A divided U.S. Court of Appeals for the D.C. Circuit on Tuesday upheld a misdemeanor trespassing conviction against a Trump supporter for illegally being on U.S. Capitol grounds during the Jan. 6, 2021, riot.
At issue in Cuoy Griffin’s appeal was the language of a federal trespassing statute that a dissenting judge said has been used to charge hundreds of other Jan. 6 rioters.
The law prohibits a person from knowingly entering restricted areas that are posted, cordoned off or “otherwise restricted,” the latter of which is defined as places where people protected by the Secret Service will be visiting.
In its 2-1 decision, the D.C. Circuit held that a person can be charged under the statute even if they don’t know an area is restricted to safeguard a Secret Service protectee, in this case then-Vice President Mike Pence, who was presiding over the electoral vote count.
“[A] contrary interpretation would impair the Secret Service’s ability to protect its charges,” wrote Judge Cornelia Pillard, joined by Judge Judith Rogers. “It would require Secret Service agents preventing members of the public from encroaching on a temporary security zone to confirm that each intruder knows that a person under Secret Service protection is or is expected to be there. Neither the text nor the context of the statute supports that reading.”
Cuoy, a former New Mexico politician and founder of the group Cowboys for Trump, climbed a wall onto the Capitol’s west-facing patio during the riot and went to an outside deck, where he led a group of protesters in prayer, according to briefing in the appeal. After a bench trial, he was convicted of knowingly entering a “restricted building or grounds.”
Dissenting, Judge Gregory Katsas wrote that the government had to show Griffin knew that the grounds were closed off because of Pence’s presence.
In a footnote, Katsas wrote there have been more than 470 convictions under the statute for Jan. 6 rioters who trespassed on Capitol grounds. He said district judges were divided on whether the defendants needed to know Pence was at the Capitol for the law to apply, with six judges answering yes and 10 answering no.
“Some evidence suggests Griffin did not know, such as his later, mistaken statement that the Vice President had already certified the election before Griffin arrived at the Capitol,” Katsas wrote. “Because an essential element of the section 1752(a)(1) charge thus remains unresolved, I would vacate Griffin’s conviction and remand for further findings or proceedings.”
The case was one of several challenging the government’s view of statutes used to prosecute those who stormed the Capitol to stop state electoral ballot counting in the 2020 presidential election. In June, the U.S. Supreme Court narrowed the scope of a federal obstruction statute that the Justice Department wielded against hundreds of Jan. 6 defendants.
The appeal is United States v. Griffin, No. 22-3042.