United States of America v. Couy Griffin

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2023 Decided October 22, 2024
No. 22-3042
UNITED S TATES OF A MERICA,
APPELLEE
v.
C OUY GRIFFIN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00092-1)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Chrisellen R.
Kolb and Nicholas P. Coleman, Assistant U.S. Attorneys.
James Pearce, Attorney, U.S. Department of Justice, entered
an appearance.
Before: P ILLARD and KATSAS , Circuit Judges, and
R OGERS , Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge P ILLARD.
Dissenting opinion filed by Circuit Judge KATSAS .
P ILLARD, Circuit Judge: This appeal turns on
interpretation of a federal law enacted to better protect the
President and other national leaders from assassination,
kidnapping, and assault. The law creates a narrow domain of
federal trespass authority to prevent unauthorized members of
the public from getting too close to a person under Secret
Service protection. It does so by empowering the Secret
Service to prevent unauthorized people from knowingly
encroaching on “posted, cordoned off, or otherwise restricted”
safety zones where the President or Vice President (current or
past), a leading candidate for such office, or any of a handful
of other Secret Service protectees “is or will be temporarily
visiting.” 18 U.S.C. § 1752(c)(1)(B).
The defendant says a person “knowingly enters” the
restricted safety zone only if he knows that the basis of the
restriction is to safeguard a Secret Service protectee. Id.
§ 1752(a)(1). We hold that knowingly breaching the restricted
area suffices, even without knowing the basis of the
restriction—here, the presence of Vice President Pence at the
Capitol on January 6—which merely confirms that such
trespasses are within Congress’s legislative authority.
Traditional tools of statutory interpretation establish that
Congress intended to criminalize trespasses endangering
Secret Service protectees regardless of the trespasser’s
awareness of the basis for Congress’s authority to regulate
them. And a contrary interpretation would impair the Secret
Service’s ability to protect its charges. 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

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or is expected to be there. Neither the text nor the context of
the statute supports that reading.
Couy Griffin knowingly intruded into the area of the
United States Capitol grounds that had been restricted in order
to protect Vice President Pence on January 6, 2021, during the
counting of the electoral college votes for President. Griffin
came to the Capitol that day along with thousands of other
people to try to stop the certification of the electors’ ballots.
He breached the boundary established to prevent public access
and remained for approximately two hours in the restricted area
while the Capitol Police struggled, facing serious injury and
even death, to control the mob that overwhelmed them and
broke into the Capitol Building.
Following a bench trial, the district court convicted Griffin
of violating 18 U.S.C. § 1752(a)(1), which prohibits
“knowingly enter[ing] or remain[ing] in any restricted building
or grounds without lawful authority to do so.” “Restricted
building or grounds” refers to a limited number of “posted,
cordoned off, or otherwise restricted area[s],” including the
White House or Vice President’s residence, areas where a
Secret Service protectee “is or will be temporarily visiting,”
and areas being used for a “special event of national
significance.” Id. § 1752(c)(1). The Capitol grounds fell under
that provision on January 6 because a Secret Service protectee,
Vice President Michael Pence, was expected to be and was
present. Id. § 1752(c)(1)(B).
Griffin raises two arguments on appeal. He first asserts
that because waves of rioters ahead of him trampled much of
the fencing and signage delineating the relevant area’s
perimeter, it was no longer “posted, cordoned off, or otherwise
restricted” when he entered and remained there. But Griffin’s
main claim is that a conviction for “knowingly” entering or

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remaining in a “restricted building or grounds” under section
1752(a)(1) requires proof that the defendant not only knew that
the area was restricted, but that he knew the reason for the
restriction when he entered or remained. The government
acknowledged its obligation to prove that Griffin knew the
grounds were restricted; Griffin challenges the sufficiency of
the proof on that point. The government disagreed that the
statute also requires proof that Griffin knew precisely why the
area was restricted, and the district court held that the
government did not “have to prove [he] knew that a specific
dignitary was there.” J.A. 534.
We hold that the grounds immediately surrounding the
U.S. Capitol qualified as a “restricted building or grounds”
under section 1752, and that they were adequately “posted,
cordoned off, or otherwise restricted” when Griffin clambered
over a stone wall and jumped inside. And we hold that a
conviction for knowingly entering and remaining on such
grounds in violation of section 1752(a)(1) required only that
Griffin knew that he had entered or remained in a “posted,
cordoned off, or otherwise restricted” area where he was not
authorized to be. The government was not required to prove
that Griffin was aware that the Vice President’s presence was
the reason the grounds remained restricted. We therefore
affirm the judgment of conviction.
I.
A.
Section 1752 enables the Secret Service to protect the
people and events they guard in settings the statute refers to as
“restricted building[s] or grounds.” 18 U.S.C. § 1752(a). The
statute has three subsections. Subsection (a) prohibits a range
of conduct connected to those sites, including the trespass
offense at issue in this appeal, as well as engaging in “any act

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of physical violence” therein, and obstructing the means of
ingress and egress to those sites with the intent to impede or
disrupt government business. Id. §§ 1752(a)(1)-(5).
Subsection (b) provides for criminal penalties, including
imprisonment or a fine, or both, for those who violate
subsection (a). Id. § 1752(b). The offense is punishable as a
misdemeanor, id. § 1752(b)(2), unless a deadly or dangerous
weapon is used or significant bodily injury results, in which
case it may be punished as a felony, id. § 1752(b)(1).
Subsection (c) defines the term “restricted buildings or
grounds” as “any posted, cordoned off, or otherwise restricted
area”:
(A) of the White House or its grounds, or the Vice
President’s official residence or its grounds;
(B) of a building or grounds where the President or
other person protected by the Secret Service is
or will be temporarily visiting; or
(C) of a building or grounds so restricted in
conjunction with an event designated as a
special event of national significance.
Id. §§ 1752(c)(1)(A)-(C).
Section 1752 did not always have this three-part structure.
It was enacted in 1971 as a more streamlined statute focused
on protecting the President in the wake of a series of political
assassinations in the 1960s—particularly those of President
John F. Kennedy in Dallas and then-presidential candidate
Robert F. Kennedy in Los Angeles. In recognition of the rising
levels of violent political rhetoric and the “constant excoriation
of America’s institutions and leaders” that made holding the
office of the presidency increasingly dangerous, Congress set

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out to provide stronger and more standardized security for the
President. S. Rep. No. 91-1252, at 4 (1970). Congress
recognized the complex challenges of protecting national
leaders away from their usual offices or residences, where they
are “most vulnerable”—whether from an “isolated and
deranged individual” or from “organized premeditated
attempts” on their lives. Id. at 6.
At the time, no statute conferred federally enforceable
authority on the Secret Service to restrict entry to places
temporarily visited or used by the President. Instead, the
Service relied on “the assistance of local authorities to arrest
persons” under a patchwork of state and local criminal
statutes—an arrangement that rendered it “increasingly
difficult to maintain the necessary level of security” when local
authorities were not present and closely coordinating or when
the proper jurisdiction for arresting and prosecuting violations
was unclear. Id. at 7. To remedy that impediment to
presidential security, Congress enacted section 1752, creating
a federal offense encompassing trespasses that the Secret
Service had previously relied on state and local officials to
enforce under state and local trespass laws. Id. at 7. In this
way, Congress provided “a uniform minimum of Federal
jurisdiction for Presidential security when the President is on
temporary visits,” id. at 6, by empowering the Secret Service
to prevent “physical presence [and] physical violence within
the security perimeter” created by temporarily restricted areas
surrounding the President, id. at 9.
Over the decades, Congress has repeatedly revisited
section 1752, expanding its coverage to align with the broader
scope of the Secret Service’s protective duties. At first, the
statute protected only places designated as the President’s
temporary residence or office or any other building or grounds
where the President was or would be temporarily visiting. See

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18 U.S.C. § 1752(a)(1) (1971). In 1982, Congress amended the
statute to extend “the same ‘zone of protection’ authority”
applicable to the President to all Secret Service protectees
(which includes the Vice President). See Pub. L. No. 97-308,
96 Stat. 1451, 1451-52 (1982). In 2006, Congress again
amended the statute to apply beyond sites temporarily visited
by protectees to also shield any “event designated as a special
event of national significance.” See Pub. L. No. 109-177, 120
Stat. 192, 252 (2006). Finally, in 2012, Congress added federal
protection against intrusion into the White House or Vice
President’s residence or their grounds. See Pub. L. No. 112-
98, 126 Stat. 263, 263-64 (2012). In so doing, Congress
acknowledged that the Secret Service had previously relied on
District of Columbia trespass law to protect those sites. H.R.
Rep. 112-9, at 2 (2011).1
B.
In January 2021, Griffin was serving as an elected
Commissioner on the Otero County Commission in southern
New Mexico and as the leader of a political committee called
“Cowboys for Trump.” He decided to travel to Washington,
D.C. to attend the Stop the Steal rally on the National Mall on
January 6, 2021—the day that Congress was set to certify the
Electoral College vote that confirmed the outcome of the 2020
presidential election. He arrived by January 5 and recorded a
video of himself in front of the U.S. Capitol’s western side,
declaring that he was “praying for” former Vice President
Pence and “trust[ed] that he would do the right
1 In referencing the importance of section 1752 to the Secret
Service’s ability to shield the President, Vice President, and other
protectees, we recognize that the Secret Service works together with
other protective forces—as it did in this case—and take no position
on whether section 1752 requires the Secret Service itself to
designate or secure the “restricted buildings or grounds.”

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thing . . . tomorrow.” GX 63 at 1:00-1:13. Fencing
surrounding the grassy areas in front of the Capitol was visible
behind Griffin in the video. Id.
In anticipation of the rally and certification, the Secret
Service worked in coordination with the U.S. Capitol Police to
prepare for Vice President Pence’s visit to the Capitol. The
Secret Service informed the Capitol Police of Vice President
Pence’s anticipated schedule of arrivals and departures to and
from each location he intended to visit at the Capitol, and the
Capitol Police prepared for the certification, including Vice
President Pence’s presence at the Capitol. Pursuant to its
longstanding relationship with the Secret Service, the Capitol
Police implemented “an agreed-upon standard boundary” to
secure a perimeter on the grounds immediately surrounding the
Capitol. J.A. 450. To do so, the Capitol Police erected barriers
using temporary crowd-control fencing that they referred to as
metal “bike racks” and plastic “snow fencing” to supplement
permanent walls. They also placed temporary fencing both
immediately behind the permanent walls and midway up the
west lawn to protect the inaugural stage that was being
prepared for Inauguration Day. The racks and fencing were
posted with signs reading “Area Closed by Order of the United
States Capitol Police Board” and were patrolled by law
enforcement officers.
On January 6, Griffin attended the Stop the Steal rally on
the Ellipse adjacent to the White House and followed the crowd
as it proceeded toward the U.S. Capitol. Griffin was not at the
front of the crowd. Shortly after 2 p.m., as the first wave of
rioters to have breached the security perimeter shattered the
Capitol Building’s windows and climbed inside, Griffin was
taking photos and exchanging social media information with
other rally attendees near the Capitol Reflecting Pool adjacent
to the west lawn of the Capitol. At 2:31 p.m.—around the same

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time that Capitol Police officers were conducting emergency
evacuations of the House and Senate chambers in response to
the breach of the Capitol Building—Griffin used the seat of a
parked bicycle to boost himself over a five-foot-tall stone wall
separating a sidewalk from the Capitol’s west front lawn. He
landed on a trampled length of plastic snow fencing that the
U.S. Capitol Police had erected to cordon off the area.
Once inside the grounds, Griffin proceeded up the lawn to
the base of the inaugural stage, scaling two other walls along
the way with the help of a metal bike rack and a plywood ramp
manned by other rioters helping the crowd advance toward the
Capitol. After he ascended the bike rack, he narrated to a
camera “we’re in now” and joked to a masked rioter that he,
too, needed a face mask to obscure his identity. GX 37-1 at
1:10-28. As Griffin made his way toward the front of the
crowd, the crowd packed increasingly closely together in
pressing toward the Capitol, with rioters scaling the bannisters
of the Capitol steps, banging on the Capitol terraces with
flagpoles, pounding on the doors of the inaugural stage, and
urging the crowd forward with shouts of “this is our House”
and “break the doors down.”
Griffin proceeded to the foot of the inaugural platform,
near an emergency stairwell door, where he announced that he
would “wait until they get this door broken down” to go up on
the inaugural stage. GX 40-1 at 0:25-30. Griffin managed to
make his way onto the inaugural stage. As he climbed the
stairs, he proclaimed—in response to the smell of pepper spray
officers used to try to clear the area—that he “love[s] the smell
of napalm in the air.” GX 43-1 at 0:30-40; see also J.A. 536.
Having ascended the stage, he borrowed a bullhorn in an
attempt to lead the rioters below in prayer. Around that time,
a crowd of rioters armed with plastic riot shields and flagpoles
massed in a tunnel approximately a hundred feet away from

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Griffin, pressing against and engaging in hand-to-hand combat
with Metropolitan Police Department officers in an attempt to
gain access to the Capitol. Griffin stayed up on the inaugural
stage and the nearby terrace until at least 4:48 p.m.
As explained at trial by a member of the Secret Service
detail accompanying Vice President Pence, his wife, and their
daughter, the “unknown individuals who were breaking
through a security barrier of a site where [the Secret Service]
had protectees” posed a security risk by “potentially taking
away options for our routes out” of the Capitol. J.A. 422. Due
to breaches of security, “the Capitol went into lockdown, which
means everything has to stop, and the doors lock, and people
aren’t allowed in,” and “any official actions that are taking
place” are halted. J.A. 426. The mass security breaches on
January 6 by thousands of people, including Griffin, halted the
certification of the electoral votes while the Secret Service
sought to safeguard the Vice President and his family in a
building under attack. The Vice President, his wife, and their
daughter remained at an underground loading dock at the
Capitol under Secret Service protection for four or five hours,
not returning to the Senate Chamber until approximately 7 p.m.
J.A. 425-27.
The next day, Griffin resurfaced in Roanoke, Virginia,
where he recorded another video. He asserted that he heard
when he was “about three-quarters of the way down [to the
Capitol]” on January 6 that “Mike Pence had sold us all out.”
GX 64 at 3:20-35. Griffin went on to explain that the inaugural
stage was “set up for Joe Biden” and “roped off” on the Capitol
grounds. Id. at 3:35-4:15. As he put it, “You’re gonna have
those patriots who get in there and went over the—when the
D.C. police tells ‘em you can’t step over this because this is—
we’re getting it ready for Joe Biden. What do you think was
gonna happen?” Id.

