federal forum” for prosecuting

assaults on federal officers, id. at 682, in order to avoid any risk

that state officials might not prosecute such crimes with

sufficient “urgency,” id. at 684. The Court specifically

concluded that Congress had neither intended to “fill a gap in

existing substantive state law” nor to create a substantive

“federal aggravated assault statute.” Id. at 683. And if

Congress had so intended, the Court strongly suggested, the

statute would presumptively “require[] knowledge of the

victim’s office.” Id. Finally, in extending its holding to

conspiracies predicated on the assault statute, the Court

reiterated its view that the “identity of the proposed victim”

was “no more germane to the nature” of the assault “than the

color of the victim’s hair.” Id. at 692–93.

Feola does not support my colleagues’ position. For one

thing, it involved the question whether to impose a court-made

mens rea requirement, not any question about the scope of a

statutory one. For another, section 1752(c) reflects concerns

that are obviously substantive as well as jurisdictional. As my

colleagues explain, the statute targets only a “small subset of

trespassing offenses that implicate both the personal security of

the most high-profile federal officials and their foreign

counterparts.” Ante at 26. And section 1752 was enacted in

the wake of the assassinations of President John Kennedy in

1963 and presidential candidate Robert Kennedy in 1968.

Although a letter from the Attorney General pushed the Court

20

towards concluding that the statute in Feola was “jurisdictional

only,” a Senate Report accompanying section 1752 cuts

strongly in the other direction here. Not surprisingly, it

confirmed the urgent substantive imperative to afford special

protection to one singularly important official: Congress

sought to “protect the physical safety of the President of the

United States and the orderly functioning of his Office,” given

that “[t]wice in th[e] decade, and nine times in our history, the

Office of the President ha[d] been the subject of an

assassination attempt.” S. Rep. No. 91-1252, at 3 (1970); see

also id. at 5 (“[t]he risk of assassination falls most heavily on

the highest office in our land”); id. at 6 (“we must be sure that

the President is fully protected at all times against the isolated

deranged individual”).

My colleagues do not dispute that section 1752(c) serves

substantive as well as jurisdictional ends. Instead, they read a

footnote in Feola as establishing that “dual-role elements”

presumptively lack any mens-rea requirement. Ante at 28–30;

see 420 U.S. at 676 n.9. In all candor, the footnote is hardly a

model of clarity. But its principal thrust is that a jurisdictional

element, “precisely because it implicates factors that are an

appropriate subject for federal concern,” can have substantive

significance as well, see id., in contrast to purely jurisdictional

elements such as a reference to interstate commerce, see

Torres, 578 U.S. at 468; Rehaif, 588 U.S. at 230. And that is

why the relevant question, as articulated in the footnote and

applied in the rest of the opinion, “is not whether the

requirement is jurisdictional” in part, but instead “whether it is

jurisdictional only.” Feola, 420 U.S. at 676 n.9. My

colleagues further reason that Feola must cover partly

substantive elements because assaulting a federal officer “is

generally a more serious crime than assaulting a private

citizen.” Ante at 35. But the Court reasoned that Congress’s

concerns were merely forum-based, see 420 U.S. at 682–84,

21

with “the identity” of federal officers as substantively

“irrelevant” as the color of their hair, see id. at 693. Finally,

my colleagues invoke Feola’s statement that dispensing with

the mens rea posed “no risk of unfairness” because assaults are

wrongful regardless. Ante at 32; see 420 U.S. at 685. But as

explained above, the Supreme Court has since rejected the

contention “that the absence of innocence should circumscribe

the reach of an explicit mens rea requirement.” See Burwell,

690 F.3d at 516 (citing Flores-Figueroa, 556 U.S. at 650–52).

My colleagues invoke other precedents besides Feola, but

none helps their case. United States v. Yermian, 468 U.S. 63

(1984), turned on the “clear” textual separation between a

jurisdictional element and a statutory mens rea requirement,

which appeared after and “in a phrase separate from” the

jurisdictional element. See id. at 68–69. United States v.

