Petition for Writ of Certiorari — Class v. United States, 137 S. Ct. 1065 (2017) (No. 16-424)

- 36-404 Lae

No.

IN THE

Supreme Court of the Anited States

RODNEY CLASS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

JESSICA RING AMUNSON

R. TRENT MCCOTTER*

JENNER & BLOCK LLP

1099 New York Ave. N.W.

Washington, DC 20001

(202) 637-6333

tmecotter@jenner.com

of Record

i

QUESTION PRESENTED

In Blackledge v. Perry, 417 U.S. 21 (1974), and

Menna v. New York, 423 U.S. 61 (1975), this Court held

that a defendant who pleads guilty can still raise on

appeal any constitutional claim that does not depend on

challenging his “factual guilt.” In Blackledge and

Menna, the Court held that double jeopardy and

vindictive prosecution are two such claims that are not

inherently resolved by pleading guilty, because those

claims do not challenge whether the government could

properly meet its burden of proving each element of the

crime.

In the years since this Court decided Blackledge

and Menna, the circuit courts have deeply divided on

whether a defendant’s challenge to the constitutionality

of his statute of conviction survives a plea, or instead is

inherently waived as part of the concession of factual

guilt.

The question presented is:

Whether a guilty plea inherently waives a

defendant’s right to challenge the constitutionality of

his statute of conviction?

ij

TABLE OF CONTENTS

et Be yy | i

pg Vv

rc ennphncngnemnenenatnmnccnseumnccegens 1

cee ectcciein en imeipiensnmnmecnseneeansnsncensees 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..............cccscceesssssseessseeeees 1

Ee 2

STATEMENT OF THE CASE ...............cccccccsossessnerseseseses 4

I nies enerterierennennnensennenens 4

B. Petitioner Attacks The Constitutionality Of

§ 5104(e) At The District Court. ...........c.cccenecsesneeees 6

Sy NIE Or NINE III, cnccencsecseavecosccessesevencccssesoneneses 8

D. The D.C. Cireuvit Holds That A Plea

Inherently Waives All Constitutional

I pitoneuenes i)

REASONS FOR GRANTING THE PETITION........ 12

I. THE CIRCUIT COURTS ARE DEEPLY

DIVIDED ON THE £QUESTION

BI TIIITITT cossrccsserecnnenisnssssvsscenuseunseaecevcessnenewerees 14

A. Three Circuits Hold That A Guilty Plea

Inherently Waives All Constitutional

Challenges To The Statute Of

EIT icininaiiinihiestaianiecneaienmnabiiataapliiadciaiiciaet anise 15

B. Five Circuits Broadly Allow Post-Plea

Challenges To The Constitutionality Of

The Statute Of Conviction. ...............-:-cececeseeeee 17

C. Three Circuits Allow Facial—But Not

As-Applied—Challenges To The Statute

er eID cacetitstenennnccensincsnanannennpinnapennmemnes 20

Il. THIS CASE IS WORTHY OF THIS

eg fee 22

A. This Issue Is Recurring And Important. ........ 22

B. This Case Is An Excellent Vehicle................... 25

I1.THE D.C. CIRCUITS DECISION IS

MrT christian aeinina hacia 26

SE IIIIIIT ininasssnnrnsignmncnisuniinenepinnininginietessimnaabasiiel 32

Appendix A

Judgment, United States v. Class, No. 15-3015

DR 8 eee la

iv

Appendix B

Order Denying Petitioner’s Motion To

Dismiss The Indictment, United States v.

Class, CR No. 13-253-RWR-1 (D.D.C. Oct. 27,

STITT isi hichis niin cnphesabsichindilecinmiadielimaaisiiabaniniiiniatsatihdaninds 6a

Appendix C

United States v. Class, 38 F. Supp. 3d 19

STITT Di icstesiicehaenitiapastiiniieniiesisaepndilichiainimminataninileceinis 10a

Appendix D

Constitutional and Statutory Provisions

IIE haictrshercertecitnsstestiatis cavekabniasnieaninsininiienigdinmmiabisteimnaitipi 17a

v

TABLE OF AUTHORITIES

CASES

Askew v. Alabama, 398 F.2d 825 (5th Cir.

RE aE SPR SR a ace 18, 28

Blackledge v. Perry, 417 U.S. 21 (1974)............ passim

Brady v. United States, 397 U.S. 742 (1970).............. 23

Citizens United v. FEC, 558 U.S. 310 (2010)............ 31

Criat v. Bretz, 437 U.S. 28 (1978) ......0c..ccceccecccsscccesecees 30

District of Columbia v. Heller, 554 U.S. 570

Son ee nee a 6

Halbert v. Michigan, 545 U.S. 605 (2005).................. 29

Haynes v. United States, 390 U.S. 85 (1968)....... 28, 29

Journigan v. Duffy, 552 F.2d 283 (9th Cir.

Sihinioecicncecitseeiiniema kainate cieaaacnseitibiaiaciaas 19

Lafler v. Cooper, 132 S. Ct. 1376 (2012)............... 13, 22

McCarthy v. United States, 394 U.S. 459

EAE EN EESS RE STE RIE ESane mea ete OO 27

McDonald v. City of Chicago, 561 U.S. 742

STITT seinnecsecusitdneateadtienaiteniinbibinaaiamniniiotaneientnmatmec 6

Menna v. New York, 423 U.S. 61 (1975)........... passim

Missouri v. Frye, 132 S. Ct. 1399 (2012).............0ccse0ees 3

Padilla v. Kentucky, 559 U.S. 356 (2010).................. 23

Palmer v. District of Columbia, 59 F. Supp.

I irichiiittierrtinctettitinnencianinmmandnnnnesvnnes 5

Tollett v. Henderson, 411 U.S. 258 (1973) ........... 11,27

vi

United States v. Aranda, 612 F. App’x 177

EERE EE ES PO One 20

United States v. Bishop, 66 F.3d 569 (3d Cir.

ST sciipisinsstcentnneaiaiipttnlinetibaetiaiiindindiniatidiiinainia iced aipediannis 18

United States v. Broce, 488 U.S. 563 (1989)........ 21,31

United States v. Broncheau, 597 F.2d 1260

ERR Sa EE RP re rs 19

United States v. Curcio, 712 F.2d 1532 (2d Cir.

Siar lictrasinhiitienaicariesiienicninasiieeecaiteatiabimniinatiieinaadtie’ 22, 27, 28

United States v. De Vaughn, 694 F.3d 1141

IEE TEIN AEE iccntoniccninnintinnenmaniaieanbaiaenetinetinianeats 17

United States v. Delgado-Garcia, 374 F.3d

go Bs 0 15, 16, 29, 30

United States v. Dettra, 238 F.3d 424, 2000

WL 1872046 (6th Cir. 2000) (unpublished

I nctcenninsencincasnicteninininlianasinsaaaininnieats 19

United States v. Diaz-Doncel, 811 F.3d 517

SL TTI ditsccntencntinceisnistomatiennimiseiictnienmnetes 16, 17

United States v. Gonzalez, 311 F.3d 440 (1st

Sirs TTI ichinsccuicieapeanedseiienanicapmanitigmebtinapmenoatasiamenimanainsnis 17

United States v. Hollywood Motor Car Co.,

EC eee 30

United States v. Kelly, 102 F. App’x 838 (4th

2 Ee ee 20-21

United States v. Knowles, 29 F.3d 947 (5th

REE CRE RARE ER ne SSA BEC CRO 18

vii

United States v. Miranda, 780 F.3d 1185 (D.C.

0 EEE ES 16, 30

United States v. Palacios-Casquete, 55 F.3d

Be SII, Ti ci iss ietlnnicigienienneideeeesmummniaieal 19, 20

United States v. Phillips, 645 F.3d 859 (7th

Int ccnciruesinseaduaihicndeinentetsietiatdeieinicgninigiiuaundietnteneeenden 21

United States v. Rodia, 194 F.3d 465 aa Cir.

REC RRSPES Sa Se ra es Pec Lanne ne nee 18

United States v. Saac, 632 F.3d 1203 (11th Cir

Hii iccncicescocntissieapietundintetiaininaiidedyiaialasiedmmaaiitinliimmemcetes 20

United States v. Sandsness, 988 F.2d 970 (9th

TEFEIG SIT crnshicsoicnietecciensinesiinenbintaniinthiatnanshiesinibminianiienbidpeneats 19

United States v. Seay, 620 F.3d 919 (8th Cir

RRS ES CN Ine SE SE Se 21

United States v. Skinner, 25 F.3d 1314 (6th

gS ETERS ee REC RSEoee eck ee ee a Oe ee 19

United States v. Stevens, 559 U.S. 460 (2010)........... 25

United States v. Whited, 311 F.3d 259 (8d Cir.

TI icethsiinisipemsepeabaidninttiainentaimmepninidaiinaaenempinnnanesetee 18

Washington State Grange v. Washington

State Republican Party, 552 U.S. 442

STITT ccsrtetiniiaitesunceeaneniesimnniininsiecnnbcintaanmeenibaataiatiainineanttin 31

Welch v. United States, 136 S. Ct. 1257 (2016) ......... 28

STATUTES

ee eR terccennesenentsceneecsneneneninnmnnsmnations 7

GD WG. F Gi ccsccccrscssccsesessssscszsssnccnsocscscvsssssnscngsoennes 5

OTHER AUTHORITIES

Lindsey Devers, Bureau of Justice

Assistance, U.S. Dep’t of Justice, Plea and

Charge Bargaining (2011),

https://www.bja.gov/Publications/PleaBar

gaining ResearchSun.mary. pdf ..............0000-+ 18, 22

BP ee I Bt elrncectnenienetcciendacescsenenneremnceniasineniinapient 24

I 24, 25

Fed. R. Crim P. 11(a) Advisory Committee’s

Notes to 1983 Amendment.................ccccceeserseenneees 24

I

PETITION FOR A WRIT OF CERTIORARI

Petitioner Rodney Class respectfully petitions this

Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the District of

Columbia Circuit.