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The following week, Griffin addressed his colleagues on
the Otero County Commission. He told them:
On the inaugural side, all those Trump people got
down there, had not got anything necessarily from the
President that was new, and then heard that Mike
Pence had certified a fraudulent election. The element
in the crowd was pretty elevated, I would say. But
when they got down to the inaugural side, there was
some fencing up, and they were saying that you
couldn’t go any further because this was being
reserved for Joe Biden and his inauguration. You tell
a million Trump supporters that, they’re going down
there. Pretty soon that crowd just pushed through. I
wasn’t anywhere in the front of it. I was in the back.
GX 78 at 2:27-3:12. Griffin said that he planned to return to
Washington, D.C. for Inauguration Day with multiple firearms.
See id. at 11:10-11:50. Days later, he was arrested in
Washington, D.C.
C.
Federal prosecutors charged Griffin with two
misdemeanors: entering and remaining in a restricted building
or grounds, in violation of 18 U.S.C. § 1752(a)(1), and
disorderly and disruptive conduct in a restricted building or
grounds, in violation of 18 U.S.C. § 1752(a)(2). He opted for
a bench trial before the district court.
Shortly before trial, the parties briefed whether the
government would be required to prove that Griffin knew Vice
President Pence was visiting the Capitol at the time Griffin was
on the Capitol grounds. Griffin argued that, because section
1752(a)(1)’s “knowingly” modifies the object of the prohibited
conduct—the “restricted building or grounds” in which a

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defendant enters or remains—a defendant must be shown to
know the characteristics of the area that qualify it as a
“restricted building or grounds” pursuant to section 1752(c)(1),
which include the presence of a Secret Service protectee. See
Griffin’s Resp. to Gov’t’s Trial Br. at 3 (J.A. 129).
At the conclusion of the bench trial, the district court
rejected Griffin’s argument, concluding that section 1752’s
condition that a defendant act “knowingly” did not require
knowledge of the presence of a Secret Service protectee. The
court noted that “it doesn’t make a lot of sense” to require proof
that the defendant “knew that a specific dignitary was there,”
and found it unimaginable that “a provision that is looking to
protect Secret Service protectees would require the Secret
Service to somehow be telling people and proving that
[defendants] knew which protectee was in the restricted area at
what time.” J.A. 534. It sufficed, the district court held, that
the area was restricted because of Vice President Pence’s
presence when Griffin entered and stayed, J.A. 530-532, and
that, “by the time [Griffin] was on the stage, he certainly knew
he shouldn’t be there. And yet, he remained.” J.A. 537. The
court accordingly convicted Griffin of violating 18 U.S.C.
§ 1752(a)(1).
As to the section 1752(a)(2) charge of disruptive or
disorderly conduct in or near a restricted building or grounds,
the court found “more than a reasonable doubt as to whether he
intended for his conduct to disrupt the certification of the
election.” J.A. 539. Despite “some close questions about
whether his mere presence impeded or disrupted government
business,” the court held the government failed to prove that
Griffin “engaged in disorderly or disruptive conduct.” J.A.
539. And it failed to establish that Griffin “acted knowingly
and with intent” to impede or disrupt congressional business,

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because Griffin “thought the electoral certification had already
occurred prior to his entering the restricted area.” J.A. 537-38.
The district court sentenced Griffin to fourteen days of
incarceration, with credit for time served, and one year of
supervised release. He timely filed this appeal.
II.
To violate section 1752(a)(1), a defendant must
“knowingly” and “without lawful authority” enter or remain in
a “restricted building or grounds.” Griffin contends the district
court should have acquitted him for two reasons. First, he
argues that the government failed to prove beyond a reasonable
doubt that the area immediately surrounding the U.S. Capitol
was sufficiently demarcated as restricted when he entered and
remained there. Second, Griffin argues that the government
failed to prove beyond a reasonable doubt that Griffin knew not
just that the area was restricted, but also the reason for that
restriction—here, that Vice President Pence, a Secret Service
protectee, was or would be visiting.
Griffin challenges both the district court’s interpretation of
section 1752’s elements and the sufficiency of the evidence to
support his conviction. We review de novo the district court’s
interpretation of the statute. See United States v. Verrusio, 762
F.3d 1, 13 (D.C. Cir. 2014); see also United States v. Johnson,
979 F.3d 632, 636 (9th Cir. 2020) (“In a bench trial, a district
court’s legal error regarding the elements of the offense is
reviewed in the same way we review an erroneous jury
instruction regarding the elements of the offense.”). In
reviewing the sufficiency of the evidence, we defer to the
factfinder’s verdict, considering the evidence “in the light most
favorable to the government.” United States v. Robertson, 103
F.4th 1, 10-11 (D.C. Cir. 2023) (quoting United States v. Shi,
991 F.3d 198, 205 (D.C. Cir. 2021)); see also United States v.

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Brock, 94 F.4th 39, 46 (D.C. Cir. 2024) (explaining that “this
standard is the same for both jury and non-jury cases”). We
consider the evidence taken as a whole, and with reasonable
inferences drawn in the light most favorable to the verdict.
United States v. Broda, 848 F.3d 1044, 1053 (D.C. Cir. 2017).
We will affirm a guilty verdict if “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Musacchio v. United States, 577 U.S. 237,
243 (2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
A.
We begin with Griffin’s argument that the government
failed to prove the requisite conduct, or actus reus, under
section 1752(a)(1). The U.S. Capitol grounds are ordinarily
open to the public. J.A. 337. To qualify as a “restricted
building or grounds” protected by section 1752, those grounds
must have been “posted, cordoned off, or otherwise restricted”
at the time Griffin entered or remained there. 18 U.S.C.
§ 1752(c)(1).
Apart from his argument addressed below regarding his
knowledge of the grounds restriction, Griffin argues that, by
the time he entered, the grounds were in fact no longer
restricted within the meaning of the statute. They were neither
posted nor cordoned off, he claims, because earlier waves of
the rioters had torn down the temporary fencing and trampled
signs announcing the closure. Griffin Br. 21-22, 46-47; see
J.A. 345. And, reading “otherwise restricted” narrowly to
require demarcation “comparable to a physical ‘posting’ or
‘cordoning off,’” Griffin Br. 40, Griffin insists only a clear,
observable demarcation would suffice. He argues his
conviction cannot stand because the barriers and signs had been
trampled or pushed aside. Id.

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The statutory text imposes no such requirement.
“Otherwise” means “in another way” or “in a different
manner,” and “restricted” means deemed “accessible only to
certain authorized people.” Otherwise (adv.), Oxford English
Dictionary (2d ed. 1989); Restricted (adj.), Oxford English
Dictionary. Section 1752 thus applies to areas made nonpublic
by posting signs, cordoning off the area, or in some other way
effecting the restriction, regardless of whether the method
consistently and physically stakes out the area’s boundaries.
For example, to “otherwise restrict[]” an area, officers or
agents charged with excluding the public could position
themselves around the area occupied by a protected person or
move in coordination with the protectee, as they typically do
when the President or Vice President is on foot moving through
otherwise publicly accessible areas. Or they might use a sound
system or official briefing warning people to maintain a
specified distance as means to control the perimeter, 18 U.S.C.
§ 1752(c)(1), even without static visual demarcation of an
area’s boundaries. J.A. 444.
The drafting history confirms as much. When Congress
first promulgated section 1752, it “anticipated that the Secret
Service [would] make every effort . . . to make such restricted
areas known to the public,” S. Rep. 91-1252, at 9, but it
declined to list exhaustively the ways in which the public
would be excluded. By separately requiring proof of a
defendant’s subjective awareness that the area was “posted,
cordoned off, or otherwise restricted,” Congress ensured that
unwitting trespassers would not be punished. Id. That
approach accommodated the reality that “flexibility must be
maintained” to ensure adequate security. Id. at 2.
Griffin’s proposed physical demarcation requirement
would undermine the function of section 1752(a)(1). Under his
reading, a defendant would be entitled to acquittal so long as

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he waited until a sufficiently strong gust of wind, a soaking
downpour—or even a less scrupulous prior intruder—disposed
of law enforcement tape, fencing, or signage before he entered
a sensitive area in full awareness he was not lawfully
authorized to do so. We decline to read the statute to allow a
mob to de-restrict an officially restricted area encompassing
persons under Secret Service protection.
With the meaning of those terms thus settled, we hold that
the evidence at trial was sufficient for a reasonable factfinder
to conclude that the U.S. Capitol grounds qualified on January
6 as a “restricted building or grounds” and were “posted,
cordoned off, or otherwise restricted” when Griffin entered and
remained there. In anticipation of then-Vice President Pence’s
presence at the Capitol to certify the electoral votes on January
6, law enforcement officers had erected barriers around the
perimeter of the closed area with layers of snow fencing and
bike racks supplementing pre-existing permanent walls to
encircle the Capitol grounds. Signs indicating the area was
closed were affixed along the barriers. By the time Griffin
entered the restricted area, many of those physical
manifestations of its closure had been largely trampled, but that
fact did not alter the status of the area as closed to the public.
The Secret Service’s protectees, then-Vice President Pence and
his wife and daughter, remained within the Capitol complex,
sheltering in the eye of the riot’s storm. Far from reopening
the grounds, law enforcement officers remained onsite battling
to secure them.
B.
We turn next to Griffin’s arguments that he lacked the
requisite knowledge to be convicted. Griffin argues that the
government failed to prove the knowledge element in two
ways. First, he contends that there is insufficient evidence to

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support the district court’s finding that Griffin knowingly
entered or remained within a “posted, cordoned off, or
otherwise restricted” area. Second, Griffin argues that the
district court misread the statute in not requiring the
government to prove that he knew why the Capitol grounds
were restricted—namely, that former Vice President Pence was
or would be visiting the Capitol—and that the trial evidence
failed to establish his knowledge of the Vice President’s
whereabouts.
We can quickly dispose of Griffin’s first argument.
Griffin insists that a reasonable factfinder could only have
found that, when Griffin entered the Capitol grounds, he
believed that the area was no longer restricted. See Griffin Br.
60 (describing Griffin’s view of the trampled fencing as “akin
to seeing rolled up fencing after a 4th of July concert”).
The evidence does not support that claim. Viewed in the
light most favorable to the government, the trial evidence
showed that Griffin knew he had entered or remained without
authorization in a “posted, cordoned off, or otherwise
restricted” area. The district court found “ample evidence that
Mr. Griffin knowingly entered or remained within the
restricted area.” J.A. 536. The government proved that Griffin
saw the rings of fencing and signage encircling the Capitol
grounds on January 5, when he recorded a video with the
grounds as his backdrop. J.A. 536 (district court’s oral ruling);
see also GX 63. And it showed that, the next day, when Griffin
scaled the stone wall that partially delineated the grounds, he
landed on trampled snow fencing and signs, GX 33-1, which
the district court observed would suggest to a reasonable
person “that perhaps you should not be entering the area.” J.A.
536. The evidence that Griffin knew he was trespassing only
mounted as he continued to progress across the grounds.
Arriving at the base of the inaugural stage, he announced,

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“we’re in now,” and joked that he should hide his identity with
a face mask. GX 37-1 at 1:10-28. When Griffin quipped that
he loved the “smell of napalm in the air,” he showed he knew
that law enforcement officers were using teargas as they battled
to expel the mob—a clear sign that the area remained restricted.
GX 43-1 at 0:30-40; see also J.A. 536.
Griffin’s public statements in the days after January 6
confirm that Griffin knew when he entered and stayed on the
Capitol grounds that the area was “restricted” within the
meaning of section 1752(c)(1). See J.A. 536-37. On January
7, Griffin recalled that the inaugural stage that he climbed was
“roped off,” and that “D.C. police” had told the rioters “you
can’t step over this.” GX 64 at 3:20-4:15. And, on January 14,
Griffin reiterated that “there was some fencing up” that alerted
the rioters they “couldn’t go any further,” but the crowd—
including Griffin—“just pushed through.” GX 78 at 2:27-3:12.
Accordingly, a rational factfinder could conclude—as,
indeed, the district court did, see J.A. 536-37—that Griffin was
aware that the U.S. Capitol grounds were “posted, cordoned
off, or otherwise restricted” and his presence was unauthorized
when he remained there during the afternoon of January 6,
2021.
C.
To prevail, then, Griffin must persuade us that the district
court misinterpreted section 1752(a)(1)’s knowledge
requirement. Section 1752(a)(1) prohibits “knowingly
enter[ing] or remain[ing] in any restricted building or grounds
without lawful authority to do so.” 18 U.S.C. § 1752(a)(1).
And, as relevant here, section 1752(c)(1) defines the term
“restricted buildings or grounds” to mean “any posted,
cordoned off, or otherwise restricted area . . . of a building or
grounds where the President or other person protected by the

