UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 19-169 (BAH)
KEVIN BRUCE ZEESE, Chief Judge Beryl A. Howell
MARGARET ANN FLOWERS,
ADRIENNE PINE, and
DAVID VERNON PAUL,
Defendants.
MEMORANDUM OPINION
The defendants, Kevin Bruce Zeese, Margaret Ann Flowers, Adrienne Pine, and David
Vernon Paul, are charged with a single misdemeanor count of interference with certain protective
functions of the United States Department of State, in violation of 18 U.S.C. § 118. See
Information (May 17, 2019), ECF No. 14. The charges arise from events that took place at the
Embassy of Venezuela in Washington, D.C., between May 13 and May 16, 2019. See id.; see
also Motion in Limine to Limit Argument, Testimony and Evidence (“Gov’t’s MIL”) at 4, ECF
No. 83. The government contends that, on May 13, agents from the Department of State’s
Diplomatic Security Service (“DSS”) informed the defendants, who were inside the Embassy,
that they were trespassing and directed them to leave. See Joint Pretrial Statement (“JPTS”) at 5,
ECF No. 84. On May 16, the defendants, who were still in the Embassy, were arrested, and the
government alleges that, by not leaving when told to do so by DSS agents, the defendants
engaged in the charged criminal conduct. Id.
Pending is the government’s motion in limine to limit the scope of argument, testimony
and evidence offered at the defendants’ trial, see Gov’t’s MIL at 1, which is scheduled to begin
1
on February 11, 2020, see Minute Entry (Oct. 23, 2020). The government seeks to exclude
evidence or argument about 14 subjects, which the government has divided into three categories:
(1) U.S. policy toward Venezuela and the defendants’ views about that policy, see Gov’t’s MIL
at 2–3; (2) actions of the defendants prior to the May 13 to May 16 timeframe charged in the
information, see id. at 3; and (3) four potential defenses, id. at 3–4. As outlined below,
defendants oppose the government’s motion in limine as to most, but not all, of the 14 subjects.
See Rough PTC Hr’g Tr. (Jan. 29, 2020) at 86:3–107:17; see also Defs.’ Opp’n to Gov’t’s Mot.
in Limine to Limit, Argument, Testimony, and Evidence (“Defs.’ Opp’n”) at 1–2, ECF No. 88
(joined by all defendants); Def. Flowers’ Supplemental Resp. in Opp’n to Gov’t’s Mot. in Limine
(“Flowers’ Opp’n”) at 17–18, ECF No. 89. For the reasons explained below, the government’s
motion is granted in part and denied in part.
I. BACKGROUND
The government has proffered the following facts as underlying the instant charge against
each defendant. In January 2019, President Donald Trump recognized Juan Guaidó as Interim
President of Venezuela, and Guaidó subsequently notified President Trump that Carlos Vecchio
had been appointed Ambassador to the United States. Aff. in Support of Criminal Compl. and
Arrest Warrant (“Gov’t’s Aff.”) ¶¶ 5–9, ECF No. 1-1. The defendants, along with others who
supported the regime of Nicolás Maduro in Venezuela, began inhabiting the Venezuelan
Embassy in Washington in April of 2019. See Gov’t Aff. ¶ 12. In late April 2019, Vecchio sent
official diplomatic correspondence to the State Department requesting the support of the U.S.
government for the Guaidó regime’s efforts to retake the Embassy from the Maduro supporters
inhabiting it. Id. ¶ 16.
In the evening on May 13, 2019, DSS agents posted on the property of the Embassy
copies of a notice, id. ¶¶ 23–25, that stated: (1) the United States “recognizes” Vecchio “as the
2
representative[] of Venezuela with lawful control over the property;” (2) “[t]he United States
does not recognize the authority of the former Maduro regime, or any of its former
representatives, to allow any individuals to lawfully enter, remain on the property, or take any
other action with respect to this property;” (3) Vecchio has requested that those on the property
leave and not return absent the ambassador’s “express authorization;” (4) “individuals with law
enforcement powers are requesting and directing anyone who is on this property to depart from it
immediately;” and (5) “[a]ny person who refuses to comply with these requests and orders to
depart from this property will be trespassing in violation of federal and District of Columbia law
and may be arrested and criminally prosecuted,” Defs.’ Mot. to Compel Production of Discovery
and Brady Material in the Custody of the Government (“Defs.’ Mot. to Compel”), Ex. B,
Trespassing Notice (“DSS Notice”), ECF No. 70-2. The same notice was also read via
loudspeaker by law enforcement. Gov’t Aff. ¶ 29.
Later the same night, members of the District of Columbia Fire Department cut chain
locks and a bicycle lock from the main entrance to the Embassy using hydraulic bolt cutters. Id.
¶ 30. DSS agents then opened the door, read the notice aloud, and left copies of the notice on the
ground near the Embassy entrance. Id. ¶ 32. According to the government, the defendants did
not leave the Embassy on May 13. Id. ¶ 32. The defendants were arrested on May 16, 2019 at
the Embassy. See JPTS at 5.
The defendants were charged the next day in a one count information, see Information
(May 17, 2019), ECF No. 14, with violating 18 U.S.C. § 118. That provision states, in pertinent
part:
Any person who knowingly and willfully obstructs, resists, or
interferes with a Federal law enforcement agent engaged, within the
United States . . . , in the performance of the protective functions
authorized under section 37 of the State Department Basic
3
Authorities Act of 1956 (22 U.S.C. § 2709) or section 103 of the
Diplomatic Security Act (22 U.S.C. § 4802) shall be fined under this
title, imprisoned not more than 1 year, or both.
18 U.S.C. § 118. Section 37 of the State Department Basic Authorities Act of 1956, see 22
U.S.C. § 2709, and § 103 of the Diplomatic Security Act, see 22 U.S.C. § 4802, define certain
protective functions of the State Department, including “maintaining the security and safety of
. . . foreign missions . . . within the United States,” 22 U.S.C. § 2709(a)(3). The parties agree
that the elements of the charged offense are: (1) the defendant obstructed, resisted, or interfered
with a federal law enforcement agent; (2) at the time the defendant obstructed, resisted, or
interfered, the federal law enforcement agent was engaged, within the United States, in the
performance of any of the protective functions authorized under 22 U.S.C. § 2709 or 22 U.S.C. §
4802; and (3) the defendant acted knowingly and willfully. See JPTS at 22.
