USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 1 of 27
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`IN THE
`UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Case No. 23-3143
`
`
`UNITED STATES OF AMERICA,
` Appellee,
`v.
`LAUREN HANDY,
` Appellant.
`
`
`DEFENDANT-APPELLANT LAUREN HANDY’S MOTION
`FOR RELEASE PENDING SENTENCING
`Pursuant to Fed. R. App. P. 9(a)(3) (providing that “[t]he court of
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`appeals or one of its judges may order the defendant’s release pending
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`the disposition of the appeal”), Defendant-Appellant Lauren Handy
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`hereby moves for release pending her appeal from the District Court’s
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`order detaining her before sentencing.
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`INTRODUCTION
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`On August 29, 2023, Defendant Lauren Handy was convicted of a
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`misdemeanor violation of the Freedom of Access to Clinic Entrances
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`(FACE) Act, as well as a felony violation of 18 U.S.C. § 241, conspiracy
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`against rights, predicated solely on the misdemeanor FACE violation.
`
`
`
`IN THE
`UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Case No. 23-3143
`
`
`UNITED STATES OF AMERICA,
` Appellee,
`v.
`LAUREN HANDY,
` Appellant.
`
`
`DEFENDANT-APPELLANT LAUREN HANDY’S MOTION
`FOR RELEASE PENDING SENTENCING
`Pursuant to Fed. R. App. P. 9(a)(3) (providing that “[t]he court of
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`appeals or one of its judges may order the defendant’s release pending
`
`the disposition of the appeal”), Defendant-Appellant Lauren Handy
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`hereby moves for release pending her appeal from the District Court’s
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`order detaining her before sentencing.
`
`INTRODUCTION
`
`On August 29, 2023, Defendant Lauren Handy was convicted of a
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`misdemeanor violation of the Freedom of Access to Clinic Entrances
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`(FACE) Act, as well as a felony violation of 18 U.S.C. § 241, conspiracy
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`against rights, predicated solely on the misdemeanor FACE violation.
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`
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`The District Court (erroneously) held that such a violation is a “crime of
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`violence” under 18 USC § 3156(a)(4) and ordered Defendant immediately
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`detained, with sentencing not yet scheduled but expected to be at least
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`several months away.
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`The Supreme Court has recently taught that, for a violation to be a
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`“crime of violence,” it must categorically and always require the Govern-
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`ment to prove that a defendant used or threatened violent physical force
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`against another’s person or property. While a misdemeanor FACE Act
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`violation on the basis of force may require a significant application of
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`force—sufficient to injure—the Act does not require that one’s “force” be
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`directed or targeted at another, nor that it be exercised with intent to
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`harm another.
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`FACE thus allows a misdemeanor conviction based on the use of
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`significant force (or threat of force) (1) recklessly or (2) against one’s own
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`person or property. Moreover, the FACE Act’s separate prohibition on
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`“physical obstruction” also does not always require that a jury find it in-
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`volved violent force. For these reasons, a misdemeanor FACE Act convic-
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`tion is not a “crime of violence”, and Defendant should be freed pending
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`sentencing.
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`2
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`STATEMENT OF JURISDICTION
`Proceedings in the court below were initiated by the filing of an in-
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`dictment on March 24, 2022. (D.D.C. Dkt. No. 1). A Superseding Indict-
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`ment was filed October 14, 2022. (D.D.C. Dkt. No. 113).
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`A jury returned a verdict finding Ms. Handy guilty of the offenses
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`charged in the Superseding Indictment on August 29, 2023. The District
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`Court ordered Ms. Handy and the four co-defendants with whom she was
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`tried to be taken into custody immediately. On August 31, 2023, the Dis-
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`trict Court denied Handy’s motion for reconsideration of its decision or-
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`dering immediate detention. Handy timely filed her notice of appeal to
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`this Court that same day, August 31, 2023. Dist. Ct. Dkt. 398.