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19
Secret Service is or will be temporarily visiting.” Id.
§ 1752(c)(1)(B).
As we explained, the district court reasonably found that
the Capitol grounds were “posted, cordoned off, or otherwise
restricted” when he entered, and that Griffin knew that they
were. But Griffin argues that the statute demands something
more: In his view, the statute also requires proof that he knew
why the Capitol grounds were so restricted when he entered or
remained there—i.e., that Griffin knew that a Secret Service
protectee was or would be temporarily visiting the Capitol
grounds. We decline to adopt such a rule, which would
contravene the statute’s text as read in accord with binding
precedent of the Supreme Court and this court, and would
undermine the statute’s context and purpose. Every indicator
points in the same direction: A person trespassing on grounds
he knows are restricted, where he knows he lacks permission
to be, may be convicted of a federal misdemeanor trespass
under section 1752(a)(1) even if he does not know that a Secret
Service protectee is within.
1.
“Whether a criminal statute requires the Government to
prove that the defendant acted knowingly is a question of
congressional intent.” Rehaif v. United States, 588 U.S. 225,
228 (2019) (citing Staples v. United States, 511 U.S. 600, 605
(1994)). Griffin contends that Congress’s intent is clear—and
“dictated by text.” Griffin 28(j) Ltr. at 2 (Feb. 19, 2024). He
argues that section 1752(a) uses “restricted building or
grounds” as a defined term, so its appearances across the text
of subsection (a)(1) must be treated as shorthand for every
detail of the term’s definition. In Griffin’s view, because
“knowingly” modifies “restricted building or grounds,” the
government must prove that he had knowledge not just that

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access was restricted, but the precise reason why it was
restricted. Griffin Br. 48-57. Otherwise, Griffin urges, the
government would have failed to prove that the defendant
knew he entered a “restricted building or grounds” as the
statute requires.
In support of this argument, Griffin cites McFadden v.
United States, 576 U.S. 186 (2015), in which the Supreme
Court held that violation of the Controlled Substances Act’s
prohibition of “knowingly . . . distribut[ing] . . . a controlled
substance” required the defendant to know that he distributed
something that qualified as a “controlled substance” as
elsewhere defined by the Act. 576 U.S. at 191-92. “[J]ust as
it is not enough to know that a substance is generically
‘controlled’ (antibiotics are ‘controlled’),” Griffin urges, “it is
not enough to know that a building or grounds is generically
‘restricted’ (any place bearing an ‘area closed’ sign is
‘restricted’).” Griffin Br. 54.
Griffin’s reading of the extent of the statute’s knowledge
requirement fails because it is contrary to both Supreme Court
precedent and contextual evidence of Congress’s purpose.
Grammatical rules and presumptions regarding statutory
knowledge requirements and “jurisdictional only” elements all
weigh against extending the “knowingly” requirement in
section 1752(a)(1) to the specific reason that the area is
“posted, cordoned off, or otherwise restricted.”
Griffin is correct that a handful of Supreme Court cases,
including McFadden, hold that, at least for relatively short
statutory phrases, “[a]s a matter of ordinary English grammar,
it seems natural to read the statute’s word ‘knowingly’ as
applying to all the subsequently listed elements of the crime.”
Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009).
The Court in Flores-Figueroa, for example, interpreted the

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phrase “knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person,” 18
U.S.C. § 1028A(a)(1), to require that the defendant knew the
identification he used belonged to “another person.” Id.
That precedent does not resolve this case. To begin with,
the Court has adopted that understanding of ordinary usage
inconsistently even as applied to relatively short and
straightforward statutory phrases. For instance, in Liparota v.
United States, 471 U.S. 419 (1985), the Court analyzed
whether, in a statutory phrase concerning someone who
“knowingly uses, transfers, acquires, alters, or possesses
coupons or authorization cards in any manner not authorized
by [the statute],” the “knowingly” requirement extends to the
fact that the use was unauthorized. Id. at 420-21. The Court
concluded that “the words themselves provide little guidance,”
as “[e]ither interpretation would accord with ordinary usage.”
Id. at 424. Instead, to determine that “knowingly” extended to
the unauthorized nature of the use, the Court relied on the
judicial presumptions that elements criminalizing otherwise
innocent conduct are subject to a mens rea requirement and that
ambiguous statutes should be interpreted leniently. Id. at 424-
27.
More to the point, “where the modifier ‘knowingly’
introduces a long statutory phrase,” the ordinary meaning
Griffin asserts loses its clarity, “such that questions may
reasonably arise about how far into the statute the modifier
extends.” Rehaif, 588 U.S. at 230. And when a statutory
phrase is long enough, the ordinary usage presumption flips, so
that the “most natural grammatical reading . . . suggests that the
term ‘knowingly’ modifies only the surrounding verbs” and
does not travel down to modify elements “set forth in
independent clauses separated by interruptive

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punctuation.” United States v. X-Citement Video, Inc., 513
U.S. 64, 68 (1994).
The Court in X-Citement Video accordingly had to reach
beyond rules of grammar to interpret a statute penalizing “[a]ny
person who—(1) knowingly transports or ships [using any
means or facility of] interstate or foreign commerce by any
means including by computer or mails, any visual depiction,
if—(A) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct.” Id. It
recognized that, in the most natural reading of that long text
string, “the word ‘knowingly’ would not modify the elements
of the minority of the performers, or the sexually explicit nature
of the material.” Id. The Court ultimately rejected that “most
natural grammatical reading” because of “anomalies which
[would] result,” and to ensure that “some form of scienter”
would apply to avoid criminalizing conduct that was not only
“otherwise innocent” but protected by the First Amendment.
Id. at 68-69, 72-73.
Here, the statutory phrase—“knowingly enters or remains
in any . . . posted, cordoned off, or otherwise restricted area . . .
of a building or grounds where the President or other person
protected by the Secret Service is or will be temporarily
visiting,” where “other person protected by the Secret Service”
is further defined as “any person whom the United States Secret
Service is authorized to protect under section 3056 of this title
or by Presidential memorandum, when such person has not
declined such protection,” 18 U.S.C. §§ 1752(a), (c)—is
sufficiently long to raise “questions . . . about how far into the
statute the modifier extends.” Rehaif, 588 U.S. at 230. The
statutory definition of “restricted building or grounds” requires
not just following section 1752(a)’s reference to subsection
(c)(1), and then to either (A), (B), or (C), but also, if (B) applies,
flipping to section 3056 to find the list of protectees under the

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Secret Service’s care. Some protectees defined by the section
are straightforward—e.g., the “President [and] the Vice
President.” 18 U.S.C. § 3056(a)(1). But others are contingent
on further facts, such as the Secret Service’s protection of
children of former Presidents only until their sixteenth
birthday, or its protection of “distinguished foreign
visitors . . . when the President directs that such protection be
provided.” Id. § 3056(a)(6).
The “most natural grammatical reading” of that
matryoshka doll of nested statutory references is that “the word
‘knowingly’ would not modify” all elements in each reference.
X-Citement Video, 513 U.S. at 68. No grammatical rule
requires that “knowingly” be read to apply, for example, to
elements that are not only “set forth in independent clauses
separated by interruptive punctuation,” but span multiple,
separate statutory provisions. Id. (holding that the “most
natural grammatical reading” would not extend “knowingly” to
subsections listing further specifications of the offense, and
describing em-dashes introducing those requirements as
“interruptive punctuation”). And here, unlike in X-Citement
Video, the grammatically natural reading neither produces
“anomalies” nor fails to require a culpable state of mind—and
certainly not in a way that raises a risk of punishing
constitutionally protected conduct. Id. To the contrary, it is
Griffin’s construction that would produce absurd results. It
would require a defendant to know that the protectee “has not
declined” Secret Service protection. See 18 U.S.C.
§ 1752(c)(2). If the protectee is a visiting official from abroad,
it would require a defendant charged under section 1752(a) to
know that the President saw fit to grant that visitor Secret
Service protection pursuant to section 3056(a)(7). And if the
basis for a restriction is a “special event of national
significance,” see 18 U.S.C. § 1752(c)(1)(C), a defendant
would have to know that it has been so designated. If we read

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the knowledge requirement to jump the em-dash into
subsection (c)(1)(B) as Griffin urges, we would by all
indications have to do the same for those qualifiers. See, e.g.,
Clark v. Martinez, 543 U.S. 371, 378 (2005) (“The operative
language . . . applies without differentiation to all three
categories . . . that are its subject. To give these same words a
different meaning for each category would be to invent a statute
rather than interpret one.”). This is no far-fetched reductio ad
absurdum, post at 10-12; it is a direct consequence of Griffin’s
own syntactic logic and suggests that Griffin’s interpretation—
which is not required by any interpretive rule and defies
common sense—cannot be correct.
Although the plain text makes clear that “knowingly” does
not apply all the way down the definitional line, the text alone
“provide[s] little guidance” regarding how far “knowingly”
extends. Liparota, 471 U.S. at 424. To answer that question,
we turn to longstanding judicial presumptions, Supreme Court
precedent, and the statute’s context and purpose. Because
those interpretive tools reveal the answer—“knowingly” does
not extend to the reason for the restriction listed in subsection
(c)(1)(B)—we have no occasion to apply the rule of lenity,
which “applies only when, after consulting traditional canons
of statutory construction, we are left with an ambiguous
statute.” Shular v. United States, 589 U.S. 154, 165 (2020)
(quoting United States v. Shabani, 513 U.S. 10, 17 (1994)); see
also Ocasio v. United States, 578 U.S. 282, 295 (2016)
(explaining that the rule of lenity “applies only when a criminal
statute contains a ‘grievous ambiguity or uncertainty,’ and
‘only if, after seizing everything from which aid can be
derived,’ the Court ‘can make no more than a guess as to what
Congress intended.’”) (quoting Muscarello v. United States,
524 U.S. 125, 138-39 (1998)).

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2.
As noted above, “[w]hether a criminal statute requires the
Government to prove that the defendant acted knowingly is a
question of congressional intent.” Rehaif, 588 U.S. at 228
(citing Staples, 511 U.S. at 605). “In determining Congress’
intent, we start from a longstanding presumption . . . that
Congress intends to require a defendant to possess a culpable
mental state regarding ‘each of the statutory elements that
criminalize otherwise innocent conduct.’” Id. (quoting X-
Citement Video, 513 U.S. at 72). But that presumption is both
limited and rebuttable.
Two interpretive rules confirm that section 1752(a)(1)
requires only that a defendant “knowingly enter[] or remain[]
in” an area that is “posted, cordoned off, or otherwise
restricted.” For one thing, the presumption “flips” for the
jurisdictional elements of a federal offense, so courts presume
that a criminal statute’s knowledge requirement is typically
inapplicable to such jurisdictional elements. Torres v. Lynch,
578 U.S. 452, 468 (2016). And, more generally, contextual
clues may rebut the presumption in favor of scienter. Applying
those rules here confirms that section 1752(a)(1) does not
require that the defendant further know which of the subsection
(c)(1) requirements is the reason for the restriction.
a.
Federal criminal prohibitions, unlike their state
counterparts, contain jurisdictional elements that “connect[]
the law to one of Congress’s enumerated powers, thus
establishing legislative authority.” Torres, 578 U.S. at 467-68.
Those jurisdictional elements must be proven beyond a
reasonable doubt, as with any element of a criminal offense.
See id. But they are also distinctive as subjects of statutory
interpretation: When Congress has not explicitly applied a

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26
mental state requirement to a jurisdictional element, we
“assume that Congress wanted such an element to stand outside
the otherwise applicable mens rea requirement.” Id. at 468. In
other words, we presume that “the existence of the fact that
confers federal jurisdiction need not be one in the mind of the
actor at the time he perpetrates the act made criminal by the
federal statute.” United States v. Feola, 420 U.S. 671, 676 n.9
(1975). That rule applies even when textual cues might cut the
other way. In Rehaif, for example, the Supreme Court
eschewed what it described as the most grammatical reading of
a criminal statute in order to exempt a jurisdictional element
from a knowledge requirement that it held applied to textually
preceding and succeeding statutory terms. Rehaif, 588 U.S. at
230.
Section 1752(c)(1) supplies the jurisdictional elements for
Griffin’s statute of conviction. As described above, Section
1752(c)(1) defines “restricted buildings or grounds” to include
“any posted, cordoned off, or otherwise restricted area” of the
White House, the Vice President’s official residence, or their
grounds; a building or grounds where the President or other
Secret Service protectee is or will be temporarily visiting; or a
building or grounds restricted in conjunction with a special
event of national significance. 18 U.S.C. § 1752(c)(1)(A)-(C).
Those elements are jurisdictional; they “ensure that the Federal
Government has the constitutional authority to regulate the
defendant’s conduct.” Rehaif, 588 U.S. at 230.
The subsection (c)(1)(A)-(C) requirements narrow the
criminal offense’s applicability to a small subset of trespassing
offenses that implicate both the personal security of the most
high-profile federal officials and their foreign counterparts
when they visit the United States, and also, necessarily, the
national security of the United States. See Wood v. Moss, 572
U.S. 744, 748 (2014) (citing Watts v. United States, 394 U.S.