OPINIONS BELOW

The D.C. Circuit’s July 5, 2016, opinion (Pet.App.1la)

is unpublished. The District Court for the District of

Columbia’s October 27, 2014, oral order denying

Petitioner’s motion to dismiss the _ indictment

(Pet.App.6a) is unreported. The district court’s April

16, 2014, memorandum order denying in part

Petitioner's motion to dismiss the _ indictment

(Pet.App.10a) is reported at 38 F’. Supp. 3d 19.

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254(1). The D.C. Circuit entered its judgment on

July 5, 2016.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves U.S. Const., amend. V, and 40

U.S.C. §§ 5101, 5102, 5104, and 5109. These provisions

are reproduced in the Constitutional and Statutory

Addendum.

2

INTRODUCTION

The circuit courts are deeply divided on an issue

that has a significant impact on the orderly operation of

the criminal justice system: whether a defendant, by

pleading guilty, inherently waives his right to challenge

the constitutionality of his statute of conviction.

In a tandem of cases decided in the 1970s, this Court

held that a guilty plea does not “inevitably ‘waive’ all

antecedent [i.e., pre-plea] constitutional violations.”

Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per

curiam); accord Blackledge v. Perry, 417 U.S. 21, 30-31

(1974) (together, “Blackledge/Menna”). Rather, a plea

inherently concedes only the defendant’s “factual guilt,”

which “renders irrelevant” any claim that depends on

challenging the government’s evidence of guilt, Menna,

423 U.S. at 62 n.2, such as procedural defects or Fourth

Amendment violations, Blackledge, 417 U.S. at 30.

However, a small set of constitutional claims do not

depend on challenging factual guilt. In Blackledge and

Menna, the defendants argued respectively that their

prosecutions were barred by double jeopardy and

vindictive prosecution, meaning that the government

“may not convict [them] no matter how validly [their]

factual guilt is established.” Menna, 423 U.S. at 62 n.2.

Such claims would succeed even if the government

proffered overwhelming evidence that the defendants

had violated the relevant statutes. Accordingly, these

claims are not resolved by pleading guilty, and the

defendant is therefore not inherently foreclosed from

raising them on appeal.

3

In the intervening years, the circuits have sharply

divided on how Blackledge/Menna applies where a

defendant pleads guilty and appeals on the ground that

the statute of conviction itself is unconstitutional. See

Part I, infra. Some circuits—including the D.C. Circuit

below—hold that a plea inherently waives the right to

challenge the constitutionality of the statute of

conviction, while other circuits broadly allow such

challenges after a plea.

Resolving the split on this issue would make guilty

plea proceedings more predictable, thereby benefitting

defendants, prosecutors, and courts alike. See Part

IL.A, infra. Guilty pleas are a ubiquitous part of the

criminal justice system. See Missouri v. Frye, 132 S.

Ct. 1899, 1407 (2012). The “horse trading” between

prosecutors and defense counsel largely “determines

who goes to jail and for how long.” Jd. (quotation

marks omitted). During such negotiations, neither the

prosecutor nor the defendant benefits from incomplete

information regarding what claims could inherently

survive a guilty plea. The lack of clarity also negatively

affects the courts because district courts risk

conducting misleading colloquys. Moreover, the split in

the circuit courts means that the scope of review after a

guilty plea varies significantly depending solely on

where a defendant is indicted and pleads guilty.

Petitioner’s case squarely presents the Court with

an opportunity to resolve this issue. See Part II.B,

infra. At the district court, Petitioner and the

government thoroughly briefed Petitioner’s

constitutional challenges to his statute of conviction,

4

none of which concerned Petitioner’s factual guilt.

Petitioner subsequently pleaded guilty and was

sentenced in accordance with his plea. Petitioner then

appealed to the D.C. Circuit and re-raised his

constitutional claims. The court refused to consider his

attacks on the constitutionality of the statute, holding

that Petitioner’s guilty plea “waive[d]’ all “claims of

error on appeal, even’ constitutional claims.”

Pet.App.3a (quotation marks omitted).

The D.C. Circuit’s ruling was directly contrary to

this Court’s holding in Menna that guilty pleas do not

“inevitably ‘waive’ all antecedent constitutional

violations” and that a defendant can still raise claims

that “stand in the way of conviction [even] if factual

guilt is validly established.” 423 U.S. at 62 n.2. The

D.C. Circuit’s ruling was also contrary to the rulings of

the Third, Fifth, Sixth, Ninth, and Eleventh Circuits,

all of which interpret Blackledge/Menna to permit

constitutional challenges to the validity of a statute

following a guilty plea.

The Court should grant the petition, resolve the

circuit split, and reverse the D.C. Circuit’s improperly

narrow interpretation of Blackledge/Menna.

STATEMENT OF THE CASE

A. Background Facts.

Petitioner is a retired veteran who resides in North

Carolina. Petitioner has a concealed-carry firearm

permit from North Carolina. During a May 2013 trip to

Washington, D.C., Petitioner left his lawfully-owned

5

firearms secured out-of-sight in bags inside his locked

vehicle, which he parked in a _publicly-accessible

parking lot on Maryland Avenue, S.W., about 1000 feet

away from the foot of the U.S. Capitol Building. See

J.A.125.1

Unbeknownst to Petitioner, the parking lot was

considered part of the Capitol Grounds, where all

weapons are prohibited pursuant to 40 U.S.C. § 5104(e).

No signs indicated that the lot was part of the Capitol

Grounds or that weapons were prohibited. J.A.125 n.1.

A police officer looked into the cab of Petitioner’s

vehicle and saw what she mistakenly believed was a

gun holster. J.A.125; J.A.162, § 1. When Petitioner

returned to his car, he was arrested, and his vehicle

was searched. The object the officer saw was not a gun

holster, but the search revealed three firearms that

Petitioner had stored out-of-sight, as well as several

knives. J.A.162, 7 2, 4.

Petitioner was charged in the U.S. District Court

for the District of Columbia with one count of violating

40 U.S.C. § 5104(e).2

1 Citations to “J.A.” refer to the Joint Appendix filed in the D.C.

Circuit on November 20, 2015.

2 Petitioner was also charged with violating D.C. Code § 22-

4504(a), but that charge was dropped after § 22-4504(a) was

declared unconstitutional. See Palmer v. District of Columbia, 59

F. Supp. 3d 173 (D.D.C. 2014).

6

B. Petitioner Attacks The Constitutionality

Of § 5104(e) At The District Court.

Petitioner filed numerous motions to dismiss the

indictment, arguing inter alia that his storage of

lawfully-owned weapons in his locked vehicle was

protected by the Second Amendment. See, e.g., J.A.32-

33, J.A.36, J.A.43, J.A.46. He also raised a due process

notice claim, arguing that he had not been given fair

warning that weapons were banned in the parking lot,

which was freely accessible by the public. See J.A.39.

On April 7, 2014, the district court held a hearing

where Petitioner presented arguments on his Second

Amendment and due process claims. See J.A.65, 69. On

April 16, 2014, the court issued an order that addressed

Petitioner’s arguments. See Pet.App.10a-16a; J.A.70-

100. The court stated that “to the extent Defendant

challenges his prosecution under the Second

Amendment of the Constitution, the Government has

not submitted a substantive response to this argument.

The Court therefore lacks an adequate record on which

to evaluate it.” Pet.App.16a. The court ordered the

government “to file further briefing on this issue.” /d.

On May 1, 2014, the government filed a brief in

response to the district court’s order. J.A.101-21. The

government extensively addressed the question of

whether the Second Amendment, as interpreted by this

Court’s decisions in District of Columbia v. Heller, 554

U.S. 570 (2008), and McDonald v. City of Chicago, 561

U.S. 742 (2010), would prohibit Petitioner’s prosecution.

J.A.106-13. The government did not provide any

7

specific evidence or documentation to support its

claimed substantial interest in prohibiting all weapons,

even when securely stored in cars parked 1000 feet

away from the Capitol. Instead, the government

argued that all government property is inherently a

“sensitive place” where there is no right to armed self-

defense. J.A.112.

The government later filed motions that addressed

many of the due process/notice arguments that

Petitioner had previously raised. The government

argued that there could be no notice or warning

concerns because: (1) § 5104(e) has no “knowledge

and/or intent requirements” (1.e., the statute has “no ...

mens rea element”), J.A.124, 130; and (2) the statute

defining the Capitol Grounds made a “clear reference,”

J.A.138, to the relevant parking lot when it designated

“all grounds bounded by the curblines of First Street,

Southwest on the east; Washington Avenue, Southwest

to its intersection with Independence Avenue, and

Independence Avenue from such intersection to its

intersection with Third Street, Southwest on the south;

Third Street, Southwest on the west; and Maryland

Avenue, Southwest on the north” as being part of the

Capitol Grounds. 40 U.S.C. § 5102(c)(1)(C).

On October 27, 2014, the district court orally denied

Petitioner’s claim that his Second Amendment rights

had been violated, concluding that a government-owned

parking lot was the same as a “government building[)”

where all weapons could presumptively be banned.

Pet.App.9a. The court did not address—and therefore

8

implicitly denied—Petitioner’s due process/notice

argument.

C. Petitioner Pleads Guilty.

Petitioner’s case was set for trial, but he sent a

letter to the court indicating that he would be unable to

appear. J.A.145. He subsequently pleaded guilty to the

one remaining charge of violating § 5104(e).

The plea conceded that Petitioner had violated

§ 5104, see J.A.161, but it did not contain any express

waiver of the right to appeal Petitioner’s conviction,

nor did it concede in any way that § 5104 itself was

constitutional, see J.A.157. The plea also included an

integration clause stating that the plea comprised the

“(clomplete [algreement” between the parties and that

no “promises, understandings, or representations have

been made ... other than those contained in writing

herein.” J.A.159.

At the plea colloquy, the district court told

Petitioner that he could “appeal a conviction after a

guilty plea if [he] believe[d] that [his] guilty plea was

somehow unlawful.” S.A.102.8

3 Citations to “S.A.” refer to the Supplemental Appendix filed at

the D.C. Circuit on February 22, 2016.

9

D. The D.C. Cireuit Holds That A Plea

Inherently Waives All Constitutional

Claims.