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`This Court possesses subject-matter jurisdiction under 18 U.S.C. §
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`3145(c) and 28 U.S.C. § 1291. Appellant timely filed a notice of appeal on
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`August 31, 2023. Therefore, this Court has jurisdiction over this appeal
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`from the District Court’s Order pursuant to 18 U.S.C. § 3145(c) and 28
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`U.S.C. § 1291 and Rules 4(b)(1)(A) and 9(a) of the Federal Rules of Ap-
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`pellate Procedure.
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`3
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`STATEMENT OF THE CASE
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`This case arises from federal criminal charges filed against Ms.
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`Handy and nine co-defendants after they engaged in a protest at and in-
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`side a Washington, D.C., abortion clinic on October 22, 2020. The Gov-
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`ernment indicted the Defendants on March 24, 2022, and then filed a
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`Superseding Indictment on October 14, 2022. (D.D.C. Dkt. No. 113). The
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`Superseding Indictment charged each defendant with (1) conspiracy
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`against rights in violation 18 U.S.C. § 241, a felony; and (2) a misde-
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`meanor violation of the Freedom of Access to Clinic Entrances (“FACE”)
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`Act, 18 U.S.C. § 248. Id.
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`The Superseding Indictment alleged that the purpose of Defend-
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`ants’ purported conspiracy was “to create a blockade to stop the Clinic
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`from providing, and patients from obtaining, reproductive health ser-
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`vices.” (Id. at ¶9). Largely tracking the FACE Act’s statutory language,
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`it further alleged the Defendants, “aiding and abetting one another, did
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`by force and physical obstruction, intentionally injure, intimidate, and
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`interfere with, and attempt to injure, intimidate, and interfere with, Pa-
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`tient A and the employees of the Clinic, because Patient A was obtaining,
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`and the Clinic was providing, reproductive health services.” (Id. ¶38).
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`4
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`The Superseding Indictment does not allege that any of the Defend-
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`ants, let alone Ms. Handy, intentionally inflicted physical harm or injury
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`on any person. To the contrary, the most that could be marshalled by the
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`Government in terms of physical injury was the allegation that Defend-
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`ant Jay Smith (not Ms. Handy) “forcefully backed into the clinic” and in
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`the process caused a nurse “to stumble and sprain her ankle.” (Id. ¶23).
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`No Defendant is alleged to have carried or used any kind of weapon (e.g.,
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`firearm, knife, club, brick) during this protest, and the proof at trial like-
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`wise showed the absence of any weapon being used.1
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`Trial of Ms. Handy and four co-defendants began August 15, 2023.
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`On August 29, 2023, a jury found all Defendants guilty on both counts
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`charged in the Superseding Indictment. At the Government’s request, the
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`verdict form also contained special interrogatories asking the jurors to
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`determine whether the FACE violation, if found, was committed by
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`“force” or “physical obstruction.” The jury returned a finding of both
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`“force” and “physical obstruction” as to Ms. Handy and each of the four
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`1 The Government also did not charge that “bodily injury” or “death” “re-
`sult[ed]” from Defendants’ actions, and thus tacitly conceded that they
`committed only non-bodily injury violations (i.e., misdemeanors) under
`the FACE Act. See 18 U.S.C. § 248(b)(2).
`
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`5
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`co-defendants tried. See Minute Entries on D.D.C. Dkt for August 29,
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`2023.
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`Upon the verdict being returned and announced, the District Court
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`directed that each of the Defendants, none of whom had been detained in
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`custody prior to trial, be taken into custody because they had been con-
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`victed of a “crime of violence.” The next day, August 30, 2023, Appellant
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`Handy filed an emergency motion for reconsideration of the order of de-
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`tention pending sentencing (Dkt. No. 387). The Government filed a re-
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`sponse in opposition. (Dkt. No. 395). Appellant Handy also filed a reply.
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`(Dkt. No. 396).
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`By order entered August 31, 2023, the District Court denied the
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`motion for reconsideration of detention and in so doing reaffirmed its
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`finding that Defendants had been convicted of a “crime of violence.” (Dkt.