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27
705, 707 (1969)) (recognizing that “safeguarding the
President” is “of overwhelming importance in our
constitutional system”). Those requirements thus tie the
criminal prohibition to Congress’s power to “provide for the
common Defense and general Welfare of the United States.”
U.S. Const. art. I, § 8, cl. 1; see H. R. Rep. No. 112-9, at 4
(2011) (identifying this basis of Congress’s constitutional
authority in the 2012 amendment to the section).
The jurisdictional status of the subsection (c)(1)
requirements is confirmed by their essential role in
distinguishing a violation of section 1752(a)(1) from the
familiar, state-law crime of trespass. Without them, section
1752(a)(1) would impermissibly federalize garden-variety
trespass—entering or remaining in a restricted area without
lawful authority—which is “historically a concern of state
law.” Taggart v. Weinacker’s, Inc., 397 U.S. 223, 227 (1970)
(Burger, J., concurring); cf. United States v. Lopez, 514 U.S.
549, 567-68 (1995) (emphasizing federalism’s requirement
that Congress distinguish between “what is truly national and
what is truly local,” and only legislate regarding the former).
With or without the satisfaction of a (c)(1)(A), (B), or (C)
requirement, the underlying conduct is the same knowing
trespass. It is the satisfaction of one of the required connections
to federal national security interests that elevates the conduct
to a matter upon which Congress has authority to legislate.
Those subsection (c)(1) requirements are therefore
jurisdictional in nature. And, under binding Supreme Court
precedent, if they are “jurisdictional only” they “need not be
one in the mind of the actor at the time he perpetrates the act
made criminal by the federal statute.” Feola, 420 U.S. at 676
n.9.

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Griffin contends that the subsection (c)(1) requirements
are not jurisdictional at all, let alone “jurisdictional only,”
because they play a substantive role in defining the prohibited
conduct. The presence of a Secret Service protectee is “the
very reason Congress cares to punish such conduct as wrongful
at all,” Reply Br. 21, Griffin insists, so it cannot be
jurisdictional. That argument misunderstands the Court’s
admittedly “mislead[ing]” jurisdictional elements terminology.
Feola, 420 U.S. at 676 n.9.
It is often the case that jurisdictional elements “have
nothing to do with the wrongfulness of the defendant’s
conduct.” Rehaif, 588 U.S. at 230. The classic example is “a
standard interstate commerce element, of the kind appearing in
a great many federal laws.” Torres, 578 U.S. at 471. That
element “is almost always a simple jurisdictional hook” used
to “connect[] the congressional exercise of legislative authority
with . . . the Commerce Clause[] that grants Congress that
authority.” Id. at 457, 471.
But things are not always so straightforward. Sometimes,
an element of a federal crime both “makes evident Congress’s
regulatory power” and also “play[s] a role in defining the
behavior Congress thought harmful.” Id. at 471. The Supreme
Court has recognized that such dual-role elements present
“tough questions” concerning whether they are treated as both
jurisdictional and substantive or as jurisdictional only. Id. at
470-71. And it has squarely held that the mere fact that a
statutory element has something to do with the wrongfulness
of the defendant’s conduct does not necessarily mean that the
element is not “jurisdictional only.” Feola, 420 U.S. at 676
n.9. As the Court has explained, “[t]he significance of labeling
a statutory requirement as ‘jurisdictional’ is not that the
requirement is viewed as outside the scope of the evil Congress
intended to forestall.” Id. Rather, as illustrated by Feola, dual-

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role elements are nonetheless treated as “jurisdictional only”
when they (a) implement Congress’s purpose to federalize pre-
existing state law rather than defining a new substantive crime,
and (b) do not transform innocent conduct into criminal
conduct. Id.
In Feola, the Supreme Court considered the scope of the
knowledge requirement in 18 U.S.C. § 111, which makes it a
crime to assault a federal officer engaged in the performance of
his official duties. Feola tried to sell counterfeit drugs to
undercover federal officers and, when the deal went south,
assaulted one of them. Feola, 420 U.S. at 674. Feola did not
know that his victim was a federal officer—or an officer at
all—so he was “undoubted[ly] surprise[d]” when he was
charged with, and later convicted of, assaulting a federal
officer. Id. at 675. But his surprise did not undermine his
conviction. Deeming the “federal officer” requirement
jurisdictional, the Court held that section 111 “cannot be
construed as embodying an unexpressed requirement that an
assailant be aware that his victim is a federal officer.” Id. at
684. “All the statute requires is an intent to assault, not an
intent to assault a federal officer.” Id.
In holding that the victim’s federal officer status was
“jurisdictional only,” the Court acknowledged that a
jurisdictional requirement could also be “an element of the
offense Congress intended to describe and to punish.” Id. at
676 n.9. Indeed, “a requirement is sufficient to confer
jurisdiction on the federal courts for what otherwise are state
crimes precisely because it implicates factors that are an
appropriate subject for federal concern.” Id. (emphasis added).
The Court explained that “a mere general policy of deterring
assaults would probably prove to be an undesirable or
insufficient basis for federal jurisdiction; but where Congress
seeks to protect the integrity of federal functions and the safety

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30
of federal officers, the interest is sufficient to warrant federal
involvement.” Id. So, “[t]he significance of labeling a
statutory requirement as ‘jurisdictional’ is not that the
requirement is viewed as outside the scope of the evil Congress
intended to forestall, but merely that the existence of the fact
that confers federal jurisdiction need not be one in the mind of
the actor at the time he perpetrates the act made criminal by the
federal statute.” Id.
The Court thus concluded that the federal-nexus
requirement was “jurisdictional only” because, in enacting
section 111, Congress aimed to create a federal forum for the
prosecution of already-criminalized conduct, rather than to
create new substantive criminal law. Id. at 683-84. The law
“in large part . . . duplicat[ed] state proscriptions” with the
goal of ensuring that “those who killed or assaulted federal
officers were brought to justice” under the uniform standards
of federal court, rather than state courts where “state officials
would not always or necessarily share congressional feelings
of urgency as to the necessity of prompt and vigorous
prosecutions of those who violate the safety of the federal
officer.” Id. Therefore, because the “concept of criminal intent
does not extend so far as to require that the actor understand
not only the nature of his act but also its consequence for the
choice of a judicial forum,” the Court declined to require
knowledge of federal officers’ status. Id. at 685. Rather,
despite the fact that Congress’s interest in establishing a federal
forum was born of its specific concern for “protect[ing] the
integrity of federal functions and the safety of federal officers,”
id. at 676 n.9, the Court held that the federal officers’ status
was “no more germane to the nature of [the assault] than the
color of the victim’s hair,” id. at 693.
The Court also emphasized that its “interpretation poses
no risk of unfairness to defendants.” Id. at 685. Even though

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Feola may have been “surprised to find that his intended victim
[was] a federal officer in civilian apparel, he nonetheless
[knew] from the very outset that his planned course of conduct
[was] wrongful.” Id. The Court distinguished the case from
“one where legitimate conduct becomes unlawful solely
because of the identity of the individual or agency affected.”
Id.; cf. Ruan v. United States, 597 U.S. 450, 460-61 (2022)
(applying the knowledge requirement in a statute criminalizing
dispensing of a controlled substance to the element of lack of
authorization because that “is often the critical thing
distinguishing wrongful from proper conduct”). In that kind of
case, the Court suggested, the identity of the victim may not be
treated as jurisdictional. Feola, 420 U.S. at 685. But where
the defendant’s planned course of conduct is wrongful from the
outset, “the offender takes his victim as he finds him.” Id.
The rule from Feola is thus clear: When an element of a
criminal offense serves as the basis for Congress’s authority to
legislate; the offense merely provides federal jurisdiction over
what was previously a state law offense; and knowledge of the
element is not “essential to the existence of any crime,” United
States v. Hicks, 15 F.4th 814, 818 (7th Cir. 2021) (emphasis
added), the element is treated as “jurisdictional only” and
courts presume that knowledge of that element is not required.
Feola thus resolves the “tough question” presented by the
statutory text alone in favor of treating the element regarding a
Secret Service protectee’s presence as “jurisdictional only.”
As in Feola, section 1752(a)(1) does not create a substantively
new criminal offense. Rather, Congress designed it to ensure
that Secret Service officers did not have to “rely upon the
assistance of local authorities to arrest persons” who entered
restricted areas around a protectee. See S. Rep. No. 91-1252,
at 7 (1970).

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When it first enacted section 1752 in 1971, Congress
recognized that “almost everything proscribed in [section
1752] is presently outlawed in some form or other at the State
or local level.” Id. Similarly, in amending the statute in 2012
to include prohibitions on entering the grounds of the White
House and Vice President’s residence, Congress stressed that
the Secret Service had previously relied on D.C. trespass law
to exclude and prosecute White House and Naval Observatory
intruders. H.R. Rep. No. 112-9, at 2 (2011). Before section
1752’s enactment, Secret Service officers found it “difficult to
tell exactly which jurisdiction bears the responsibility for
detention and prosecution,” and the patchwork of relevant state
laws that applied depending on the protectee’s location made
“Secret Service agents unsure of the legal extent of their
authority and [made] uniform enforcement impossible.”
S. Rep. No. 91-1252, at 7 (1970). Just as in Feola, the fact that
section 1752(a)(1) merely federalizes preexisting state or local
prohibitions makes the basis for restricting the prohibited area
“jurisdictional only.” That remains true even though the
enacting Congress was of course motivated by a desire to
safeguard federal Secret Service protectees, just as the
Congress that enacted section 111 in Feola was motivated to
shield federal officers.
Also as in Feola, the prohibited conduct (here, trespass) is
wrongful regardless of whether it is restricted by federal, state,
or local law, and it is therefore sufficient that the defendant
knowingly trespassed on a restricted area. Just as Feola did not
need to know that the target of his assault was a federal officer,
so Griffin need not have known that the restriction was
predicated on the presence of the Vice President. As in Feola,
our interpretation of section 1752 “poses no risk of unfairness
to defendants” because a trespasser knows “from the very
outset that his planned course of conduct is wrongful.” 420
U.S. at 685. That is true even if he “may be surprised to find”

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33
that the restricted area on which he is trespassing is protected
by federal rather than state law. Id.
Contrary to the dissent’s view that mens rea requirements
presumptively apply to each element distinguishing “greater
and lesser evils,” post at 15-16, the Supreme Court has recently
reaffirmed that “the purpose of scienter” is to “help[] to
separate wrongful from innocent acts,” Rehaif, 588 U.S. at 231-
32, and described the mens rea presumption as one that
normally applies to “statutory elements that criminalize
otherwise innocent conduct,” id. at 229 (quoting X-Citement
Video, 513 U.S. at 72). Applying Griffin’s contrary rule would
also be in tension with decisions of many other courts that
regularly apply Feola to hold that jurisdictional elements that
do not criminalize otherwise innocent conduct are
“jurisdictional only.” Consider just a few examples.
In United States v. Evans, 74 F.4th 597 (4th Cir. 2023), the
Fourth Circuit addressed the scope of the knowledge
requirement in 18 U.S.C. § 1855, which makes it a crime to
“willfully and without authority, set[] on fire any timber,
underbrush, or grass or other inflammable material . . . upon
any lands owned or leased by . . . the United States.” Id. at 601,
605. The court held that the government need not prove that
the defendant knew that the land on which he set fire was
federally owned; it was sufficient that he knowingly set a fire
on the property of another. Id. The court explained that the
“proscribed arson [wa]s the culpable conduct”; the statutory
requirement that the fire be set ablaze on federally owned lands
merely brought that “culpable conduct within the United
States’ jurisdiction” by tying the offense to Congress’s
constitutional power to regulate federal land. Evans, 74 F.4th
at 605, 606. And the jurisdictional nature of the federal-
ownership element was “confirm[ed]” by the fact that it “is not
an element that ‘separate[s] wrongful conduct from innocent

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acts.’” Id. (quoting Ruan, 597 U.S. at 458). So, too, here,
subsection (c)(1)(B) ties the trespassing offense to Congress’s
authority to regulate in the national security arena, and
trespassing on an area that one knows is restricted is wrongful,
regardless of why the area is restricted. See also United States
v. Quarrell, 310 F.3d 664, 671-74 (10th Cir. 2002) (holding
that a defendant convicted of knowingly and without
authorization excavating archaeological resources from public
or Indian lands was not required to know the specified
ownership of the land because “[o]ne would anticipate that
excavating for archaeological resources on another person’s
land, whether private or public, would not be viewed as an
innocent act”).
The Second Circuit in United States v. Escalera, 957 F.3d
122 (2d Cir. 2020), adopted the same approach to a statute that
criminalizes “knowingly” engaging in conduct “with intent to
retaliate” against a witness in an “official proceeding,” 18
U.S.C. § 1513(b)(1), and that separately defines “official
proceeding” as certain federal proceedings, id. § 1515(a)(1).
The court held that, for purposes of the conduct or actus reus,
the government had to prove that the victim of the defendant’s
retaliation had testified in an “official proceeding” as defined
in the statute—“a proceeding before a judge or court of the
United States.” Escalera, 957 F.3d at 128-34. But for the
mental state or mens rea, the government needed only to prove
the defendant knew the witness had testified in a “court.” Id.
In so holding, the Second Circuit emphasized that “[i]t is not as
if Congress deemed retaliatory assaults on witnesses in state
proceedings to be innocent conduct which would be worthy of
prohibition only if a federal proceeding were involved.” Id. at
133. Rather, the purpose of section 1513 is to “ensure that the
Federal Government does all that is possible . . . to assist
victims and witnesses of crime.” Id. (quoting Victim and

