Criminal No. 2021-0073
D.D.C.Nov 1, 2024Background
- Defendants Nicholas DeCarlo and Nicholas Ochs traveled to Washington, D.C., on January 6, 2021; they entered the Capitol, threw smoke devices at police, walked through multiple rooms, vandalized a door, and stole flexcuffs.
- They were indicted on multiple counts, pled guilty on September 9, 2022 to one felony count under 18 U.S.C. § 1512(c)(2) pursuant to plea agreements that included broad collateral-attack waivers, and were sentenced to 48 months’ imprisonment.
- In June 2024 the Supreme Court decided Fischer v. United States, narrowing § 1512(c)(2) to conduct that impairs the availability or integrity of records, documents, objects, or other evidentiary things used in an official proceeding.
- Following Fischer, defendants filed a § 2255 motion arguing their convictions are void (and their pleas infirm) because their admitted conduct does not meet Fischer’s evidence-focused requirement.
- The government argued the motion is barred by procedural default (no direct appeal) and by the plea agreements’ collateral-attack waivers; it also asserted the government had forgone other felony charges.
- The district court found defendants established actual innocence under the Bousley standard, applied the D.C. Circuit miscarriage-of-justice exception to the plea waivers, vacated the § 1512(c)(2) convictions, stayed vacatur 30 days for the government to decide on further charging, and ordered release on prior conditions during the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Can defendants overcome procedural default (no direct appeal) to raise a Fischer-based challenge in § 2255? | Fischer narrows § 1512(c)(2) so defendants are actually innocent; that shows cause to excuse default. | Govt: No direct-appeal; claim was available earlier and defendants raised similar motions pre-plea, so no cause. | Court: Actual innocence under Bousley established; default excused. |
| 2. Do plea agreement collateral-attack waivers bar the § 2255 motion? | Waivers are unenforceable here because Fischer removed an essential element and defendants are actually innocent. | Govt: Waivers were knowing, voluntary, and cover § 2255 challenges; later legal changes don’t undo waivers. | Court: Waivers valid but D.C. Circuit miscarriage-of-justice exception applies where defendant proves actual innocence; thus merits considered. |
| 3. Does Fischer’s mens rea/evidence-focused limit mean defendants are actually innocent of § 1512(c)(2)? | Their admitted conduct (halting the proceeding, vandalism, theft) did not impair availability or integrity of electoral ballots or other evidentiary items. | Govt: Riot forced removal of ballots and delayed proceedings; juror could find ballots’ availability was impaired or attempt to impair. | Court: Fischer requires impairment of evidentiary items; removal for safekeeping did not impair ballots’ integrity or availability; no record evidence defendants intended to or attempted to impair ballots; actual innocence shown. |
| 4. Remedy: Should convictions be vacated and defendants released pending any further charging? | Vacatur required because conviction rests on conduct no longer criminal; release pending 30-day stay for government to decide on refiling. | Govt: May seek to refile other charges; enforcing waiver would have barred review. | Court: Vacatur granted, 30-day stay to allow charging decisions, defendants released on prior conditions during the stay. |
Key Cases Cited
- Fischer v. United States, 144 S. Ct. 2176 (2024) (Supreme Court narrows § 1512(c)(2) to conduct that impairs availability or integrity of evidentiary records/objects used in an official proceeding)
- Bousley v. United States, 523 U.S. 614 (1998) (actual-innocence standard to excuse procedural default on collateral review)
- Schlup v. Delo, 513 U.S. 298 (1995) (standard for demonstrating actual innocence to overcome procedural barriers)
- Davis v. United States, 417 U.S. 333 (1974) (§ 2255 cognizable where conviction is for conduct law does not make criminal)
- Guillen v. United States, 561 F.3d 527 (D.C. Cir. 2009) (D.C. Circuit enforces plea waivers but recognizes limited miscarriage-of-justice exception)
- Adams v. United States, 780 F.3d 1182 (D.C. Cir. 2015) (miscarriage-of-justice exception covers comparably serious errors; D.C. Circuit precedent recognizing narrow exception)
- Caso v. United States, 723 F.3d 215 (D.C. Cir. 2013) (discusses record evidence requirement for government’s claim that additional charges were forgone in plea bargaining)