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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19

- CM

- 216

G ASTON D E B É ARN

, A PPELLANT

,

V

.

U NITED S TATES

, A PPELLEE

.

Appeal from the Superior Court

of the District of Columbia

( CMD

- 16158

- 18 )

( Hon. John Ramsey Johnson, Trial Judge)

( Submit ted May 5 , 2020 Decided September 10, 2020 )

Jenifer Wicks was on the brief for appellant.

Jessie K. Liu , United States Attorney at the time the brief was filed , and

Elizabeth Trosman, Suzanne Grealy Curt, Brian Kelly , and Matthew Covert

, Assistant United States Attorneys, were on the brief for appellee.

B efore T HOMPSON

, E ASTERLY

, and M C L EESE

, Associate Judges

.

T HOMPSON

, Associate Judge : On March 15 , 2019, a ppellant Gaston De

B é arn was convicted following a bench trial of one count of destruction of property

and two counts of contempt. On appeal he argues that the re was insufficient

evidence to support his convicti on

, that he is entitled to reversal of his convictions

because his left hand was shackled during trial without an individualized findi ng2

by the court that this security measure w a s needed

, and that the stay

- away order

underlying appellant’s contempt

- of

- court convictions violated the Religious

Freedom Restoration Act (“RFRA”). 1 We disagree and therefore affirm

.

I.

The evidence at tr ial was as follows. On October 31, 2018, at around 5:30

p.m. an evening mass was in progress in the crypt church at the Basilica of the

National Shrine of the Immaculate Conception, which is located at 400 Michigan

Avenue, N .E. (“ the Shrine”). Appellant entered the church “yelling” about the

“need[] to restore the traditional mass.” Bryan Maynard, an agent with the Federal

Bureau of Investigations who happened to be attending the mass

, testified that

appellant ran up towards the altar, denouncing the mas s as “illegitimate

, ” using

“expletives

, ” and telling “everybody to stop. ” He then proceeded to walk straight

up to the altar, knock over three candlesticks one by one , and head towards the

officiating priest ( at which point Maynard and others “moved forwa rd to

apprehend ” appellant ). As the candlesticks fell in succession

, Maynard observed

1 See 42 U.S.C. ⸹ 2000bb et seq

.3

“debris fall,” and saw “bits of the brass or bronze, whatever the candlesticks were

made of, breaking apart. ” 2

The officiating priest asked appellant to leave

, bu t appellant continued to

protest

, prompting Maynard to head to the altar

, grab appellant , and assist other

churchgoers in “forcibly walk[ing] [appellant] from the crypt.” After Metropolitan

Police Department officers arrived , they arrested appellant for d estruction of

property and unlawful entry. A ppellant was ordered by the court to stay away

from the Shrine a s a condition of his release

, and the head of Shrine security

testified that a Shrine security officer issued appellant a barring order

. However,

Shrine security officers observed appellant return for masses on November 18,

2018, and November 25, 2018. 3 Appellant was charged with contempt of court for

violating the stay away order on each occasion.

The government introduced p hoto graphic evid ence of the damage to the

candlesticks as well as testimony that the candlesticks had been crafted out of

2 Sister Bernadette Miller, who was also in attendance

, similarly testified

that after appellant began “flailing violently” at the candlesticks on the altar

, “ they

clapped to the ground and . . . broke.”

3 Appellant’s presenc e at these services was corroborated by his own

admissions, as well as by a donation check he left at the church on November 25,

2018.4

b ronze in France in 1929 and were “specifically made for the basilica, custom

made.” The l abor costs f or fixing them amounted to $1000

.

During his testimony , a ppellant

— an attorney, who represented himself at

trial accompanied by his “associate” (apparently, appointed standby counsel)

—

conceded that he “intentionally . . . toppled over” the candlesticks, but contended

that he did so “very carefull y” in such a way that they were “ not harmed or broken

at all

. ” With regard to the contempt charge s , appellant conceded that he “returned

twice to the National Shrine against the plain language of the stay away order ”

issued by the court on November 6, 201 8. However, he argued that the stay

- away

order imposed against him violated R FRA because it “prevent[ed] a faith[ful]

Roman Catholic from practicing his religion a ccording to his sacred concepts. ”

The trial court acquitted appellant of unlawful entry r elating to his refusal to

leave the Shrine when asked by the priest on October 31, 2018, 4 but convicted him

of malicious destruction of property and two counts of contempt for violating the

court’s stay

- away order. The court imposed a suspended senten ce and probation

and required appellant to pay restitution and $150 in fines.