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35
Witness Protection Act of 1982, Pub. L. No. 97-291 § 2(b), 96
Stat. 1248 (1982)).
Under the Feola line of cases, the requirements in section
1752(c)(1)(A)-(C) serve as jurisdictional hooks, and
knowledge that any of those requirements is satisfied is
unnecessary to render criminal the underlying conduct:
knowing trespass on property where the defendant is aware he
is not authorized to be. As in the above cases, the defendant
must know he is engaged in culpable conduct—trespassing—
but he need not know the precise basis for federal regulation of
that conduct.
Griffin contends that, even if attaching “knowingly” to the
subsection (c)(1) requirements is not necessary to avoid
criminalizing otherwise innocent conduct, the satisfaction of
those requirements increases the severity of the conduct and
resulting penalty. He thus argues that the government should
be required to prove he was aware of the presence of a Secret
Service protectee because knowledge of that fact would
increase his culpability. See Griffin 28(j) Ltr. at 2 (Jan. 6,
2024). But there is no doctrinal basis for presuming that a
knowledge requirement attaches to every factor that might
render a crime more serious. And, in any event, the penalties
under section 1752(a)(1) are not categorially more severe than
under state trespass laws.
Consider the statute at issue in Feola. Assaulting an
officer is generally a more serious crime than assaulting a
private citizen. Both are plainly wrongful, but assaulting a
federal officer imperils the success of the federal objectives he
is serving as well as his own personal safety. So, too, with the
statute prohibiting false statements within the jurisdiction of
the federal government at issue in United States v. Yermian,
468 U.S. 63 (1984). Because of its high stakes for the public

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36
trust, lying to a federal agency on a security clearance
application is generally culpable in a way that lying about
similar matters to a private employer is not. Yet the Supreme
Court held in each of those cases that facts establishing the
federal nexus were jurisdictional and not subject to the statute’s
knowledge requirements.
In United States v. Burwell, 690 F.3d 500 (D.C. Cir. 2012)
(en banc), we rejected the same argument now raised by
Griffin. In that case, the court held that 18 U.S.C.
§ 924(c)(1)(B)(ii), which imposes a “term of imprisonment of
not less than 30 years” for a person who “possess[es] . . . a
machinegun” “during . . . any crime of violence”—a
substantive rather than jurisdictional provision—does not
require “the government to prove that the defendant knew the
weapon he was carrying was capable of firing automatically.”
Id. at 502. That was so, we held, even though the fact that the
firearm could fire automatically, and was therefore a
machinegun, ratcheted up the defendant’s crime of conviction
to a mandatory 30-year sentence. Id. at 516.
In a dissenting opinion, then-Judge Kavanaugh argued that
the presumption in favor of scienter “applies both when
necessary to avoid criminalizing apparently innocent conduct
(when the defendant would be innocent if the facts were as the
defendant believed) and when necessary to avoid convicting
the defendant of a more serious offense for apparently less
serious criminal conduct.” Burwell, 690 F.3d at 529
(Kavanaugh, J., dissenting). (His dissent did not address
whether his analysis would be any different if the machinegun
element were jurisdictional.) But the en banc majority rejected
that proposed rule as unsupported by Supreme Court precedent.
Id. at 516 (maj. op.). The fact that the type of firearm defendant
Burwell used increased the offense’s severity did not mean the
government had to prove that he knew it was a machinegun.

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37
Id. We similarly held in United States v. Morgan, 45 F.4th 192,
205-09 (D.C. Cir. 2022), that a conviction under 18 U.S.C.
§ 2423(a), which prohibits “knowingly transport[ing] an
individual who has not attained the age of 18 years” interstate
to engage in sex offenses, did not require proof of the
defendant’s knowledge of the victim’s minor age, even though
a sex offense involving a minor typically carries harsher
penalties than one involving an adult. That principle applies
with all the more force here, where the element increasing
sentence severity is jurisdictional only.
Nor is it apparent that defendants like Griffin will be
exposed to sentences disproportionate to their culpability.
Barring aggravating factors not applicable to Griffin, section
1752 imposes a maximum of one year’s imprisonment for
violating subsection (a). See 18 U.S.C. § 1752(b). Similar
penalties attach to state trespassing laws on which the Secret
Service would otherwise have to rely for arrest and prosecution
of those who breach a security perimeter around a protectee.
For example, the District of Columbia imposes a six-month
maximum for trespass, see D.C. Code § 22-3302(b), and
trespassing in Virginia is punishable by up to one year of
imprisonment, see Va. Code Ann. §§ 18.2-11, -119.
To the extent that the maximum period of incarceration
under section 1752 is higher than state trespassing laws
typically provide, the same was true in Feola, where the
maximum penalties imposed by section 111 exceeded states’
penalties for simple assault. See Feola, 420 U.S. at 702-03
(Stewart, J., dissenting). The Court’s analysis in Feola was
unaffected by that maximum-penalty disparity because “the
offender takes his victim as he finds him.” Id. at 685. So too
in Burwell, where the status of a firearm as a machinegun
“skyrocket[ed]” the mandatory sentence from five to thirty
years’ imprisonment, Burwell, 690 F.3d at 503, and Morgan,

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where the juvenile status of the transported individual boosted
the sentence imposed from a maximum of ten years’
imprisonment to a minimum of ten years and up to life. See
Morgan, 45 F.4th at 205, 208-09.
The availability of up to a year’s incarceration does not
support Griffin’s dramatically narrowed reading of section
1752(a)(1). Concerns about ensnaring relatively mild conduct,
such as “stepping over temporary plastic fencing just outside
the Capitol grounds on January 5, 2021, to save a few steps on
a walk home from work,” post at 10, could equally be levelled
at the ordinary trespass laws of myriad states and localities with
similar terms of incarceration. But we can readily assume that
people in Virginia ignore “no trespassing” signs with some
frequency “to save a few steps” without doubting that the
Virginia legislature intended to criminalize simple trespass.
Recent experience in this Circuit demonstrates that
violators of section 1752(a) are typically sentenced to far less
time than the statutory maximum. The Sentencing Guidelines
recommend imposing a sentence of zero to six months for a
defendant without prior criminal history convicted of violating
section 1752(a)(1). Nearly every defendant charged in
connection with the events of January 6 and sentenced solely
for violation of section 1752(a) has been sentenced to fewer
than six months’ incarceration—to the extent they were
sentenced to jail time at all. See U.S. Attorney’s Office for the
District of Columbia, Sentences Imposed in Cases Arising out
of the Events of January 6, 2021 (updated October 7, 2024),
available at https://www.justice.gov/usao-dc/capitol-breach-
cases [https://perma.cc/6PYL-KAB7]. Griffin was sentenced
to fourteen days’ imprisonment. Even those January 6-related
defendants convicted of a section 1752 offense involving
possession of “deadly or dangerous weapon[s] or firearm[s],”
18 U.S.C. § 1752(b)(1)(A), carrying a ten-year maximum

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39
prison sentence, have all been sentenced to less than one year
of imprisonment or to probation alone. See id.
In sum, the basis of the Secret Service’s authority to
prevent access to designated areas for the safety of its
protectees is a “jurisdictional only” element of a section
1752(a)(1) federal trespass offense. It need not be in the mind
of the trespasser. The relative seriousness of trespass in an area
protected by the Secret Service, and the potential for somewhat
greater punishment than for typical trespass, does not alter the
analysis where, as here, the prohibited conduct is wrongful
whether or not federal criminal law applies.
b.
In addition to the jurisdictional character of the subsection
(c)(1) requirements, a second rule guiding our interpretation of
criminal statutes’ state-of-mind requirements similarly
disfavors requiring proof of knowledge of a Secret Service
protectee’s presence in the restricted area. Courts decline to
extend even explicit state-of-mind requirements to statutory
elements when “context” disfavors doing so. Morgan, 45 F.4th
at 206-08; see also Rehaif, 588 U.S. at 229-30 (noting that there
can be a “convincing reason to depart from the ordinary
presumption in favor of scienter”); Hicks, 15 F.4th at 817-18
(holding that a defendant’s knowledge that the money he stole
belonged to the government was jurisdictional only, in part
because a contrary interpretation would undercut the statute’s
purpose of protecting federal property used in an undercover
operation). The context of section 1752—a law originally
enacted to create Secret Service-controlled security zones
around the President in response to nationwide alarm over a
spate of high-profile political assassinations—demonstrates
that Congress intended the statute to cover all knowing
trespasses into those restricted areas.

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40
First, section 1752’s drafting and legislative history make
clear that Congress never intended “knowingly” to extend to
the reason for the area’s restriction. The original version of
section 1752(a)(1)(ii) made it unlawful “knowingly to enter or
remain in … any posted, cordoned off, or otherwise restricted
area of a building or grounds where the President is or will be
temporarily visiting.” 18 U.S.C. § 1752(a)(1) (1971). In
describing the wording of that provision, the Senate Judiciary
Committee addressed the concern that the public would lack
adequate notice of a restricted area’s boundary because there
would be no “written public notice” in the Federal Register
defining the temporarily restricted areas (as the statute requires
for the President’s official residences and offices). S. Rep. No.
91-1252, at 9 (1970). In the Committee’s view, that concern
was adequately allayed by the fact that the Secret Service “will
make every effort, consistent with Presidential security, to
make such restricted areas known to the public (i.e., by posting
or cordoning off),” and that individuals would be subject to
criminal prosecution only if they “‘knowingly and willfully’
violate[] the restricted area.” Id.
The Senate Committee’s expressed satisfaction with the
requisite actual knowledge as to the boundary of the restricted
area makes clear that prosecution under section 1752(a)(1)(ii)
is inappropriate if an individual does not know that the area is
“posted, cordoned off, or otherwise restricted.” The lack of any
mention of an individual’s knowledge of the reason for the
restriction—the President’s actual or expected presence—
makes equally clear that Congress did not intend the
“knowingly” requirement to extend to the reason for the
restriction. Indeed, the Committee’s reference to the
requirement of subjective knowledge of an area’s restriction,
and to the Secret Service making “every effort” at providing
public notice only to the extent “consistent with Presidential
security,” reinforces that Congress did not intend to also

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41
require the Secret Service to announce to the public the precise
location of the President in order to be able to enforce access
restrictions on areas surrounding him.
As discussed above, in 1982, Congress expanded section
1752(a)(1)(ii) to cover other Secret Service protectees in
addition to the President. See Pub. L. No. 97-308, 96 Stat.
1451, 1451-52 (1982). As part of its 2012 amendments,
Congress also implemented a “technical improvement[]” to
streamline the increasingly cumbersome statutory language by
moving into subsection (c) the identification of the three Secret
Service-protected areas justifying federal restriction. H.R.
Rep. No. 112-9, at 1-2; see also Pub. L. No. 112-98, 126 Stat.
263, 263-64 (2012). That change yielded the statute’s current
form, which spells out criminal offense conduct in subsection
(a) and defines the term “restricted buildings or grounds” in
subsection (c)(1). But neither that act of legislative
housekeeping, nor Congress’s addition of other Secret Service
protectees to section 1752(a)(1)(ii) in 1982, changes the mens
rea requirement of that section to encompass the reason that
the building or grounds is “posted, cordoned off, or otherwise
restricted.”
Second, applying a mens rea requirement to the reason for
the restriction would undercut section 1752(a)(1)’s manifest
protective purpose. To require proof that a defendant “know”
that a Secret Service protectee is or would be in the restricted
area would pointlessly hinder the Secret Service’s ability to
defend national leaders from would-be assassins and encumber
prosecution of persons whose knowing trespasses endanger
persons under Secret Service protection. Section 1752
empowers the Secret Service to ensure a secure perimeter
around the President, other national leaders, and their families
wherever they may travel. The nature of the risk against which

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42
section 1752 guards strongly disfavors Griffin’s interpretation
of the statute.
Requiring proof that a defendant knew the reason for his
exclusion would render the statute ineffective in circumstances
in which Congress plainly intended it to apply. In enacting and
amending section 1752, Congress’s particular concern was to
empower the Secret Service to arrest and expel those who
breach security perimeters—so-called “zones of protection”—
around the nation’s leaders. See S. Rep. 91-1252, at 7 (1970);
Zones of Protection: Hearing on H.R. 4468 Before the H.
Comm. on the Judiciary, 97th Cong. 5, at 11 (1981). As the
district court reasoned, it is “[un]imagin[able] that a provision
that is looking to protect Secret Service protectees would
require the Secret Service to somehow be telling people and
proving that people knew which protectee was in the restricted
area at what time.” J.A. 534.
But, under Griffin’s reading, officers could not necessarily
rely on section 1752 to stop and arrest anyone who breaches a
restricted area; before doing so, they would need “at least some
evidence supporting” the trespasser’s knowledge of the
protectee’s presence. Hall v. Dist. of Columbia, 867 F.3d 138,
154 (D.C. Cir. 2017). In effect, Griffin would burden Secret
Service agents protecting the perimeter around the President or
other leader with the additional task of alerting members of the
public who might breach the area that a Secret Service
protectee is inside. Even an instruction from someone clearly
identifiable as a Secret Service agent not to cross the perimeter
would not suffice under Griffin’s reading of the statute to
ensure a potential intruder “knows” a protectee is present.
Griffin minimizes the constraint his reading imposes by
suggesting that officers could post “Secret Service ‘restricted
building or grounds’ signage” around the areas they secure.