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`No. 397). Appellant Handy filed a notice of appeal to this Court from that
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`order the same day. (Dkt. No. 398).
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`Ms. Handy continues to be held in custody pending sentencing; no
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`date has been set for sentencing.
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`6
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 7 of 27
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`ARGUMENT
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`
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`Defendant Handy is entitled to emergency relief from the District
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`Court’s order detaining her in federal custody prior to sentencing for her
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`misdemeanor conviction under the Freedom of Access to Clinic Entrances
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`(“FACE”) Act, 18 U.S.C. § 248, and her felony conviction for conspiracy
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`under 18 U.S.C. § 241 (which is predicated entirely on an alleged conspir-
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`acy to commit a misdemeanor under FACE). Under federal statute and
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`binding precedents from this Court and the Supreme Court, a misde-
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`meanor FACE conviction is not categorically a crime of violence that trig-
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`gers such a pre-sentence detention. The District Court’s order concluding
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`otherwise was erroneous and should be reversed.
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`Under 18 U.S.C. § 3143(a)(2), pre-sentence detention is required
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`when, inter alia, the defendant has been convicted of a “crime of violence”
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`as a categorical matter. But a FACE Act conviction for use of “force” and
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`“physical obstruction” is not categorically a crime of violence.2 Thus Ms.
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`Handy should be immediately released from custody under the more
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`2 The same is true of Ms. Handy’s conspiracy conviction, which, as noted,
`is predicated on a conspiracy to violate the FACE Act.
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`7
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`lenient terms of 18 U.S.C. § 3143(a)(1), as discussed below, prior to her
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`sentencing.
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`I.
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`A “crime of violence” is one that always requires a finding
`of actual, threatened, or attempted force.
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`“Crime of violence” here means “(A) an offense that has as an ele-
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`ment . . . the use, attempted use, or threatened use of physical force
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`against the person or property of another; [or] (B) any other offense that
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`is a felony and that, by its nature, involves a substantial risk that physi-
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`cal force against the person or property of another may be used in the
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`course of committing the offense.”3 18 U.S.C. § 3156(a)(4).
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`Precedent teaches that courts must apply the “categorical rule” in
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`interpreting “crime of violence” for purposes of pre-trial detention under
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`18 U.S.C. § 3143(a)(2) (referencing 18 U.S.C. § 3142(f)(1)(A) (“crime of
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`violence”)). See United States v. Singleton, 182 F.3d 7, 11 (D.C. Cir. 1999)
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`(“Each … prong[] of the statutory definition [of ‘crime of violence’ in §
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`3156(a)(4)] identif[ies] a fixed category of offenses that does not expand
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`or contract based on the factual peculiarities of a particular case.”).
`
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`3 Section 3156(a)(4)(C), alternatively defining “crime of violence” to in-
`clude “any felony under chapter 77, 109A, 110, or 117,” is not at issue
`here, as the FACE Act and 18 U.S.C. § 241 are located in chapter 13.
`8
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`Under that approach, “the underlying facts of a particular case are irrel-
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`evant.” Id. at 12.
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`Last year, the Supreme Court instructed how to apply the categor-
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`ical rule when interpreting a materially identical definition of “crime of
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`violence” in 18 U.S.C. § 924(c)(3), which provides for increased punish-
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`ment when the defendant uses a firearm in connection with a “crime of
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`violence.” See United States v. Taylor, 142 S. Ct. 2015, 2019 (2022). The
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`Court confirmed that the “elements clause”—i.e., an offense that “has as
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`an element the use, attempted use, or threatened use of physical force
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`against the person or property of another” (see § 924(c)(3)(A); §
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`3156(a)(4)(A))—by its very terms “demand[s]” a “categorical inquir[y].”