Following voluminous discovery, including 900 videos and 30,000 pages of documents,
see Discovery Hr’g Tr. (Dec. 13, 2019) at 24:9–10, ECF No. 82, and the denial of defendant’s
motion to compel, see id. at 44:8–10 (explaining orally reasons for denial of defendants’ motion
to compel), the parties filed pretrial motions and presented arguments on those motions at the
pretrial conference on January 29, 2020.1 The only outstanding motion is the government’s
motion in limine, which, as described, seeks to exclude evidence or argument about 14 subjects.
The government argues that the enumerated subjects are irrelevant and should thus be excluded
under Federal Rule of Evidence 402. Gov’t’s MIL at 6–7. Even if the information is relevant,
the government presses that “the Court should nonetheless exclude” it under Federal Rule of
1
At the pretrial conference, seven other pretrial motions were resolved orally. See Minute Order (Jan. 29,
2020) (denying Flowers’ Request for Hearing, Motion to Adopt other Defendants’ Motions, Request for Notice of
the Government’s Intent to Use Evidence, Motion for Leave to File Pretrial Motions, Motion to Sever, and Motion
to Dismiss on First Amendment grounds, see Def. Flowers’ Pretrial Mots., Incorporated Mem. of Law, and Request
for Hr’g, (“Def. Flowers’ Mots”), ECF No. 85, and granting in part and denying in part Flowers’ Motion for
Additional Peremptory Challenges, see id.).
4
Evidence 403, “as its probative value is substantially outweighed by its prejudicial effect” or its
danger of confusing the jury. Id. at 7. The defendants counter that many of the topics the
government seeks to exclude are relevant to explain “why they did not vacate the Embassy,”
Defs.’ Opp’n at 4, which is “probative of whether they acted willfully,” id. at 5.
II. LEGAL STANDARD
As the Supreme Court has recognized, “[a]lthough the Federal Rules of Evidence do not
explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s
inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4
(1984). Pretrial motions in limine effectuate the directive, embodied in Federal Rule of Evidence
103(d), that “[t]o the extent practicable, the court must conduct a jury trial so that inadmissible
evidence is not suggested to the jury by any means.” FED. R. EVID. 103(d). Pretrial motions in
limine also further the general purpose of the Rules of Evidence to administer the proceedings
“fairly . . . to the end of ascertaining the truth and securing a just determination.” FED. R. EVID.
102. To this end, “[a] pre-trial ruling, if possible, may generally be the better practice, for it
permits counsel to make the necessary strategic determinations.” United States v. Jackson, 627
F.2d 1198, 1209 (D.C. Cir. 1980).
III. DISCUSSION
Following brief review of the applicable Federal Rules of Evidence, the three categories
of information the government seeks to exclude are considered in reverse order, starting with the
potential defenses, then the topics related to the period before May 13, 2019 and, finally, the
information about U.S. policy toward Venezuela.
A. Overview of Applicable Evidentiary Rules
Evidence is relevant, under the definition found in Rule 401, if “it has any tendency to
make a fact more or less probable than it would be without the evidence; and . . . the fact is of
5
consequence in determining the action.” FED. R. EVID. 401. Under Rule 402, “[i]rrelevant
evidence is not admissible,” but relevant evidence generally is. FED. R. EVID. 402. One
exception to Rule 402’s general rule of admissibility of relevant evidence is Rule 403, which
provides: “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
FED. R. EVID. 403. In a criminal case, a defendant’s constitutional right to present a defense
extends only to relevant evidence and even relevant evidence may be subject to reasonable
restrictions on admissibility, such as those found in Rule 403. See Rock v. Arkansas, 483 U.S.
44, 55 (1987) (“Of course, the right to present relevant testimony is not without limitation.”).
“[T]he burden is on the introducing party to establish relevancy,” Dowling v. United
States, 493 U.S. 342, 351 n.3 (1990), as well as admissibility under other evidentiary rules.
Further, “[i]n deference to a district court’s familiarity with the details of the case and its greater
experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s
evidentiary rulings.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); see
also United States v. Abel, 469 U.S. 45, 54 (1984) (“Assessing the probative value of [the
proffered evidence], and weighing any factors counseling against admissibility is a matter first
for the district court’s sound judgment under Rules 401 and 403 . . . .”).
With these principles in mind, the admissibility of the potential defenses is considered
first.
B. Potential Defenses
The government seeks exclusion of four defenses the defendants may try to assert: (1) “a
bona fide belief defense based on the fact that the defendants had a right to remain in the
Embassy based on the conduct or actions of the Maduro regime,” Gov’t’ MIL at 3; (2) any
6
defense asserting that the defendants were acting within their First Amendment speech or
association rights; (3) (a) any argument that the DSS Notice was legally invalid or based on
improper legal authority, and (b) in particular, any argument or defense that the DSS Notice was
legally deficient due to a lack of letterhead, signature, or official seal; and (4) any defense
asserting that the defendants were acting properly on the advice of counsel by refusing to leave
the embassy, id. at 3–4. The government contends that these arguments are “irrelevant” and that
they are not “legally cognizable defenses” in this case. Gov’t’s Reply to Defs.’ Opp’ns to its
Mot. in Limine to Limit Testimony and Evidence (“Gov’t’s Reply”) at 7, ECF No. 90.