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43
Griffin Br. 54-55. It is not clear, however, that a generic
“Secret Service—Keep Out” sign could prove knowledge of
the facts identified in subsection (c)(1)(B). The requirements
of the statute as Griffin reads it would be unmet by proof that a
defendant knowingly entered or remained without lawful
authority in any building or grounds that he generally knew to
have been placed under restriction by the Secret Service. His
own logic is more demanding, calling for proof that the
defendant knew the distinct facts supporting the restriction he
violated: that the restricted area he entered was the White
House or Vice President’s residence or their grounds
(subsection (c)(1)(A)); or that a Secret Service protectee was
or would be temporarily visiting the restricted area (subsection
(c)(1)(B)); or that the area was restricted in conjunction with a
“special event of national significance” (subsection (c)(1)(C)).
His suggestion of a less cumbersome way to meet it tacitly
acknowledges the implausibility of his highly detailed
knowledge requirement. Griffin cannot have it both ways.
In any event, Griffin’s suggestion of generic Secret
Service signage underscores the defect of his argument. To
provide security for its protectees as they travel throughout the
United States, the Secret Service often works with other federal
law enforcement entities like the Capitol Police, and with state
and local law enforcement agencies. Griffin’s interpretation
would require the Secret Service to call on local partners to use
specialized “Secret Service” notices, rather than the signage
they routinely use, like the “Area Closed by Order of the United
States Capitol Police Board” notices posted on January 6.
Congress could not have intended that the security perimeters
it authorized to protect the nation’s top political leadership
would function only if the Secret Service provided signs
specifying the particular reason for the Secret Service’s
involvement and prevailed on its state and local partners to use
them.

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44
Griffin’s approach would surely hinder the Secret
Service’s capacity to handle the full range of potential threats.
Congress’s intent in enacting and amending the statute was to
provide the Secret Service with consistent and effective
federal-law tools so it would no longer have to rely on uneven
protections of state law. But, by requiring proof that each
intruder knew “the President or other person protected by the
Secret Service is or will be temporarily visiting,” Griffin’s
reading would make a section 1752(a)(1) violation
significantly harder to prove than its state-law counterparts.
That added proof burden might not hinder the Secret Service’s
ability to detain and prosecute someone who breached a
security perimeter with the avowed intent to confront a
particular protectee. But, as the events of January 6 illustrate,
Griffin’s reading would substantially undercut the Secret
Service’s ability to fulfill its protective mission in volatile
situations where potential intruders outnumber agents. More
broadly, his reading would embolden people to breach Secret
Service zones of protection with confidence that, so long as no
agent tells them the reason the area is cordoned off (and they
keep under wraps such knowledge they might have from other
sources), section 1752(a)(1) will not reach them.
* * *
In sum, Congress’s clear purpose in enacting section
1752(a)(1) was to establish a uniform federal trespass
misdemeanor to help the Secret Service protect national
leadership from harm. We reject Griffin’s reading, which is so
squarely at odds with that clear purpose. We have no basis to
conclude that Congress intended to undermine its vital aim by
requiring proof that an intruder knew, when he breached a
federally restricted area, that a Secret Service protectee was or
would be present. The statutory text does not compel that
reading, facts that support Congress’s authority to legislate are

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45
assumed to “stand outside the otherwise applicable mens rea
requirement,” Torres, 578 U.S. at 468, and the conduct is
independently culpable.
III.
To recap, we hold that the trial evidence sufficed to prove
that the Capitol grounds were “posted, cordoned off, or
otherwise restricted” under section 1752(c)(1), and that Griffin
knew they were so restricted when he entered and remained
there. We further hold that the government was not required to
prove that Griffin knew when he entered and remained in the
restricted area that Vice President Pence was still there.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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KATSAS , Circuit Judge, dissenting: This appeal turns on
the scope of an express knowledge requirement in a criminal
statute that protects the President, the Vice President, and other
high officials from trespassers. The statute prohibits
knowingly entering a “restricted building or grounds,” 18
U.S.C. § 1752(a)(1), which is a defined term. First, the area
must be “posted, cordoned off, or otherwise restricted.” Id.
§ 1752(c)(1). Second, as relevant here, it must be one where
“the President or other person protected by the Secret Service
is or will be temporarily visiting.” Id. § 1752(c)(1)(B). The
question presented is whether a defendant, to be convicted
under section 1752(a)(1), must know that the “restricted
building or grounds” satisfies one or both elements of this
statutory definition. My colleagues hold that a defendant must
know that the area satisfies the first element of the definition
but need not know that it satisfies the second. In my view, the
defendant must know that the area satisfies both elements.
I
During the riot on January 6, 2021, Couy Griffin entered
the grounds of the United States Capitol and made his way onto
the inaugural stage. At that time, entry into the grounds was
restricted because Congress was scheduled to count the votes
of the presidential electors. When Griffin entered the restricted
grounds, Vice President Michael Pence, a Secret Service
protectee, was inside the Capitol to preside over the vote count.
Griffin was charged with knowingly entering a “restricted
building or grounds,” in violation of section 1752(a)(1), and
with knowingly engaging in disorderly conduct inside a
“restricted building or grounds” with intent to disrupt
government business, in violation of section 1752(a)(2).
During a bench trial, the district court held that these offenses
do not require proof that the defendant knew the “restricted
building or grounds” satisfies the statutory definition of that
term. The court found that Griffin had entered an area where

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2
he “knew he shouldn’t be,” J.A. 537, but it made no finding
whether Griffin knew that the Vice President was or would
soon be present. The court further found that Griffin had
neither engaged in any disorderly conduct nor intended to
disrupt Congress. Based on these findings, the court convicted
Griffin on the first count and acquitted him on the second.
Griffin appealed the conviction.
II
Section 1752 of Title 18 creates five criminal offenses
requiring acts inside a “restricted building or grounds.” 18
U.S.C. § 1752(a). The first offense covers anyone who
“knowingly enters or remains in any restricted building or
grounds without lawful authority to do so.” Id. § 1752(a)(1).
Section 1752 expressly defines the term “restricted building or
grounds.” As used in that provision:
[T]he term “restricted buildings or grounds” means any
posted, cordoned off, or otherwise restricted area—
(A) of the White House or its grounds, or the Vice
President’s official residence or its grounds;
(B) of a building or grounds where the President
or other person protected by the Secret Service is
or will be temporarily visiting; or
(C) of a building or grounds so restricted in
conjunction with an event designated as a special
event of national significance[.]

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3
Id. § 1752(c)(1).1
The parties dispute the extent of knowledge a defendant
must have about the “restricted building or grounds” to be
properly convicted under section 1752. They agree the
defendant must know that the area satisfies the first element of
the statutory definition—i.e., he must know that the area was
“posted, cordoned off, or otherwise restricted.” 18 U.S.C.
§ 1752(c)(1); see Appellee Br. at 42–43. According to Griffin,
the defendant also must know that the restricted area satisfies
the second element of the definition. Here, in other words,
Griffin had to know that the restricted area was one where the
Vice President, who is protected by the Secret Service, was or
would be “temporarily visiting.” 18 U.S.C. § 1752(c)(1)(B).2
A
In my view, statutory text, history, and basic interpretive
presumptions all point in the same direction: To be convicted
1 In section 1752, the substantive offenses involve misconduct
in any “restricted building or grounds,” while the definition covers
the term “restricted buildings or grounds,” with buildings in the
plural. The slight difference appears to be a scrivener’s error, and no
party suggests that it makes any difference here.
2 The question presented has often arisen in the prosecution of
individuals who trespassed on Capitol grounds on January 6, 2021.
According to the Department of Justice, prosecutors have obtained
over 470 convictions under section 1752. In all of these cases,
criminal liability may turn on whether the defendant had to know that
Vice President Pence was present at the time of the trespass. The
district judges in our circuit are deeply divided on that question; six
have answered yes, while ten have answered no. See United States
v. Vaglica, No. 23-cr-429, 2024 WL 4244279, at *2 (D.D.C. Sept.

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4
of knowingly entering a “restricted building or grounds,” the
defendant must know that the area in question satisfies the
statutory definition of that term.
1
Start with text, grammar, and ordinary English usage.
These considerations drive the interpretation of federal
statutes—including criminal ones. See, e.g., Flores-Figueroa
v. United States, 556 U.S. 646, 650–52 (2009); Jones v. United
States, 529 U.S. 848, 855 (2000). And here, they strongly
support Griffin.
a
“As a matter of ordinary English grammar, it seems natural
to read” the word knowingly, if it introduces a criminal
prohibition, “as applying to all the subsequently listed elements
of the crime.” Flores-Figueroa, 556 U.S. at 650; see Rehaif v.
United States, 588 U.S. 225, 230 (2019) (courts “ordinarily
read a phrase in a criminal statute that introduces the elements
of a crime with the word ‘knowingly’ as applying that word to
each element” (quoting Flores-Figueroa, 556 U.S. at 652));
United States v. X-Citement Video, Inc., 513 U.S. 64, 79 (1994)
(Stevens, J., concurring) (“the normal, commonsense reading
of a subsection of a criminal statute introduced by the word
‘knowingly’ is to treat that adverb as modifying each of the
elements of the offense identified in the remainder of the
subsection”).
Examples prove this point. An obvious one involves
knowingly followed by a series of verbs. A provision making
19, 2024) (collecting rulings); Hr’g Tr., United States v. Mauck, No.
23-cr-339 (Sept. 27, 2024).

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5
it unlawful to “knowingly harass, bother, or intimidate” does
not reach someone who unknowingly intimidates. See A.
Scalia & B. Garner, Reading Law: The Interpretation of Legal
Texts 147–48 (2012) (describing prepositive modifiers).
Another example involves knowingly followed by a transitive
verb, then a direct object, then a further limiting prepositional
phrase. In that instance, the introductory adverb “tells the
listener how the subject performed the entire action, including
the object” as limited. Flores-Figueroa, 556 U.S. at 650; see
also McFadden v. United States, 576 U.S. 186, 191 (2015)
(“the word ‘knowingly’ applies not just to the statute’s verbs
but also to the object of those verbs”); Flores-Figueroa, 556
U.S. at 657 (Scalia, J., concurring in part and concurring in the
judgment) (once knowingly “is understood to modify the object
of those verbs, there is no reason to believe it does not extend
to the phrase which limits that object”). So, “if a bank official
says, ‘Smith knowingly transferred the funds to his brother’s
account,’ we would normally understand the bank official’s
statement as telling us that Smith knew the account was his
brother’s.” Flores-Figueroa, 556 U.S. at 650. For unless
context dictates otherwise, it would make little sense to extend
knowingly only to the verb (transferred), rather than carrying it
through to the direct object (funds) and the limiting
prepositional phrase (to the brother’s account). See id. at 650–
51. These principles vary and combine—often in obvious
ways. Consider one other quotidian example: “He knowingly
pulled over and parked in a no-parking zone.” An ordinary
English speaker would understand that knowingly applies to
both verbs (pulled over and parked) and to the particular
circumstance in which those actions occurred (in a no parking
zone). Nobody would think that the driver had knowingly

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6
pulled over and parked, but may not have known whether he
was doing so in a prohibited area.
The Supreme Court repeatedly has applied these principles
in construing introductory knowledge requirements. For
example, United States v. Liparota, 471 U.S. 419 (1985),
involved a statute imposing criminal liability on anyone who
“knowingly uses, transfers, acquires, alters, or possesses
coupons or authorization cards in any manner not authorized
by” the governing positive law. See id. at 420. The Court held
that this provision reaches only individuals who know that their
conduct is “not authorized” by law. See id. at 425–28. Flores-
Figueroa construed a statute imposing criminal liability on
anyone who “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person.”
See 556 U.S. at 647. The Court held that this provision reaches
only individuals who know that their conduct involves a means
of identifying “another person.” See id. Invoking “ordinary
English,” the Court explained that it would make “little sense”
to criminalize knowingly possessing “a something” unless the
defendant also knows what that something is. See id. at 650.
The same principles support extending knowledge
requirements into defined terms and across different statutory
provisions. Rehaif involved a statute imposing criminal
liability on anyone who “knowingly violates” certain separate
offenses including 18 U.S.C. § 922(g), which prohibits any
alien (1) “unlawfully in the United States” from (2) possessing
any “firearm.” The Supreme Court held that the statute reaches
only someone who knows he is violating all “material
elements” of the predicate offense, and it found “no basis to
interpret ‘knowingly’ as applying to the second § 922(g)
element but not the first.” 588 U.S. at 230–31; see also United
States v. Games-Perez, 667 F.3d 1136, 1143 (10th Cir. 2012)

