United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant Tighe Barry's (“Mr.
Barry” or “Defendant”) Motion to Dismiss
(“Motion”) [ECF No. 10]. Mr. Barry seeks to
dismiss this matter on two different grounds - for improper
venue or for selective prosecution. See Def.'s Mot. to
Dismiss at 4-8 (“Def.'s Mot.”), ECF No. 10.
In the alternative, Mr. Barry requests that if the Court does
not dismiss this action, then the Court should order the
United States to “provide discovery concerning the
decision to prosecute” Mr. Barry. Id. at 5.
Having considered the parties' briefings and submissions
thereto, the Court DENIES Mr. Barry's Motion.
September 6, 2018, Mr. Barry attended the Senate confirmation
hearings for then-nominee Justice Brett Kavanaugh in the Hart
Senate Office Building. Gov't's Opp'n to
Def.'s Mot. (“Gov't Opp'n”) at 1, ECF
No. 12. Several U.S. Capitol Police Officers
(“officers”) were positioned around the perimeter
of the hearing room. Id. The officers observed Mr.
Barry allegedly placing a pink tiara hat on his head with the
writing “KAVA-NOPE CODE PINK” and allegedly
advised him that demonstrating was prohibited and to remove
the hat. Id. Mr. Barry then pulled out a large sign
and stood on top of his chair and allegedly began shouting in
the direction of the hearing committee members. Id.
approached by the officers, Mr. Barry allegedly leapt from
his row of chairs to the row in front of him, causing a chair
to dislodge towards other attendees behind him and allegedly
injuring another hearing attendee. Id. at 2. The
officers then removed Mr. Barry from the hearing room, while
he allegedly continued to shout, carrying him out by his arms
and legs. Id. Mr. Barry was then arrested and
charged in D.C. Superior Court with three D.C. Code offenses:
Unlawful Conduct Capitol Grounds, Resisting Arrest, and
Disorderly Conduct. See Def.'s Mot. at 1 & Ex. 1
(D.C. Superior Court Docket No. 2018 CMD 013221).
September 7, 2018, Mr. Barry made an initial appearance in
D.C. Superior Court, was released, and scheduled for a status
hearing on September 25, 2018. Id. at 1. On
September 13, 2018, the United States transferred Mr.
Barry's D.C. Superior Court matter to this Court and
filed an Information charging Mr. Barry with one count of
Unlawful Disorderly and Disruptive Conduct and Picketing,
Parading, and Demonstrating on United States Capitol Grounds,
in violation of 40 U.S.C. §§ 5104(e)(2)(D) and (G).
Id.; see also Information, ECF No. 1. On September
24, 2018, Mr. Barry made his initial appearance in this
federal district court. See Def.'s Mot. at 1. On
September 25, 2018, the United States entered a nolle
prosequi in Mr. Barry's D.C. Superior Court matter, and
that case was dismissed. See Id. at 2.
Barry seeks to dismiss this matter for lack of venue under
Federal Rules of Criminal Procedure 12(b)(2) and 18.
Id. at 4. Federal Rule of Criminal Procedure 18
[u]nless a statute or these rules permit otherwise, the
government must prosecute an offense in a district where the
offense was committed. The court must set the place of trial
within the district with due regard for the convenience of
the defendant, any victim, and the witnesses, and the prompt
administration of justice.
Fed. R. Crim. P. 18. Mr. Barry asserts that 40 U.S.C. §
5109(c)(2) controls venue here, and the United States does
not challenge this assertion. See Def.'s Mot. at 4-5.
Although both parties center their arguments around the
interpretation of 40 U.S.C. § 5109(c)(2), that provision
does not govern venue in this case.
venue provision under 40 U.S.C. § 5109 provides that
[a]n 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 ...