4 Appellant was not charged with unlawful entry for having returned to the

Shrine on November 18 , 2018, and November 2 5, 2018.5

II.

The background of appellant’s hand

- shackling argument is as follows. On

the morning when trial was about to begin, the trial court granted a request by

appellant to be unsh ackled. 5 However, a fter a recess

, and before opening

statements began, the court informed appellant that because there was only one

United States Marshal present, his left hand had to be shackled . Appellant replied

,

I do have my righ t hand but I like to use piles. I have lots

of things and books. I kind of like both hands as a

lawy er. Both hands is nice. It worked well in the first part

of the hearing but if you don’t want it now, that’s fine.

Okay.

The trial court told appellant that it was “a mat ter of the rules [the Marshals]

operate under [,] ” and had “nothing to do with [appellant].” Citing Deck v.

Missouri

, 544 U.S. 622 (2005), a ppellant contends that the trial court’s

5 Appellant was in custody pursuant to a bench warrant that had been issued

after he failed to appear for his original trial date the day before.6

acquiescence in his restraint without individualized justification was reve rsible

error

. 6

We agree that there was trial court error here . Spe cifically, we conclude that

the trial court’s unquestioning “defer[ence] to the recommendation of [ a United

States Marshal ] as to the appropriateness of shackling without independently

reviewing the facts and circumstances thought to warrant such a security measure

and carefully considering the legal ramifications of that decision” United States v.

Mayes , 158 F.3d 1215, 1226 (11th Cir. 1998)

, amount ed to an erroneous exercise

of discret ion. 7 We also conclude, however, that the error in this case was harmless

6 The Supreme Court held in Deck that “the Fifth and Fourteenth

Amendments prohibit the use of physical restraints visible to the jury absent a

trial court determination, in the exercise of its discretion, that they are justified

by a state interest specific to a particular trial.” 544 U.S. at 629. That holding

gives effect to three important prin ciples: the presumption of innocence, the

right to counsel, and preservation of “[t]he courtroom’s formal dignity, which

includes the respectful treatment of defendants [.] ” Id. at 630

– 31.

7 Numerous courts have employed similar reasoning. See , e.g., Ha meed v.

Mann

, 57 F.3d 217, 22 2 (2d Cir. 1995) (“ I n determining what restraints are

necessary, the court cannot properly delegate that decision to guards or other

prison officials but must decide that question for itself

. ”); Lemons v. Skidmore , 985

F.2d 354 , 358 (7th Cir. 1993) ( noting that “ [w] hile [the trial judge] could have

consulted the Department of Corrections employees or court security officers, and

listened to their opinions and the reasons in support of them, he had to

. . . ultimately make the [s hackling] decision himself [,] ” and reasoning that where a trial judge “delegates a decision, and gives no reason for the decision, that is not an

exercise of discretion but an absence of and an abuse of discretion ”); United States

(continued...)7

under any standard of review and that reversal of appellant’s convictions therefore

is not warranted , even assuming (without deciding) that the shackling of appellant

during his b ench trial ha d Due Process implications

. Resolving the appeal on that

basis, we need not decide, and we decline to decide

, whether the holding of Deck

should be extend ed to nonjury trials

— an issue on which courts are split. 8

In this case, the trial c ourt did not base its shackling decision on the case law

declining to apply Deck in the context of bench trials . Nor did the court make a

discretionary judgment about whether restraints were needed for “the safety of

(...continued)

v. Samuel , 431 F.2d 610, 615 (4th Cir. 1970) (“ As a discretio nary matter, the

district judge’ s decision with regard to measure for security is subject to limited

review to determine if it was abused. We stress that the discretion is that of the

district judge. He may not

. . . de legate that discretion to the Marshal.”); see also

State v. Walker , 344 P.3d 227, 231 (Wash. 2015) ( “ W hile prison officials may be

well positioned to assist the trial court in deciding matters of courtroom security,

they are in no position to weigh and bal ance the many factors the court must

consider when determining whether, and in what manner, a defendant should be

restrained during a court proceeding

. ”).