As to the second and fourth of these defenses, all four defendants have clarified that they
will not seek to offer an advice of counsel defense. See Rough PTC Hr’g Tr. at 86:8–10
(Flowers’ counsel); id. at 100:16 (Paul’s counsel); id. at 103: 19–24 (Pine’s counsel); id. at
104:14–15 (Zeese’s counsel).2 Three of the defendants have indicated they do not plan to assert
any First Amendment–based defense. See id. at 97:7 (Paul’s counsel); id. at 103: 19–24 (Pine’s
counsel); id. at 104:14–15 (Zeese’s counsel).3 Given the defendants’ representations that they
2
As to the possibility of an advice of counsel defense, the defendants were advised at the pretrial conference
that raising such a defense would likely result in “waiving attorney-client privilege . . . with respect to whatever
communications they had with that counsel.” Rough PTC Hr’g Tr. at 100:3–8; see also United States v. White, 887
F.2d 267, 270 (D.C. Cir. 1989) (“Reliance on advice-of-counsel is an affirmative defense” that “waive[s] the
[attorney-client] privilege”). If defendants were to seek to offer an advice of counsel defense, they would have to
provide a proper foundation for its assertion. See United States v. West, 392 F.3d 450, 457 (D.C. Cir. 2004) (“A
defendant may avail himself of an advice of counsel defense only where he makes a complete disclosure to counsel,
seeks advice as to the legality of the contemplated action, is advised that the action is legal, and relies on that advice
in good faith.”). Moreover, the scope of any testimony and evidence about the advice of counsel would be limited
by principles of relevance and probative value discussed throughout this decision: defendants would be permitted
with an advice of counsel defense to argue that the advice of their attorney gave them a good faith basis to believe
that remaining in the Embassy was not unlawful even after law enforcement ordered them to leave, but would not be
permitted to argue based on the advice of counsel that Maduro was the rightful leader of Venezuela or that the
Guaidó regime was illegitimate and lacked authority to operate the Venezuelan government or Embassy. See supra
Part III.B; supra Part III.D.
3
Flowers’ motion to dismiss the information under the First Amendment, see Def. Flowers’ Mots. at 1–5,
was denied at the pretrial conference because the First Amendment provides no legal basis for objecting to the
charge in the information, see Rough PTC Hr’g Tr. at 69–70. Later in the hearing, Flowers’ counsel stated that
Flowers would raise the topics identified in the government’s motion were the government to open the door to those
topics. See Rough PTC Hr’g Tr. at 86:8–10 (Flowers’ counsel). Were Flowers, or any other defendant, to seek to
raise a First Amendment defense at trial, presentation of such a defense to the factfinder would be precluded by the
7
will not seek to offer such evidence, the government’s motion to exclude evidence, argument,
and testimony about potential defenses predicated on the First Amendment and on advice of
counsel is granted.
All the defendants argue, however, that aspects of the other two defenses the government
seeks to exclude — a bona fide belief defense and an argument that the DSS Notice rested on
invalid legal authority — are relevant “to the mens rea element of the offense.” Defs.’ Opp’n at
4. As to these two remaining potential defenses, the government’s motion will be granted in part
and denied in part. The scope of evidence and argument allowed on these defenses is determined
by the case law defining the applicable mens rea — knowingly and willfully — and so the
discussion begins with an overview of that law and the parties’ diverging views, as reflected in
their proposed jury instructions. See JPTS at 73–74; Defs.’ Proposed Jury Instruction on
“Willfully” and Sources of Authority, ECF No. 97.
1. Knowingly and Willfully
Section 118 penalizes “[a]ny person who knowingly and willfully obstructs, resists, or
interferes with a Federal law enforcement agent engaged” in certain protective functions of the
State Department. 18 U.S.C. § 118 (emphasis added). The parties agree that “[a]n act is done
‘knowingly’ if it is done voluntarily and intentionally and not because of mistake or accident.”
JPTS at 72 (quoting S1 Modern Federal Jury Instructions-Criminal 2.15 (2019)); see also, e.g.,
Bryan v. United States, 524 U.S. 184, 193 (1998) (“[T]he term ‘knowingly’ merely requires
proof of knowledge of the facts that constitute the offense.”).
Court’s legal conclusion in denying the motion to dismiss that § 118 is constitutional as applied to the defendants.
See, e.g., United States v. Matthews, 209 F.3d 338, 341 n.1 (4th Cir. 2000) (stating that defendants’ ability to raise
his First Amendment defense to the jury rises and falls with his as-applied First Amendment challenge to the
charge).
8
“Willfully,” on the other hand, “is sometimes said to be ‘a word of many meanings’
whose construction is often dependent on the context in which it appears.” Bryan, 524 U.S. at
191 (quoting Spies v. United States, 317 U.S. 492, 497 (1943)); see also United States v.
Murdock, 290 U.S. 389, 394 (1933) (collecting cases and definitions). Generally, “in order to
establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted
with knowledge that his conduct was unlawful.’” Bryan, 524 U.S. at 191–92 (quoting Ratzlaf v.
United States, 510 U.S. 135, 137 (1994)). The “conduct” that “the jury must find the defendants
to have willfully done [i]s the actus reus that violated” § 118. United States v. Burden, 934 F.3d
675, 692 (D.C. Cir. 2019). The government and the defendants thus agree that establishing a
willful violation of 18 U.S.C. § 118 here requires proof that defendants knew that it was
unlawful for them to remain in the Embassy after DSS agents had ordered them to leave.
Defendants argue that a more particularized showing is required, objecting to the
inclusion of the following sentence in the government’s proposed instructions to the jury on
willfully: “‘Willfully’ does not require proof that the Defendant knew of the existence and
meaning of the statute making his or her conduct criminal.” JPTS at 73 (quoting S1 Modern
Federal Jury Instructions-Criminal 5.05 (2019)); see Rough PTC Hr’g Tr. at 54:22–25 (Paul’s
counsel objecting to this sentence); Rough PTC Hr’g Tr. at 55:8–10 (Paul’s counsel stating that
“it’s problematic . . . that [defendants] don’t have to know of the existence and meaning of the
statute when” they were told they were trespassing and were later charged with interference with
the protective functions). That sentence, however, correctly encapsulates the proof required
here. The Supreme Court “has required proof that a defendant know which law he was breaking
in only two contexts: criminal tax evasion, and currency structuring.” Burden, 934 F.3d at 690–
91 (discussing Ratzlaf, 510 U.S. 135 and Cheek v. United States, 489 U.S. 192, 206 (1991)).