Because the plea lacked any clause waiving his right

to appeal his conviction, Petitioner immediately

appealed to the D.C. Circuit and filed a pro se opening

merits brief, focusing on his claim that his Second

Amendment rights had been violated. The government

did not move to dismiss the appeal as barred by the

guilty plea. The D.C. Circuit then appointed counse! to

serve as amicus curiae to argue in favor of Petitioner.

Amicus fully briefed the primary constitutional

challenges that Petitioner had raised at the district

court, and Petitioner expressly adopted the amicus’s

arguments on appeal as his own.* Petitioner argued

that the Second Amendment protects the right to

“keep and bear arms” for self-defense, and that

§ 5104(e) infringed on that right by effectively banning

law-abiding citizens from securely storing lawfully

owned weapons in their cars parked in a publicly

accessible lot.

Petitioner also argued that § 5104(e), both facially

and as-applied, violates the due process clause because

it fails to give fair warning as to what areas are

considered the Capitol Grounds and thus where

weapons are banned. The statutory language defining

the relevant portion of the Grounds is exceedingly

confusing, making it unclear whether the Grounds

4 See Pet. Notice Adopting Amicus D.C. Cir. Br. (Nov. 30, 2015).

10

include the parking lot itself, or merely the land

adjacent to it. Further, there were no signs in or

around the lot that gave any warning that it was part of

the Grounds or that weapons were banned. Petitioner

argued that the lack of any notice, especially when

combined with the government’s argument that

§ 5104(e) had no mens rea requirement, violated due

process.

In response, the government argued—for the first

time, nearly 12 months after Petitioner filed his

opening brief—that even though Petitioner’s plea did

not contain any express waiver of the right to appeal

his conviction, the plea inherently waived his right to

raise any constitutional claims that accrued before he

pleaded guilty, including his constitutional challenges to

the statute. See Gov’t D.C. Cir. Br. 28 & n.15.

Petitioner argued in response that his constitutional

challenges survived his guilty plea pursuant to this

Court’s holdings in Blackledge and Menna. Like the

defendants in those cases, Petitioner was not

challenging his “factual guilt”—i.e., whether the

government could properly satisfy each element of the

statute. Rather, Petitioner argued that,.even assuming

that factual guilt was shown, Petitioner still could not

be validly convicted because § 5104 itself was

unconstitutional. Petitioner argued that the plea did

not address that issue, and therefore the court should

reach the merits of his constitutional challenges to the

statute.

11

After oral argument, the D.C. Circuit issued an

opinion on July 5, 2010, affirming Petitioner’s conviction

and refusing to address the merits of any of his claims.

Pet.App.la-5a. The court’s holding was based on two

premises. First, the court cited Tollett v. Henderson,

411 U.S. 258, 266-68 (1973), for the “universally-

recognized law” that a guilty plea inherently “waive(s|

the pleading defendant’s claims of error on appeal, even

constitutional claims.” Pet.App.3a-4a (quotation marks

and alteration omitted). The court did not address

Menna’s rejection of this interpretation of Tollett. 423

U.S. at 62 n.2.

Second, the D.C. Circuit cited its own precedent

holding that a claim survives under Blackledge/Menna

only where the constitutional violation is so flagrant

that the defendant could not even be “haled into court”

to defend himself, Pet.App. 4a (quoting United States v.

Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004)), even

though the defendants in Blackledge and Menna

themselves had to appear in court to answer the

charges against them. 417 U.S. at 30; 423 U.S. at 61-62.

12

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari to address the

important questions of law presented herein, which

have divided the lower courts.

The circuit courts are deeply split on the proper

interpretation of this Court’s decisions in Blackledge

and Menna. Some circuits, including the D.C. Circuit

below, have narrowed Blackledge and Menna to their

facts and held that a plea inherently waives every

underlying constitutional claim except the double

jeopardy and vindictive prosecution claims that were at

issue in Blackledge and Menna themselves. Other

circuits, including the Third, Fifth, Sixth, Ninth, and

Eleventh Circuits, recognize that Blackledge and

Menna are based on the principle that a guilty plea

concedes factual guilt—but does not necessarily

concede or waive the constitutionality of the statute of

conviction itself. These circuits hold that a plea does

not inherently waive the right to raise facial or as-

applied challenges to the constitutionality of the statute

of conviction. A third group of circuits, including the

Fourth, Seventh, and Eighth Circuits, strikes a middle

ground, allowing facial—but not as-applied—challenges

to survive a guilty plea.

Resolving this split is important for all participants

in the criminal justice system because the lack of clarity

causes significant unpredictability in guilty plea

negotiations and _ especially the subsequent

proceedings, where the circuit courts are often

confused about which claims they must address after a

plea. This issue is also recurrent. “Criminal justice

13

today is for the most part a system of pleas, not a

system of trials,” Lafler v. Cooper, 132 S. Ct. 1376, 1388

(2012), as evidenced by the fact that pleas account for

95% of criminal case resolutions in federal court,

Lindsey Devers, Bureau of Justice Assistance, U.S.

Dep’t of Justice, Plea and Charge Bargaining 1 (2011),

https://www.bja.gov/Publications/PleaBargaining

ResearchSummary.pdf. The criminal justice system is

essentially a series of plea negotiations—and yet the

parties to those negotiations are operating without a

clear understanding of the necessary consequences of

the plea itself. Whether a defendant can plead guilty

and then argue that his or her statute of conviction is

unconstitutional depends at the present time simply on

the circuit in which the defendant is convicted. Thus, a

defendant raising the same claims in the D.C. Circuit

would necessarily be subject to a different outcome in

the Third, Fifth, Sixth, Ninth, or Eleventh Circuits.

Petitioner’s case is an excellent vehicle for resolving

this issue. His Second Amendment and due process

claims were raised at both the district court and circuit

court. Further, his Second Amendment claim was as-

applied, while his due process claim was both as-applied

and facial. Accordingly, this case presents the Court

with the opportunity to address how Blackledge and

Menna apply to both facial and as-applied challenges.

Further, Petitioner’s guilty plea did not expressly

waive his right to appeal his convictions, meaning that

his arguments are not independently barred by such a

clause.

14

Finally, the D.C. Circuit’s holding below was wrong.

The court’s ruling that a plea inherently waives any

ability to challenge the constitutionality of the statute

of conviction is directly contrary to this Court’s holding

in Menna that guilty pleas do not “inevitably ‘waive’ all

antecedent constitutional violations.” 423 U.S. at 62

n.2. Indeed, the D.C. Circuit’s test for which claims

survive a plea—i.e., only those claims where the

defendant would not even have to come to court to

raise them—is so narrow that not even the challenges

in Blackledge and Menna themselves would satisfy it.

The Court should grant the petition.

I. THE CIRCUIT COURTS ARE DEEPLY

DIVIDED ON THE QUESTION

PRESENTED.

The decision below stated that it was “universally

recognized” that a guilty plea inherently waives all

“constitutional claims.” Pet.App.3a-4a (quotation

marks omitted). However, that is far from accurate.

The circuit courts are split into three distinct zroups on

the issue. Three circuits, including the court below,

hold that a plea waives every constitutional challenge

to the statute of conviction. Five circuits correctly hold

that a plea does not waive facial or as-applied

challenges to the statute of conviction. And three

circuits hold that a plea waives as-applied—but not

facial—challenges. This disarray in the circuits means

that two defendants raising the same _ exact

constitutional claims in different circuits could have

15

vastly different outcomes. This Court’s intervention is

needed to address this situation.

A. Three Circuits Hold That A Guilty Plea

Inherently Waives All Constitutional

Challenges To The Statute Of

Conviction.

The court below, along with the First and Tenth

Circuits, has strictly limited Blackledge and Menna to

their facts. These three courts hold that while the

specific constitutional claims at issue in Blackledge and

Menna—double jeopardy and vindictive prosecution—

can survive a plea, no other claims can survive,

including even a facial challenge to the statute.

D.C. Circuit. In its decision below, the D.C. Circuit

refused to address Petitioner’s Second Amendment and

due process challenges to § 5104(e) because

“unconditional guilty pleas ... waive the defendant’s

claims of error on appeal, even constitutional claims.”

Pet.App.3a (alterations and quotation marks omitted;

emphasis added). The court held that the only

exceptions to this rule are (1) “the defendant’s claimed

right not to be haled into court at all,” and (2) a claim

that “the court below lacked subject matter

jurisdiction.” Pet.App.4a (quotation marks omitted).

The court concluded without analysis that Petitioner’s

Second Amendment and due process challenges to §

5104(e) did not fit either of these exceptions. /d.

The decision below repeatedly cited the D.C.

Circuit’s prior precedent in United States v. Delgado-

Garcia, 374 F.3d 1337 (D.C. Cir. 2004), where the

16

defendants argued that the statute of conviction

violated the due process clause. Jd. at 1343. The court

held that the guilty plea in that case inherently waived

“a claim that the due process clause limits the

substantive reach of the conduct elements” of the

statute of conviction. /d. (citing Blackledge and

Menna). Thus, the plea waived any claim that the

statute’s scope was unconstitutional. The court further

held that even if the statute was unconstitutional, the

defendants would “still need to come to court to answer

the charge brought against them,” and therefore the

claim did not qualify under Blackledge/Menna. Id.

(quotation marks omitted); accord United States v.

Miranda, 780 F.3d 1185, 1190 (D.C. Cir. 2015) (citing

Blackledge and Menna for proposition that guilty plea

inherently waived claim that statute of conviction

exceeded Congress’s Article I powers).

Accordingly, the D.C. Circuit has_ effectively

narrowed Blackledge and Menna to their facts: except

for double jeopardy and vindictive prosecution, no

claims survive a guilty plea.®

First Circuit. Relying on D.C. Circuit caselaw, the

First Circuit has likewise held that, after a defendant

pleads guilty, the court will consider only the exact

claims from Blackledge and Menna themselves: a “due

process challenge arising from repetitive, vindictive

prosecution’ and a double jeopardy challenge.” United

5 That is, aside from the universally-accepted rule that any party

can raise a lack of subject matter jurisdiction at any time.

Pet.App.4a.

17

States v. Diaz-Doncel, 811 F.3d 517, 518 n.2 (1st Cir.

