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United States v. Barry

United States District Court, District of Columbia

June 6, 2019

UNITED STATES OF AMERICA,
v.
TIGHE BARRY, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.

         Pending 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.

         BACKGROUND

         On 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. at 1-2.

         When 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).

         On 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.

         ANALYSIS

         I. VENUE

         Mr. 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 states that

[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.

         The 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 ...

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