9
Those contexts involve ‘highly technical statutes and present[] the danger of ensnaring
individuals engaged in apparently innocent conduct.” Bryan, 524 U.S. at 194.
Plainly, this is not such a context: 18 U.S.C. § 118 is not highly complex, and the risk
that a statute prohibiting disobeying the orders of law enforcement will criminalize otherwise
innocent behavior is low, as the duty to obey law enforcement is a common sense one. See
Bryan, 524 U.S. at 194–95 (distinguishing the tax and currency structuring statutes from a statute
about unlicensed firearm dealing for these reasons); United States v. Rawlings, 982 F.2d 590,
593 (D.C. Cir. 1993) (distinguishing distributing of controlled substances from the contexts in
which heightened mens rea is required); United States v. George, 386 F.3d 383, 394 (2d Cir.
2004) (“Unlike the currency structuring statute at issue in Ratzlaf, [18 U.S.C. § 1542] does not
risk criminalizing otherwise innocent conduct because knowingly submitting false information in
a passport application is not innocent behavior.”).
Thus, here, to prove willfulness, the government need only prove that defendants knew
that the charged conduct — remaining in the Embassy after being told by DSS agents to leave —
was unlawful. As the Supreme Court hinted in Bryan, in some cases, the government may be
able to satisfy this element of the offense by relying on the “traditional rule that ignorance of the
law is no excuse.” 524 U.S. at 196. Carrying the willfulness burden in other cases, however,
will require the government to “negat[e] a defendant’s claim of ignorance of the law or a claim
that because of a misunderstanding of the law, he had a good faith belief that he was not
violating the law.” Cheek, 489 U.S. at 206; see also United States v. Hansen, 772 F.2d 940, 947
(D.C. Cir. 1985) (holding that good faith is a defense to willfully filing false statements under 18
U.S.C. § 1001).
10
Critically, such claims of good faith mistake or ignorance about the law are analytically
distinct from claims contesting the validity of the legal duties at issue. See, e.g., United States v.
Platte, 401 F.3d 1176, 1185 (10th Cir. 2005) (“Cheek drew a sharp distinction between a mistake
of law negating willfulness and a studied disagreement with the law.”). Even in prosecutions,
such as those for criminal tax violations, involving a heightened willfulness mens rea, “a
defendant’s views about the validity of the” applicable laws “are irrelevant to the issue of
willfulness and need not be heard by the jury and, if they are, an instruction to disregard them
would be proper.” Cheek, 489 U.S. at 206; see also, e.g., United States v. Hunter, 554 F. App’x
5, 8 (D.C. Cir. 2014) (“A defendant’s views about the validity of the relevant statutes . . . are
‘irrelevant to the issue of willfulness.’” (quoting Cheek, 489 U.S. at 206)). In Cheek, which
involved charges of willfully failing to file federal income tax returns and willfully evading
payment of income taxes, the defendant sought to argue “that he should be acquitted because he
believed in good faith that the income tax law is unconstitutional as applied to him and thus
could not legally impose any duty on him of which he should be aware.” 489 U.S. at 205. These
beliefs, the Supreme Court held, were irrelevant to willfulness because they “do not arise from
innocent mistakes” about the substance of the law but “[r]ather . . . reveal full knowledge of the
provisions at issue and a studied conclusion, however wrong, that those provisions are invalid.”
Id. Put differently, arguments contesting the validity of applicable legal duties are irrelevant to
willfulness because such arguments assert not that defendants were unaware of and lacked intent
to violate those legal duties but assert instead that defendants, having full knowledge of the
applicable legal duties, disagree with them. Evidence of “simple disagreement with known legal
duties” does not negate the government’s proof of willfulness. Id. at 204.
11
The key line dividing relevant from irrelevant defenses to the government’s proof of
willfulness, then, is this: arguments about the defendants lacking knowledge that their conduct
was unlawful are relevant to the issue of willfulness; arguments that contest the validity of the
legal duties at issue are irrelevant to the issue of willfulness. This principle is now applied to the
two potential defenses contested in the government’s motion in limine.
2. Bona Fide Belief Defense
The bona fide belief defense exists in trespassing, or unlawful entry, cases, where the
prosecution must prove unlawful entry and a defendant may cast reasonable doubt on that proof
by claiming that the entry was made “with a good purpose and a bona fide belief in [the] . . .
right to enter.” Darab v. United States, 623 A.2d 127, 136 (D.C. 1993) (citing Smith v. United
States, 281 A.2d 438, 439 (D.C.1971)). Defendants charged with unlawful entry under the D.C.
Code and permitted to raise a bona fide belief defense are further entitled to a jury instruction “to
the effect that the government must prove beyond a reasonable doubt that the defendant did not
have a reasonable, good faith belief in his lawful authority to stay.” Id. (stating that such an
instruction is required when the defendant’s belief is “genuinely questionable”). The charge here
is not trespassing, however. Thus, the government has no burden to prove unlawful entry and
the defendants need not be given an opportunity to rebut such proof by raising a traditional bona
fide belief defense. The government’s motion to exclude any bona fide belief defense is granted
to that extent.4
4
This conclusion is consistent with the Court’s explanation at the December hearing denying the defendants’
motion to compel discovery from the government of any information in the government’s possession indicating
“that defendants were lawfully present in the Embassy and/or that they believed they were lawfully present in the
Embassy.” Defs.’ Mot. to Compel at 9; see also Discovery Hr’g Tr. at 34:6–8 (Court stating, “this is not a state law
trespassing case, and so there is no possibility of the defense raising a bona fide belief defense.”). Since the
December hearing, the defendants have clarified, as explained in the next paragraph of text, that they are not seeking
to raise a traditional bona fide belief defense.
12
Indeed, the defendants recognize the incongruity between the elements of the charged
offense and the traditional bona fide belief defense. See Rough PTC Hr’g Tr. at 96:10–12
(Paul’s counsel acknowledging that the defendants would not “characterize” any defense they
seek to raise as a bona fide belief defense); id. at 104:16–25 (Zeese’s counsel making similar
point).5 Defendants thus do not dispute that they should not be permitted to raise a formal bona
fide belief defense but instead say that they are entitled to present a somewhat similar defense
based on their belief that their continued presence in the Embassy during the charged three days,
May 13 to May 16, 2019, was not unlawful.6 The admissibility of this similar defense is a more
complicated question.