2016) (citing Blackledge and Menna). Aside from those

sui generis “exception{s],” in the First Circuit, “a guilty

plea waives all objections,” including a claim that

Congress exceeded its authority under Article I to pass

the statute of conviction. Jd.; accord United States v.

Gonzalez, 311 F.3d 440, 442 (1st Cir. 2002).

Tenth Circuit. The Tenth Circuit has a similarly

grudging interpretation of Blackledge and Menna. In

United States v. De Vaughn, 694 F.3d 1141 (10th Cir.

2012), the court refused to consider a defendant’s claim

that the statute to which he had pleaded guilty violated

the First Amendment. The court stated that a guilty

plea waives all such claims, and “Blackledge and Menna

merely carved out exceptions for two types of

constitutional claims”—double jeopardy and vindictive

prosecution. Jd. at 1152. No other claims survive this

“narrow exception.” Jd. at 1145, 1152-54.

B. Five Circuits Broadly Allow Post-Plea

Challenges To The Constitutionality Of

The Statute Of Conviction.

At the opposite end of the spectrum, a group of

circuits, including the Third, Fifth, Sixth, Ninth, and

Eleventh Circuits, have correctly held that a guilty plea

does not inherently waive a defendant’s right to

challenge his statute of conviction, regardless of

whether the challenge is styled as facial or as-applied.

Had Petitioner been charged in any of these circuits,

the circuit court would have addressed the merits of

18

both his Second Amendment and his due process

claims.

Third Circuit. In United States v. Whited, 311 F.3d

259 (3d Cir. 2002), the defendant entered into an

unconditional guilty plea and then appealed on the

ground that the _ statute of conviction was

“unconstitutional as applied to the facts of her case”

because it exceeded Congress’s powers under the

Commerce Clause. /d. at 260. The Third Circuit

reached the merits of the claim, finding that it was

“properly ... within the narrow scope of review not

barred by a guilty plea.” Jd. at 262. Other Third

Circuit opinions have held likewise. See United States

v. Bishop, 66 F.3d 569, 572 n.1 (8d Cir. 1995) (citing

Blackledge and Menna); United States v. Rodia, 194

F.3d 465, 469 (3d Cir. 1999).

Fifth Circuit. The Fifth Circuit has relied on

Menna to broadly hold that “a guilty plea does not

waive the right of the defendant to challenge the

constitutionality of a statute under which he is

convicted.” United States v. Knowles, 29 F.3d 947, 952

(5th Cir. 1994). While Knowles was an as-applied

challenge, a prior Fifth Circuit decision strongly

suggests that a defendant could widely challenge the

constitutionality of a statute because a plea inherently

resolves “only ... violations of those procedural rights

guaranteed by due process which are incident to the

criminal investigation and prosecution.” Askew v.

Alabama, 398 F.2d 825, 825 n.1 (5th Cir. 1968) (per

curiam) (emphasis added).

19

Sixth Circuit. The Sixth Circuit has also held that

“it is well settled that a guilty plea does not waive the

right of an accused to challenge the constitutionality of

the statute under which he is convicted.” United States

v. Skinner, 25 F.3d 1314, 1316-17 (6th Cir. 1994) (citing

Blackledge). The Sixth Circuit has applied this rule

both to facial challenges, id. at 1316, and as-applied

challenges, United States v. Dettra, 238 F.3d 424, 2000

WL 1872046, at *1, *3 (6th Cir. 2000) (unpublished table

decision) (citing Skinner, 25 F.3d at 1317).

Ninth Circuit. The Ninth Circuit has also held that

a challenge to the validity of a statute outlasts a guilty

plea. In Journigan v. Duffy, 552 F.2d 283 (9th Cir.

1977), the court held that “[e]ven if the guilty plea

establishes as a factual matter that [the defendant] did

the acts charged, a successful constitutional attack on

the statute violated by those acts would undermine the

foundation of the criminal prosecution, making those

acts noncriminal.” /d. at 289 (citing Blackledge and

Menna).

Pursuant to Journigan, the court held in United

States v. Sandsness, 988 F.2d 970 (9th Cir. 1993), that a

guilty plea did not bar a defendant’s facial or as-applied

vagueness challenges on appeal. /d. at 971-72.; accord

United States v. Broncheau, 597 F.2d 1260, 1263 (9th

Cir. 1979) (reaching merits of defendant’s as-applied

vagueness challenges).

Eleventh Circuit. In United States v. Palacios-

Casquete, 55 F.3d 557 (11th Cir. 1995), the Eleventh

Circuit reached the merits of a facial challenge because

20

a “guilty plea ... does not waive the right of an accused

to challenge the constitutionality of the statute under

which he is convicted.” Jd. at 561. In United States v.

Saac, 632 F.3d 1203 (11th Cir. 2011), the court indicated

that this rule would apply not just to facial challenges

but also to any challenge that could be determined

based on “the record at the time of the plea.” Jd. at

1208 (quotation marks omitted).

C. Three Circuits Allow Facial—But Not

As-Applied—Challenges To The Statute

Of Conviction.

Between these two poles, three circuits have

charted a middle course. The Fourth, Seventh, and

Eighth Circuits hold that facial—but not as-applied—

challenges to a statute can survive a defendant’s guilty

plea. These circuits draw this distinction despite the

notable fact that Blackledge and Menna themse'ves

were as-applied challenges. 417 U.S. at 30; 423 U.S. at

61-62. These courts would refuse to consider

Petitioner’s as-applied Second Amendment challenge,

but they would likely still review Petitioner’s due

process challenge. See infra at 31 n.10 (discussing the

numerous flaws in these circuits’ facial versus as-

applied distinction).

Fourth Circuit. In unpublished decisions, the

Fourth Circuit has addressed facial challenges, see

United States v. Aranda, 612 F. App’x 177, 178 n.1 (4th

Cir. 2015) (citing Menna), but has refused to address

the merits of as-applied claims, finding such claims

were waived, see United States v. Kelly, 102 F. App’x

21

838 (4th Cir. 2004) (citing Menna). The court has not

offered a rationale for the distinction.

Seventh Circuit. The Seventh Circuit likewise

addresses facial but not as-applied challenges to a

statute post-plea. The court has explained that “[wJhile

a facial attack on a statute’s constitutionality is

jurisdictional, an as-applied vagueness challenge is

not.” United States v. Phillips, 645 F.3d 859, 863 (7th

Cir. 2011) (citing Blackledge and Menna). Accordingly,

in the Seventh Circuit, a plea cannot waive a facial

challenge.

Eighth Circuit. In United States v. Seay, 620 F.3d

919 (8th Cir. 2010), the Eighth Circuit addressed a

facial challenge, but held that as-applied challenges are

inherently waived by a plea because they are not

“jurisdictional in nature.” Jd. at 922-23 (citing

Blackledge and Menna).

** *

As the deep split in circuit authority shows, the

circuit courts lack clarity on the scope of the

Blackledge/Menna doctrine. In the forty-plus years

since Blackledge and Menna were issued, this Court

has addressed the doctrine only once, see United States

v. Broce, 488 U.S. 563 (1989), in a decision that did not

elucidate the rationale or scope of Blackledge/Menna

but merely re-affirmed that the constitutional

determinations must be made using the “existing

record” at “the time the plea was entered.” Jd. at 575-

76.

22

It is time for this Court to address the effects of a

guilty plea on a defendant’s ability to raise

constitutional challenges on appeal. All sides to this

split have been fully aired in the courts of appeals.

Only this Court can resolve the disagreement.®

Il. THIS CASE IS WORTHY OF THIS

COURT'S REVIEW.

A. This Issue Is Recurring And Important.

Resolving this issue is important because the vast

majority of federal criminal cases are resolved via

guilty plea—yet, because of the lack of clarity in this

area, the prosecutor, defendant, and courts lack

complete information about what claims will survive

the plea.

1. Guilty pleas account for approximately 95% of all

resolved federal criminal cases. See Devers, supra, 1;

Lafler, 132 S. Ct. at 1388. Given these numbers, it is

® The only circuit with criminal jurisdiction that has not fully

weighed in on this issue is the Second Circuit, whose casclaw is

uncior. In United States rv. Curcio, 712 F.2d 1582 (2d Cir. 1983),

Judge Friendly’s opinion for the court correctly summarized the

Blackledge/Menna rule: “{A) defendant. who has been convicted on

a plea of guilty may challenge his conviction on any constitutional]

ground that, if asserted before trial, would forever preclude the

state from obtaining a valid conviction against him, regardless of

how much the state might endeavor to correct the defect.” Jd. at

1539 (quotation marks omitted). However, more recently, the

court has suggested without explanation that an unconditional plea

waives all constitutional challenges. See United States v. Lasaga,

328 F.3d 61, 63 (2d Cir. 2003).

23

unsurprising that the question presented here arises

with frequency in the courts of appeals, as shown by

the significant number of cases that have weighed in on

the split. See Part I, supra. But the current state of

confusion resulting from Blackledge and Menna

reduces the predictability of plea negotiations and, in

particular, the subsequent plea proceedings and

appeals. Thus, a ruling clarifying this area of law would

greatly benefit defendants, prosecutors, and courts

alike.

During guilty plea negotiations, the defendant and

the government both benefit from having a complete

picture of all relevant facts, including what kinds of

claims could survive the plea. “(I jnformed

consideration of [significant consequences of a plea] can

only benefit both the State and ... defendants during

the plea-bargaining process.” Padilla v. Kentucky, 559

U.S. 356, 373 (2010). When the parties know all the

relevant facts, they can meaningfully and knowingly

account for them in their bargaining. Thus, by

“bringing [such] consequences into this process, the

defense and prosecution may well be able to reach

agreements that better satisfy the interests of both

parties.” Id.

But neither side benefits when the law is unclear

about the “likely consequences” of a plea. Brady v.

United States, 397 U.S. 742, 748 (1970). The

government can be surprised when a defendant appeals

on a claim the government thought had been conceded;

and a defendant can be surprised when a court refuses

24

to consider a claim that he believed was inherently

preserved.

