United States v. GRAYUnited States v. GRAY
Dеfendant Daniel Paul Gray has been charged in a nine-count indictment with the following offenses:
- Count I – Civil Disorder in violation of
18 U.S.C. § 231(a)(3) ; - Count II Obstruction of an Official Proceeding and Aiding and Abetting in violation of
18 U.S.C. §§ 1512(c)(2) and2 ; - Count III - Assaulting, Resisting, or Impeding Certain Officers in violation of
18 U.S.C. § 111(a)(1) ; - Count IV Entering and Remaining in a Restricted Building or Grounds in violation of
18 U.S.C. § 1752(a)(1) ; - Count V – Disorderly and Disruptive Conduct in a Restricted Building or Grounds in violation of
18 U.S.C. § 1752(a)(2) ; - Count VI - Engaging in Physical Violence in a Restricted Building or Grounds in violation of
18 U.S.C. § 1752(a)(4) ; - Count VII – Disorderly Conduct in a Capitol Building in violation of
40 U.S.C. § 5104(e)(2)(D) ; - Count VIII – Act of Physical Violence in the Capitol Grounds or Buildings in violation of
40 U.S.C. § 5104(e)(2)(F) ; and - Count IX - Parading, Demonstrating, or Picketing in a Capitol Building in violation of
40 U.S.C. § 5104(e)(2)(G) .
Superseding Ind. [Dkt. # 25] (“Indictment“).
Gray has filed separate motions to dismiss Count Two and Count Nine, as well as a motion to dismiss certain counts on the grounds that they are multiplicitous. See Def.‘s Mot. to Dismiss Count II [Dkt. # 54] (“Count II Mot.“); Errata re Count II Mot. [Dkt. # 55]; Def.‘s Mot. to Dismiss Count IX [Dkt. # 56] (“Count IX Mot.“); Def.‘s Mot. to Dismiss Certain Counts Due to Multiplicity [Dkt. # 52] (“Multiplicity Mot.“). The government opposes each of them. See Gov‘t‘s Opp. to Mot. to Dismiss Count II [Dkt. # 58] (“Opp. Count II Mot.“); Gov‘t‘s Opp. to Def.‘s Mot. to Dismiss Count IX [Dkt. # 62] (“Opp. Count IX Mot.“); Gov‘t‘s Opp. to Def.‘s Mot. to Dismiss Certain Counts Due to Multiplicity [Dkt. # 59] (“Opp. Multiplicity Mot.“). The matter is fully briefed. Def.‘s Reply to Gov‘t‘s Opp. to Mot. to Dismiss Count II [Dkt. # 68] (“Count II Reply“); Def.‘s Reply to Gov‘t‘s Opp. to Def.‘s Mot. to Dismiss Count IX [Dkt. # 66] (“Count IX Reply“); Def.‘s Reply to Gov‘t‘s Opp. to Def.‘s Mot. to Dismiss Certain Counts Due to Multiplicity [Dkt. # 65] (“Multiplicity Reply“). For the reasons set forth below, the motions will be DENIED.
LEGAL STANDARD
The
A criminal defendant may move to dismiss an indictment before trial based on a “defect in the indictment,”
ANALYSIS
I. Count Two: Violation of 18 U.S.C. §§ 1512(c)(2) and 2
Count Two charges defendant with obstructing an official proceeding and aiding and abetting in violation of
On or about January 6, 2021, within the District of Columbia and elsewhere, [defendant] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress’ certification of the Electoral College vote as set out in the
Twelfth Amendment of the Constitution of the United States and3 U.S.C. §§ 15–18 .
Indictment at 2. Defendant moves to dismiss Count Two on multiple grounds, arguing that the indictment fails to state an offense, his conduct is not covered by
Defendant is not the first to question the validity of indictments charging January 6 defendants under
One court has granted a motion to dismiss a charge alleging a violation of
A. Count II provides sufficient notice of the offense charged.
Defendant first argues that there are “no factual allegations . . . that Defendant Gray in any way obstructed an official proceeding,” and that the indictment is “insufficient to put him on notice of the exact crime he is being charged with.” Count II Mot. at 9–10; Count II Reply at 3. This is not a basis to dismiss the charge, as the indictment “contains the elements of the offense charged” under
B. The indictment states a violation of section 1512(c)(2) .
Defendant purports to “join” other motions filed in January 6 cases challenging whether the Electoral College certification qualifies as an “official proceeding,” Count II Mot. at 14, and he adopts the arguments advanced in other cases that
1. The Electoral College certification is an “official proceeding” for purposes of 18 U.S.C. § 1512(c) .
Defendant notes that other defendants have challengеd whether the Electoral College certification qualifies as an “official proceeding” on the “serious technical grounds” that
- a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tаx Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;
- a proceeding before the Congress;
- a proceeding before a Federal Government agency which is authorized by law; or
- a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce.
