378 F. Supp. 3d 539
W.D. Va.2019Background
- Defendants Daley, Miselis, and Gillen (RAM members) were indicted on Count One (conspiracy, 18 U.S.C. § 371) and Count Two (traveling in interstate commerce with intent to riot, 18 U.S.C. § 2101) for conduct tied to rallies in California and Charlottesville, VA (Aug. 11–12, 2017).
- Indictment alleges travel on commercial flights from California to Charlottesville with intent to incite/organize/promote/participate in a riot, purchase/use of items (athletic tape, helmets, torches), overt violent acts on Aug. 11–12, 2017, and overt acts in furtherance of a conspiracy.
- Defendants moved to dismiss raising facial and as-applied constitutional challenges to § 2101 (vagueness, overbreadth, failure to satisfy Brandenburg incitement standard, Commerce Clause), and attacked sufficiency of indictment and applicability of Wharton’s Rule to the conspiracy count.
- Court accepted indictment allegations as true for the motion-to-dismiss standard, declined to take judicial notice of factual/legal conclusions from Kessler v. City of Charlottesville (but noted the preliminary injunction entry as public record), and applied liberal construction standards to indictment sufficiency.
- The court denied all motions to dismiss, holding § 2101 constitutional on its face and as applied, and that the indictment sufficiently alleges elements of §§ 2101 and 371; Wharton’s Rule does not bar the conspiracy charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial notice of Kessler findings | N/A | Court should judicially notice Kessler factual/legal findings | Court judicially noticed only that a preliminary injunction was granted; declined to notice factual findings or legal conclusions from that case |
| Vagueness of § 2101 | N/A | § 2101 (terms like "riot", "incite", timing of mens rea) is vague, fails to give fair notice and invites arbitrary enforcement | Court rejected vagueness challenge; statutory definitions and precedent provide adequate clarity and mens rea must align at travel and overt-act junctures |
| Overbreadth / First Amendment | N/A | § 2101 chills protected speech/assembly and is overbroad because it reaches political expression | Court held § 2101 targets unprotected categories (violence, threats, incitement) and is narrowly tailored; intermediate scrutiny applies and is satisfied |
| Brandenburg (incitement) challenge | N/A | § 2101 lacks imminence/likelihood requirement and risks criminalizing mere advocacy | Court held § 2101, read with § 2102(b) and indictment, requires action-propelling advocacy (urging/instigating) and can be cabined by Brandenburg instructions; facial challenge denied |
| Commerce Clause authority | N/A | § 2101 exceeds Congress’s commerce power; is analogous to Lopez | Court rejected challenge: statute regulates use of interstate channels/instrumentalities and persons in interstate commerce; valid under Commerce Clause |
| Sufficiency of indictment (Counts One & Two) | N/A | Indictment fails to allege essential elements, adequate factual detail, or specific intent | Court held both counts plead essential elements and provide sufficient factual context to inform defendants and satisfy Rule 7(c)(1); bill of particulars remedy available if needed |
| Wharton’s Rule applicability to conspiracy count | N/A | Conspiracy count is barred because riot requires multiple participants | Court rejected Wharton’s Rule: § 2101 can be committed by an individual; third-party-exception and societal harm mean conspiracy charge is permissible |
Key Cases Cited
- United States v. Palin, 874 F.3d 418 (4th Cir.) (indictment must state elements and enable double-jeopardy defense)
- United States v. Kingrea, 573 F.3d 186 (4th Cir.) (mere citation to statute does not cure defective indictment)
- United States v. Brandon, 298 F.3d 307 (4th Cir.) (use of statutory words must be accompanied by facts and circumstances)
- Johnson v. United States, 576 U.S. 591 (2015) (void-for-vagueness standard for criminal statutes)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (heightened vagueness scrutiny when speech/association implicated)
- Williams v. United States, 553 U.S. 285 (2008) (overbreadth/clarity principles; permissible limits on advocacy tied to criminal conduct)
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement test: intent, imminence, likelihood)
- United States v. Dellinger, 472 F.2d 340 (7th Cir.) (construction of Anti‑Riot Act; intent at both travel and overt-act junctures)
- United States v. Gould, 568 F.3d 459 (4th Cir.) (Commerce Clause authority to regulate channels/instrumentalities of interstate commerce)
- United States v. Lopez, 514 U.S. 549 (1995) (limits on Commerce Clause where activity is non-economic)