The same rule is true for the courts themselves. In

the plea colloquoy, the district court must adequately

inform the defendant of the rights he is waiving. See,

e.g., Fed. R. Crim P. 11. That is difficult where the law

is unclear as to what effect the plea itself will have on

the defendant’s right to raise certain claims on appeal.

Circuit courts likewise would benefit from clarity on

this issue because they may be improperly foreclosing

claims that they have a duty to address, or perhaps are

wasting resources by requiring full briefing on the

merits of claims that should not be heard.

2. The importance of this issue is not diminished by

the fact that Rule 11l{aX(2) provides a _ limited

mechanism for defendants to preserve certain claims

for appeal. See Fed. R. Crim P. 1l{a)(2). First, the

procedure in Rule 11(a)(2) is entirely separate from the

constitutional rule established in Blackledge and

Menna, a point that the Advisory Committee on Rules

made clear: “Subdivision 11(a)(2) ... should not be

interpreted as either broadening or narrowing the

Menna-Blackledge doctrine or as_ establishing

procedures for its application,” because “Subdivision

11(a)(2) has no application to such situations.” Fed. R.

Crim P. 11 Advisory Committee’s Notes to 1983

Amendment (emphasis added). Thus, Rule 11(a)(2) was

designed solely to provide a means for preserving

claims that challenge factual guilt, which do not

inherently survive under Blackledge/Menna.

25

Second, Rule 11(a)(2) requires the prosecutor's

permission for the defendant to preserve a claim. See

Fed. R. Crim. P. 11(a)(2). But a defendant should not

have to rely on “the mercy of noblesse oblige” just to

invoke his pre-existing constitutional rights under

Blackledge and Menna. United States v. Stevens, 559

U.S. 460, 480 (2010).

For these reasons, a decision by this Court on the

question presented would greatly improve the

predictability and fairness of guilty plea negotiations

and proceedings.

B. This Case Is An Excellent Vehicle.

This case provides an excellent vehicle to resolve

the three-way split in the circuits.

First, Petitioner has raised both as-applied and

facial challenges to his statute of conviction. His

Second Amendment and due process challenges were

extensively briefed at the district court prior to the

plea,’ and then were raised again at the circuit court.®

In fact, the district court ordered the government to

further brief the Second Amendment claim, giving the

government a full opportunity to develop the record.

7 See J.A.32-33, J.A.36, J.A.39, J.A.43, J.A.46, J.A.65, J.A.69,

J.A.70-121, J.A.124-40, Pet. App.10a-16a.

8 See Amicus D.C. Cir. Opening Br. 16-56; Gov’t D.C. Cir. Br. 33-

61; Amicus D.C. Cir. Reply Br. 15-29.

26

Accordingly, this case presents this Court with the

opportunity to address how Black'edge/Menna applies

to both facial and as-applied claims, giving the Court

the option of adopting any of the three competing

interpretations of Blackledge/Menna.

Second, Petitioner’s guilty plea does not contain an

explicit waiver of his right to appeal his conviction. See

Pet.App.4a; J.A.157. Thus, there is no obstacle to this

Court reaching the question presented here.

Third, a ruling in Petitioner’s favor would serve as a

bulwark against prosecutorial overreach, without the

risk of flooding the circuit courts with frivolous appeals.

Pre-plea procedural and evidentiary claims—which

amount to the vast majority of constitutional claims

that defendants raise pre-trial—would still be rendered

moot by a plea, just as this Court held in Blackledge

and Menna, because such claims inherently challenge

the defendant’s factual guilt. See 417 U.S. at 30-31.

Ill. THE D.C. CIRCUIT’S DECISION IS

WRONG.

The Court should grant review for the additional

reason that the D.C. Circuit’s decision below is

contrary to this Court’s precedent. The D.C. Circuit

has effectively limited Blackledge and Menna to their

facts, concluding that a guilty plea waives all pre-plea

claims, except for sui generis exceptions for claims of

double jeopardy and prosecutorial vindictiveness. And

the D.C. Circuit’s explanation for why those two claims

survive is actually inconsistent with Blackledge and

Menna themselves.

27

1. The court below relied on Tollett v. Henderson,

411 U.S. 258, 266-68 (1973), for the proposition that a

plea inherently “waives” all “claims of error on appeal,

even constitutional claims.” Pet.App.3a-4a. However,

this Court in Menna expressly rejected that

interpretation of Tollett: “Neither Tollett ... nor [the

Court’s prior guilty plea decisions] stand for the

proposition that counseled guilty pleas inevitably

‘waive’ all antecedent constitutional violations.”

Menna, 423 U.S. at 62 n.2; see also Blackledge, 417 U.S.

at 29.

Menna recognized that what a plea actually does is

establish factual guilt, 7.¢., it serves as “an admission of

all the elements of a formal criminal charge.”

McCarthy v. United States, 394 U.S. 459, 466 (1969).

This admission “renders irrelevant” claims that depend

on challenging factual guilt—such as _ evidentiary

disputes and procedural errors. Menna, 423 U.S. at 63

n.2.

But a plea says nothing about challenges that do not

depend on disputing the evidence of factual guilt. Jd.

In those cases, the defendant is arguing that “the State

may not convict [him] no matter how validly his factual

guilt is established.” Jd. Stated another way by Judge

Friendly: “a plea of guilty may operate as a forfeiture of

all defenses except those that, once raised, cannot be

cured” by the government. United States v. Curcio,

712 F.2d 1532, 1539 (2d Cir. 1983) (quotation marks

omitted).

28

Viewed through this framework, it is clear that a

challenge to the constitutionality of the statute of

conviction fits well within the scope of claims that

survive under Blackledge/Menna. If § 5104(e)—the

statute under which Petitioner was convicted—is

unconstitutional, then the government “may not convict

[Petitioner] no matter how validly his factual guilt is

established,” Menna 423 U.S. at 63 n.2, and the

“practical result is to prevent a trial from taking place

at all,” Blackledge, 417 U.S. at 31 (quotation marks

omitted). The government could establish conclusive

evidence on each element of § 5104(e)—and yet

Petitioner would still be entitled to prevail. Or, in the

words of Judge Friendly, an unconstitutional statute

cannot be “cured” no matter what procedures the

government uses. 712 F.3d at 1539.9

Indeed, this Court has expressly allowed defendants

to challenge the constitutionality of a statute even after

pleading guilty. For example, in Haynes v. United

9 The test for which claims survive under Blackledge and Menna is

very similar to this Court’s test for when a habeas claim is based

on a substantive rule, as opposed to a procedural rule. In habeas

cases, substantive rulings—such as where this Court finds a

statute is unconstitutional—apply retroactively. See Welch v.

United States, 136 S. Ct. 1257, 1264-65 (2016). However,

procedural rulings—such as Fourth Amendment decisions—do not

apply retroactively. See id. Blackledge itself relied on this

distinction and contrasted a double-jeopardy claim with the

“procedural rules that govern the conduct of a trial.” 417 U.S. at

31 (quotation marks omitted); accord Askew, 398 F.2d at 825 n.1

(guilty plea renders irrelevant only “those procedural rights

guaranteed by due process which are incident to the criminal

investigation and prosecution” (emphasis added)).

29

States, 390 U.S. 85 (1968), a case that pre-dates

Blackledge/Menna, this Court held that the defendant’s

“plea of guilty did not, of course, waive” his claim that

the statute of conviction “violated his privilege against

self-incrimination.” Jd. at 86, 87 n.2; see also Halbert v.

Michigan, 545 U.S. 605, 621-22 (2005) (holding that

“folne who pleads guilty or nolo contendere may still

raise on appeal ‘constitutional defects that are

irrelevant to his factual guilt, double jeopardy claims

requiring no further factual record, [and] jurisdictional

defects” (emphasis added)).

2. The D.C. Circuit’s misunderstanding of

Blackledge/Menna is confirmed by the illogical test

that the court uses for determining which claims would

actually survive a plea. The D.C. Circuit has held that

the Blackledge/Menna doctrine applies only where the

constitutional claim is so manifest that the defendant

would not even have “to come to court to answer the

charge brought against [him].” Delgado-Garcia, 374

F.3d at 1343 (quotation marks omitted); accord

Pet.App.4a.

That test cannot be correct, however, because in

Blackledge and Menna themselves, the defendants still

had to appear in court, answer the charge, and proffer

evidence showing that the prosecution was barred by

double jeopardy or vindictive prosecution. 417 U.S. at

24-25; 423 U.S. at 61. It is difficult to imagine what

claim could ever survive the D.C. Circuit’s test, given

that every defendant must “come into court to answer

the charge brought.” Petitioner is aware of no

authority allowing a district court to sua sponte dismiss

30

a criminal indictment on constitutional grounds,

without the defendant even appearing or raising an

argument.

To avoid contradicting the outcomes in Blackledge

and Menna themselves, the D.C. Circuit has held that

double jeopardy and vindictive prosecution claims are

sui generis because in those cases “the very act of

haling the defendant|] into court completed the

constitutional violation.” Miranda, 780 F.3d at 1190.

However, that is simply incorrect. Double Jeopardy is

not triggered until the jury is actually empaneled,

meaning that the “very act of haling” the defendant

into court does not “complete|] the constitutional

violation” of double jeopardy. See, e.g., Crist v. Bretz,

437 U.S. 28, 38 (1978). This Court has likewise

indicated that even a successful claim of vindictive

prosecution does not mean the defendant has no

obligation to appear in court, but rather that he has a

right to “a new trial free of the taint of vindictiveness.”

United States v. Hollywood Motor Car Co., 458 U.S.

263, 267-68 (1982) (citing Blackledge, 417 U.S. at 30).

In other words, just like Petitioner, a defendant

alleging double jeopardy or vindictive prosecution still

must “come to court to answer the charge brought

against [him].” Delgado-Garcia, 374 F.3d at 1343

(quotation marks omitted).

3. The practical result of the D.C. Circuit’s

jurisprudence is that Blackledge and Menna have been

strictly narrowed to their facts, with no possibility of

other constitutional claims surviving a plea.

31

This Court should grant the petition and hold that

Blackledge and Menna did not announce a sui generis

rule lacking any underlying principle. Rather, the

rationale of those cases extends directly to claims that

the statute of conviction is unconstitutional, whether

framed as a facial or an as-applied challenge.