As the defendants emphasized at the pretrial conference, the basis for the instant charges
is an allegation that the defendants defied the DSS Notice and DSS agents’ oral orders to leave
the Embassy, which notice and orders expressly referenced that the defendants were trespassing.
See Rough PTC Hr’g Tr. at 96:17–97:3. Given this, the defendants argue that “they should have
the right to explain why they believe they were not trespassing; particularly in a case like this,
5
To elaborate on the mismatch between the state-law bona fide belief defense and 18 U.S.C. § 118, in a
trespassing case, the government must prove unlawful entry, so a defendant’s bare assertion of a good faith belief in
having lawfully entered negates an element of the government’s case. In contrast, here, the assertion that defendants
believed they were lawfully in the Embassy only becomes relevant when presented in a particular context — that is,
as a piece of the argument that, because they believed they were lawfully present, they did not know the DSS Notice
and orders, and the legal duty to obey those orders, pertained to them. Further, under D.C. law, “[a] bona fide belief
must have some justification — some reasonable basis,” Darab, 623 A.2d at 136 (quoting Smith, 281 A.2d at 439), a
requirement incompatible with Cheek, which held that good-faith defenses to willfulness requirements do not have a
reasonableness element, see Cheek, 498 U.S. at 203. Finally, under D.C. law, a bona fide belief “must be based in
the pure indicia of innocence” — that is, “[t]here must be some evidence that, for example, the individual had no
reason to know that he was trespassing on the rights of others,” Darab, 623 A.2d at 136 (quoting Gaetano v. United
States, 406 A.2d 1291, 1294 (D.C. 1979)). Evidence about the DSS Notice and orders likely negates such innocence
here.
6
Paul’s counsel primarily advanced this argument, see Rough PTC Hr’g Tr. at 96:10–16, and was joined by
Pine and Zeese’s counsel, see Rough PTC Hr’g Tr. at 103: 19–24 (Pine’s counsel); id. at 104:16–25 (Zeese’s
counsel). Flowers’ counsel stated at the hearing that Flowers would only seek to present evidence on this topic, and
on every topic the government seeks to exclude, “if the government opened the door.” Rough PTC Hr’g Tr. at 86:9.
In light of Flowers’ argument, in opposing the government’s motion, that the government’s “proposed voir dire, jury
instructions and the Government’s exhibit list” indeed opened this door, Flowers’ Opp’n at 17–18, the Court infers
that Flowers, like the other defendants, would indeed seek to offer some form of this defense.
13
where there is willfulness as an element of the crime” and the government “has to show the
defendants believed what they were doing was unlawful.” Id. at 98:10–14. Put slightly
differently, the defendants argue that, given the trespass-related conclusion embedded in the DSS
agents’ notice and oral orders, the defendants “should be able to . . . present their evidence as to
why they believed they were not trespassing” to explain “their reaction to” the DSS agents’
orders and to argue that “they did not form the required mens rea to commit the offense; namely,
that they did not believe they were violating a known legal duty.” Id. at 99:10–16. In other
words, the defendants “were told” by DSS agents that they were trespassing, but the defendants
“felt — having been given the keys by the departing Venezuelan diplomats” and having “agreed
to try to protect the property from some of the people outside” — “that they were lawfully
allowed to do that.” Id. at 106:6–11. The belief about what “they were lawfully allowed to” do,
defendants claim, goes to whether they knew that the charged conduct of remaining in the
Embassy after the DSS orders to leave was unlawful. Id. at 106:12–19.
The defendants’ belief about having permission from the Maduro regime to occupy the
Embassy is relevant and admissible for the purpose of supporting the argument that defendants
did not know that the DSS Notice and oral orders applied to them and that remaining in the
Embassy after the DSS agents’ orders to leave was unlawful.7 To break this down further,
defendants are permitted to present evidence about their understanding that they had been given
permission by the Maduro regime to be in the Embassy. Such evidence may be used for the
purpose of arguing they did not know that the DSS agents’ orders applied to them and that, as a
result, they did not know that their defiance of the orders was unlawful.8
7
Admission of this evidence and argument does not import any of the D.C. law governing the bona fide
belief defense, for the reasons explained supra note 5.
8
This conclusion does not affect the earlier ruling that defendants are not entitled to discovery from the
government of all information in the government’s possession indicating “that defendants . . . believed they were
14
As will be explained in detail below, in presenting this evidence and these arguments, the
defendants will be permitted to introduce their subjective belief that Maduro was the leader of
Venezuela with control over the Embassy and will be permitted to offer evidence that they had
“been given the keys by the departing Venezuelan diplomats” associated with Maduro. The
defendants will not be permitted to assert that Maduro was indeed the leader of Venezuela
because that assertion, which goes to the validity of the DSS agents’ orders and which questions
the President’s exclusive power to recognize foreign governments, is irrelevant and contrary to
law. An appropriate instruction on this point, if requested, may be given. Further, the
defendants will not be permitted to introduce any agreement “to try to protect the property,” as
any such agreement is irrelevant to rebutting the government’s case for mens rea or any other
element of the offense.
The allowed defense based on the defendants’ belief that they had permission from the
Maduro regime to inhabit the Venezuelan Embassy is akin to one recognized by the Supreme
Court in Cheek, where the defendant was permitted to present evidence of his “understanding
that” the relevant tax laws did not apply to him — that is, “within the meaning of the tax laws, he
was not a person required to file a return or to pay income taxes.” 498 U.S. at 203.9 There, the
Supreme Court explained, “[o]f course, in deciding whether to credit Cheek’s good-faith belief
lawfully present in the Embassy.” Defs.’ Mot. to Compel at 9. The defendants’ request was comprised of seven
sub-requests and, as explained orally, each sub-request was denied as “inappropriate,” Discovery Hr’g Tr. at 34:23,
prohibited by Federal Rule of Criminal Procedure 16(a)(2), id. 35:14, “unsuitably broad,” id. at 35:20, or deniable
“for lack of any of the requested documents,” id. 36:11; see also id. 37:7–8.