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`Id. at 2020. And it clarified that inquiry: “[t]he only relevant question is
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`whether the federal felony at issue always requires the government to
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`prove—beyond a reasonable doubt, as an element of its case, the use, at-
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`tempted use, or threatened use of force.” Id. (emphasis added).4
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`44 Taylor also confirmed that the “residual clauses”—§§ 3156(a)(4)(B) &
`924(c)(3)(B) (i.e., a felony that “by its nature involves a substantial risk
`that physical force against the person or property of another may be used
`in the course of committing the offense”)—are unconstitutionally vague
`under controlling Supreme Court precedent. 142 S. Ct. at 2023 (citing
`United States v. Davis, 139 S. Ct. 2319, 2336)).
`9
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`Accordingly, a FACE violation can be a “crime of violence” only if it
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`satisfies the “elements clause” as a categorical matter—that is, if the gov-
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`ernment must always show an actual, attempted, or threatened use of
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`physical force against another to prove a violation of FACE. It does not.
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`Further, the Supreme Court has generally applied a “modified cat-
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`egorical rule” when a crime may be committed by alternative elements.
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`Mathis v. United States, 579 U.S. 500, 515 (2016). “Under that approach,
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`a sentencing court looks to a limited class of documents (for example, the
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`indictment, jury instructions, or plea agreement and colloquy) to deter-
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`mine what crime, with what elements, a defendant was convicted of.” Id.
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`at 505-06. However, the Supreme Court “distinguish[es] between stat-
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`utes listing alternative elements and those setting out merely alternative
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`means of commission.” Id. at 514 (cleaned up). “[A] means . . . is by defi-
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`nition not necessary to support a conviction,” and “a court may not look
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`behind the elements of a generally drafted statute to identify the means
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`by which a defendant committed a crime.” Id. at 515-16 (cleaned up). The
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`Supreme Court provides some guidance in distinguishing elements and
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`means. For example, “[i]f statutory alternatives carry different punish-
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`ments, then under Apprendi they must be elements.” Id. at 518. But if a
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`10
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`statute identifies “things . . . which need not be” charged, those are
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`means. Id.
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`However, courts may look to “extra-statutory documents” only
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`when “one statutory phrase correspond[s] to the generic crime and an-
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`other [does] not.” Descamps v. United States, 570 U.S. 254, 265 (2013).
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`“When a statute defines” all of the elements at issue “overbroadly,” i.e.,
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`in a manner that “does not correspond to the relevant generic offense . . .
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`the inquiry is over.” Id.; accord Mathis, 579 U.S. at 504, 505 (categorical
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`approach “focus[es] solely on whether the elements of the crime of convic-
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`tion sufficiently match the elements of” the generic offense, and modified
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`approach applies only where a statutory alternative “would match” the
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`generic crime-of-violence offense) (emphasis added). In short, “[s]entenc-
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`ing courts may look only to the statutory definitions—i.e., the elements—
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`of a defendant’s [] offenses,” and “if the statute sweeps more broadly than
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`the generic crime, a conviction under that law” is not a crime of violence.
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`Descamps, 570 U.S. at 261 (first emphasis added, internal quotes omit-
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`ted).
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`As noted, the District Court found that Ms. Handy’s misdemeanor
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`FACE conviction was a “crime of violence” under the modified categorical
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`11
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 12 of 27
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`rule, but this was wrong in at least two respects: (1) it ignored that “force”
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`under FACE does not require the use of “physical force against the person
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`or property of another” necessary to constitute a crime of violence, and
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`(2) “force” and “nonviolent physical obstruction” are separate means of
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`committing a single offense. In either case, FACE sweeps more broadly
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`than crime-of-violence “force” and, accordingly, is not a crime of violence
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`for purposes of pre-sentencing detention.
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`II. The FACE Act does not require physical force against
`another to convict.
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`
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`Under controlling Supreme Court precedents, FACE’s “force”
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`clause, which authorizes misdemeanor convictions for reckless force (i.e.,
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`force that is not aimed at or intended to harm another), does not consti-
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`tute a “crime of violence.”