Accordingly, the D.C. Circuit erred by refusing to

consider the merits of Petitioner’s constitutional

claims. 10

This case directly presents a recurring issue on

which the circuit courts are deeply split and which is of

10 Likewise erroneous are the circuits that allow facial—but not

as-applied—challenges to survive. See Part 1.C, infra. That

distinction makes little sense given that Blackledge and Menva

themselves involved as-applied challenges. 417 U.S. at 30; 423

US. at 61-62. Also, this Court stated in Broce that a

Blackledge/Menna claim could be based on either the face of the

indictment or the “existing record” at “ile time the plea was

entered,” indicating that the circuit court must consider the

particular facts proffered at the district court. Broce, 488 US. at

575 (emphasis ackled). Further, this Court has made clear that the

“distinction between facial and as-applied challenges is not so well

defined that it has some automatic effect.” Citizens United v.

FEC, 558 U.S. 310, 331 (2010). Finally, such a rule would

encourage (lefendants to needlessly raise facial challenges rather

than narrower as-applied ones, in direct contravention of this

Court’s dictate that facial challenges “run contrary to the

fundamental principle of judicial restraint” because they ask the

court to “formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied.” Wask.

State Grange v. Wash. State Republican Party, 552 U.S. 442, 450

(2008) (quotation marks omitted).

32

significant importance to the orderly and predictable

operation of the federal criminal justice system. The

Court should grant the petition.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JESSICA RING AMUNSON

R. TRENT MCCOTTER*

JENNER & BLOCK LLP

1099 New York Ave. N.W.

Washington, DC 20001

(202) 637-6333

tmecotter@jenner.com

* Counsel of Record

APPENDIX

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA,

APPELLEE

v. No. 15-3015

RODNEY CLASS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-er-00253-1)

—_— —

Before: GRIFFITH and SRINIVASAN, Circuit

Judges, and SENTELLE, Senior Circuit Judge.

JUDGMENT

This appeal was considered on the record from the

United States District Court for the District of

Columbia and on the briefs of the parties and oral

arguments of counsel. The Court has accorded the issues

full consideration and has determined that they do not

warrant a published opinion. See D.C. CIR. R. 36(d).

For the reasons stated below, it is

2a

ORDERED and ADJUDGED that the judgment of

the district court be affirmed.

Appellant Rodney Class pleaded guilty in the district

court to possession of a firearm on Capito] grounds in

violation of 40 U.S.C. § 5104(e). Although the defendant

appeared pro se at the time of the plea, he had previously

been represented by appointed counsel! and counsel had

been discharged at his request, although the Federal

Public Defender served as stand-by or advisory counsel.

Despite his sometime lack of counsel, the plea followed

extended motions practice and was memorialized in a

plea agreement.

The district court conducted a full inquiry pursuant

to Federal Rule of Criminal Procedure 11. That inquiry

included the following exchange:

THE COURT: If you went to trial and you were

convicted, you would have a right to appeal your

conviction to the Court of Appeals and to have a lawyer

help you prepare your appeal. Do you understand that?

[APPELLANT]: Yes.

THE COURT: Do you know what I mean by

your right to appeal?

[APPELLANT]: Yeah. Take it to the next court

up.

THE COURT: All right.

Now, by pleading guilty, you would be generally

giving up your rights to appeal. Do you understand

that?

3a

[APPELLANT]: Yes.

THE COURT: Now, there are exceptions to

that.

You can appeal a conviction after a guilty plea if you

believe that your guilty plea was somehow unlawful or

involuntary or if there is some other fundamental defect

in these guilty-plea proceedings.

You may also have a right to appeal your sentence if

you think the sentence is illegal. Do you understand

those things?

[APPELLANT]: Yeah. Pretty much.

THE COURT: Now, if you plead guilty in this

case and I accept your guilty plea, you'll give up all of the

rights I just explained to you, aside from the exceptions

that I mentioned, because there will not be any trial, and

there will probably be no appeal. Do you understand

that?

[APPELLANT]: Yes.

Tr. of Plea Hearing at 16:2-17:4, United States v. Class,

No. 13-253-RWR-1 (D.D.C. Nov. 21, 2014).

On appeal, Class attempts to assert three grounds of

constitutional error and a further claim of statutory

error. None of them are properly before us.

It is well-established law that “[uJnconditional guilty

pleas that are knowing and intelligent . . . waive the

pleading defendant([’s] claims of error on appeal, even

constitutional claims.” United States v. Delgado-Garcia,

374 F.3d 1337, 1341 (D.C. Cir. 2004). Although the

Federal Rules of Criminal Procedure provide for

4a

conditional pleas wherein a pleading defendant may

“reserv(e] in writing the right to have an appellate court

review an adverse determination of a specified pretrial

motion,” Fed. R. Crim. P. 11(a)(2), the defendant’s plea

in the present case contains no such reservation.

The plea agreement included an explicit waiver of

appeal rights as to sentencing errors and collateral

attacks on the conviction, but not as to alleged errors in

the indictment or in proceedings before the sentencing.

Appellant apparently believes that the lack of an explicit

waiver permits him to proceed in the present appeal. He

is in error. The holding from Delgado-Garcia quoted

above reflects the universally-recognized law of the

United States. See, e.g., Tollett v. Henderson, 411 U.S.

258, 266-68 (1973).

There are two recognized exceptions to this rule:

“the defendant’s claimed right not to be haled into court

at all,” and a claim “that the court below lacked subject-

matter jurisdiction over the case ....” Delgado-Garcia,

374 F.3d at 1341 (citations and internal] quotation marks

omitted). Neither claimed exception applies here. We

therefore affirm the judgment of the district court.

5a

Pursuant to D.C. Circuit Rule 36, this disposition will

not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or petition

for rehearing en banc. See Fed. R. App. P. 41(b); D.C.

Cir. R. 41(a)(1).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken Meadows

Deputy Clerk

6a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )

vs.

RODNEY CLASS,

)

Plaintiff, ) CR No. 13-253-RWR-1

)

) Washington, D.C.

) October 27, 2014

) 10:00 a.m.

)

Defendant. )

=

TRANSCRIPT OF MOTION HEARING

BEFORE THE HONORABLE RICHARD W. ROBERTS

APPEARANCES:

For the Government:

Standby Counsel

for the Defendant:

Jeffrey Pearlman

US. ATTORNEY'S OFFICE

FOR THE DISTRICT OF COLUMBIA

555 Fourth Street, NW

Washington, D.C. 20530

(202) 252-7228

A.J. Kramer

FEDERAL PUBLIC DEFENDER

FOR THE DISTRICT OF COLUMBIA

625 Indiana Avenue, NW

Suite 550

Washington, D.C. 20004

(202) 208-7500

7a

*** * *

Mr. Class moves to dismiss the criminal case against

him and alleges that the charges against him are invalid

under the Second Amendment to the United States

Constitution. And he seeks the removal of his GPS

tracking device.

His second motion docketed as No. 35, challenging

the charges against him under the Second Amendment,

is captioned as “Judicial Notice Motion To Remove U.S.

Code 28, Section 2672 Administrative Adjustment of

Claims.”

I will construe his pro se motions liberally, as 1 must,

and will treat them as a challenge to the remaining

federal count, since the D.C. Code charge is no longer in

the case.

Mr. Class contends, in essence, that the holdings in

three cases: District of Columbia versus Heller,

reported at 554—I’m sorry, 554 U.S. 570 in 2008, and

McDonald versus Chicago, reported at 561 U.S. 742 in

2010, and Parker versus District of Columbia, reported

at 478 F.3d 370 by the D.C. Circuit in 2006, all require

that the charge against him be dismissed.

The Second Amendment to the U.S. Constitution

provides that a well-regulated militia, being necessary

to the security of a free state, the right of the people to

keep and bear arms shall not be infringed.

In the Heller case, the Supreme Court held that the

D.C. gun statute restrictions violated an individual’s

Second Amendment right to keep and bear arms.

8a

Although the Supreme Court held the D.C. gun law

unconstitutional, that court was careful in emphasizing

that nothing in our opinion should be taken to cast doubt

on longstanding laws forbidding the carrying of firearms

in sensitive places such as schools and government

buildings. Importantly, the Court stressed that such

laws are presumptively lawful, regulatory measures.

In Heller, too, decided by the D.C. Circuit in 2011 and

reported at 670 F.3d 1244, the D.C. Circuit adopted a

two-part test to assist courts in deciding the Second

Amendment challenges to gun control statues.

Under the two-step test, a reviewing court will be

required to ask first whether a particular provision

impinged upon a right protected by the Second

Amendment. And if it does, then the Court has to

determine whether the provision passes muster under

the appropriate level of constitutional scrutiny.

A longstanding statutory restriction is presumed to

be lawful or presumed not to burden conduct within the

scope of the Second Amendment. A plaintiff can rebut

this presumption by showing the regulation does not

have more than a de minimis effect on his right.

To determine whether the particular gun control law

may be upheld, the D.C. Circuit concluded that

intermediate scrutiny was the appropriate level of

scrutiny. To pass muster under intermediate scrutiny,

the government has to show that the restrictions are

substantially related to an important governmental

objective. Now, under this showing, the government

would be required to establish a tight fit between the

restrictions and an important or _ substantial

9a

governmental interest, a fit that employs not necessarily

the least restrictive means, but a means narrowly

tailored to achieve the desired objective.

Because the Supreme Court determined, in Heller,

that laws prohibiting individuals from carrying firearms

in sensitive places, such as government buildings, are

presumptively lawful, regulatory measures, Mr. Class

would have to rebut this presumption by showing that

there was more than a de minimis effect on his exercise

of his Second Amendment right. But he has not

provided any evidence to rebut the presumption that

Section 5104(e)(1) does not burden conduct protected by

the Second Amendment.

From as best I can decipher from what he files in his

motions, he asserts only that the District of Columbia

city code, quote/unquote, “is unconstitutional,” and then

he cites to those three cases: Heller, McDonald and

Parker.