8 Compare, e.g.

, United States v. Lafond

, 783 F.3d 1216, 1225 (11th Cir.

2015) (“[T]he rule agains t shackling pertains only to a jury trial[.]”)

, with United

States v. Sanchez

- Gomez , 859 F.3d 649, 661 (9th Cir. 2017) (reasoning that Deck

“applies whether the proceeding is pretrial, trial, or sentencing, with a jury or

without” and holding that “the cou rt must make an individualized decision that a

compelling government purpose would be served and that shackles are the least

restrictive means for maintaining security and order in the courtroom”), cert. granted in part , 138 S. Ct. 543, 199 L. Ed. 2d 422 ( 2017), vacated on other

grounds and remanded

, 138 S. Ct. 1532, 200 L. Ed. 2d 792 (2018)

.8

jurors, attorneys, and witnesses in [t he] courtroom

. ” United States v. Van Sach

,

458 F.3d 694, 699 (7th Cir. 2006) . Rather, the court rested its ruling solely on “the

rules [the U.S. Marshals ] operate under.” As noted above , t he court had initially

granted appel lant’s request to be unshackl ed but then reversed its decision after

appellant told the court that the Marshal was requiring that his hand be shackled

,

telling appellant that the decision not to un shackle appellant “ha[d] nothi ng to do

with [appellant].”

We do not disagree with cou rts that have reasoned that a court “ may rely

he avily on the U.S. Marshal’ s advice when deciding whether defendants s hould be

shackled during trial.” United States v. Fields , 483 F.3d 313, 357 (5th Cir. 2007)

(quoting United States v. Ellender , 9 47 F.2d 7 48, 760 (5th Cir. 1991))

. However,

courts th at have made similar statements have done so in cases where there were

demonstrated safety risks and the trial court “offered detailed reasons for its

shackling order. ” United States v. Maes

, 961 F.3d 366, 376 (5th Cir

. 2020)

(upholding district court’s shackling order where the court had explicitly based its

decision not only upon the fact that the Marshals believed that the defendant

presented a security risk and a flight risk, but also upon fact that he was a fugitive

until he was arrested, had a history of failing to appear in court, and also faced a

significant sentence); see also United States v. Williams , 629 F. App’x 547, 552

–9

53 (4th Cir. 2015) (giving weight to the fact that the trial court had received a

shackling recommendation from the U.S. Marshals Service, because the

recommendation was “based o n, among other things, [the defendant’s] extensive

criminal record and the seriousness of the current charges”) ; Fields , 483 F.3d at

357 (5th Cir. 2007) ( rea soning that the trial court’s “failure to assign reasons for

physically restraining a defend ant

– though erroneous

– [wa] s not ‘r eversi ble error’

where those reasons ‘ [were] readily apparent to us from the record[,] ’ ” which

showed that the defendant “(1) had a violent criminal history, (2) had been

‘aggressive, volatile , and lewd’ while in custody, and (3) had a ‘history of escape

and escape attempts’”).

T his case did not present a situation in which shackling was self

- evidently

necessary

. Alt hough the record shows that a ppellant w as facing trial on a

misdemeanor simple assault charge in addition to the char ges involved in this case

,

in th is case he was a misdemeanor defendant who had been apprehended for

toppling over candlesticks inside a church

. Fur ther, even if some type of restraint

was warranted, given the Supreme Court’s observation that shackles may “ tend to

confuse and embarrass defen dants’ mental faculties, ” 9 the trial court had a duty to

9 Deck , 544 U.S. at 631 (quoting People v. Harrington , 42 Cal. 165, 168

(1871) (internal quotation marks and brackets omitted)).10

consider whether the hand shackle might impede appe llant’s ability to represent

himself 10 and , for example, whether it would have been possible to use an ankle

shackle instead to allow appellant to better take notes

, for “ [c] ourts must do the

best they can to evaluate the likely effects of a particular procedure, based on

reason, principle, and common human experience. ” Estelle v. Williams , 425 U.S.