9
The statutes in Cheek, as explained, required heightened proof of willfulness, but this mistake-of-law
defense is still relevant here, where only a general, not a statute-specific, awareness of the illegality of the actus reus
is required. One court of appeals has “doubt[ed] whether the Cheek mistake-of-law defense would apply to” statutes
like the ones here and in Bryan with mens rea of willfulness that are “hardly part of a complex regulatory scheme.”
United States v. Platte, 401 F.3d 1176, 1186 (10th Cir. 2005) (addressing 18 U.S.C. § 2155(a), which prohibits
“willfully” damaging national defense material). Although the Supreme Court did not address this question in
Bryan, if Bryan’s rule that willfulness requires the government to establish “that the defendant acted with knowledge
that his conduct was unlawful” is to have force, defendants must be able to introduce mistake-of-law evidence to
rebut any presumption that reasonable citizens know the law. 524 U.S. at 192.
15
claim, the jury would be free to consider any admissible evidence . . . showing that Cheek was
aware of his duty to file a return and to treat wages as income, including . . . contents of the
personal income tax return forms and accompanying instructions that made it plain that wages
should be returned as income.” Cheek, 489 U.S. at 202.
Similarly, here, the jury will be free to consider evidence showing that the defendants
knew that remaining in the Embassy was unlawful, including the detailed text of the DSS Notice
and the multiple ways and occasions law enforcement presented that notice to the defendants.
Contrary to the government’s suggestion at the pretrial conference, the existence of such
evidence does not make the defendant’s subjective belief that they were lawfully present in the
Embassy irrelevant. See Rough PTC Hr’g Tr. at 110:4–12. Instead, such evidence goes to
whether the defendants’ subjective belief should be “credit[ed],” an issue for the jury to evaluate,
no matter how “incredible” the defendants’ “misunderstandings of and beliefs about the law
might be.” 498 U.S. at 203. “Of course,” as the Supreme Court put it in Cheek, “the more
unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider
them to be nothing more than simple disagreement with known legal duties . . . and will find that
the Government has carried its burden of proving” mens rea. 498 U.S. at 203–04. Here, a
defense that defendants were unaware of the unlawfulness of defying an order of law
enforcement likely faces an uphill battle with a jury: not only is the legal duty to obey law
enforcement orders straightforward and widely known, but also, here, there is evidence that the
notice personally delivered by law enforcement spelled out how failure to comply with the orders
to leave the Embassy premises would violate federal law and could lead to arrest and
prosecution.
16
In summary, the government’s request to exclude “a bona fide belief defense based on
the fact that the defendants had a right to remain in the Embassy based on the conduct or actions
of the Maduro regime,” Gov’t’ MIL at 3, is granted in part and denied in part. A traditional bona
fide belief defense will not be permitted, but defendants will be permitted to introduce evidence
about their subjective belief that they “had a right to remain in the Embassy based on the conduct
or actions of the Maduro regime.” Id. As will be discussed, defendants will not be permitted to
cast that belief as a “fact” about their “right to remain,” id., as such an argument would
irrelevantly contest the validity of the legal duties at issue.
3. Arguments about the DSS Notice
The government’s request to exclude any argument that the notice posted and read by law
enforcement was legally invalid or based on improper legal authority, and any argument or
defense that the DSS Notice was legally deficient due to a lack of letterhead, signature, or
official seal, id., is also granted in part and denied in part.
a. Argument that the DSS Notice was Legally Invalid or Based on
Improper Legal Authority
The defendants maintain that “why they believed the trespassing notice was invalid” is
relevant to rebutting the willfulness element of the offense. Defs.’ Opp’n at 4; see also Rough
PTC Hr’g Tr. at 97:13–16 (Paul’s counsel stating, “We are seeking and believe we have the
right, under the Constitution, to present evidence as to their understanding and belief as to the
lawfulness and legitimacy of the order that was given.”).10 As already explained, however, the
Supreme Court and the D.C. Circuit have been crystal clear that “[a] defendant’s views about the
validity of the relevant” legal duties “are ‘irrelevant to the issue of willfulness.’” Hunter, 554 F.
10
Again, Pine and Zeese’s counsel unequivocally joined this statement at the hearing. See Rough PTC Hr’g
Tr. at. at 103: 19–24 (Pine’s counsel); id. at 104:14–15 (Zeese’s counsel). The Court infers that Flowers, like the
other defendants, would seek to offer some form of this defense. See infra note 6.
17
App’x at 8 (quoting Cheek, 489 U.S. at 206). As those courts have explained, to negate
willfulness, a defense must suggest that defendants were unaware that their conduct was
unlawful. A defendant’s claim that the applicable legal duties are invalid, however, suggests that
the defendant knew about the legal duties, thought about the legal duties, and formed an opinion
about those legal duties. Considered disagreement with a legal duty embodied in the criminal
law is not a defense to a charged criminal violation, even where the mens rea of the offense is
willfulness.
The defendants are precluded from arguing that law enforcement’s notice was legally
invalid or based on improper legal authority. This prohibition includes, as will be discussed
further below, assertions that Guaidó and members of his administration lacked authority over
the Embassy and therefore could not tell the State Department who could and could not be in the
Embassy, contentions that Maduro was the rightful leader with authority over the Embassy, and
arguments that the United States’ recognition of Guaidó was somehow improper, deficient, or
incomplete.