The joint session to certify the vote of the Electoral College falls squarely within that definition; a “proceeding before the Congress” is specifically included. Moreover, when one reads those words in the context of the other “official proceedings” specified in the list – “a proceeding before a judge or court . . . or a Federal grand jury,” “a proceeding before a Federal Government agency which is authorized by law,” and “a proceeding . . . before any insurance regulatory official or agency,”
One would be hard-pressed to identify many other proceedings on Capitol Hill with more formality than a joint session of both houses of Congress that is called for by the
One can also find meaning in the repetition of the word “before” in
Second, the provision of the criminal code at issue is extremely broad. In
2. Section 1512(c)(2) is not limited by subsection (c)(1) , and the indictment need not allege the alteration of records.
Defendant argues that “the structure of
In United States v. Miller, the court found that “there are two plausible interpretations of [
The Miller court relied heavily on Begay v. United States, 553 U.S. 137 (2008), abrogated on other grounds by Johnson v. United States, 576 U.S. 591 (2015), and Yates v. United States, 574 U.S. 528 (2015) (plurality opinion). In Begay, the Supreme Court considered whether drunk driving was a “violent felony” for the purposes of the sentencing provision imposing a mandatory minimum term on an offender with three prior convictions “for a violent felony,” as that term was defined in
The Miller court reasoned that, because “the Begay majority opinion rejected the government‘s argument ‘that the word “otherwise” is sufficient to demonstrate that the examples [preceding “otherwise“] do not limit the scope of the clause [following “otherwise“],‘” Miller, 589 F. Supp. 3d at 71 (alterations in original, emphasis in original removed),
This Court respectfully disagrees with Miller‘s reasoning, and along with other courts in the district, declines to follow it. The Court is not basing its determination on a finding that the mere appearance of the word “otherwise” is sufficient to answer the question and establish that the first clause,
For one thing, the structure of
As the court observed in McHugh II, the way Congress drafted the two provisions indicates that they were intended to target different conduct:
Rather than a continuous list with a general term at the end,
§ 1512(c) contains two separately numbered paragraphs, with a semicolon and a line break separating the “otherwise” clause in paragraph (c)(2) from the preceding terms in paragraph (c)(1). Furthermore, paragraph (c)(2) is grammatically distinct from (c)(1). Although the two provisions share a subject and adverb (“whoever corruptly“), paragraph (c)(2) contains an independent list of verbs that take a different object (“any official proceeding“) from the verbs in paragraph (c)(1) (which take the object “a document, record, or other object“). In short, rather than “A, B, C, or otherwise D,”section 1512(c) follows the form “(1) A, B, C, or D; or (2) otherwise E, F, or G.”
2022 WL 1302880, at *5 (citation omitted).
As for Miller‘s finding that “[r]eading
For these reasons, the statutory canons of noscitur a sociis and ejusdem generis also have no bearing on the matter. The principle of noscitur a sociis – “a word is known by the company it keeps” – instructs courts to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.” Yates, 574 U.S. at 543 (applying the canon to find that “tangible object,” as the last in a list of terms that began “any record [or] document,” was appropriately read to refer specifically to the “subset of tangible objects used to record or preserve information” and not just any tangible object). As discussed above, sections 1512(c)(1) and (c)(2) target different conduct;
The canon of ejusdem generis, which counsels that if “general words follow specific words in a statutory enumeration, the general words are usually construed to embrace only objects similar in nature to those objects enumerated by the preceding,” is similarly inapplicable. Yates, 574 U.S. at 545. Given that “otherwise” in
Since the scope of
C. 18 U.S.C. § 1512(c)(2) is not unconstitutionally vague and does not require a pecuniary motive.
A law can be unconstitutionally vague if “it fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). With respect to fair notice, “a statutory term is not rendered unconstitutionally vague because it ‘do[es] not mean the same thing to all people, all the time, everywhere.‘” United States v. Bronstein, 849 F.3d 1101, 1107 (D.C. Cir. 2017), quoting Roth v. United States, 354 U.S. 476, 491 (1957). “Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal texts, its meaning ‘specifie[s]’ ‘no standard of conduct . . . at all.‘” Bronstein, 849 F.3d at 1107, quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (alterations in original). “Accordingly, when the vagueness doctrine assesses a legal term‘s meaning to ordinary people, it is assessing meaning with the elementary rule of statutory interpretation: [w]ords receive their plain, obvious and common sense meaning, unless context furnishes some ground to control, qualify, or enlarge it.” Bronstein, 849 F.3d at 1108 (citation and quotation marks omitted).