501, 504 (1976)

.

N evertheless

, we are satisfied that the error here does not warrant reversal of

appellant’s convictions

. The Supreme Court reasoned in Deck that shackling a

defendant “almo st inevitably implies to a jury, as a matter of commonsense, that

court authorities consider [him] a danger to the community” and “ thereby

inevitably determines the jury’s ability to weigh accurately all relevant

consid erations [

. ] ” Deck , 544 U.S. at 633. We see no danger here that the shackling

influenced the trial judge’s assessment of appellant’s guilt or affected his ability to

weigh the evidence in appellant’s case. The judge told appellant that the shackling

had n othing to do with him

, and went on to acquit him of unlawful entry. Fu r th e r,

10 To the extent that the court cons idered this, it seemed to recognize that

there might be some adverse effect on appellant’s ability to take notes. The court instructed appellant to “remain seated [during the government’s opening statement]

and take some notes . . . [a]t least ment al note s, if not physical notes.” However,

t he court did point out that appellant could use his “ associate ” to hand items to

witnesses during his questioning of them.11

ap pellant has not shown how the trial court’s shackling decision affected his trial

strategy, hampered his interactions with witness es , or otherwise impaired his pro

se represent ation. While appellant did voice his desire to use both of his hands to

manipulate his documents during trial, he actually appeared to acquiesce in the

court’s ruling, and his “ associate ” was available to assist him with handling

exhibits. Furthermore, t he record is de void of evidence that appellant was in any

way cowed

, or that his ability to defend himself was compromised, by the trial

court’s decision to keep him partially shackled during trial

. He cross

- examined

every government witness, looked at hi s note s before doing so (showing that he

was able to take notes), made numerous objections, moved for a judgment of

acquittal at the close of the government’s case

- in

- chief and later renewed the

motion, arranged to put an exhibit on the overhead, zealously raised his RFRA

defense, testif ied in his own defense

, and received compliments from both the trial

court and his standby counsel for his performance at trial. In addition, as discussed

below

, the evidence of appellant’s guilt as to both destruction of p roperty and

contempt of court was overwhelming. “[W]e do not think there is any reasonable

possibility that [ap p ellant’s] appearance in handcuffs contributed to [the tri al

court’s] finding of guilt.” People v. Best , 979 N.E.2d 1187, 1189 (N.Y. 2012)

.

III.12

Appellant next contends that there was insufficient evidence to support his

conviction for destruction of property. “We review sufficiency claims de novo,

viewing the evidence in the light most favorable to the prosecution, with due

regard for the right o f the

. . . trier of fact to weigh the evidence, to determine the

credibility of witnesses, and to draw reasonable inferences .” In re D.P. , 122 A.3d

903, 907 (D.C. 2015) (internal quotation marks and brackets omitted)

. “The

evidence is sufficient if, aft er viewing it . . . any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Solon v.

United States , 196 A.3d 1283, 1289 (D.C. 2018) (internal brackets omitted).

Appellant was convicted under D.C. Code § 22

- 303, which provides, in

relevant part that “ [w]hoever maliciously injures or breaks or destroys, or attempts

to injure or break or destroy, by fire or otherwise, any public or private property,

whether real o r personal, not his or her own,” shall be fo und guilty of malicious

destruction of property. D.C. Code § 22

- 303 (2012 Repl. & 2020 Supp. ). This

court has defined malice as

(1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an

actu al intent to cause the particular harm which is produced or

harm of the same general nature, or (b) the wanton and willful13

doing of an act with awareness of a plain and strong likelihood

that such harm may result

.

Harris v. United States , 125 A.3d 704, 70 8 (D.C. 2015) (quoting Guzman v. United

States

, 821 A.2d 895, 898 (D.C. 2003) ) (footnote omitted )

. M alice can be found

even where the accused did not intend “ the actual harm which resulted from his

wrongful acts [, ]” id.

, because “[a] ll that is required is a conscious disregard of a

known substantial risk of the harm which the statute is intended to prevent.” Id

.

(quoting Gonzalez v. United States

, 859 A.2d 1065, 1067 (D.C. 2004 ))

.