Although his motions have been construed

generously, he would have to provide more than bold

assertions to support his Second Amendment claim

against the federal statute. And so his motions, that’s

Nos. 20 and 35, challenging the charge against him on

Second Amendment grounds, are denied.

xseAK

10a

Appendix C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )

Plaintiff,

Crim. Action

No. 13-253 (GK)

V8.

RODNEY CLASS,

Defendant.

|

i i a a ee

MEMORANDUM OPINION AND ORDER

Pending before the Court are thirty-six Motions filed

by Defendant Rodney Class [Dkt. Nos. 7, 10-14, 16, 20-

22, 23, 25-49]. Upon consideration of the Motions, the

Government’s three Omnibus Responses, the arguments

presented at the Motions Hearing on April 7, 2014, and

the entire record herein, and for the reasons set forth

below, Defendant’s Motions are granted in part, denied

in part, and, pending further development of the record,

deferred in part.

lla

L BACKGROUND

On May 30, 2013, Defendant was arrested by United

States Capitol Police for possession of three firearms on

United States Capitol Grounds. See Indictment [Dkt.

No. 1].’

On September 3, 2013, a grand jury in the United

States District Court for the District of Columbia

indicted Defendant on two charges: (1) possession of

three firearms on United States Capitol Grounds in

violation of 40 U.S.C. § 5104(e)(1); and (2) carrying a

concealed pistol outside of his home or business place in

violation of D.C. Code § 22-4504(a).* On September 5,

2013, Defendant appeared before Magistrate Judge John

Facciola for arraignment. The Federal Defender for the

District of Columbia was appointed to represent him and

he was released on his own recognizance and placed in

the Court’s High Intensity Supervision Program.”

Subsequently, Defendant indicated through written

filings and oral requests at several court appearances

that he wished to represent himself. On March 26, 2014,

‘ Defendant is alleged to have possessed a Taurus .44 caliber pistol,

a Ruger LC9 9 mm pistol, and a Henry Arms .44 caliber rifle. See

Indictment [Dkt. No. 1].

* On May 31, 2013, prior to the grand jury’s indictment in this Court,

Defendant was charged in the Superior Court for the District of

Columbia with Carrying a Pistol in violation of D.C. Code § 22-

4504(a). The case in Superior Court was eventually dismissed, but

the record does not indicate when.

* On January 17, 2014, the case was reassigned to this Court after

Judge Robert Wilkins, the District Judge previously assigned to the

case, was elevated to the Court of Appeals for the D.C. Circuit.

12a

the Court held a status conference at which it advised

Defendant in great detail of the risks of self-

representation in order to ensure that, in the event he

ultimately elected to waive his constitutional right to

appointed counsel, such election would be “knowing,

intelligent, and _ voluntary.” United States v.

Cunningham, 145 F.3d 1385, 1391 (D.C. Cir. 1998). The

Court then asked Defendant to further consider whether

he wished to represent himself in light of the risks

identified by the Court, and to inform the Court of his

final decision at his next court appearance.

Meanwhile, between January 3, 2014, and March 27,

2014, Defendant, although still represented by counsel,

filed thirty-six pro se Motions. [Dkt. Nos. 7, 10-14, 16,

20-22, 23, 25-49]. After he filed the first six of these

Motions, the Court advised the Government at a status

conference on February 3, 2014, that it could respond to

the then-pending Motions with a single omnibus

response indicating merely whether it opposed or did

not oppose the requested relief. On February 7, 2014,

the Government filed an Omnibus Response to the first

six of these Motions (“Gov’t’s First Omnibus Resp.”)

[Dkt. No. 17]. On March 7, 2014, after Defendant filed

additional Motions, the Government filed a second

Omnibus Response to four more of his Motions (“Gov’t’s

. Subsequently, Defendant submitted four additional Motions that

were entirely repetitious of his other Motions. Because all of these

Motions were submitted pro se, Defendant was required to obtain

the Court’s permission before they could be filed on the docket. The

Court granted permission to file Defendant’s first thirty-six

Motions, but denied him permission to file the four additional

Motions that were duplicative of the first thirty-six.

13a

Second Omnibus Resp.”) [Dkt. No. 24]. On April 4, the

Government filed a third Omnibus Response to the

remainder of Defendant’s Motions (“Gov’t’s Third

Omnibus Resp.”) [Dkt. No. 51].

Defendant did not file any formal Replies in further

support of his Motions, despite being advised by the

Court at a status conference on February 27, 2014, that

he had a right to do so. He did, however, file various

submissions styled as “objections” to the Government’s

Omnibus Responses. These submissions address the

Government’s various Omnibus Responses but also raise

new arguments and requests for relief. See Dkt. Nos. 28,

32, 36. As a result, the Court shall treat them as

independent “Motions,” but shall also consider them in

further support of each of Class’s other Motions.

On April 7, 2014, the Court held a Motions Hearing

at which Defendant presented argument on his Motions.

He also informed the Court at that time that, having

considered the risks of self representation, he still

desired to waive his right to appointed counsel and

proceed pro se. The Court accepted Defendant’s waiver

as knowing and voluntary, granted his request to

proceed pro se, and appointed the Federal Defender,

A.J. Kramer, as stand-by advisory counsel. The

Government elected not to present any substantive

argument on Defendant’s Motions but requested the

opportunity to submit additional briefing in the event

the Court was inclined to grant any of the Motions.

At the conclusion of the Motions Hearing, in light of

the voluminous submissions Defendant had already

filed, the Court issued an Order requiring Defendant to

seek express permission from the Court prior to filing

l4a

any additional Motions. See Order dated April 7, 2014

[Dkt. No. 52].

I. DISCUSSION

The Court construes Defendant’s Motions liberally

for any possible relief to which he might be entitled. See,

e.g., Toolasprashad v. Bureau of Prisons, 286 F.3d 576,

583 (D.C. Cir. 2002) (court has an “obligation to construe

pro se filings liberally”). It observes, however, that

although Defendant raises a few issues that bear further

consideration, a number of his Motions are duplicative of

each other, and many are, to a large extent, utterly

incomprehensible. Furthermore, most of the Motions

purport to cite legal principles that either do not exist or

are provisions of civil law wholly inapplicable to the

issues in this criminal case. With this background in

mind, the Court addresses each Motion as follows.’

xx KK *

8. Requirement for Judicial Notice:

Motion and Requirement to Quash

Plaintiffs Latest Response and a

Requirement to Dismiss All Charges

for Lack of Direct Rebuttal of Court

Ordered Subject Matter, Lack of

Standing, Frivolous Filings, and

Failure to Produce a Corpus Delicti

[Dkt. No. 20] (“Motion #8”)

In this Motion, Defendant seeks to quash the

Government’s First Omnibus Response on the basis that

*In listing Defendant’s Motions, the Court retains the exact spelling

and capitalization used by Defendant.

l5a

he does not deem it responsive to his Motions. At the

status conference on February 3, 2014, the Court

expressly advised the Government that it could respond

to Defendant’s numerous Motions in summary fashion,

and therefore, the summary nature of Defendant’s First

Omnibus Response is not a basis to “quash” the

Response. As discussed in more detail below, however,

the Government shall be directed to submit further

briefing on certain issues raised by Defendant’s Motions.

To the extent Defendant challenges’ the

Government’s “standing” to bring this case, the United

States Attorney’s Office for the District of Columbia has

the authority to prosecute crimes against the United

States and the District of Columbia. See Fed. R. Crim.

P. 1(b)(1)(B).

To the extent Defendant challenges the prosecutor’s

competence and alleges malicious prosecution, he

provides absolutely no support for these allegations.

To the extent Defendant argues that the criminal

provisions under which he is charged, 40 U.S.C. § 5104(e)

and 22 D.C. Code § 4504(a), apply only to business

entities, government instrumentalities and other

corporate “persons,” but not to natural persons such as

himself, this argument is contradicted by the plain

language of the laws under which he is charged. Only

natural persons are capable of “carry[ing]” a firearm in

the manner prohibited. See 40 U.S.C. § 5104(e) (“An

individual or group of individuals ... may not carry on

or have readily accessible to any individual on the

Grounds or in any of the Capitol Buildings a firearm [or]

a dangerous weapon|.]”) (emphasis added); 22 D.C. Code

§ 4504(a) (“No person shall carry within the District of

l6a

Columbia either openly or concealed on or about their

person, a pistol or any deadly or dangerous weapon|.)”)

(emphasis added). Moreover, Section 5104(e) explicitly

refers to an “individual or group of individuals,” thereby

making clear that its prohibitions apply to a natural

person such as Defendant, and not a corporate person."

x** ee *

Finally, to the extent Defendant challenges his

prosecution under the Second Amendment of the

Constitution, the Government has not submitted a

substantive response to this argument. The Court

therefore lacks an adequate record on which to evaluate

it. The Government shall be ordered to file further

briefing on this issue no later than May 1, 2014, and the

Defendant may, but is not required to, file a further

Response within 14 days of the Government’s

submission.

For the foregoing reasons, Defendant’s Motion shall

be deferred insofar as it relates to the Second

Amendment and otherwise shall be denied.

* eK *

ladys ler

April 16, 2014 United States District Judge

’ As support for his argument that the criminal provisions at issue

do not apply to natural persons, Defendant relies on portions of the

United States Tax Code, the Texas Administrative Code and

Delaware Administrative Code, all of which are inapplicable to this

criminal case.

17a

Appendix D

Constitutional and Statutory Provisions Involved

U.S. Const. amend. V:

No person shall be ... deprived of life, liberty, or

property, without due process of law ...

40 U.S.C.A. § 5101

In this chapter, the term “Capitol Buildings” means the

United States Capitol, the Senate and House Office

Buildings and garages, the Capitol Power Plant, all

buildings on the real property described under section

5102(c) (including the Administrative Building of the

United States Botanic Garden) all buildings on the real

property described under section 5102(d), all subways

and enclosed passages connecting two or more of those

structures, and the real property underlying and

enclosed by any of those structures.

40 U.S.C. § 5102

(a) Legal description.--The United States Capitol

Grounds comprises all squares, reservations, streets,

roadways, walks, and other areas as defined on a map

entitled “Map showing areas comprising United States

Capitol Grounds”, dated June 25, 1946, approved by the

Architect of the Capitol, and recorded in the Office of the

Surveyor of the District of Columbia in book 127, page 8,

including all additions added by law after June 25, 1946.

