United States v. MacAndrew

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 21-730 (CKK) DANEAN MACANDREW, Defendant

MEMORANDUM OPINION (December 27, 2022)

This criminal case is one of nearly one thousand arising from the insurrection at the

United States Capitol on January 6, 2021. For her actions at the Capitol on January 6, Defendant

Danean Macandrew is charged by information with four misdemeanors. Before the Court is

Defendant’s [31] Motion to Dismiss the Information for Multiplicity, or to Compel the

Government to Elect Among Multiplicitous [sic] Counts. Defendant argues that each of these

charges are multiplicative, i.e., that to be convicted of more than one of them would violate the

Double Jeopardy Clause. Because each count is sufficiently distinct from the other, Defendant’s

challenge fails.

Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(ii), a Defendant may, before

trial, move to dismiss a charging instrument in whole or in part based on the instrument

“charging the same offense in more than one count (multiplicity).” Any such effort faces a

particularly high bar. “A single act may be an offense against two statutes; and if each statute

requires proof of an additional fact which the other does not, an acquittal or conviction under

either statute does not exempt the defendant from prosecution and punishment under the other.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). As another court of this jurisdiction has

concluded, there is no such problem here. United States v. Ballenger, Crim. A. No. 21-719

1 (JEB), 2022 WL 14807767, at *2 (D.D.C. Oct. 26, 2022).

To illustrate how each charge contains elements distinct from the others, consider the

following chart of the offenses charged in the Superseding Information:

Counts Proscribed Conduct Mental State Additional Facts Required Required 1. 18 U.S.C. § Entering or remaining Knowingly To do so in a “restricted 1752(a)(1) without lawful building” or area, i.e., an authority area that is “posted, cordoned off, or otherwise restricted” and is (1) the White House grounds or buildings or Vice President’s residence or grounds; (2) an area where a person protected by the Secret Service is or will be temporarily visiting; or (3) an area restricted in conjunction with an event designated as a special event of national significance 1 2. 18 U.S.C. § Engaging in Knowingly, and with To do so in or near a 1752(a)(2) disorderly or the specific intent to restricted building or area disruptive conduct impede or disrupt The conduct in fact Government business impedes or disrupts Government business 3. 40 U.S.C. § Uttering loud, Willfully, knowingly, To do so in any Capitol 5104(e)(2)(D) threatening, or and with the specific building or on Capitol abusive language, or intent to impede, grounds engaging in disrupt, or disturb disorderly or Congressional disruptive conduct proceedings 4. 40 U.S.C. § Parading, Willfully and To do so in any Capitol 5104(e)(2)(G) demonstrating or knowingly building. picketing

The differences between these charges are myriad, but the Court will note a few. Only

1 18 U.S.C. § 1752(c)(1).

2 Count 4 criminalizes parading, demonstrating, or picketing, so it is distinct from the rest. Accord

Ballenger, 2022 WL 14807767, at *2. Counts 3 and 4 are distinct from Counts 1 and 2 because

they require a showing of willfulness. Counts 3 and 4 also differ from Counts 1 and 2 because

the latter criminalize conduct in a Capitol building or area no matter whether it is also a

“restricted area” when the prohibited conduct occurred. Count 2 is distinct from Count 1

because it requires a showing of specific intent where Count 1 does not, and because Count 2

criminalizes different conduct from Count 1. Accord id. As such, no one count in the

Superseding Information is multiplicative of the other.

Therefore, the Court shall DENY Defendant’s [31] Motion to Dismiss the Information

for Multiplicity, or to Compel the Government to Elect Among Multiplicitous [sic] Counts. A

separate order accompanies this Memorandum Opinion.

Dated: December 27, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge