United States v. Rivera

• Court: District Court, District of Columbia
• Decided: June 17, 2022
• Docket: Criminal No. 2021-0060
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, v. Criminal Action No. 21-060 (CKK) JESUS D. RIVERA, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW (June 17, 2022)

A two-day bench trial in this criminal matter concluded on June 15, 2022. The

Government charged Defendant Jesus Rivera (“Defendant” or “Rivera”) by Information with:

(1) Entering and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); (2)

Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. §

1752(a)(2); (3) Violent Entry and Disorderly Conduct in a Capitol Building, in violation of 40

U.S.C. § 5104(e)(2)(D); and (4) Parading, Demonstrating, or Picketing in a Capitol Building, in

violation of 40 U.S.C. § 5104(e)(2)(G). Am. Information, ECF No. 39. In support of its case,

the Government introduced testimony from four witnesses: (1) Inspector Lanelle Hawa of the

United States Secret Service; (2) Captain Carneysha Mendoza of the United States Capitol

Police Department; (3) Special Agent Alex Nogueiras of the Federal Bureau of Investigation;

and (4) Special Agent Nicholas Chan of the Federal Bureau of Investigation. Additionally, the

Court admitted 72 exhibits into evidence in full; one exhibit was admitted into evidence in part.

Defendant asserted his constitutional right not to testify or present evidence. Rather, at the close

of the Government’s case, Defendant moved for a judgment of acquittal as a matter of law

pursuant to Federal Rule of Criminal Procedure 29. That motion remains pending before the

Court.

1 Based on the following findings of fact and conclusions of law, Court DENIES

Defendant’s Rule 29 motion by separate order.

The Court finds Defendant Jesus Rivera GUILTY on Counts 1, 2, 3, and 4, the

Government having carried their burden beyond a reasonable doubt as to each element of each

charge.

In reaching a decision on the following findings of fact and conclusions of law, the Court

has considered the pleadings, the record, testimony, the parties’ stipulations, the demeanor of the

witnesses while testifying, the reasonableness of or unreasonableness of the testimony, the

probability or improbability of the testimony, and all reasonable inferences to be drawn

therefrom, among all other matters bearing on the credibility of the witnesses and the facts, and

exhibits in evidence. The Court credits the following testimony and evidence as undisputed

and/or unrebutted.

I. Findings of Fact

“I can honestly say I had a great time.” 1

Shortly after returning home from the insurrection at the United States Capitol,

Defendant sent that message to one of his Facebook friends. Over the course of several hours

two days prior, Rivera recorded himself and recorded fellow rioters who tore through barricades,

police lines, and broken windows and doors to gain access to the Capitol and halt Congressional

proceedings. As Rivera made his way in his livestream from broken police line to broken police

line, he urged his Facebook followers to “share, share, share!” 2 He told his followers that his

1 Gov.’s Ex. 400 2 Gov.’s Ex. 310 2 fellow rioters were “patriots.” 3 Facing police lines, “we just ke[pt] coming.” 4 In the moment,

Rivera thought the riot righteous, cheering on a “revolution” 5 that, he hoped, would pull

Members of Congress’ “asses out of there.”6 In referring to the insurrection, Rivera states “this

was what we need” 7 on January 6, 2021. According to Rivera, Americans needed no peaceful

transfer of power, nor orderly Congressional proceedings. Rather, Rivera claimed he “pushed

[his] way through the [lines of] riot police.” 8 Fellow rioters ransacking this country’s seat of

government was, to Rivera, as he proudly stated, “something we [could] tell our kids about.” 9

For those who disagreed, Rivera told them they were “weak as fuck.” 10 “It [was] time,” Rivera

insisted, “to do some Patriot shit.” 11

A. Security Preparations at the Capitol for the Certification of the Electoral College Vote and the Insurrection’s Destruction of Protective Lines The Government’s first two witnesses, Inspector Lanelle Hawa and Captain Carneysha

Mendoza, explained the security precautions taken before January 6, 2021. 12 The Court finds

that the Capitol, guarded 24 hours a day, was open only to those with official business (along

with Members and staff) from March 2020 to January 6, 2021. Had the Capitol been open to the

public, all members of the public would be required to enter through the Capitol Visitor’s Center.

Additionally, aside from Members, anyone seeking to enter the Capitol must show identification,

go through a metal detector, put their belongings through an x-ray machine, and are otherwise

3 Gov.’s Ex. 305; Gov.’s Ex. 310; Gov.’s Ex. 332 4 Gov.’s Ex. 305 5 Gov.’s Ex. 317 6 Id. 7 Id. 8 Gov.’s Ex. 331 9 Gov.’s Ex. 317 10 Gov.’s Ex. 332 11 Id. 12 Unless another citation to evidence is offered, these findings rely on the testimony of Inspector Hawa and/or Captain Mendoza. 3 subject to search by United States Capitol Police (“Capitol Police”) officers. During the closure

to the public, members of the media were permitted to enter the Capitol building only after they

had been vetted by their company, vetted by the Capitol Police, and issued official badges by the

Sergeants-at-Arms. Were someone to enter the Capitol without passing through security, Capitol

Police would work to find and detain that person; if necessary, Capitol Police would lock down

portions of the Capitol in such a way that could include stopping certain Congressional

proceedings.

In preparation for Vice President Michael R. Pence’s visit to preside over the counting of

the votes of the Electoral College on January 6, Inspector Hawa coordinated the Vice President’s

visit with the Capitol Police. In partnership with the Capitol Police, the United States Secret

Service (“Secret Service”) set up a protective perimeter around the entire grounds of the United

States Capitol. Only those with credentials or with permission from either agency were

permitted beyond that point. The security perimeter is standard for visits by heads of state (in

which category the Secret Service includes the Vice President) but was also implemented in light

of security concerns arising from then-President Donald J. Trump’s scheduled “Stop the Steal”

rally near the White House. At various places, the protected area had successive lines of barriers

made of snow barriers, interconnected bike racks, or mesh fencing. See also Gov.’s Ex. 302.

Most of these barriers included at regular intervals “Area Closed” signs printed in large font. Id.;

Gov.’s Ex. 102a; Gov.’s Ex. 306.

Although it is unclear exactly what time Inspector Hawa arrived, the Court infers from

her testimony that she arrived at the Capitol in the morning on January 6 to coordinate the Vice

President’s visit that day. Vice President Pence arrived approximately at 12:30 p.m. with his

wife and daughter, and Inspector Hawa escorted the Vice President and his family to the Vice

4 President’s Ceremonial Office in the Capitol. The Joint Session for the count of the Electoral

College votes began at 1:00 p.m. with Vice President Pence presiding. Gov.’s Ex. 211. Fifteen

minutes later, the two Houses of Congress retired to their respective chambers to debate the

certification of the votes from the state of Arizona. Id.

After 1:15 p.m., which was fifteen minutes after the Vice President returned to the

Senate, the Secret Service learned of breaches to its protective area, i.e., the mob had made its

way through barriers and onto the Capitol grounds by that time. At that time, the Secret Service

began to discuss moving the Vice President and his family to a more secure location. At around

2:30 p.m., when the rioters first breached the Senate side of the Capitol itself, the Secret Service

evacuated the Vice President and his family to a more secure location in the Capitol. Shortly

thereafter, with multiple police lines overrun and the several entrances to the Capitol breached,

the Senate recessed for its own safety; the House shortly followed. Gov.’s Ex. 211 (House

recess); Gov.’s Ex. 212 (Senate recess). 13

On the west side of the Capitol, the farthest edge of the security line was Peace Circle.

That line was breached at around 12:55 p.m. Gov.’s Exs. 302-303. The mob began to tear down

fencing across the West Front of the Capitol at that same time. At the time of these initial

breaches, Captain Mendoza and other Capitol Police officers surged to support surviving police

lines, mainly on the Upper and Lower Terraces on the West Front of the Capitol. Officers of the

Metropolitan Police Department (“MPD”) joined Capitol Police on these lines in stages. Over

the course of the following hour, various sections of the police line broke in the face of heavy

violent resistance, including the northwestern stairway on the West Front leading from the Lower

Terrace to the Upper Terrace at 2:09 p.m. Just a few minutes later, the rioters smashed through

13 The Court also relies on Captain Mendoza’s testimony for this proposition. 5 the Senate Wing Door and its windows. Capitol Police officers briefly reclaimed the Senate

Wing Door, only for rioters to overwhelm that line again at 2:49 p.m. Meanwhile, another door

with access to the Senate side of the Capitol, the Parliamentarian Door, was breached at 2:42

p.m. For some period of time after 1:00 p.m. and before 2:42 p.m., MPD deployed chemical

spray (pepper spray or something similar) to disperse the insurrectionists who had yet to join the

portion of the riot that had captured the Upper West Terrace, ultimately to little effect. Gov.’s

Ex. 307.

When rioters entered the Capitol, they were met with a loud PA system urging Capitol

visitors and staff to take shelter due to an incursion into the Capitol. See also Gov.’s Ex. 321.

Although Capitol Police officers “engaged in combat” with the rioters to prevent them from

further breaking police lines, Capitol Police officers were ultimately unsuccessful. At that point,

the focus of the Capitol Police shifted to convincing rioters to leave the Capitol and stemming

particularly severe acts of violence. Law enforcement and the National Guard were unable to

secure the Capitol and the safety of the Vice President, Members of Congress, and staff until

several hours later. With Vice President Pence presiding, Congressional proceedings only

resumed at approximately 8:00 p.m. when all of the rioters had been removed.

B. Rivera’s Participation in the Riot

Broadly, the Court finds Defendant was a willing and supportive participant in the riot.

Rivera excitedly announced on Facebook at the end of December 2020 that he was going to

Washington, DC to attend then-President Trump’s “Stop the Steal” rally. Gov.’s Ex. 406.

Defendant then attended the “Stop the Steal” rally at which then-President Trump claimed that

the 2020 presidential election had been “stolen” and urged his supporters to march to the

6 Capitol. 14 Sometime after attending the rally, Defendant became determined to march to the

Capitol itself. On his way, and outside the E. Barrett Prettyman Courthouse, a block away from

Capitol grounds, he comments that he was “about to take [his] ass to the middle of the [United]

State[s] Capitol,” which he did in reaching the Crypt at the Capitol. Gov.’s Ex. 305; Gov.’s Ex.

326 (Crypt). At this early stage, he identified with the assembling mob, gushing “we just keep

coming” and approvingly shouting “America!” as he saw more and more of the crowd in front of

him. Id. He also urged his followers watching his Facebook livestream to share his livestream

with their friends and followers. Id.

As he penetrated the restricted area, he saw destroyed and torn fencing that he understood

had been erected to keep members of the public off Capitol grounds. Gov.’s Exs. 306, 410. His

livestream, which the Court infers to be Defendant’s sightline, also captured fencing that was

still intact with “Area Closed” signs clearly visible. Gov.’s Ex. 306. As Defendant worked his

way up to the Capitol building itself, he passed a man who exclaimed, “we’re not supposed to be

here; it’s all blocked off.” Id. Nevertheless, Defendant made a concerted effort to get as far to

the front of the mob as possible. See id.; Gov.’s Ex. 307. Defendant arrived near the foot of the

northwestern stairway on the West Front leading from the Lower Terrace to the Upper Terrace at

approximately 1:59 p.m. Gov.’s Exs. 307, 310. Once there, Rivera filmed the police line

struggling to hold back a crush of rioters attempting to make their way to the Upper Terrace.

Rivera also filmed the fall of the police line at 2:09 p.m. Gov.’s Exs. 310, 312.

While filming, Defendant proclaimed to his audience, “Patriots are going crazy. Let’s get

out there!” Shortly after, and before the stairway line fell, MPD was, in Rivera’s words,

14 As to what occurred at the “Stop the Steal” rally, the Court takes judicial notice of the United States Court of Appeals for the District of Columbia Circuit’s factual conclusions. See, e.g., Trump v. Thompson, 20 F.4th 10, 17-18 (2021). 7 “shooting pepper spray and stuff.” Gov.’s Ex. 310. Rivera commented to his followers, “let’s

see if my time in the ‘OC chamber’ helps me out.” Id. The Court credits Agent Noguieras’s

testimony that an “OC chamber” is a tool the United States military uses to train soldiers to

withstand the effects of chemical sprays and irritants such as pepper spray. Even though Rivera

had, at that point, made his way through an unauthorized area and been sprayed with pepper

spray in law enforcement’s effort to turn back Defendant and other members of the mob, Rivera

continued onwards. In fact, Defendant himself thought that “it was going to get bad,” stating “I

was expecting this, but this is going down” with “Patriots at the Capitol.” Id. With tear gas

around him, Rivera again urged his followers to share his livestream. Id.

Once the police line on the stairway had broken, Rivera made his way up the stairs and

arrived on the Upper West Terrace at 2:23 p.m. Gov.’s Ex. 312. Ten minutes prior, the Senate

Wing Door was breached for the first time. Three minutes later, at 2:26 p.m., Vice President

Pence was removed from the Senate chamber for his safety. At the same time, while on the

Upper West Front, Rivera saw fellow rioters attempting to climb a western-facing wall and

shouted at them, “there’s an easier way up!” Gov.’s Ex. 333.

Rivera then made his way near the front of the crowd attempting to breach the Senate

Wing Door for the second time. Rivera watched as rioters in front of him breached that door and

the Parliamentarian Door. The latter was breached at 2:49 p.m., the former at 2:42 p.m. All the

while, Rivera admired the destruction around him, celebrating with a rioter near him that the

events felt like a “birthday” present, his birthday to come several days after January 6. Gov.’s

Ex. 317. Rivera went further, telling a rioter near him:

This is what me and my boy were talking about, saying [that] the only way this would be a real revolution is if we go in and pull their asses out of there. This is the only fucking way. All this fucking talk––it has to get done, dude. This is what we need. This is what they needed.

8 Gov.’s Ex. 317. From there, and ten minutes after insurrectionists broke through the Senate

Wing Door and two large, adjacent windows, Rivera entered the Capitol building itself through a

broken window. Gov.’s Exs. 321, 322. As he entered, the PA system blared, urging staffers and

Members to hide and take cover. Gov.’s Ex. 322. Rivera spent approximately twenty minutes

roaming the halls of the Capitol, videoing, livestreaming, and taking selfies. See Gov.’s Exs.

321, 322, 328, 329. Rivera exited through the broken window opposite the one through which he

entered. Gov.’s Ex. 329.

After Rivera returned home to Florida, he proudly told his followers of his participation

in the riot. He was happy to have “challenge[d] authority” on January 6 after “push[ing] his way

through [] riot police” and making his way to “the front lines.” Gov.’s Ex. 331. Of his followers

who did not approve of Rivera’s actions, Rivera told them they were “weak as fuck.” Gov.’s Ex.

332. He argued that if “BLM [Black Lives Matter] and ‘Antifa’ has been able to do it so long,” a

violent assault on the seat of government was appropriate. Id. He further insisted that the

insurrectionists were not “Antifa; it was pissed off Patriots.” Id. To reiterate, as Rivera told a

friend, “I can honestly say I had a great time.” Gov.’s Ex. 410.

C. New American Video

Although not published to the Court during trial, the Court has reviewed an interview

Defendant gave after his arrest to a podcast called “New American” which was admitted into

evidence as Government’s Exhibit 335. Therein, Rivera tells the interviewer that he came to the

District of Columbia to attend and record the “Stop the Steal” rally. He indicates that he has

previously filmed other Trump rallies. After leaving the rally to get lunch, Rivera states that he

heard from others that there “was so much stuff going on” at the Capitol and resolved to make

his way there in order to “document” footage that would help him “get his name out there.” He

9 further states that he is, in no uncertain terms, “not a journalist,” and did not go to the Capitol as

such, though he might eventually in another career “want to be one.” Rather, he tells the

interviewer that he is a“photographer,” a “cinematographer,” and a “videographer” by trade.

Beyond these few statements, Rivera makes a number of admissions and inculpatory statements.

To the extent that he also makes some self-serving statements, these are contradicted by video

evidence and his own statements and conduct on January 6, 2021.

II. Conclusions of Law A. Count One

To find a defendant guilty of Entering and Remaining in a Restricted Building, in

violation of 18 U.S.C. § 1752(a)(1), the Court must find the following beyond a reasonable

doubt: (1) the defendant entered or remained in a restricted building without lawful authority to

do so; and (2) the defendant did so knowingly. First, Defendant does not contest that the Capitol

grounds and the Capitol were a “restricted building” on January 6, 2021, and the testimony of

Inspector Hawa and Captain Mendoza establish that fact. Second, the overwhelming weight of

evidence shows that Rivera knew that he was not permitted on Capitol grounds or inside the

Capitol. Rivera passed destroyed barriers that had been erected to keep members of the public

off Capitol grounds. Gov.’s Exs. 306, 410. He also saw intact barriers with signs that clearly

read “Area Closed.” Gov.’s Ex. 306. In addition, he saw and commented upon the police line

on the northwest stairway being overrun by rioters. Gov.’s Ex. 307, 310. If that were not

sufficient, Rivera admitted that he had been tear gassed and pepper sprayed, Gov.’s Ex. 310, a

sure sign that his presence on Capitol grounds was not permitted. As he continued to the Upper

West Terrace, Rivera could clearly see that the Parliamentarian Door and the Senate Wing Door

were firmly shut while insurrectionists battled to open them. Gov.’s Ex. 317. Entering through a

large, broken window was further notice to Rivera that his presence in the Capitol would be

10 unwelcome. Accordingly, the evidence establishes beyond a reasonable doubt that (1) Rivera

entered or remained in a restricted building without lawful authority to do so and (2) Rivera did

so knowingly. The Court therefore finds Defendant GUILTY on Count 1.

B. Count Two

To find a defendant guilty of Disorderly and Disruptive Conduct in a Restricted Building,

in violation of 18 U.S.C. § 1752(a)(2), the Court must find the following beyond a reasonable

doubt: (1) the defendant engaged in disorderly or disruptive conduct in, or in proximity to, any

restricted building; (2) the defendant did so knowingly, and with the intent to impede or disrupt

the orderly conduct of Government business or official functions; and (3) the defendant’s

conduct occurred when, or so that, his conduct in fact impeded or disrupted the orderly conduct

of Government business or official functions.

First, “disorderly” conduct is that which “tends to disturb the public peace, offend public

morals, or undermine public safety.” “Disorderly,” Black’s Law Dictionary (9th ed. 2009); see

also “Disorderly,” Oxford English Dictionary (2nd ed. 1989) (“Not according to order or rule; in

a lawless or unruly way; tumultuously, riotously.”). Conduct is “disruptive” if it “tend[s] to

disrupt some process, activity, condition, etc.” “Disruptive,” Merriam-Webster.com Dictionary

(June 16, 2022). Even mere presence in an unlawful mob or riot is both (1) “disorderly” in the

sense that it furthers the mob’s “disturb[ing] the public peace” and (2) “disruptive” insofar as it

disturbs the normal and peaceful condition of the Capitol grounds and buildings, its official

proceedings, and the safety of its lawful occupants. Were it not, it must be said that continued

presence in a mob that is being tear gassed and pepper sprayed is disorderly insofar as a person’s

continued presence clearly impedes law enforcement’s efforts to regain control of a particular

area. Additionally, as Captain Mendoza explained, entering a Capitol building without

11 authorization is necessarily “[n]ot according to order and rule,” “unruly,” and may “disrupt

[Congressional] . . . activity” insofar as Capitol Police would seek out and detain anyone who

enters a Capitol building without authorization. Accordingly, the Court concludes that Rivera

“engaged in disorderly or disruptive conduct in, or in proximity to, any restricted building.”

Second, the law permits the factfinder to infer that a person intends the natural and

probable consequences of their actions. See United States v. Meija, 597 F.3d 1329, 1341 (D.C.

Cir. 2010). Particularly in light of Defendant’s inculpatory statements, the Court applies that

principle here. As Captain Mendoza aptly explained, the probable and natural consequence of

breaking into the United States Capitol is the disruption of Congressional business and

proceedings. Even if this principle did not apply to this case, Rivera’s inculpatory statements

demonstrate a clear intent to disrupt Congressional proceedings. To at least one nearby rioter,

Rivera stated that the violence around him was a righteous “revolution” that would hopefully

“pull [Members of Congress’] asses out of” the Capitol. Gov.’s Ex. 317. Although he thought

the ongoing riot, with tear gas canisters flying, was “going to get [even worse],” he said he was

“expecting this” and gleefully remained in the riot and its ongoing disruption. Gov.’s Ex. 310.

Moreover, in the days that followed, he ratified those statements, stating that he had a “great

time” doing the “Patriot shit” that disrupted Congress’ Joint Session. Additionally, it is clear

from Rivera’s knowledge of and attendance at the “Stop the Steal” rally that he knew Congress

was meeting in joint session on January 6, 2021 to count the votes of the Electoral College.

Accordingly, the Court concludes that the evidence shows, beyond a reasonable doubt, that

Rivera intended to disrupt Congressional proceedings.

Third, Defendant argues that he did not in fact disrupt Congressional proceedings

because both Houses of Congress had recessed by the time he had entered the Capitol itself.

12 This argument fails. As Captain Mendoza explained, proceedings could not recommence until

the entire building was secured and cleared of rioters. Indeed, even the presence of one

unauthorized person in the Capitol is reason to suspend Congressional proceedings. Defendant’s

argument would have the Court add an additional requirement to the statute’s causation clause,

mandating that a defendant be the but for cause of a disruption. There is no such term, and the

Court does not read terms into statutory provisions that are not there. See Romag Fastener’s,

Inc. v. Fossil, Inc., 140 S. Ct. 1492, 1495 (2020). 15

The following metaphor is helpful in expressing what the statute does require. Just as

heavy rains cause a flood in a field, each individual raindrop itself contributes to that flood.

Only when all of the floodwaters subside is order restored to the field. The same idea applies in

these circumstances. Many rioters collectively disrupted Congressional proceedings, and each

individual rioter contributed to that disruption. Because Rivera’s presence and conduct in part

caused the continued interruption to Congressional proceedings, the Court concludes that Rivera

in fact impeded or disrupted the orderly conduct of Government business or official functions.

Altogether, the Court finds that the evidence shows, beyond a reasonable doubt, that

Rivera knowingly, and with the intent to impede or disrupt the orderly conduct of Government

15 Although it is uncommon for a criminal statute to require something less than but-for causality, “courts have not always required strict but-for causality” where, under the circumstances, a crime may involve “multiple sufficient causes [that] independently, but concurrently, produce a result.” Burrage v. United States, 571 U.S. 204, 214 (2014) (emphasis omitted). In determining whether but-for causation is required, the Court looks both to text and context. See id. at 213; Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1842 (2018). In this statute, there is no language that would suggest but-for causation, such as “results from” or “because of.” See Burrage, 571 U.S. at 210-211 (those terms imply but-for causality). Additionally, it is likely often the case that this statute would be aimed at protests involving several people who collectively disrupt proceedings but where no individual person’s presence or actions would alone disrupt proceedings. Accordingly, and in light of very limited argument to the contrary, the Court concludes that this statute does not have any but-for causation element. 13 business or official functions, engaged in disorderly or disruptive conduct in, or in proximity to,

any restricted building that in fact impeded or disrupted the orderly conduct of Government

business or official functions. The Court therefore finds Defendant GUILTY on Count 2.

C. Count Three

In order for the Court to find Defendant guilty of Violent Entry and Disorderly Conduct

in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D), the Court must find the

following beyond a reasonable doubt: (1) the defendant engaged in disorderly or disruptive

conduct in any of the United States Capitol Buildings; (2) the defendant did so with the intent to

impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of

Congress; and (3) the defendant acted willfully and knowingly. Broadly, a person acts

“willfully” when they “‘act[] with knowledge that [their] conduct was unlawful.’” Bryan v.