Defendant argues that “varying alternate meanings” for “corruptly” in cases in this district render the term unconstitutionally vague. Count II Reply at 11.4 But, the case law defendant sets out in his motion does not reveal inconsistency, but it tends to demonstrate that there is a consensus in this distriсt surrounding the meaning of “corruptly” for purposes of
The defendant also takes the position that the word “corruptly” requires a “pecuniary motive.” Count II Mot. at 20–21. He lifts language from a dissenting opinion in Marinello v. United States, 138 S. Ct. 1101, 1114 (2018), and a concurring opinion in United States v. Aguilar, 515 U.S. 593, 616 (1995), but neither is controlling authority and neither supports his narrow reading of the term in any event. Count II Mot. at 21.
In Marinello, the defendant was convicted of violating
The dissenters favored a broader reading of the statute – that the provision forbids corrupt efforts to impede the IRS from performing any of its activities under the Tax Code – and in support of their position, they observed that the narrow interpretation adopted by the majority was not needed to prevent the Omnibus Clause from overlapping with other misdemeanor tax offenses because the Clause requires a higher mens rea: an act committed not only willfully, but corruptly. See Marinello, 138 S. Ct. at 1114. It was at that point that the dissent set out the definition of “corruptly” quoted at length by the defendant:
“[C]orruptly” requires proof that the defendant “act[ed] with an intent to procure an unlawful benefit either for [himself] or for some other person,” . . . ; see also Black‘s Law Dictionary 414 (rev. 4th ed. 1951) (“corruptly” “generally imports a wrongful design to acquire some pecuniary or other advantage“). In other words, “corruptly” requires proof that the defendant not only knew he was obtaining an “unlawful benefit” but that his “objective” or “purpose” was to obtain that unlawful benefit.
Id. This language was not inconsistent with the language utilized by the Supreme Court before. See Aguilar, 515 U.S. at 616–17 (defining “corruptly” аs an “act done voluntarily and intentionally to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person“). Thus, even if one adheres to the authorities the defense has identified, it is clear that the Court has consistently referred to a pecuniary “or other advantage,” and there is no requirement of a “financial gain to the actor or someone in privity with the actor” – as defendant proposes. Count II Mot. at 22.5
The Supreme Court‘s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) has more bearing on the instant motion. In that case, the Supreme Court examined the meaning of
(as applies to
The D.C. Circuit has not yet addressed the constitutionality of the word “corruptly” in the context of
Of course, the government still has to prove the requisite level of intent. The Court will provide jurors with instructions as to the meaning of the term “corruptly.” See id. Depending on the facts introduced at trial, the defendant may have a valid argument at the close of the government‘s case that the evidence was insufficient to establish the necessary element of a corrupt purpose. At this juncture, though, predictions about the state of the record at that time arenot a basis to dismiss the indictment on its face. See McHugh, 583 F. Supp. 3d at 10 (“In deciding a motion to dismiss an indictment, the question before the Court is a narrow one, and the court will neither review the sufficiency of the evidence against the defendant nor craft jury instructions on the elements of the crimes charged.”) (brackets and citations omitted).
For all of these reasons, the Court will DENY defendant‘s motion to dismiss Count Two.
II. Count Nine: Violation of 40 U.S.C. § 5104(e)(2)(G)
Defendant moves to dismiss Count Nine, which charges that he “willfully and knowingly
A. Count Nine states an offense for violation of 40 U.S.C. § 5104(e)(2)(G) .
As in his motion to dismiss Count Two, defendant argues that the indictment “contains no factual allegations at all on any topic” nor factual allegations that defendant “engaged in any ‘parading,’ any ‘picketing,’ or any ‘demonstrating.” Count IX Mot. at 8. The Court again rejects this argument, as the indictment clearly and unambiguously “contains the elements of the offense charged.” Hamling, 418 U.S. at 117.
B. Defendant‘s First Amendment challenges to section 5104(e)(2)(G) fail.
Defendant appears to challenge
1. Section 5104(e)(2)(G) is not unconstitutionally overbroad.
Under the First Amendment, “а statute is facially invalid if it prohibits a substantial amount of protected speech.” Williams, 553 U.S. at 292. “The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Id. at 293. The second step requires the court to evaluate “whether the statute . . . criminalizes a substantial amount of protected expressive activity.” Id. at 297. “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech.” Virginia v. Hicks, 539 U.S. 113, 124 (2003). When construing a First Amendment challenge on public property, the court must “identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).