Here, appellant concedes that “the facts presented at trial clearly

demo nstrated that [appellant’s] flailing arms tipped over . . . candle holders

. . . of

the Crypt Church[.]” H e highlights, h owever, that there were no “before

- and

- after

photographs” of the candlesticks and that only two of the three fallen candlesticks

were dented, and he contends that the “minor dent[s]” in two of the candlesticks

could have been pre

- existing and could have “occurred during a regular cleaning of

the sanctuary . . . or any other time during which the Shrine’s staff could have

carelessly dropp ed or damaged the candlestick [ s] over the course of the nearly 9014

years during which the [S]hrine claims to have owned and maintained [them] .” 11

He also claims that his actions were “gentle and reasonable,” showing that he

lacked the requisite malice to be found guilty of destruction of property.

It is well

- settled that a fact

- finder ordinarily may infer that a defendant

intends the natural and foreseeable consequences of the defendant’s actions. See,

e .g.

, Corbin v. United States , 120 A.3d 588, 591 n.3 (D.C. 2015). Given the

testimony that appellant toppled the remaining two candlesticks after the first one

that he toppled broke into pieces , a reasonable fact finder could infer that appellant

knew that those candlesticks would sustain damage as wel l if he knocked them

over, which he conceded at trial he did intentionally (because he “wanted to make

a point”). At the very least, appellant’s “flailing” actions were taken with an

“awareness of a plain and strong likelihood” that the candlesticks might be

damaged. Harris , 125 A.3d at 708. Though appellant’s version of the events

differs from that of Sister Miller and Mr. Maynard

, “ the fact

- finder was entitled to

believe either version of how much force [appellant] used when [knocking over the

candlest icks] and how much damage resulted from the use of that force. ” Jackson

v. United States , 819 A.2d 963, 967 (D.C. 2003). Appellant’s arguments amount

11 At trial, by contrast, appellant vacillated between alleging that that no

damage was done to the candlesticks and admitting that he had caused them

damage.15

to insistence that we look at the evidence in the light most favorable to him, which

is contrary to our standard of review. His arguments also overlook that the

government is not required to “ negate every possible inference of innocence. ”

Paige v. United States , 25 A.3d 74, 89 (D.C. 2011). W e are satisfied that the

evidence was sufficient for the trial co urt to find appellant guilty of malicious

destruction.

IV.

Finally, appellant argues that his two convictions of contempt for violation

of the court’s stay

- away order contravene RFRA

. Even if that were so, this court

has made clear that “[c] ompliance wit h court orders is required until they are

reversed on appeal or are later modified.” Baker v. United States

, 891 A.2d 208,

212 (D.C. 2006)

. Thus, “even assuming for the sake o f argument that the trial

court’ s [stay away] order was invalid [under RFRA], [ appellant’s] conviction for

contempt must be upheld for his failure to comply with that order.” Id. ; s e e also

Bansda v. Wheeler

, 995 A.2d 189, 196 (D.C. 2010) (holding that party’s contempt

conviction must be upheld even if the trial court’s order was inv alid).16

We also find no merit to a ppellant’s RFRA argument

. RFRA prov ides in

relevant part that the g overnment “ shall no t substantially burden a person’ s

exercise of religion even if the burden results from a rule of general applicability.”

42 U.S.C. § 2 000bb

- 1 (a)

. In order to prevail on a claim or defense under RFRA,

an individual “must show by a preponderance of the evidence that the government

action in question would substantially burden the sincere exercise of his religion,

whereupon the burden of p roof shifts to the government to show that the action (1)

would further a compelling governmental interest (2) that cannot be effectuated by

less restrictive means.” Nesbeth v. United States , 870 A.2d 1193, 1196 (D.C.

2005) (citing to 42 U.S.C. § 2000bb

- 1 ). The government substantially burdens

religion when it “ put[s] substantial pressure on an adherent to modify his behav ior

and to violate his beliefs,” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S.

707, 718 (1981), or requires an individual to c hoo se between “ abandoning his

religious principle or facing criminal prosecution .” Braunfeld v. Brown, 366 U.S.