Morgan, 45 F.4th 192 (D.C. Cir. 2022), turned on a special

presumption against knowledge requirements regarding the

age of victims in “sex crimes involving minors,” which does

not involve jurisdictional elements at all. Id. at 206. Burwell

involved the mens rea requirement for a firearms offense

requiring the weapon at issue to be capable of firing

automatically, 690 F.3d at 502, which was also not a

jurisdictional element. And the out-of-circuit precedents

involved provisions held to be “jurisdictional element[s] only,”

Evans, 74 F.4th at 606—i.e., elements with no substantive

significance for the offense at issue. See id. (arson on federal

lands, assessed relative to background state arson law); United

States v. Hicks, 15 F.4th 814, 817–18 (7th Cir. 2021) (stealing

federal property, assessed relative to background state theft

statutes); United States v. Escalera, 957 F.3d 122, 132–33 (2d

Cir. 2020) (witness-protection statute for federal proceedings,

assessed relative to background state witness-protection

statutes). These decisions do not control a statute that, as

22

enacted, afforded singular and special protection to the

President.

One final point. Long after Feola, the Supreme Court

flagged that jurisdictional elements which “also” serve

substantive ends may pose “tough questions.” Torres, 578 U.S.

at 470–71. If that is a fair characterization of the interpretive

issues surrounding dual-purpose elements, then the rule of

lenity would resolve this case in Griffin’s favor.

2

Finally, my colleagues seek to avoid any interpretation of

section 1752 that would “pointlessly hinder the Secret

Service’s ability to defend national leaders.” Ante at 41.

Repeatedly, they stress the utmost seriousness of protecting the

President and other high officials from would-be trespassers.

Id. at 39–44. This line of argument underscores the substantive

nature of the requirement that the defendant trespass in an area

where a Secret Service protectee is or will be present.

The argument also falters on its own terms. Trespassers

unaware that someone like the President or Vice President is

present are much less likely to pose a threat to those officials

than are individuals who knowingly trespass into an area

restricted to protect them. My colleagues suggest that the

January 6 riot reveals a significant practical problem with

Griffin’s position, given the difficulty of proving that any

particular trespasser knows a protectee is present. Ante at 43–

44. That concern strikes me as overstated, particularly given

the number of Capitol trespassers boasting about their desire

to influence (whether peacefully or otherwise) the Vice

President’s performance of his official duties. Moreover, the

seriousness of an offense is reason to insist on, not depart from,

a mens rea requirement. See, e.g., Staples, 511 U.S. at 616–19.

And “concerns about practical enforceability are insufficient to

23

outweigh the clarity of the text.” Flores-Figueroa, 556 U.S. at

656. We should not jettison these principles here.

III

Given its erroneous legal ruling, the district court did not

make a finding whether Griffin knew that the Vice President

was still present at the Capitol when Griffin trespassed. Some

evidence suggests Griffin did not know, such as his later,

mistaken statement that the Vice President had already certified

the election before Griffin arrived at the Capitol. Because an

essential element of the section 1752(a)(1) charge thus remains

unresolved, I would vacate Griffin’s conviction and remand for

further findings or proceedings.

IV

On the question of mens rea, section 1752 required the

government to prove more than just Griffin’s knowledge that

the Capitol grounds were posted, cordoned off, or otherwise

restricted. The government also had to prove that Griffin knew,

when he entered or remained in those restricted grounds, that

the Vice President was still present. Because my colleagues

conclude otherwise, I respectfully dissent. 3

3

I agree with my colleagues that the Capitol grounds remained

“posted, cordoned off, or otherwise restricted” even after rioters tore

down barriers and that there was sufficient evidence supporting the

district court’s finding that Griffin knew the grounds satisfied this

element of the definition when he trespassed.