Barring the defendants from presenting this defense does not amount to “a directed
verdict on the willfulness element,” Rough PTC Hr’g Tr. at 102:14, or to “proceeding on the
erroneous assumption that Defendants are charged with a strict liability offense,” Defs.’ Opp’n at
4. Defendants are frequently prohibited from contesting before a jury the validity of the laws or
legal duties underlying a criminal charge, with Cheek illustrating just one example. Another is
United States v. Platte, in which defendants charged with “willfully” damaging “national defense
material,” 18 U.S.C. § 2155(a), at a U.S. Air Force missile site were not entitled to argue “that
they believed that the operations at the missile site violated treaties and other international laws
so that their actions were legally justifiable,” 401 F.3d at 1185. This amounted to an argument
18
that “§ 2155(a) is invalid (as contrary to treaties and international law),” and “such a claim of
invalidity cannot create a” legitimate defense “under Cheek.” Id. The defendants’ “recourse,”
the Tenth Circuit said, would not be an argument to the jury but “would be to show in this court
the invalidity of § 2155(a) in light of treaties and other international law.” Id.11
In arguing that precluding argument about the DSS Notice’s legal validity would treat the
instant charge as a strict liability offense, defendants liken this case to United States v. Sheehan,
512 F.3d 621 (D.C. Cir. 2008). See Defs.’ Opp’n at 3–4. In Sheehan, a defendant charged with
violating certain permitting requirements was erroneously precluded from offering at trial any
mens rea evidence, including evidence showing that she could not hear or understand
announcements to leave the area. 512 F.3d at 633. This case is not like Sheehan. The
government rightly acknowledges that it could not object to a similar defense here — one
contending that the defendants did not know or understand that they were being ordered to leave
the Embassy premises. See Gov’t’s Reply at 4 n.4. At the same time, the government rightly
distinguishes such a defense from an irrelevant argument that those orders, while known, could
be disobeyed because they were legally invalid.
11
The government points to several cases in which defendants charged with interfering with federal officials
were precluded from disputing before a jury the validity of the federal officials’ actions or orders. See Gov’t’s
Reply at 7–9 (citing, among other cases, United States v. Brown, 669 F.3d 10, 19–20 (1st Cir. 2012); United States
v. Johnson, 462 F.2d 423, 427–28 (3d Cir. 1972)). Defendants point out that Brown and Johnson involve 18 U.S.C.
§ 111, which penalizes any person who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with”
certain federal officers “while engaged in or on account of the performance of official duties.” See Rough PTC Hr’g
Tr. at 114:15–115:22. “Forcibly” is a lesser standard of mens rea than “knowingly and willfully,” so the defendants
argue that cases about 18 U.S.C. § 111 are wholly inapposite here. See id. Cases like Cheek and Platte involving
statutes with a mens rea of willfulness and deeming irrelevant defendants’ arguments about the invalidity of the
legal duties at issue show that the outcomes in Brown and Johnson would not change were the relevant mens rea in
18 U.S.C. § 111 willfulness. Cases like Brown and Johnson are still instructive here insofar as they touch on
Congress’s general purpose in enacting statutes prohibiting interference with federal officers, like 18 U.S.C. § 118
and § 111. As the Third Circuit put it in Johnson, Congress aimed “to provide federal officers the protection of
federal courts when such officers are performing their duties. This purpose is not achieved where individuals are at
liberty to resist federal officers in the performance of their duties because of a difference of opinion, whether real or
imagined.” 462 F.2d at 427.
19
In sum, then, the defendants are precluded by Rule 402’s bar on irrelevant evidence from
contesting the validity or lawfulness of the orders given by law enforcement and embodied in the
DSS Notice.
b. Argument that the DSS Notice was Deficient Due to Lack of
Letterhead, Signature, or Official Seal
The government also moves to exclude “any argument or defense that the trespassing
notice was legally deficient due to a lack of letterhead, signature, or official seal.” Gov’t’s MIL
at 3–4. Consistent with the rulings and legal principles just outlined, the defendants will not be
permitted to argue that formal features of the DSS Notice made it legally invalid. Such an
argument is as irrelevant as the argument that the substance of the DSS Notice made it legally
invalid.
At the same time, the defendants will be permitted to argue that they did not know that
the charged conduct — remaining in the Embassy despite law enforcement orders to vacate the
Embassy — was unlawful because they did not appreciate that the DSS Notice was authentic due
to some formal insufficiency in the notice or its delivery. More specifically, defendants may
present the fact that the DSS Notice was not on letterhead, was not signed, and had no official
seal. The defendants may argue that those features of the notice affected their interpretation of
the notice and thus prevented them from forming the requisite knowledge and willfulness to
interfere with the DSS agents.
* * *
In sum, the government’s motion is granted in part and denied in part as to the defenses:
(1) defendants are not permitted to raise a traditional bona fide belief defense but are permitted to
contest that they were unaware that their remaining in the Embassy was unlawful based on their
subjective belief that they had been given permission by the Maduro regime to be in the
20
Embassy; (2) any defense asserting that the defendants were acting within their First Amendment
speech or association rights is excluded as irrelevant; (3) (a) any argument that the DSS Notice
posted and read by law enforcement was legally invalid or based on improper legal authority is
excluded as irrelevant, and (b) any argument or defense that the DSS Notice was legally invalid
due to a lack of letterhead, signature, or official seal is excluded as irrelevant, but the defendants
are permitted to argue that they did not know that the charged conduct was unlawful due to their
subjective belief about the lack of authenticity of the DSS Notice; and (4) defendants have
clarified that they will not seek to offer any defense asserting that the defendants were acting
properly on the advice of counsel by refusing to leave the embassy, id. at 3–4, but were such a
defense offered, it would be limited as outlined infra note 2.
C. Actions of the Defendants Prior to May 13
The next category includes the following three subjects: (1) any cooperation between the
defendants or those associated with them and law enforcement in the weeks before May 13,
2019; (2) any “incidents, altercations, or disagreements” between the defendants or those
associated with them and other protestors at the Venezuelan Embassy; and (3) the access to food,
water, or electricity inside the Embassy in the weeks before the defendants were arrested. See
Gov’t’s Mot. at 3.