Defendant suggests that the statute is overbroad because “the range of possible actions that may fall under the umbrella of
In the past year, at least three other courts in this district have considered whether
First, looking at the plain text of the provision,
Second, it matters for purposes of the analysis where the burden on expression is being imposed. It is well-established that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” U.S. Postal Serv. v. Council of Greenburgh Civic Ass‘ns, 453 U.S. 114, 129 (1981). When analyzing whether restrictions of speech on government property violate the First Amendment, courts apply the public forum doctrine. Initiative & Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066, 1070 (D.C. Cir. 2012). The public forum doctrine divides government property into three separate categоries: 1) traditional public forums, 2) designated public forums, and 3) nonpublic forums. Id., quoting Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45 (1983). The categoricaldesignation of the forum will determine the level of scrutiny courts apply to any restrictions on private speech. See Cornelius, 473 U.S. at 800.
“Traditional public forums” are “[p]laces which by long tradition or by government fiat have been devoted to assembly and debate.” Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45 (1983). Streets and parks are “quintessential public forums” that “have immemorially been held in trust for the use of the public, and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Id., quoting Hague v. CIO, 310 U.S. 496, 515 (1939). “Designated public forums” come into being when, “government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose,” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009), in other words, for the purpose of “expressive activity.” Perry Educ. Ass‘n, 460 U.S. at 45.
Courts apply a strict scrutiny standard when evaluating speech restrictions imposed on the use of a traditional or designated public forum. See Pleasant Grove City, 555 U.S. at 469–70. Under this standard, restrictions “must be content-neutral, narrowly tailored to serve a significant governmental interest, аnd allow for sufficient alternative
A different standard governs “nonpublic forums” which are “not by tradition or designation a forum for public communication.” Perry Educ. Ass‘n, 460 U.S. at 46. “In these places the government may ‘reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker‘s view.” Initiative & Referendum Inst., 685 F.3d at 1070, quoting Perry Educ. Ass‘n, 460 U.S. at 46.
In other words, if the forum “is not a public forum, the regulation will be upheld as long as the restrictions are reasonable and are not directed at opposing the views of particular individuals.” Cmty. for Creative Non-Violence, 893 F.2d at 1390.
Applying those principles, the Court agrees with the conclusion of the court in Nassif that “the interior of the Capitol building is a nonpublic forum where the government may limit First Amendment activities so long as the restrictions are reasonable in light of the purpose of the forum and are viewpoint neutral.” 2022 WL 4130841, at *4 (internal quotation marks and citation omitted); see also Bynum v. U.S. Capitol Police Bd., 93 F. Supp. 2d 50, 54–57 (D.D.C. 2000) (finding the U.S. Capitol is a nonpublic forum for purposes of the First Amendment whеre the expression of ideas “may be regulated in order to permit Congress peaceably to carry out its lawmaking responsibilities”). The Court agrees with other judges in this district in finding that
While defendant attempts to rely on Bynum and Lederman v. United States, 89 F. Supp. 2d 29, 43 (D.D.C. 2000) to support his overbreadth challenge, neither case informs the statutory challenge at issue here. Count IX Mot. at 14–16. Both cases involve challenges to Capitol Police Board regulations that were found to restrict a substantial amount of expressive behavior. In Bynum, the court was faced with a regulation that interpreted the term “demonstration activity” in the predecessor to
Lederman is entirely inapposite since it involved a police regulation banning activity in a zone on the grounds outside the Capitol, and not inside the building. Therefore, the court was applying the test applicable to a public forum, 89 F. Supp. 2d at 35–36, where the government’s ability to permissibly restrict expressive conduct is “very limited.” Id. at 37. While the court went on in dicta to opine that the regulation might not pass muster under the non-public
By contrast,
2. Section 5104(e)(2)(G) is not unconstitutional as-applied.
Unlike a facial challenge, an as-applied challenge under the First Amendment “asks a court to assess a statute’s constitutionality with respect to the particular set of facts before it.” Hodge v. Talkin, 799 F.3d 1145, 1156 (D.C. Cir. 2015). Defendant “cannot successfully bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the . . . Court expressly considered when rejecting a facial challenge to that provision.” Republican Party of Louisiana v. Fed. Election Comm‘n, 219 F. Supp. 3d 86, 96 (D.D.C. 2016), aff‘d sub nom. Republican Party of Louisiana v. Fed. Election Comm‘n, 137 S. Ct. 2178 (2017), quoting Republican Nat‘l Comm. v. Fed. Election Comm ‘n, 698 F. Supp. 2d 150, 157 (D.D.C. 2010), aff‘d, 561 U.S. 1040 (2010).