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(Gorsuch, J., concurring) (such an interpretation “defies
linguistic sense—and not a little grammatical gravity”).
Likewise, McFadden addressed the knowledge
requirement in the Controlled Substances Act. That statute
makes it unlawful to “knowingly … manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). And
it separately defines the term “controlled substance” as “a drug
or other substance, or immediate precursor, included in
schedule I, II, III, IV, or V” of the Act. Id. § 802(6). The
Supreme Court explained that the substantive prohibition, by
its “ordinary meaning,” reaches only individuals who know
that the substance at issue is “listed on the federal drug
schedules.” See 576 U.S. at 192. In other words, the
introductory mens rea extends to the elements of the defined
term, even when they appear in different statutory provisions.
Finally, United States v. Lucero, 989 F.3d 1088 (9th Cir.
2021), involved criminal liability under the Clean Water Act.
One section of that Act imposes criminal liability for
“knowingly” violating a second section, which prohibits the
“discharge of any pollutant” without a permit. See id. at 1093.
A third section defines “discharge of pollutants” as adding any
“pollutant” to “navigable waters” from any “point source.” See
id. Three other subsections of that section separately define
each of those three terms. See id. at 1093–94. Faced with these
terms strung together “like Russian nesting dolls,” id. at 1093,
the Ninth Circuit held that the criminal provision requires
knowledge of all “substantive elements” set forth in the
definition and sub-definitions—thus excluding only a purely

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“jurisdictional element” that the polluted water must also be
“waters of the United States.” See id. at 1095–97.
b
These textual and grammatical principles are dispositive
here. As noted above, the governing statute punishes anyone
who “knowingly enters or remains in any restricted building or
grounds.” 18 U.S.C. § 1752(a)(1). The introductory adverb
knowingly applies not only to the two verbs but also to the
phrase that immediately follows—“any restricted building or
grounds,” which functions either as the direct object of “enters”
or as part of a prepositional phrase modifying “remains.” In
other words, a defendant must know not only that he is entering
somewhere off-limits; he must know that he is entering a
“restricted building or grounds” as statutorily defined. See,
e.g., McFadden, 576 U.S. at 188–89; Flores-Figueroa, 556
U.S. at 650. And that requires both knowing that the relevant
area is “posted, cordoned off, or otherwise restricted,” 18
U.S.C. § 1752(c)(1), and, for January 6 Capitol trespassers,
also knowing that the Vice President was or would be
“temporarily visiting” at the time of the trespass, id.
§ 1752(c)(1)(B).
My colleagues try to split the difference. They agree the
defendant must know that the relevant area satisfies the first
part of the statutory definition—i.e., that the area was “posted,
cordoned off, or otherwise restricted” at the time of the
trespass. Ante at 4. But there is no textual or contextual basis
for projecting the knowledge requirement only halfway
through the definition. As shown above, it is routine to project
an introductory adverb like knowingly past the following verbs
and direct object to prepositional phrases that limit one or the
other. Faced with a request to do otherwise, the Court in
Flores-Figueroa asked rhetorically: “But how are we to square

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this reading with the statute’s language?” 556 U.S. at 651–52.
Likewise, it is common to project knowingly from operative
text into statutory definitions, as happened in Rehaif,
McFadden, and Lucero.
My colleagues object that a mens rea need not travel
through a “long statutory phrase,” especially one “set forth in
independent clauses separated by interruptive punctuation.”
Ante at 21–22 (citing X-Citement Video, 513 U.S. at 68).
Perhaps not, but section 1752 presents none of those features.
All agree that knowingly must extend beyond the operative
verbs (“enters or remains”) to the immediately following
qualifier (“restricted building or grounds”), which is a defined
term. And all agree that knowingly must then extend a short
distance from the prohibition in section 1752(a)(1) to at least
the first half of the definition in section 1752(c)(1)—a leap
much smaller than the one recognized in McFadden, from a
prohibition in section 841 of Title 21 to a definition in section
802. See 576 U.S. at 192. And once extended into section
1752(c), why would knowingly stop halfway through the
definition, immediately after the phrase “any posted, cordoned
off, or otherwise restricted area—”? That phrase neither stands
on its own nor adds much to the prohibition on entering or
remaining in “any restricted building or grounds.” Moreover,
the second half of the definition, which elaborates on where
individuals must not trespass, does not feature independent
clauses. Just the opposite: The three descriptions all begin
with the preposition “of” and would be sentence fragments if
severed from the first half of the definition. Finally, the em-
dash separating the two elements of the definition does not
serve as interruptive punctuation. In the abstract, an em-dash
might mark an interruption, a connection, or simply a stylistic
choice to replace a comma or a colon. See B. Garner, Garner’s
Modern English Usage 899–900 (5th ed. 2022); Mitchell v.
Chapman, 343 F.3d 811, 830 (6th Cir. 2003) (em-dash

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“introduces related provisions”). Here, inserted after a largely
redundant noun phrase and before several limiting
prepositional phrases, the em-dash clearly serves to connect.
Moreover, the ensuing prepositional phrases impose
significant limits. So, excluding them from the knowledge
requirement substantially broadens the underlying prohibition.
For example, it ensnares a hotel guest who walks past an “area
closed for private event” sign in search of an open bar if,
unbeknownst to the thirsty interloper, the First Lady is
expected to attend. See 18 U.S.C. § 3056(a) (Secret Service
protectees). Likewise, it ensnares an individual who stepped
over temporary plastic fencing just outside the Capitol grounds
on January 5, 2021, to save a few steps on a walk home from
work, even if he was unaware of the impending arrival of the
Vice President. And if that person did so while lawfully
carrying a firearm, he would face imprisonment of up to ten
years. See id. § 1752(b)(1)(A). Such improbable breadth
suggests that something has gone awry. See, e.g., Fischer v.
United States, 144 S. Ct. 2176, 2189 (2024); Bond v. United
States, 572 U.S. 844, 860 (2014).
My colleagues further object with a reductio ad absurdum.
If section 1752(a)(1) incorporates any element of the defined
term “restricted building or grounds,” then why not incorporate
every element “all the way down” the entire “definitional line”?
Ante at 24. After all, the definition of “restricted building or
grounds” contains three alternative elements after its internal
em-dash. See 18 U.S.C. § 1752(c)(1). The alternative at issue
here contains the term “other person protected by the Secret
Service,” which is separately defined. Id. § 1752(c)(1)(B),
(c)(2). And the separate definition incorporates yet another
statute listing eligible protectees. See id. § 1752(c)(2) (citing
18 U.S.C. § 3056(a)). Plucking out elements from this
“matryoshka doll of nested statutory references,” ante at 23,

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one might ask questions such as: For areas meeting the
definition of “restricted building or grounds” based on an
“event designated as a special event of national significance,”
id. § 1752(c)(1)(C), must the defendant know about the
designation? Because the defined term “other person protected
by the Secret Service” excludes certain individuals who have
declined such protection, id. § 1752(c)(2), must the defendant
know that the individual has not declined the protection? And
for individuals whose protection depends on obscure details
such as the age of children of a former President, see id.
§ 3056(a)(4), must the defendant know those details?
In my view, the reductio is unpersuasive. Of course, the
extension of an introductory mens rea requirement is a question
of degree. Adverbs do not necessarily modify everything that
follows. So when knowingly “introduces a long statutory
phrase,” questions “may reasonably arise about how far into
the statute the modifier extends.” Rehaif, 588 U.S. at 230.
Likewise for nested statutory references, reaching the first one
does not necessarily require reaching all of them. But here,
there is nothing extravagant about extending the knowledge
requirement to the simple verb-object phrase that immediately
follows (“enters or remains in any restricted building or
grounds”) and then to the straightforward incorporated
definition (requiring, as relevant here, an area “posted,
cordoned off, or otherwise restricted” in connection with a
current or impending visit by someone “protected by the Secret
Service”). As shown above, the Supreme Court has routinely
done at least that much, and the Ninth Circuit has done more.
Moreover, the reductio highlights elements for which
knowledge may be difficult or impossible to prove—the
existence of a presidential designation not announced in
advance, an individual’s acceptance or declination of
protection, and the age of individuals protected only while they

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are children. For those elements, closer questions might arise.
Perhaps the near-impossibility of proving knowledge of some
element is a contextual clue suggesting that no mens rea
requirement applies to it. See Scalia & Garner, supra, at 307.
But those questions, involving definitional elements not at
issue here, should not obscure what is at issue: knowledge
about restrictions imposed in connection with a current or
impending visit by the Vice President, who may not decline
Secret Service protection and whose status as a protectee is not
contingent on anything. See 18 U.S.C. § 3056(a)(1). The reach
of the knowledge requirement is necessarily a line-drawing
exercise—which my colleagues must recognize in extending
the knowledge requirement from section 1752(a)(1) to the first
half of the statutory definition in section 1752(c). Precisely for
that reason, the reductio falls flat. The only question here is
whether the knowledge requirement comes to a full stop at the
em-dash halfway through the definition. As explained above,
it does not—regardless of how much farther the knowledge
requirement might or might not extend into nested statutory
sections besides section 1752(c)(1)(B).
2
Statutory history reinforces these points. As originally
enacted, section 1752 made it unlawful for any person
“willfully and knowingly to enter or remain in” either of two
areas, one of which was “any posted, cordoned off, or
otherwise restricted area of a building or grounds where the
President is or will be temporarily visiting.” Omnibus Crime
Control Act of 1970, Pub. L. No. 91-644, § 18, 84 Stat. 1880,
1891–92 (1971). Under the grammatical principles and
caselaw discussed above, the introductory mens rea
requirements (“willfully and knowingly”) plainly extended to
the relevant verbs (“enter or remain”), object (“area”), and
immediately ensuing qualifier (“where the President is or will

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be temporarily visiting”). And the argument for that extension
would have avoided all of the textual complications invoked
here by my colleagues: The relevant text was strung together
without interruption, so there was no question about extending
an introductory mens rea requirement from a substantive
prohibition to an incorporated definition, compare ante at 23–
24, with Lucero, 989 F.3d at 1095–97, or, within that definition,
about extending the mens rea to text after an intervening em-
dash, compare United States v. Palomares, 52 F.4th 640, 643
(5th Cir. 2022) (opinion of Jolly, J.), with id. at 653–54
(Willett, J., dissenting) and Pulsifer v. United States, 601 U.S.
124, 171 n.4 (2024) (Gorsuch, J., dissenting).
Section 1752 has become broader and more complex over
time, but none of the changes helps the government. Congress
has extended the statute to Secret Service protectees other than
the President, see Pub. L. No. 97-308, 96 Stat 1451, 1451
(1982), and to events designated as nationally significant, see
Pub. L. No. 109-177, § 602, 120 Stat. 192, 252 (2006). But as
explained above, those amendments (other than the extension
of section 1752 to the Vice President) are neither directly at
issue here nor helpful in understanding the provisions that are.
Moreover, Congress did not move the key requirement at
issue—that a Secret Service protectee “is or will be temporarily
visiting” the restricted area—from operative text into a separate
definition until 2012, when the statute assumed roughly its
current form. See Pub. L. No. 112-98, § 2, 126 Stat. 263, 263–
64. In the 2012 amendments, use of a separate definition
avoided the need to repeat the operative text in each of four
separate paragraphs setting forth four separate offenses. See
id. And use of an em-dash in the definition avoided the need
to repeat the phrase “any posted, cordoned off, or otherwise
restricted area” to describe each of the three categories of
protected areas. See id. As my colleagues explain, these
changes served merely to “streamline” a statute that had

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become “increasingly cumbersome” as its coverage expanded.
Ante at 41. Such “legislative housekeeping,” id., did not work
a sea change by severing the mens rea from offense elements
to which it had previously applied.
Two other changes warrant a brief mention. In 2006,
Congress increased the maximum authorized penalty for
violations of section 1752 from six months of imprisonment to
one year, and it authorized ten years of imprisonment for
violations while the defendant is carrying a “deadly or
dangerous weapon or firearm.” Pub. L. No. 109-177, § 602,
120 Stat. at 252; see 18 U.S.C. § 1752(b). This change
underscored the substantive difference between section
1752(a)(1) and simple trespass, thus weakening the
government’s position even more. See United States v.
Groseclose, 710 F. Supp. 3d 1, 9 (D.D.C. 2024). Finally, in
2012, Congress eliminated the separate mens rea requirement
of acting willfully. See Pub. L. No. 112-98, § 2, 126 Stat. at
263. But that says nothing about the scope of the knowledge
requirement, which has remained unchanged since 1971.
In sum, the knowledge requirement in the original version
of section 1752 applied to the requirement of a current or
impending visit by a protected individual, and none of the later
amendments undercuts that conclusion.
3
If any doubt on this point remained, two interpretive
principles would resolve it against the government—the
presumption of mens rea and the rule of lenity.
The Supreme Court has long recognized a presumption
that criminal statutes “include broadly applicable scienter
requirements.” X-Citement Video, 513 U.S. at 70; see, e.g.,
Ruan v. United States, 597 U.S. 450, 457–59 (2022); Staples v.