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`In Johnson v. United States, the Supreme Court clarified that
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`“physical force” for purposes of the elements clause in the Armed Career
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`Criminal Act (“ACCA”) means “violent force—that is, force capable of
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`causing physical pain or injury to another person.” 559 U.S. 133, 140
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`(2010) (emphasis in original). As applied to a materially identical defini-
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`tion of “crime of violence” at issue in Taylor, the Court held that an at-
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`tempted Hobbs Act robbery is not a “crime of violence” (which prohibits
`12
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`even attempted use of force) because “there will be cases appropriately
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`reached by a charge of attempted robbery, where the actor does not actu-
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`ally harm anyone or threaten harm.” Taylor, 142 S. Ct. at 2020 (internal
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`quotes omitted).
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`Critically, the Supreme Court also recently clarified that this type
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`of “violent force” does not include reckless use of force. Borden v. United
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`States, 141 S. Ct. 1817, 1825 (2021). “The phrase ‘against another,’ when
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`modifying the ‘use of force,’ demands that the perpetrator direct his ac-
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`tion at, or target, another individual”; “[r]eckless conduct is not aimed in
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`that prescribed manner.” Id. (plurality) (emphasis added) (holding that
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`conviction for reckless aggravated assault is not a crime of violence). Jus-
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`tice Thomas’s deciding concurrence (against a four-vote dissent) agreed
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`that a “crime of violence” excludes reckless force, but for the separate
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`reason that, in his opinion, the phrase “use of physical force” by itself “has
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`a well-understood meaning applying only to intentional acts designed to
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`cause harm.” Id. at 1835 (Thomas, J., concurring) (emphasis added). Both
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`the plurality and Justice Thomas agreed that the phrase “‘use of force’
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`denotes volitional conduct,” but that violent force excludes volitional force
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`13
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`that is not designed to (or will not knowingly) harm another. Id. at 1826;
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`id. at 1835 (Thomas, J., concurring).
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`The Supreme Court in Borden also recognized that it has already
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`held that the phrase “use of force” by itself—in a statute defining “misde-
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`meanor crime of domestic violence” as “use of physical force,” without re-
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`quiring that it be “against another”—includes reckless force. See id. at
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`1825. (citing Voisine v. United States, 579 U.S. 686 (2016)). In Voisine the
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`Court held that while “use of physical force” requires “active employment
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`of force,” “the word ‘use’ does not demand that the person applying force
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`have the purpose or practical certainty that it will cause harm.” 579 U.S.
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`at 693. Thus, defining “misdemeanor domestic crime of violence” to in-
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`clude mere use of “physical force” includes conduct where “the actor has
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`the mental state of intention, knowledge, or recklessness with respect to
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`the harmful consequences of his volitional conduct.” Id. (emphasis
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`added).
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`These cases mean that a FACE “force” conviction is not a crime of
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`violence. Like the definition of “force” at issue in Voisine, the FACE Act
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`prohibits even the reckless use of force. Specifically, it forbids the use of
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`“force” without requiring that it be directed “against another.” 18 U.S.C.
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`14
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`§ 248(a)(1). Furthermore, it forbids the use of “force” with the intent to
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`“injure[], intimidate[], or interfere[] with” another—i.e., it need not be de-
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`signed to harm another, or actively employed knowing it will harm (or
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`even contact) another. Id. (emphasis added). That means a FACE “force”
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`conviction is not a “crime of violence” under either (or both) Borden’s plu-
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`rality opinion or Justice Thomas’s concurrence. See Borden, 141 S. Ct. at
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`1827 (“making [forceful] contact with another person” by “consciously dis-
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`regard[ing] a real risk, thus endangering others” is mere reckless use of
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`force); id. at 1835 (Thomas, J., concurring) (violent crime requires intent
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`to harm).5
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` Notably, Borden and Voisine held that “volitional” force is not
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`enough—it must be directed at another, id. at 1827, or “designed to cause
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`harm,” id. at 1835 (Thomas, J., concurring). In other words, the willful
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`5 The four-vote Borden dissent would have held that reckless force is a
`crime of violence, but it did not dispute—and indeed relied on—the fact
`Voisine (from which Justice Thomas dissented) remains good law. Bor-
`den, 141 S. Ct. at 1838 (Kavanaugh, J., dissenting). Voisine held (despite
`Thomas’s dissent) that “use of physical force” includes reckless force, and
`Borden held that reckless force is not a crime of violence. Thus, FACE’s
`prohibition on untargeted “force” is not a crime of violence under these
`holdings, because untargeted force is merely reckless.
