579 F.Supp.3d 28
D.D.C.2021Background
- Indictment (First Superseding Indictment) charges Ethan Nordean, Joseph Biggs, Zachary Rehl, and Charles Donohoe with conspiracy and substantive offenses arising from the January 6, 2021 attack on the U.S. Capitol, including 18 U.S.C. § 1512(c)(2), § 231(a)(3), § 1752(a)(1)–(2), § 1361, and 18 U.S.C. § 371 (conspiracy).
- Allegations: defendants as Proud Boys leaders raised funds, procured tactical gear and radios, used encrypted channels to coordinate, helped dismantle barricades, charged past police, and entered the Capitol (including windows/doors breached by others).
- Charged objectives: to stop, delay, or hinder Congress’s certification of the Electoral College vote and to obstruct/interfere with law enforcement performing duties during the civil disorder.
- Defendants moved to dismiss, arguing (inter alia) that § 1512(c)(2) does not apply to the Electoral College certification or to non‑document obstruction, that § 1512(c)(2), § 231(a)(3), and § 1752 are vague/overbroad or unconstitutional as applied, and that some counts are insufficiently pleaded.
- The Court reviewed the indictment on its face, assumed its allegations true for purposes of the motion, and denied the motion to dismiss in full.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument | Held |
|---|---|---|---|
| Whether Congress’s certification is an “official proceeding” under § 1512(c)(2) | Certification is a "proceeding before the Congress" under § 1515 and thus an official proceeding | Certification is not the kind of adjudicative/investigatory proceeding the statute targets | Court: Certification is an official proceeding (formal joint session; statutory procedures) |
| Whether § 1512(c)(2) is limited to document/evidence impairment or reaches other obstructive conduct | §1512(c)(2) is a catch‑all that proscribes corruptly obstructing, influencing, or impeding any official proceeding | (c)(2) must be read in light of (c)(1) and limited to acts like document destruction; otherwise overbroad/surplusage | Court: (c)(2) covers non‑document obstruction; structure/text and precedent support broad reading |
| Vagueness, meaning of "corruptly," rule of lenity, novel construction, and First Amendment challenge to § 1512(c)(2) | Terms have settled meanings; intent and wrongful/unlawful means constrain application; no novel or vague construction; statute passes O'Brien analysis | "Corruptly" and "obstructs, influences, or impedes" are vague; lenity and Lanier/Bouie protections apply; First Amendment protects political expression | Court: statute not unconstitutionally vague as applied; Poindexter does not control; rule of lenity and novel‑construction doctrines inapplicable; First Amendment claim fails (conduct, not protected speech) |
| Whether § 231(a)(3) requires the affected function to be congressional certification or otherwise identifies a "federally protected function" | The civil disorder obstructed federally protected functions (e.g., Secret Service protection of VP/VP‑elect present that day) | Certification is not a federally protected function; §232(3) cannot be read to cover law enforcement functions here | Court: certification is not necessary; Secret Service protection of VP/VP‑elect is a federally protected function and was adversely affected; §231(a)(3) validly applies |
| Whether § 1752 requires the Secret Service to have designated the restricted area to prosecute | §1752 covers entry into any posted, cordoned, or otherwise restricted area where a Secret Service protectee is temporarily visiting; statute targets location, not who restricted it | §1752 requires that the Secret Service itself have restricted the area; otherwise statute is ambiguous/vague | Court: Secret Service need not have done the restricting; statutory text focuses on the area; the indictment alleges cordons/barricades and notice; §1752 application proper |
| Sufficiency of indictment as to §231(a)(3) and §1361 | Indictment alleges overt acts, assaults on officers, property damage > $1,000, and conduct in furtherance of the conspiracy—sufficiently specific | Indictment lacks specific acts/circumstances tying defendants to charged statutes | Court: indictment is adequate (plain, concise, alleges elements and facts to notify defendants); failure to identify a single window‑breaker by name is not fatal |
Key Cases Cited
- Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (interprets "corruptly" in obstruction context and links it to wrongful conduct)
- Yates v. United States, 574 U.S. 528 (2015) (applies ejusdem generis and noscitur a sociis to limit statutory scope in obstruction context)
- Loughrin v. United States, 573 U.S. 351 (2014) (textual/structural cues, including punctuation, can indicate separate meanings for adjacent clauses)
- Marinello v. United States, 138 S. Ct. 1101 (2018) (defines "obstruct"/"impede" as broad verbs in obstruction statutes)
- Phillips v. United States, 583 F.3d 1261 (10th Cir.) (2009) (applies §1512(c)(2) to obstructive conduct beyond document destruction)
- Poindexter v. United States, 951 F.2d 369 (D.C. Cir. 1991) (construed "corruptly" in §1505; holding limited and context dependent)
- North v. United States, 910 F.2d 843 (D.C. Cir. 1990) (discussion of corrupt purpose vs corrupt means in obstruction statutes)
- Lanier v. United States, 520 U.S. 259 (1997) (due process bars novel judicial constructions applied retroactively)
- Bouie v. City of Columbia, 378 U.S. 347 (1964) (judicial enlargement of a criminal statute may violate due process)
- Johnson v. United States, 576 U.S. 591 (2015) (void‑for‑vagueness doctrine and standards)
- Kolender v. Lawson, 461 U.S. 352 (1983) (statutes must provide minimal guidance to law enforcement to avoid vagueness)