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United States, 511 U.S. 600, 605–06 (1994); United States v.
U.S. Gypsum Co., 438 U.S. 422, 436 (1978). The presumption
reflects a view that crime usually requires the “concurrence of
an evil-meaning mind with an evil-doing hand,” which
originated in English common law and “took deep and early
root in American soil.” Morissette v. United States, 342 U.S.
246, 251–52 (1952). The presumption “is no provincial or
transient notion”; rather, it “is as universal and persistent in
mature systems of law as belief in freedom of the human will
and a consequent ability and duty of the normal individual to
choose between good and evil.” Id. at 250.
The presumption applies in two distinct contexts. First,
courts will read mens rea requirements into criminal statutes
that “are silent on the required mental state.” Elonis v. United
States, 575 U.S. 723, 736 (2015); see, e.g., Staples, 511 U.S. at
605. In doing so, “we read into the statute only that mens rea
which is necessary to separate wrongful conduct from
otherwise innocent conduct.” Elonis, 575 U.S. at 736 (cleaned
up); see United States v. Burwell, 690 F.3d 500, 505 (D.C. Cir.
2012) (en banc). Second, if text and grammar are not
dispositive, courts will construe express mens rea requirements
broadly as opposed to narrowly. When a statute is not silent as
to the mens rea but instead includes a general scienter
provision, “‘the presumption applies with equal or greater
force’ to the scope of that provision.” Ruan, 597 U.S. at 458
(quoting Rehaif, 588 U.S. at 229). Moreover, the Supreme
Court has “rejected the government’s argument that the
absence of innocence should circumscribe the reach of an
explicit mens rea requirement.” Burwell, 690 F.3d at 516
(citing Flores-Figueroa, 556 U.S. at 650–52). So while
express mens rea terms “often” separate wrongful and innocent

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conduct, Ruan, 597 U.S. at 458, they can also separate greater
and lesser evils.
Needless to say, a trespass that threatens the life or safety
of the President or the Vice President is substantially more
culpable than a simple trespass consisting of nothing more than
knowingly entering an area “posted, cordoned off, or otherwise
restricted,” 18 U.S.C. § 1752(c)(1). The latter is a local
misdemeanor offense, D.C. Code § 22-3302, which, if it were
to occur in the states, Congress would not and could not
regulate at all, see, e.g., United States v. Morrison, 529 U.S.
598 (2000); United States v. Lopez, 514 U.S. 549 (1995). The
former is an urgent matter, which my colleagues aptly describe
as implicating “the national security of the United States.”
Ante at 26. And so too are trespasses that threaten the lives of
other Secret Service protectees, who are leading national
officials, their immediate families, and their foreign
counterparts. See 18 U.S.C. § 3056(a).
Finally, consider the rule of lenity. In cases addressing the
scope of mens rea requirements in criminal statutes, the
presumption and the rule of lenity work as companion
principles, both supporting narrow constructions over broad
ones. See, e.g., U.S. Gypsum Co., 438 U.S. at 437; Liparota,
471 U.S. at 427–28. On the cutting edge, jurists may disagree
about which doctrine should predominate. Compare Wooden
v. United States, 595 U.S. 360, 378–79 (2022) (Kavanaugh, J.,
concurring) (stressing presumption of mens rea), with id. at
388–92 (Gorsuch, J., concurring in the judgment) (stressing
lenity). But where the defendant’s proposed construction is as

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textually plausible as it is here, one or both doctrines should
remove any lingering doubt.
B
My colleagues reason that the definition of “restricted
building or grounds” is merely jurisdictional and that a broad
reading of section 1752(a) would best advance its underlying
purpose. Neither argument seems to me persuasive.
1
Start with the proper treatment of assertedly jurisdictional
elements of federal criminal statutes.
a
The Supreme Court has distinguished between substantive
and jurisdictional elements. Substantive elements “describe
the evil Congress seeks to prevent.” Torres v. Lynch, 578 U.S.
452, 467 (2016). On the other hand, jurisdictional elements
connect the statute “to one of Congress’s enumerated powers,”
such as its powers to regulate interstate commerce and federal
property. Id. Because jurisdictional elements “have nothing to
do with the wrongfulness of the defendant’s conduct,” they
“are not subject to the presumption in favor of scienter.”
Rehaif, 588 U.S. at 230. To the contrary, “when Congress has
said nothing about the mental state pertaining to a jurisdictional
element, the default rule flips: Courts assume that Congress
wanted such an element to stand outside the otherwise
applicable mens rea requirement.” Torres, 578 U.S. at 468.
Statutory elements sometimes serve both jurisdictional
and substantive ends, for “an element that makes evident
Congress’s regulatory power also might play a role in defining
the behavior Congress thought harmful.” Torres, 578 U.S. at

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470–71. In considering such an element, the right question is
“whether it is jurisdictional only,” not whether it is
jurisdictional in part. United States v. Feola, 420 U.S. 671, 676
n.9 (1975); see also United States v. Evans, 74 F.4th 597, 605–
06 (4th Cir. 2023) (“a jurisdictional element only”). In other
words, so long as a statutory element has something to do “with
the wrongfulness of the defendant’s conduct,” Rehaif, 588 U.S.
at 230, courts should not abandon the presumption of mens rea
let alone impose the opposite presumption. Of course, “tough
questions may lurk on the margins” if it is unclear whether a
jurisdictional element “also” serves substantive ends. Torres,
578 U.S. at 470–71. But this is not such a case.
The statutory definition of “restricted building or grounds”
is not “jurisdictional only.” The first element of the
definition—that the area in question must be “posted, cordoned
off, or otherwise restricted”—is entirely substantive; it defines
the area into which entry is prohibited, and it does not make
evident the constitutional basis for federal legislation. The
second element of the governing definition—that a Secret
Service protectee “is or will be visiting”—serves both
jurisdictional and substantive ends. It is partly jurisdictional,
because Congress could not enact a national prohibition on
simple trespass. And it is partly substantive, because it reflects
an obvious judgment that trespasses endangering the life or
safety of the President, the Vice President, or other Secret
Service protectees are substantially more culpable than is
trespassing simpliciter. Given that obviously substantive
purpose, there is no basis for excepting this provision from the
statutory mens rea requirement.
b
My colleagues rest their contrary conclusion mainly on
Feola, which involved a statute prohibiting assaults on federal

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officers performing official duties. See 420 U.S. at 673. The
Court held that this statute, which includes no express mens rea
element, does not require knowledge of the victim’s status as a
federal officer. In concluding that the identity of the victim
was “jurisdictional only,” id. at 676 n.9, the Court relied
heavily on a letter from the Attorney General to the Chairman
of the Senate Judiciary Committee, id. at 680–84. Based on
that letter, the Court concluded that Congress’s primary
objective was to create a “federal forum” for prosecuting
assaults on federal officers, id. at 682, in order to avoid any risk
that state officials might not prosecute such crimes with
sufficient “urgency,” id. at 684. The Court specifically
concluded that Congress had neither intended to “fill a gap in
existing substantive state law” nor to create a substantive
“federal aggravated assault statute.” Id. at 683. And if
Congress had so intended, the Court strongly suggested, the
statute would presumptively “require[] knowledge of the
victim’s office.” Id. Finally, in extending its holding to
conspiracies predicated on the assault statute, the Court
reiterated its view that the “identity of the proposed victim”
was “no more germane to the nature” of the assault “than the
color of the victim’s hair.” Id. at 692–93.
Feola does not support my colleagues’ position. For one
thing, it involved the question whether to impose a court-made
mens rea requirement, not any question about the scope of a
statutory one. For another, section 1752(c) reflects concerns
that are obviously substantive as well as jurisdictional. As my
colleagues explain, the statute targets only a “small subset of
trespassing offenses that implicate both the personal security of
the most high-profile federal officials and their foreign
counterparts.” Ante at 26. And section 1752 was enacted in
the wake of the assassinations of President John Kennedy in
1963 and presidential candidate Robert Kennedy in 1968.
Although a letter from the Attorney General pushed the Court

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towards concluding that the statute in Feola was “jurisdictional
only,” a Senate Report accompanying section 1752 cuts
strongly in the other direction here. Not surprisingly, it
confirmed the urgent substantive imperative to afford special
protection to one singularly important official: Congress
sought to “protect the physical safety of the President of the
United States and the orderly functioning of his Office,” given
that “[t]wice in th[e] decade, and nine times in our history, the
Office of the President ha[d] been the subject of an
assassination attempt.” S. Rep. No. 91-1252, at 3 (1970); see
also id. at 5 (“[t]he risk of assassination falls most heavily on
the highest office in our land”); id. at 6 (“we must be sure that
the President is fully protected at all times against the isolated
deranged individual”).
My colleagues do not dispute that section 1752(c) serves
substantive as well as jurisdictional ends. Instead, they read a
footnote in Feola as establishing that “dual-role elements”
presumptively lack any mens-rea requirement. Ante at 28–30;
see 420 U.S. at 676 n.9. In all candor, the footnote is hardly a
model of clarity. But its principal thrust is that a jurisdictional
element, “precisely because it implicates factors that are an
appropriate subject for federal concern,” can have substantive
significance as well, see id., in contrast to purely jurisdictional
elements such as a reference to interstate commerce, see
Torres, 578 U.S. at 468; Rehaif, 588 U.S. at 230. And that is
why the relevant question, as articulated in the footnote and
applied in the rest of the opinion, “is not whether the
requirement is jurisdictional” in part, but instead “whether it is
jurisdictional only.” Feola, 420 U.S. at 676 n.9. My
colleagues further reason that Feola must cover partly
substantive elements because assaulting a federal officer “is
generally a more serious crime than assaulting a private
citizen.” Ante at 35. But the Court reasoned that Congress’s
concerns were merely forum-based, see 420 U.S. at 682–84,

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with “the identity” of federal officers as substantively
“irrelevant” as the color of their hair, see id. at 693. Finally,
my colleagues invoke Feola’s statement that dispensing with
the mens rea posed “no risk of unfairness” because assaults are
wrongful regardless. Ante at 32; see 420 U.S. at 685. But as
explained above, the Supreme Court has since rejected the
contention “that the absence of innocence should circumscribe
the reach of an explicit mens rea requirement.” See Burwell,
690 F.3d at 516 (citing Flores-Figueroa, 556 U.S. at 650–52).
My colleagues invoke other precedents besides Feola, but
none helps their case. United States v. Yermian, 468 U.S. 63
(1984), turned on the “clear” textual separation between a
jurisdictional element and a statutory mens rea requirement,
which appeared after and “in a phrase separate from” the
jurisdictional element. See id. at 68–69. United States v.
Morgan, 45 F.4th 192 (D.C. Cir. 2022), turned on a special
presumption against knowledge requirements regarding the
age of victims in “sex crimes involving minors,” which does
not involve jurisdictional elements at all. Id. at 206. Burwell
involved the mens rea requirement for a firearms offense
requiring the weapon at issue to be capable of firing
automatically, 690 F.3d at 502, which was also not a
jurisdictional element. And the out-of-circuit precedents
involved provisions held to be “jurisdictional element[s] only,”
Evans, 74 F.4th at 606—i.e., elements with no substantive
significance for the offense at issue. See id. (arson on federal
lands, assessed relative to background state arson law); United
States v. Hicks, 15 F.4th 814, 817–18 (7th Cir. 2021) (stealing
federal property, assessed relative to background state theft
statutes); United States v. Escalera, 957 F.3d 122, 132–33 (2d
Cir. 2020) (witness-protection statute for federal proceedings,
assessed relative to background state witness-protection
statutes). These decisions do not control a statute that, as

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enacted, afforded singular and special protection to the
President.
One final point. Long after Feola, the Supreme Court
flagged that jurisdictional elements which “also” serve
substantive ends may pose “tough questions.” Torres, 578 U.S.
at 470–71. If that is a fair characterization of the interpretive
issues surrounding dual-purpose elements, then the rule of
lenity would resolve this case in Griffin’s favor.
2
Finally, my colleagues seek to avoid any interpretation of
section 1752 that would “pointlessly hinder the Secret
Service’s ability to defend national leaders.” Ante at 41.
Repeatedly, they stress the utmost seriousness of protecting the
President and other high officials from would-be trespassers.
Id. at 39–44. This line of argument underscores the substantive
nature of the requirement that the defendant trespass in an area
where a Secret Service protectee is or will be present.
The argument also falters on its own terms. Trespassers
unaware that someone like the President or Vice President is
present are much less likely to pose a threat to those officials
than are individuals who knowingly trespass into an area
restricted to protect them. My colleagues suggest that the
January 6 riot reveals a significant practical problem with
Griffin’s position, given the difficulty of proving that any
particular trespasser knows a protectee is present. Ante at 43–
44. That concern strikes me as overstated, particularly given
the number of Capitol trespassers boasting about their desire
to influence (whether peacefully or otherwise) the Vice
President’s performance of his official duties. Moreover, the
seriousness of an offense is reason to insist on, not depart from,
a mens rea requirement. See, e.g., Staples, 511 U.S. at 616–19.
And “concerns about practical enforceability are insufficient to

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outweigh the clarity of the text.” Flores-Figueroa, 556 U.S. at
656. We should not jettison these principles here.
III
Given its erroneous legal ruling, the district court did not
make a finding whether Griffin knew that the Vice President
was still present at the Capitol when Griffin trespassed. 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. 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.
IV
On the question of mens rea, section 1752 required the
government to prove more than just Griffin’s knowledge that
the Capitol grounds were posted, cordoned off, or otherwise
restricted. The government also had to prove that Griffin knew,
when he entered or remained in those restricted grounds, that
the Vice President was still present. Because my colleagues
conclude otherwise, I respectfully dissent.3
3 I agree with my colleagues that the Capitol grounds remained
“posted, cordoned off, or otherwise restricted” even after rioters tore
down barriers and that there was sufficient evidence supporting the
district court’s finding that Griffin knew the grounds satisfied this
element of the definition when he trespassed.

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