`15
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`use of force in reckless disregard for others’ safety is a real “use of physi-
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`cal force,” but it is not a crime of violence.
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`The FACE Act applies to just such conduct. For example, FACE
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`would prohibit willfully running at full speed into an open clinic doorway
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`in reckless disregard for others’ safety, including someone who suddenly
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`appears in the doorway, if the runner intended merely to intimidate
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`someone seeking an abortion. That would be a willful use of “force”—i.e.,
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`capable of causing injury or pain in another—but not directed at or in-
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`tended to harm another. That is the sort of reckless force Borden held is
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`not a crime of violence.
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`FACE’s plain text would also prohibit use of physical force against
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`one’s own person or property with intent to interfere with abortion access.
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`For example, if one violently disabled one’s own vehicle (say, by destroy-
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`ing its tires and wheels with a sledgehammer) at the end of an abortion
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`clinic’s driveway in order to prevent staff and patients from entering, one
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`would be using “force” capable of injuring another with the goal of stop-
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`ping abortion, but in a manner not directed at or intended to harm an-
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`other.
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`16
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` Indeed, if reckless aggravated assault is not a crime of violence un-
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`der Borden, a fortiori a misdemeanor FACE “force” conviction cannot be,
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`either. Therefore, a FACE “force” conviction sweeps more broadly than
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`the crime-of-violence meaning of “force.”
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`III. A misdemeanor FACE “physical obstruction” conviction
`also sweeps more broadly than crime-of-violence “force.”
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`Furthermore, misdemeanor “physical obstruction” is not a “crime of vio-
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`lence” because it can necessarily include even “nonviolent physical ob-
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`struction.” 18 U.S.C. § 248(b)(2). Critically, even non-“exclusively
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`nonviolent physical obstruction” is not categorically a crime of violence.
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`As with the “force” clause analysis, application of a general categorical
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`approach is proper here because even non-“exclusively nonviolent physi-
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`cal obstruction” need not include violent physical obstruction. It’s true
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`that FACE subjects “exclusively nonviolent physical force” to a lesser
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`punishment under 18 U.S.C. § 248(b)(2) (maximum six months imprison-
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`ment), rendering it a separate element of violating FACE. See Mathis,
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`579 U.S. at 518. But as noted, the modified categorical approach applies
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`only if a statutory alternative matches with the definition of crime of vi-
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`olence. And here the alternative form of physical obstruction need not be
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`violent.
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`17
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 18 of 27
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`A misdemeanor conviction for “physical obstruction” under subsec-
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`tion (b)(1) is broad enough to include an offense committed by both “force”
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`(which sweeps too broadly for the reasons discussed above) and non-vio-
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`lent physical obstruction (which by its own terms sweeps too broadly). In
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`short, the prohibited interference with abortion access can be committed
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`“by” means of both force and nonviolent physical obstruction that is not
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`“exclusively nonviolent physical obstruction.” Id. § 248(b)(1), (b)(2) (em-
`
`phasis added). Thus a misdemeanor FACE “physical obstruction” convic-
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`tion does not “always require,” Taylor, 142 S. Ct. at 2020, the jury to find
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`“violent” physical obstruction—either because it is “exclusively nonvio-
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`lent physical obstruction” under subsection (b)(2), or because even non-
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`“exclusively nonviolent physical obstruction” can include nonviolent
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`physical obstruction committed along with “force” (or threat of force) and
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`punished co-equally under (b)(1).