599, 605 (1961). Appellant contends that the trial court improperly rejected his

RFRA defense wi thout applying these standards.

Appellant’s brief proceeds directly to the second prong of the RFRA test,

arguing that the court’s stay

- away order did not further a compelling governmental

interest, and that even if it did, it was not the “least restrictive means” of doing so.17

But h e fails to expla in why a stay

- away order that prohibit ed him only from

practicing his religion “in the church of his choice[]” constitutes a substantial

burden

, and thus he has not met his burden with respect to the first prong of RFRA.

T he trial court told appellant

, “ [N] obody’s saying you can’ t practice your

religion, they’re just saying at that particular plac e where you messed up, you can’ t

come back there for a while. ” We have no trouble in recognizing that, while not

saying so in so many words, the trial court fou nd that appellant lacked a RFRA

defense because he had not demonstrate d that the stay away order substantially

burden ed his exercise of religion. We agree.

“ Not just any imposition on religious exercise creates a substantial burden;

a burden must have some degree of severity to be considered substantial.” New

Doe Child #1 v. Cong. of the U.S. , 891 F.3d 578, 590 (6th Cir. 2018) (quoting

Livingston Christian Sch

. v. Genoa Charter Twp.

, 858 F.3d 996

, 1003 (6th Cir.

2017) ) (internal quotation marks and bra ckets omitted) ; s ee also Perrier

- Bilbo v.

United States , 954 F.3d 413, 432 (1st Cir. 2020) (conceding that the appellant

“might find the options offered by the Government subjectively burdensome,” but

holding that the trial court “was right to conclude tha t not every imposition or

inconvenience rises to the level of a ‘substantial burden’”); New Doe Child #1 v.18

United States

, 901 F.3d 1015, 1026

– 27 (8th Cir. 2018) ( noting that “not all burdens

constitute substantial burdens” and that a “mere inconvenience ” does not always

amount to a substantial burden) (internal quotation marks omitted)

.

One example is particularly illustrative here

. In United States v. Forchion

,

No. 04

- 949

- ALL, 2005 U.S. Dist. LEXIS 14791 (E.D. Pa. July 22, 2005)

, two

Rastafarians were c harged for smoking marijuana in a national park in violation of

36 C.F.R. § 2.35(b)(2), which prohibits the possession of a controlled substance in

a national park

. Id. at *4. The defendants asserted a RFRA defense. Id. at *5

. In

affirming their convic tions, the court concluded that because 36 C.F.R. §

2.35(b)(2) did not forbid Rastafarians from possessing marijuana outsi de of

national parks, there was “ no impediment to the free exercise of their faith in their

homes, their houses of worship, or other n on

- federal locations.” Id. at *14.

Accordingly, “[w] ith so many alternative places to practice Rastafarianism, the ban

on marijuana p ossession in national parks d[id] not force [the defendants] to

choose between abandoning their faith a nd facing criminal p rosecution.” Id.

Therefore, the court reasoned, the magistrate judge “ did not clearly err in finding

that [ 36 C.F.R. § 2.35(b)(2)] did not substantially burden [the defendants ’ ]

religious beliefs. ” Id.19

At trial, appellant noted that the Shrine was his “favorite” place to attend

m ass and that he did not “ go to other churches ” because they are “ just not as

beautiful as that one. ” H e acknowledged, h owever, that he could go to other

churches. “ W ith so many alternative places to practice [ his religion]

, ” w e are

satisfied that the stay

- away order imposed on appellant as to a single Catholic

church “ d [id] not force [appellant ] to choose between abandoning [his] faith and

facing criminal prosecution. ” Id. A ppellant has pointed to no evidence suggesting

that attending another place of worship would force him to “violate his beliefs [

. ] ” 12

Thomas, 450 U.S. at 718. Accordingly

, our RFRA analysis ends here.

Wherefore , the judgment of the trial court is

Affirmed

.

12 Moreover, in hi s opening remarks to the court, appellant acknowledged

that he did what he did at the Shrine on the day in question because he “just wanted

to make a disturbance” and “g et people’s attention” and hoped for press coverage

— not because interrupting mass at the Shrine or toppling candlesticks there is part

of his religious practice.