United States District Court, D. Maryland
STEPHANIE A. GALLAGHER, Magistrate Judge.
On March 30, 2015, a bench trial was held as to Count One of the Supplemental Information charging Haneef Ross with "disorderly conduct" in violation of 32 C.F.R. § 228.13, (Disturbances on protected property). At the close of all evidence, Mr. Ross moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a). After cursory oral argument and consultation with counsel, the Court ordered the parties to brief the merits of Mr. Ross's motion. Accordingly, now pending before the Court is Mr. Ross's Motion for Judgment of Acquittal. [ECF No. 57]. The Court has also considered the Government's opposition and Mr. Ross's reply. [ECF Nos. 61, 64]. For the reasons set forth below, Mr. Ross's Motion for Judgment of Acquittal is GRANTED.
On November 22, 2013, Mr. Ross visited the National Security Agency ("NSA") property located on Fort George G. Meade ("Fort Meade"). According to the trial testimony of three officers then on duty, Mr. Ross arrived at the NSA vehicle cargo inspection facility as a passenger in a "white painter's van" driven by John Rouse. At the request of another officer, Officer Harris exited the office and approached Mr. Rouse and Mr. Ross, both of whom had exited the van. As Officer Harris approached, Mr. Ross was waving his arms. Officer Harris put out a radio call requesting assistance from a supervisor, to which Sergeants Gezik and Myatt responded. Officer Harris thereafter interacted only with Mr. Rouse, who explained that he was there to arrest and "put charges on" Officer Harris.
As Sergeant Gezik approached the men, Mr. Ross was standing to the side of the van, pacing back and forth with clenched fists, punching them toward the ground. Sergeant Gezik instructed Mr. Ross to turn around and place his hands behind his back, to which Mr. Ross responded "no." Sergeant Gezik repeated his request, and Mr. Ross again responded "no." Sergeant Myatt then arrived on the scene, approaching Mr. Ross from behind; Sergeant Gezik remained in front of Mr. Ross. Upon reaching Mr. Ross, Sergeant Myatt immediately ordered Mr. Ross to put his hands behind his back with palms facing each other, and with his fingers facing toward Sergeant Myatt. Mr. Ross said "no." Sergeant Myatt repeated the same order, to which Mr. Ross again responded "no." It appeared to Sergeant Myatt that Mr. Ross was attempting to comply but did not understand the instructions. Accordingly, Sergeant Myatt gave Mr. Ross "easier instructions to follow, " asking Mr. Ross to first get down on one knee, then the other, and then to place his hands behind his back, keep them there, and not move. Mr. Ross complied with Sergeant Myatt's simplified instructions, and Sergeant Myatt handcuffed Mr. Ross. In Sergeant Myatt's opinion, prior to being handcuffed, Mr. Ross's demeanor appeared "agitated, " and his voice was "elevated." As soon as Mr. Ross was handcuffed, his demeanor became "cooperative, " and it remained "cooperative" for the remainder of his encounter with Sergeant Myatt.
Once Mr. Ross was handcuffed, Sergeant Myatt placed him in a chair and asked Mr. Ross why he and Mr. Rouse had returned to the checkpoint (referring to a prior November 18, 2013, visit to the NSA vehicle inspection facility). Mr. Ross did not respond. Sergeant Myatt then asked Mr. Ross about comments he had made to officers on his previous visit. Mr. Ross smirked, but again did not respond to Sergeant Myatt's question.
Officer Harris and Sergeants Gezik and Myatt testified that their interactions with Mr. Rouse and Mr. Ross caused the only open lane of the vehicle cargo inspection facility to close for between 15 and 30 minutes. By contrast, Sergeant Myatt testified that a typical vehicle inspection takes one or two minutes. Officer Harris testified that eight officers at the facility were occupied as a result of Mr. Rouse's and Mr. Ross's presence because "they" were being combative, arguing, cursing, and not cooperating. Accordingly, the officers did not have the man-power to open the second inspection lane, and as a result, traffic at the facility backed up. Officer Harris also testified that all of the threats and statements directed toward him were made by Mr. Rouse, and that he did not personally hear Mr. Ross make any threats or statements.
II. PROCEDURAL HISTORY
On November 22, 2013, Mr. Ross was issued two citations alleging violations of 32 C.F.R. § 228.13 for: (1) "failure to display government or other identifying credentials to an NSAP Police officer while on Protected Property"; and (2) "Attempting to enter protected property without proper authorization." Def.'s Reply, Ex 1 at 1-2. On November 26, 2013, after a formal charging decision, Mr. Ross was issued seven additional citations in connection with his November 22, 2013, visit to the NSA property. Two citations charged Mr. Ross with "[i]nfluencing, impeding or retaliating against a federal law enforcement officer, " in violation of "18 U.S.C. § 115B." [ECF Nos. 7, 8]. Two citations charged Mr. Ross with "[a]ssaulting, resisting, or impeding certain officers or employees, " in violation of 18 U.S.C. § 111. [ECF Nos. 4, 5]. One citation charged Mr. Ross with "[h]arassment, " in violation of "18 U.S.C. 13 MD 3-803." [ECF No. 6]. Two additional citations charged Mr. Ross with "engaging in disorderly conduct while on protected property, " in violation of 32 C.F.R. § 228.13. [ECF Nos. 1, 3].
Two days prior to Mr. Ross's initially scheduled trial, the Government filed a two-count Information. [ECF No. 12]. Count One of the Information alleged that, on November 18, 2013, Mr. Ross "unlawfully did influence, impede or retaliate against NSA Officer Jayson Myatt by stating to the law enforcement officer There will be consequences' and continued with obscene and vulgar language, " in violation of 32 C.F.R. § 228.13. [ECF No. 12]. Count Two of the Information alleged that, on November 22, 2013, Mr. Ross "unlawfully did assault NSA Officer Jayson Myatt by refusing to be handcuffed by said officer and shouting obscenities to the officer, while the said officer was in the execution of his duties, " in violation of 18 U.S.C. § 111. [ECF No. 12].
One day prior to Mr. Ross's rescheduled trial, the Government filed a two-count Supplemental Information. [ECF No. 17.] Count One of the Supplemental Information alleged that, in violation of 32 C.F.R. § 228.13:
On or about November 22, 2013, at or near the Vehicle Cargo Inspection Facility at the National Security Agency, located on Fort George G. Meade, Maryland, an area within the special maritime and territorial jurisdiction of the United States, in the State and District of Maryland, HANEEF ROSS unlawfully did engage in disorderly conduct to wit: arguing with and refusing to comply with the orders of NSA Officers Jayson Myatt and Matthew Gezik.
[ECF No. 17]. Count Two of the Supplemental Information, which was voluntarily dismissed by the Government prior to another rescheduled trial, alleged that on November 18, 2013, Mr. Ross "unlawfully did forcibly intimidate NSA Officers Jayson Myatt and Bryan Morges by making threatening remarks to the officers, while the said officers were in the execution of their official duties, " in violation of 18 U.S.C. § 111. Accordingly, on the ...