`
`For example, a defendant could be prosecuted under FACE for us-
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`ing non-crime-of-violence force upon entering a clinic and then kneeling
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`in front of a “rarely used” and “generally locked” clinic door, thus alleg-
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`edly obstructing clinic access nonviolently. See 18 U.S.C. § 248(e)(4) (de-
`
`fining physical obstruction to render ingress or egress to the facility
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`
`
`18
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`
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 19 of 27
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`impassable or unreasonably difficult or hazardous); United States v. Ma-
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`honey, 247 F.3d 279, 284 (D.C. Cir. 2001) (holding that nonviolently
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`kneeling in front of clinic’s generally locked emergency exit door was
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`physical obstruction under FACE). Accordingly, under the general cate-
`
`gorical approach, the jury did not necessarily have to find violent physical
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`obstruction to convict for both force and physical obstruction. See Mathis,
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`579 U.S. at 526 (crime of violence enhancement “may be based only on
`
`what a jury ‘necessarily found’ to convict a defendant”).
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`The Government argued below that the Eighth Circuit’s post-Tay-
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`lor decision in United States v. Hari, 67 F.4th 903 (2023), cuts against
`
`this approach. But Hari applied the modified categorical approach where
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`the defendant was convicted of two expressly different crimes, enumer-
`
`ated in two different subsections. Id. The Court admitted that Taylor
`
`casts “substantial doubt” on whether the first subsection at issue—18
`
`U.S.C. § 247(a)(1), prohibiting intentionally defacing, damaging, or de-
`
`stroying religious real property because of the religious character of that
`
`property, or attempting to do so—can now be considered a “crime of vio-
`
`lence.” 67 F.4th at 910-911. But it easily found that the second subsection
`
`at issue—§ 247(a)(2)—satisfies the “force” clause because it prohibits
`
`
`
`19
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`
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 20 of 27
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`intentionally obstructing only “by force or threat of force” another person’s
`
`free exercise of religion or attempting to do so. Thus, the Government is
`
`always “always required” to prove “force or threat of force” as an element
`
`of the offense under § 247(a)(2).
`
`The same cannot be said of the Government’s burden to prove a
`
`violation of 18 U.S.C. § 248(a)(1), since the prohibited injury, intimida-
`
`tion, or interference can occur by “force,” “threat of force,” “or physical
`
`obstruction,” including “nonviolent physical obstruction.” § 248(a)(1),
`
`(b)(1), (b)(2).
`
`The District Court’s contrary conclusion below was predicated on a
`
`misreading of the statute. Specifically, the District Court explained that
`
`§ 248(b)(1) separately punishes “more serious misdemeanors” involving
`
`“use of force, the threat of force, or the use of violent physical obstruction,”
`
`since “nonviolent physical obstruction” is separately and less severely
`
`punished in § 248(b)(2). Order at 3 (emphasis in original). This is not
`
`true. Rather, as noted, § 248(b)(2) provides a less severe punishment only
`
`for “exclusively nonviolent physical obstruction.” (Emphasis added.) The
`
`higher punishment in subsection (b)(1) can thus apply to “physical
`
`
`
`20
`
`
`
`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 21 of 27
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`obstruction” either when it is violent or when it is “nonviolent” but is not
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`the only FACE violation the defendant committed (i.e., not “exclusive”).
`
`The District Court thus wrongly concluded that Defendants were
`
`necessarily convicted of “violent physical obstruction” because the jury
`
`found the presence of both “force” and “physical obstruction” on the spe-
`
`cial verdict form. Order at 3. Nothing on the special verdict form required
`
`the jury to find that the alleged non-exclusive physical obstruction was
`
`violent; nor was it required to do so under the Act.
`
`Simply put, a misdemeanor conviction for “force” and “physical ob-
`
`struction” under subsection (b)(1) sweeps more broadly than the crime-
`
`of-violence definition of force. Thus Ms. Handy’s conviction was not a
`
`“crime of violence” for purposes of pre-sentencing detention, contrary to
`
`the District Court’s Order.
`
`IV. Ms. Handy is entitled to be released under § 3143(a)(1) be-
`cause she is not a flight risk or a danger to others.