As to the first point, the relevance of any cooperation — if any did occur — was
addressed at the December hearing on the defendants’ motion to compel discovery. The Court
ruled then that evidence of purported cooperation between the defendants and law enforcement
before the dates referenced in the information — May 13 to 16, 2019 — was irrelevant to
rebutting the government’s case in chief or to establishing any defenses. See Discovery Hr’g Tr.
at 30:4–9. Nothing has changed. In opposing the government’s motion in limine, the defendants
have renewed their earlier argument that evidence of “how they cooperated with law
21
enforcement during their time at the Embassy” is relevant to mens rea. Defs.’ Opp’n at 4. As
was explained earlier, “[h]aving previously tried to keep rival protesters out of the Embassy” or
having otherwise cooperated with law enforcement in protecting the Embassy “does not tend to
refute the defendants’” knowledge or willfulness in refusing “to comply with directions from
DSS agents to vacate the premises of the Embassy during the period covered in the criminal
charge and identified in the information.” Discovery Hr’g Tr. at 30:4–9 (emphasis added).
At the pretrial conference on January 29, the defendants clarified that they will not seek
to offer information in sub-categories two and three. Rough PTC Hr’g Tr. at 86:8–10 (Flowers’
counsel); id. at 94:19–23 (Paul’s counsel); id. at 103: 19–24 (Pine’s counsel); id. at 104:14–15
(Zeese’s counsel). In any event, neither topic is relevant, as showing that defendants interacted
with others in or surrounding the Embassy or that defendants lacked food, water, or electricity
does not tend to refute any element of the offense. Introduction of evidence about conflicts or
difficulties defendants may have had with rival protestors or with electricity, food, and water
access also runs a risk of distracting, confusing, or even prejudicing the jury.
Thus, the government’s motion in limine is granted as to the category of actions taken
prior to the timeframe charged in the information.
D. U.S. Policy toward Venezuela and the Defendants’ Views about that Policy
The government seeks to exclude seven topics under the umbrella of U.S. policy about
Venezuela and defendants’ opinions thereon. Those topics are: (1) the legitimacy or legality of
Juan Guaidó or any member of his administration as representing the government of Venezuela;
(2) the merits of the Guaidó administration as compared to those of the Maduro regime;
(3) personal opinions regarding the political, social, or economic situation in Venezuela; (4) the
need for a protecting power agreement allowing a third country to take control of the Venezuelan
mission and Embassy in the United States, see Rough PTC Hr’g Tr. at 83:5–17 (explaining a
22
protecting power agreement); (5) the Vienna Convention and its applicability to the facts of this
case; (6) the United States government’s recognition, formally or informally, of Nicolas Maduro
or any members of his regime; and (7) the Guaidó administration’s authority and capacity to
operate the Venezuelan government or Embassy, Gov’t’s MIL at 2–3.
The defendants have clarified that they will not put forward evidence or arguments about
the merits of the Guaidó administration or about the political, social, or economic situation in
Venezuela. Such evidence about world affairs would be irrelevant in any event.
As to the remaining five subjects, the defendants maintain that their views that the
Guaidó regime was illegitimate and lacked authority to operate the Venezuelan government or
Embassy, that the United States maintained some relationship with Maduro, that a protecting
power agreement covering the Embassy should be brokered, and that the Vienna Convention
allowed for the brokering of a protecting power agreement are relevant to “why” the defendants
“did not leave the Embassy,” which, in turn, is relevant to defendants’ mens rea. Defs.’ Opp’n at
5; see also Rough PTC Hr’g Tr. at 90:15–19 (connecting the Vienna Convention).
Arguments that the Guaidó administration is illegitimate are versions of the defense,
excluded above as irrelevant, that the federal agents’ orders to leave the Embassy were legally
invalid because they relied on Guaidó’s authority over the Embassy. Additionally, as explained
in detail at the hearing in December, this case must proceed on the factual premise that President
Trump recognized Guaidó as the leader of Venezuela and on the legal premise that the
President’s recognition power is exclusive. See Discovery Hr’g Tr. at 38:14–41:24. Neither that
legal or that factual premise may be questioned by a court or impeached before a jury. See id.;
see also Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2096 (2015).12 Thus, the
12
For this reason, the defendants’ request for information in the government’s possession reflecting the
defendants’ understanding that “individuals and agencies within the US government made statements and took
23
government’s motion is granted as to the topics of “the legitimacy or legality of Juan Guaidó . . .
as representing the government of Venezuela,” Gov’t’s MIL at 2; “the Guaidó administration’s
authority and capacity to operate the Venezuelan government or Embassy;” and the United
States’ continued relationship with Maduro or any members of his regime, id. at 3.
Defendants argue that their hopes that a protecting power agreement would be brokered
under international law, including the Vienna Convention, provide “context for why they were
there.” Rough PTC Hr’g Tr. at 89:8. In the defendants’ view, such information completes the
story about the permission they received from Maduro’s departing diplomats to remain in the
Embassy because it explains that the defendants were there to hold the Embassy while such an
agreement was brokered. See, e.g., Rough PTC Hr’g Tr. at 83:3–17. Regardless of this
connection, introduction of these desires for an international agreement would not help to negate
the government’s proof of mens rea or any other element of the government’s case in chief.
Further, diplomatic developments and international law are complex topics and their injection
into the trial would risk confusing the jury. That risk is not substantially outweighed by any
minute probative value of these topics. See FED. R. EVID. 403. The government’s requests to
exclude information about any protecting power agreement and about the Vienna Convention are
thus granted.
IV. CONCLUSION
The government’s Motion in Limine to Limit Argument, Testimony and Evidence is
granted as to the topics related to U.S. policy regarding the legitimacy of the Guaidó
administration and defendants’ views, see Gov’t’s MIL at 2–3, and as to the topics related to
actions,” Defs.’ Mot. to Compel at 5, inconsistent with the recognition of Guaidó and consistent with the recognition
of Maduro, even after President Trump had formally recognized Guaidó as the leader, was denied, see Discovery
Hr’g Tr. at 37:21–41:24.
24
actions taken prior to the timeframe charged in the information, see Gov’t’s MIL at 3. The
government’s motion is granted in part and denied in part as to the defenses identified in the
government’s motion, as outlined supra Part III.B.
An appropriate Order accompanies this Memorandum Opinion.
Date: February 4, 2020
__________________________
BERYL A. HOWELL
Chief Judge
25