United States, 524 U.S. 184, 191-92 (1998); see also United States v. Moore, 612 F.3d 698, 703

(D.C. Cir. 2010) (Kavanaugh, J., concurring). As the Court has already concluded that Rivera

knew his presence around and in the Capitol was unauthorized, and that his continued presence

was disruptive, the Court has found that Rivera acted willfully as well. For the other elements

of the offense, for the same reasons the Court found Defendant guilty on Counts 1 and 2, the

Court finds that the Government has carried its burden beyond a reasonable doubt and finds

Defendant GUILTY on Count 3.

D. Count Four

To find a defendant guilty of Parading, Demonstrating, or Picketing in a Capitol

Building, in violation of 40 U.S.C. § 5104(e)(2)(G), the Court must find the following beyond a

reasonable doubt: (1) the defendant paraded, demonstrated, or picketed in any of the United

States Capitol Buildings; and (2) the defendant acted willfully and knowingly.

14 First, to “parade” means to take part in “[a] march or procession, organized on a grand

scale, in support of some political object.” “Parade,” Oxford English Dictionary (2nd ed. 1989);

see also “Parade,” Merriam-Webster.com Dictionary (June 16, 2022) (“to march in or as if in a

procession”). Similarly, to “demonstrate” means to take part in “[a] public manifestation, by a

number of persons, of interest in some public question, or sympathy with some political or other

cause; usually taking the form of a procession and mass-meeting.” “Demonstration,” Oxford

English Dictionary (2nd ed. 1989); see also “Demonstration,” Merriam-Webster.com Dictionary

(June 16, 2022) (to take part in “a public display of group feelings toward a person or cause,”

e.g., “peaceful demonstrations against the government” (emphasis original)). Defendant

primarily argues that because he was “recording” as a “videographer,” he was not “parading” or

“demonstrating.” The two, however, are not mutually exclusive. In truth, Defendant acted more

as a social media influencer might, frequently urging his followers to “share, share, share!”

Gov.’s Ex. 310. Sharing, Rivera may have hoped, could have helped him “get [his] name out

there,” one of Rivera’s stated reasons for going to the Capitol on January 6, 2021. Gov.’s Ex.

335. Indeed, just before he joined the crowd, he was primarily concerned that no one appeared

to be watching his Facebook Live. Gov.’s Ex. 305.

As he joined the mob, he identified with those around him. Those who screamed,

shouted, and fought to, in then-President Trump’s words, “Stop the Steal” were, to Rivera,

“Patriots.” As discussed above, his presence was part of the floodwaters that drowned the

Capitol in insurrection and destruction. 16 In other words, Rivera was no passive observer.

16 The Court would further conclude that mere presence in a protest, along with other words or conduct that ratify interest in demonstrating, is “demonstrating” for the purposes of a criminal statute that bars the actus reus of “demonstrating.” See Brown v. Louisiana, 383 U.S. 131, 142 (1966) (protest and demonstration includes the right to “protest by silent and reproachful presence”); cf. also Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (concluding 15 Clearly, the evidence shows, beyond a reasonable doubt, that Rivera took part in a “public

manifestation” in furtherance of “some political or other cause.”

Second, to act “willfully and knowingly” is to “be aware of and knowingly violate[] [a]

legal obligation not to commit the charged actus reus.” United States v. Burden, 934 F.3d 675,

680 (D.C. Cir. 2019). For the same reasons the Court concluded that Defendant acted “willfully

and knowingly” in Count 3, the Court concludes that the evidence shows, beyond a reasonable

doubt, that Defendant “willfully and knowingly” “paraded [ or] demonstrated” “in any of the

United States Capitol Buildings.” The Court therefore finds Defendant GUILTY on Count 4.

III. Conclusion

The evidence shows beyond a reasonable doubt that Jesus Rivera was no mere passive

observer on January 6, 2021. He took a side, and it was the side of the insurrection. By his

words and conduct, the Court finds Jesus Rivera GUILTY of Counts 1, 2, 3, and 4.

Dated: June 17, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

that sleeping, as mere presence within a demonstration, is itself demonstrating). However, Defendant went further than mere presence in a demonstration by his own words and conduct. 16