(b) Jurisdiction.--

18a

(1) Architect of the Capitol.-The jurisdiction and

control over the Grounds, vested prior to July 31,

1946, by law in the Architect, is extended to the

entire area of the Grounds. Except as provided in

paragraph (2), the Architect is responsible for the

maintenance and improvement of the Grounds,

including those streets and roadways in the Grounds

as shown on the map referred to in subsection (a) as

being under the jurisdiction and control of the

Commissioners of the District of Columbia.

(2) Mayor of the District of Columbia.

(A) In general.--The Mayor of the District of

Columbia is responsible for the maintenance and

improvement of those portions of the following

streets which are situated between the curblines

of those streets: Constitution Avenue from

Second Street Northeast to Third Street

Northwest, First Street from D Street Northeast

to D Street Southeast, D Street from First Street

Southeast to Washington Avenue Southwest, and

First Street from the north side of Louisiana

Avenue to the intersection of C Street and

Washington Avenue Southwest, Pennsylvania

Avenue Northwest from First Street Northwest

to Third Street Northwest, Maryland Avenue

Southwest from First Street Southwest to Third

Street Southwest, Second Street Northeast from

F Street Northeast to C Street Southeast; C

Street Southeast from Second Street Southeast

to First Street Southeast; that portion of

Maryland Avenue Northeast from Second Street

Northeast to First Street Northeast; that portion

19a

of New Jersey Avenue Northwest from D Street

Northwest to Louisiana Avenue; that portion of

Second Street Southwest from the north curb of

D Street to the south curb of Virginia Avenue

Southwest; that portion of Virginia Avenue

Southwest from the east curb of Second Street

Southwest to the west curb of Third Street

Southwest; that portion of Third Street

Southwest from the south curb of Virginia

Avenue Southwest to the north curb of D Street

Southwest; that portion of D Street Southwest

from the west curb of Third Street Southwest to

the east curb of Second Street Southwest; that

portion of Washington Avenue Southwest,

including sidewalks and traffic islands, from the

south curb of Independence Avenue Southwest to

the west curb of South Capitol Street.

(B) Repair and maintenance of utility services.--

The Mayor may enter any part of the Grounds to

repair or maintain or, subject to the approval of

the Architect, construct or alter, any utility

service of the District of Columbia Government.

(c) National Garden of the United States Botanic

Garden.--

(1) In general.-Except as provided under paragraph

(2), the United States Capitol Grounds shall include-

(A) the National Garden of the United States

Botanic Garden;

20a

(B) all grounds contiguous to the Administrative

Building of the United States Botanic Garden,

including Bartholdi Park; and

(C) all grounds bounded by the curblines of First

Street, Southwest on the east; Washington

Avenue, Southwest to its intersection with

Independence Avenue, and Independence

Avenue from such intersection to its intersection

with Third Street, Southwest on the south; Third

Street, Southwest on the west; and Maryland

Avenue, Southwest on the north.

(2) Maintenance and improvements.—

Notwithstanding subsections (a) and (b), jurisdiction

and control over the buildings on the grounds

described in paragraph (1) shall be retained by the

Joint Committee on the Library, and the Joint

Committee on the Library shall continue to be solely

responsible for the maintenance and improvement of

the grounds described in such paragraph.

(3) Authority not limited.--Nothing in this subsection

shall limit the authority of the Architect of the

Capitol under section 307E of the Legislative Branch

Appropriations Act, 1989 (40 U.S.C. 216c).

(d) Library of Congress buildings and grounds.--

(1) In general.—Except as provided under paragraph

(2), the United States Capitol Grounds shall include

the Library of Congress grounds described under

section 11 of the Act entitled “An Act relating to the

policing of the buildings of the Library of Congress”,

approved August 4, 1950 (2 U.S.C. 167)).

2la

(2) Authority of Librarian of Congress.--

Notwithstanding subsections (a) and (b), the

Librarian of Congress shall retain authority over the

Library of Congress buildings and grounds in

accordance with section 1 of the Act of June 29, 1922

(2 U.S.C. 141; 42 Stat. 715).

40 U.S.C. § 5104

(a) Definitions.—In this section--

(1) Act of physical violence.--The term “act of

physical violence” means any act involving--

(A) an assault or other infliction or threat of

infliction of death or bodily harm on an individual;

or

(B) damage to, or destruction of, real or personal

property.

(2) Dangerous weapon.—The term “dangerous

weapon” includes--

(A) all articles enumerated in section 14(a) of the

Act of July 8, 1932 (ch. 465, 47 Stat. 654); and

(B) a device designed to expel or hurl a projectile

capable of causing injury to individuals or

property, a dagger, a dirk, a stiletto, and a knife

having a blade over three inches in length.

(3) Explosives.--The term “explosives” has the

meaning given that term in section 841(d) of title 18.

(4) Firearm.--The term “firearm” has the meaning

given that term in section 921(3) of title 18.

22a

(b) Obstruction of roads.--A person may not occupy the

roads in the United States Capitol Grounds in a manner

that obstructs or hinders their proper use, or use the

roads in the area of the Grounds, south of Constitution

Avenue and B Street and north of Independence Avenue

and B Street, to convey goods or merchandise, except to

or from the United States Capitol on Federal

Government service.

(c) Sale of articles, display of signs, and solicitations.--A

person may not carry out any of the following activities

in the Grounds:

(1) offer or expose any article for sale.

(2) display a sign, placard, or other form of

advertisement.

(3) solicit fares, alms, subscriptions, or contributions.

(d) Injuries to property.--A person may not step or climb

on, remove, or in any way injure any statue, seat, wall,

fountain, or other erection or architectural feature, or

any tree, shrub, plant, or turf, in the Grounds.

(e) Capitol Grounds and Buildings security.--

(1) Firearms, dangerous weapons, explosives, or

incendiary devices.--An individual or group of

individuals—

(A) except as authorized by regulations

prescribed by the Capitol Police Board--

(i) may not carry on or have readily accessible

to any individual on the Grounds or in any of

the Capitol Buildings a firearm, a dangerous

weapon, explosives, or an incendiary device;

23a

(ii) may not discharge a firearm or explosives,

use a dangerous weapon, or ignite an

incendiary device, on the Grounds or in any of

the Capitol Buildings; or

(iii) may not transport on the Grounds or in

any of the Capitol Buildings explosives or an

incendiary device; or

(B) may not knowingly, with force and violence,

enter or remain on the floor of either House of

Congress.

(2) Violent entry and disorderly conduct.--An

individual or group of individuals may not willfully

and knowingly--

(A) enter or remain on the floor of either House

of Congress or in any cloakroom or lobby adjacent

to that floor, in the Rayburn Room of the House

of Representatives, or in the Marble Room of the

Senate, unless authorized to do so pursuant to

rules adopted, or an authorization given, by that

House;

(B) enter or remain in the gallery of either House

of Congress in violation of rules governing

admission to the gallery adopted by that House or

pursuant to an authorization given by that House;

(C) with the intent to disrupt the orderly conduct

of official business, enter or remain in a room in

any of the Capitol Buildings set aside or

designated for the use of--

24a

(i) either House of Congress or a Member,

committee, officer, or employee of Congress,

or either House of Congress; or

(ii) the Library of Congress;

(D) utter loud, threatening, or abusive language,

or engage in disorderly or disruptive conduct, at

any place in the Grounds or in any of the Capitol

Buildings with the intent to impede, disrupt, or

disturb the orderly conduct of a session of

Congress or either House of Congress, or the

orderly conduct in that building of a hearing

before, or any deliberations of, a committee of

Congress or either House of Congress;

(E) obstruct, or impede passage through or

within, the Grounds or any of the Capitol

Buildings;

(F) engage in an act of physical violence in the

Grounds or any of the Capitol Buildings; or

(G) parade, demonstrate, or picket in any of the

Capitol Buildings.

(3) Exemption of government officials.--This

subsection does not prohibit any act performed in the

lawful discharge of official duties by--

(A) a Member of Congress;

(B) an employee of a Member of Congress;

(C) an officer or employee of Congress or a

committee of Congress; or

(D) an officer or employee of either House of

Congress or a committee of that House.

25a

(f) Parades, assemblages, and display of flags.--E-xcept

as provided in section 5106 of this title, a person may not-

(1) parade, stand, or move in processions or

assemblages in the Grounds; or

(2) display in the Grounds a flag, banner, or device

designed or adapted to bring into public notice a

party, organization, or movement.

40 U.S.C. § 5109

(a) Firearms, dangerous weapons, explosives, or

incendiary device offenses.-An individual or group

violating section 5104(e)(1) of this title, or attempting to

commit a violation, shall be fined under title 18,

imprisoned for not more than five years, or both.

(b) Other offenses.-A person violating section 5103 or

5104(b), (c), (d), (e)(2), or (f) of this title, or attempting to

commit a violation, shall be fined under title 18,

imprisoned for not more than six months, or both.

(ce) Procedure.--

(1) In general.—An action for a violation of this

chapter or section 9, 9A, 9B, 9C or 14 of the Act of

July 31, 1946 (ch. 707, 60 Stat. 719, 720), including an

attempt or a conspiracy to commit a violation, shal]

be brought by the Attorney General in the name of

the United States. This chapter and sections 9, 9A,

9B, 9C and 14 do not supersede any provision of

federal law or the laws of the District of Columbia.

Where the conduct violating this chapter or section

9, 9A, 9B, 9C or 14 also violates federal law or the

26a

laws of the District of Columbia, both violations may

be joined in a single action.

(2) Venue.--An action under this section for a

violation of-—

(A) section 5104(e)(1) of this title or for conduct

that constitutes a felony under federal law or the

laws of the District of Columbia shall be brought

in the United States District Court for the

District of Columbia; and

(B) any other section referred to in subsection (a)

may be brought in the Superior Court of the

District of Columbia.

(3) Amount of penalty.-The penalty which may be

imposed on a person convicted in an action under this

subsection is the highest penalty authorized by any

of the laws the defendant is convicted of violating.