Here, the problem is not just that defendant has repeated his facial overbreadth arguments in support of the as-applied challenge; he failed to advance any argument in support of an as-applied challenge at all. Defendant asserts that the statute violates the First Amendment as-applied in two headings in his motion to dismiss, but he does not address this contention further. Count IX Mot. at 11, 14. Moreover, any as-applied challenge is premature as the factual record has yet to be developed. For these reasons, the Court will deny defendant‘s First Amendment challenge to Count Nine.
C. 40 U.S.C. § 5104(e)(2)(G) is not unconstitutionally vague.
Finally, the motion to dismiss Count Nine argues that
A penal statute is void for vagueness if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Williams, 553 U.S. at 304. The “touchstone” of the vagueness analysis is “whether the statute, either standing alone or as construed by the courts, made it reasonably clear at the time of the charged conduct that the conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997). As explained above,
To construe the statute, the Court can look to the dictionary definitions of these terms, as the court did in Seitz:
To “parade” is “to march in procession or with great display or ostentation, to walk up and down or promenade in a public place especially for the sake of showing off” . . . to “demonstrate” is “to make or take part in a public demonstration” . . . and in turn, “demonstration” is “a public manifestation by a number of persons of interest in some public question, or sympathy with some political or other cause, usually taking the form of a procession and mass meeting” . . . [f]inally, to “picket” is “to act as a picket in a dispute or demonstration” . . . [a]nd a “picketer” is “one engaged in a demonstration at a particular premises.”
Seitz, No. 21-cr-279, Dkt. #51, 12–1, citing Oxford English Dictionary (2nd ed. 1989). The Seitz court concluded that “taking these words together, the statute covers those who noticeably take part in a public display, likely with multiple people and in support of some dispute оr cause, in any of the Capitol buildings.” Id. at 13. Like the other courts that have considered the matter, the Court finds that the statutory terms provide sufficient guidance to ordinary people using common sense of the type of behavior that is prohibited in any Capitol building. Moreover, the settled legal meanings of the words in the statute prevent any “wholly subjective judgments” that would encourage arbitrary enforcement, Williams, 553 U.S. at 306, and indeed, the defendant has not pointed to any word in the statute that invites the sort of subjective analysis that would create a risk of discriminatory or arbitrary prosecution.6
Therefore, the indictment will not be dismissed on the basis that
III. Multiplicity Challenge
Defendant also seeks the dismissal of the indictment on the grounds that it violates the prohibitions against multiplicity and double jeopardy. See Multiplicity Mot. at 3. He asserts that “several counts in the indictment are simply rewordings and variations of other counts but which cite different statutes” and that he is therefore exposed to dоuble jeopardy. Multiplicity Mot. at 1, 4. Defendant also argues that in light of this multiplicity, various counts of the indictment are merely lesser-included offenses of the others. See Multiplicity Mot. at 4; Multiplicity Reply at 6-7.
Multiplicity arises when an indictment “charges the same offense in more than one count.” United States v. Mahdi, 598 F.3d 883, 887 (D.C. Cir. 2010), quoting United States v. Weathers, 186 F.3d 948, 951 (D.C. Cir. 1999). The Double Jeopardy Clause of the Constitution protects against “multiple punishments for the same offense.” See
Here, the offenses charged satisfy the Blockburger test – and do not violate the Double Jeopardy Clause – because each offense “requires proof of an additional fact which the other does not.” Defendant argues first that Counts One, Two, Five, and Seven are all duplicative. Multiplicity Mot. at 2. The statute at issue in Count One,
Defendant also argues that Counts Three, Six, and Eight are duplicative to no avail. Multiplicity Mot. at 2. The statute at issue in Count Three,
Finally, defendant argues that Counts Four and Nine are duplicitous tresрassing counts. Multiplicity Mot. at 2. Count Four under
Because each of the offenses charged in the indictment requires proof of an additional fact which the other does not, defendant‘s motion to dismiss the indictment on multiplicity grounds will be DENIED.
CONCLUSION
For the reasons set forth above, defendant‘s motions to dismiss Count Two [Dkt. # 54] and Count Nine [Dkt. # 56], and defendant‘s motion to dismiss counts on multiplicity grounds [Dkt. # 52] are hereby DENIED.
SO ORDERED.
AMY BERMAN JACKSON
United States District Judge
DATE: January 26, 2023