`
`
`
`
`Under § 3143(a)(1), this Court “shall order the release of the” De-
`
`fendants where it finds “by clear and convincing evidence that the person
`
`is not likely to flee or pose a danger to the safety of any other person or
`
`the community if released under section 3142(b) or (c).” (Emphasis
`
`added). But Defendants have been on pre-trial release since their arrest
`21
`
`
`
`
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 22 of 27
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`in March 2022. (See, e.g., D.D.C. Minute Entry of March 30, 2022). De-
`
`fendants have never posed any flight risk or threat of danger to others or
`
`the community during that time—otherwise, they would not have been
`
`eligible for such release. See 18 U.S.C. § 3142(b) (authorizing pre-trial
`
`release unless a judicial officer determines there would be a flight risk or
`
`a danger to others). The Government has not contended otherwise, and
`
`it did not request pre-sentencing detention. Simply, Defendants’ more-
`
`than-17-months of prior good behavior on pre-trial release provides over-
`
`whelming evidence that they satisfy the terms for mandatory release un-
`
`der § 3143(a)(1), prior to sentencing.
`
`To determine whether a defendant subject to § 3143 poses a risk of
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`flight or danger, the Court may consider the factors set forth in § 3142(g).
`
`See United States v. Tann, No. 04–392, 2006 WL 1313334, at *4 (D.D.C.
`
`May 12, 2006). These factors include the nature and circumstances of the
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`offense charged, the weight of the evidence, the defendant’s history and
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`characteristics, which include whether the defendant was on parole or
`
`probation at the time of the current offense, and the danger that the de-
`
`fendant’s release could pose to any person or to the community. 18 U.S.C.
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`§ 3142(g).
`
`
`
`22
`
`
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`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 23 of 27
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`As argued without opposition below, Ms. Handy is a prominent na-
`
`tional nonprofit leader. In 2017, she founded Mercy Missions, a mutual
`
`aid organization dedicated to helping families and mothers in crisis preg-
`
`nancies and providing survival aid for houseless people. Her charitable
`
`work and desire to help people and particularly families have led to pre-
`
`vious arrests and charges for, primarily, trespassing. There is no evi-
`
`dence that Ms. Handy poses a danger to the safety of any person or the
`
`community.
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`As noted, Ms. Handy also does not pose a flight risk. On March 30,
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`2022, this Court set conditions of release for Ms. Handy pending her trial.
`
`Since then, Ms. Handy had not violated any conditions of her release and
`
`had appeared for every scheduled court proceeding. She made no efforts
`
`to flee, and there is no evidence that she would attempt to flee now. Clear
`
`and convincing evidence exists that Ms. Handy is not likely to flee or pose
`
`a danger to the safety of any other person or the community if released
`
`under § 3143(a)(1). Ms. Handy must be released pending sentencing.
`
`CONCLUSION
`
`Accordingly, Defendant Lauren Handy respectfully requests that
`
`this Court reverse, as an emergency matter, the District Court’s order
`
`
`
`23
`
`
`
`USCA Case #23-3143 Document #2015367 Filed: 09/05/2023 Page 24 of 27
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`sentencing Ms. Handy to pre-sentencing detention, and that Ms. Handy
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`be immediately released from that ongoing detention.
`
`
`
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`
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`Respectfully submitted,
`
`/s/ Martin A. Cannon
`Martin A. Cannon, Esquire (Application for
`Admission Pending)
`Stephen Crampton, Esquire (Application for
`Admission Pending)
`Thomas More Society
`10506 Burt Circle, Suite 110
`Omaha, Nebraska 68114
`Email: mcannonlaw@gmail.com
`Phone: (402) 690-1484
`
`
`/s/ Dennis E. Boyle
`Dennis E. Boyle, Esquire
`Boyle & Jasari
`1050 Connecticut Ave, NW
`Suite 500
`Washington, DC 20036
`dboyle@boylejasari.com
`Telepho
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