579 F.Supp.3d 9
D.D.C.2021Background
- Defendant Aaron Mostofsky is accused of entering the U.S. Capitol on January 6, 2021, wearing a U.S. Capitol Police vest and holding a riot shield and of pushing against officers and positioning himself to prevent barriers from being set.
- The Government filed a Second Superseding Indictment charging eight counts, including: 18 U.S.C. § 231(a)(3) (civil disorder), 18 U.S.C. § 1512(c)(2) (obstruction of an official proceeding), and 18 U.S.C. § 1752(a)(1)–(2) (restricted building offenses).
- Mostofsky moved to dismiss Counts I (§231(a)(3)), II (§1512(c)(2)), V and VI (§1752(a)(1),(2)), raising Commerce Clause, First Amendment overbreadth, vagueness, ejusdem generis, ex post facto and related arguments.
- The Government opposed; the Court evaluated statutory text, Commerce Clause precedents, First Amendment overbreadth doctrine, and recent D.D.C. decisions addressing the January 6 prosecutions.
- The Court denied the Motion to Dismiss as to all challenged counts: it found §231(a)(3) has a sufficient jurisdictional commerce element and is not overbroad; §1512(c)(2) covers the Electoral College certification and is not unconstitutionally vague as applied; and §1752 does not require Secret Service action to create a “restricted building.” Trial was set for March 23, 2022.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Mostofsky) | Held |
|---|---|---|---|
| Validity of 18 U.S.C. § 231(a)(3) under the Commerce Clause | Statute contains a jurisdictional element (civil disorder must affect commerce) that satisfies Lopez/Scarborough nexus requirements | Statute lacks a proper commerce nexus to individual acts; "in any way or degree" and "incident to and during" make nexus too attenuated | Denied dismissal: statute’s jurisdictional element is sufficient to satisfy Commerce Clause; alternate DC-seat-of-government authority reinforces validity |
| First Amendment overbreadth challenge to § 231(a)(3) | Statute targets conduct (not speech); legitimate applications greatly outnumber hypothetical protected ones | Law criminalizes substantial protected expressive conduct (e.g., picketing, recording, gestures) | Denied: statute is not substantially overbroad; primarily targets conduct and limiting construction unnecessary |
| Applicability and vagueness of 18 U.S.C. § 1512(c)(2) to Electoral College certification | "Official proceeding" includes a proceeding before Congress; "corruptly" requires unlawful intent to obstruct — provides fair notice and is not vague as applied | Certification is not an "official proceeding" under §1515; (c)(2) should be read narrowly (ejusdem generis); statute is vague and novel as applied | Denied dismissal: certification is an "official proceeding," ejusdem generis does not narrow (c)(2) to document-related acts, and "corruptly" can be construed to require intent to unlawfully obstruct |
| Application of 18 U.S.C. § 1752(a)(1),(2) — requirement that Secret Service restrict area | §1752’s definition of “restricted buildings or grounds” does not require the Secret Service to be the restricting authority | Statute originally tied to Secret Service protectees; applying it where only USCP cordoned area is vague and unforeseeable (lenity/ex post facto) | Denied dismissal: statutory text does not require Secret Service action to create a restricted area; vagueness/lenity/ex post facto arguments fail |
Key Cases Cited
- United States v. Lopez, 514 U.S. 549 (1995) (establishes categories and limits of Commerce Clause power)
- National Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (cautions against reading the Commerce Clause as a general police power)
- United States v. Morrison, 529 U.S. 598 (2000) (invalidates regulation of noneconomic violent crime based solely on aggregate effect on commerce)
- Scarborough v. United States, 431 U.S. 563 (1977) (minimal interstate-commerce nexus can satisfy jurisdictional element)
- Taylor v. United States, 579 U.S. 301 (2016) (clarifies that jurisdictional elements may require only that conduct affect commerce "in some way or degree")
- Hamling v. United States, 418 U.S. 87 (1974) (indictment sufficiency standards)
- City of Houston v. Hill, 482 U.S. 451 (1987) (overbreadth doctrine with respect to criminal statutes affecting speech)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (availability of limiting constructions defeats some facial overbreadth challenges)
- United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991) (vagueness precedent discussed and later cabined)
- United States v. Carson, 455 F.3d 336 (D.C. Cir. 2006) (Congress’ plenary power over the District of Columbia can obviate Commerce Clause concerns)