Criminal Action No. 1:21-cr-00119 (CJN)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 7, 2022
MEMORANDUM OPINION
On January 6, 2021, as a joint session of Congress convened in the U.S. Capitol to
The government alleges that Defendant Garret Miller was an active participant in these events. On May 12, 2021, a grand jury returned a second superseding indictment that charges Miller with twelve different criminal offenses, several of which are felonies. The government asserts that Miller predicted the likelihood of violence on January 6; pushed past officers to gain entrance to the Capitol; posted videos and pictures on social media from inside; and made various self-incriminating statements in the days thereafter. See infra at 3–4. The government has also proffered evidence that Miller made several threats on social media following January 6, including to Representative Alexandria Ocasio-Cortez and a Capitol Police Officer. See id. at 4–5.
Miller has filed several pretrial motions. He moved to revoke the detention order that had been entered by the District Court for the Northern District of Texas. ECF No. 14. The Court denied that request on the ground that no conditions of release could reasonably ensure the safety of the community were Miller to be released before trial. See Minute Entry of April 1, 2021. Miller also moved for discovery and for an evidentiary hearing regarding what he claimed was the government‘s selective prosecution of him as compared to the protestors in Portland, Oregon, ECF No. 32, 33. The Court denied those motions. ECF No. 67.
Still pending is Miller‘s Motion to Dismiss Count Three of the Superseding Indictment (“Mot.“), ECF No. 34, in which Miller seeks to dismiss one of the twelve counts in the Second Superseding Indictment. For the reasons discussed below, the Court agrees with Miller that his conduct does not fit within the scope of the statute he is charged with violating,
BACKGROUND
A. January 6, 20211
At approximately 1:00 p.m. on January 6, 2021, a joint session of Congress convened in the U.S. Capitol. ECF No. 1-1 at 1. Its purpose was to certify the vote count of the Electoral College, as required by the
The Capitol is a secure building, guarded at all times by the United States Capitol Police. Id. But on January 6, 2021, the Capitol Police had taken extra precautions, erecting temporary and permanent barriers around the building‘s perimeter. Id. The Capitol Police also closed the entire exterior plaza of the building to the public. Id.
Those extra precautions were not enough. The mob soon turned violent. See id. Rioters broke through the protective lines of the Capitol Police, assaulted officers, and shattered windows in the process. Id. Members of the House of Representatives, the Senate, and the Vice President fled as rioters mobbed the halls. Id. All the while, looting and destruction continued, see id., producing devastating results, see Thompson, 20 F.4th at 15–16.
The government alleges that Miller was part of this violent mob, pushing past officers to gain entrance to the building. ECF No. 1-1 at 2, 5. The government alleges that he foresaw the violence coming, as he posted to Facebook four days before that he was “about to drive across the country for this [T]rump shit. On Monday . . . Some crazy shit going to happen this week. Dollar might collapse . . . civil war could start . . . not sure what to do in DC.” Id. at 2.2 It further alleges that Miller posted videos to his Twitter account from the Capitol rotunda, showing rioters waving flags of support for then-President Trump. Id. Miller allegedly captioned the video as being “From inside [C]ongress.” Id. And he is claimed to have posted a selfie of himself inside the Capitol. When a commentator wrote “bro you got in?! Nice!” Miller allegedly replied, “just wanted to incriminate myself a little lol.” Id. at 4.
The government contends that Miller made several additional incriminating social-media posts in the days following the attack on January 6. When individuals on Twitter claimed that those who stormed the Capitol were “paid infiltrators” or “antifa,” Miller is alleged to have consistently corrected them: “Nah we stormed it. We where [sic] gentle. We where [sic] unarmed. We knew what had to be done.” Id. at 6. And when others asked him if he was in the building, he allegedly responded, “Yah . . . we charged . . . We where [sic] going in . . . No matter what . . . Decided before the [T]rump speech . . . I charged the back gates myself with an anti[-]masker.” Id.
The government also alleges that Miller made several threats on social media following January 6. Regarding Representative Alexandria Ocasio-Cortez, he tweeted, “Assassinate AOC.” Id. at 8. And when discussing the shooting of a woman by a Capitol Police Officer during the riot, Miller is alleged to have written, “We going to get a hold [sic] of [the officer] and hug his neck with a nice rope[.]” Id. at 9. When the person with whom he was chatting responded, “Didn‘t you say you were a Christian or some lie?,” Miller is alleged to have typed, “Justice . . . Not murder . . . Read the commandment . . . there[‘]s a difference.” Id. He is also alleged to have made several additional comments about
B. Miller‘s Indictment
For purposes of Miller‘s Motion to Dismiss Count III, the Court must assume as true the allegations contained in the Indictment—but may rely only on those allegations. Akinyoyenu, 199 F. Supp. 3d at 109–10 (citing Ballestas, 795 F.3d at 149). The Second Superseding Indictment, and particularly Count Three, is quite sparse. It provides:
COUNT THREE
On or about January 6, 2021, within the District of Columbia and elsewhere, GARRET MILLER, attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress‘s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15–18.
Second Superseding Indictment (“Indictment“), ECF No. 61 at 2–3.3 The Indictment further specifies that this is an alleged violation of
C. Miller‘s Motion to Dismiss
Miller moves to dismiss only Count Three. See generally Mot. The statute he is charged with violating,
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with intent to impair the object‘s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
First, Miller claims that Congress‘s certification of the 2020 presidential election was not an “official proceeding.” Mot. at 8–11. He argues that because the certification was not judicial in nature, it was not a “proceeding” at all. Miller marshals several definitions of “proceeding” to support this position. See id.
Second, Miller argues that
Finally, Miller argues that the mens rea requirement of
on United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), he argues that it is unconstitutionally vague here. Sec. Supp. at 9–14.
The government contends that Miller‘s alleged conduct fits comfortably within
For each contention, Miller notes that the Court is under an obligation to exercise restraint in construing criminal laws and to apply the rule of lenity should genuine ambiguity persist. Mot. at 7 & n.1. The government does not challenge either of these interpretive principles. See generally Montgomery Br.
LEGAL STANDARDS
A. Motions to dismiss generally
Before trial, a criminal defendant may move to dismiss a charge based on a “defect in the indictment.”
B. The Court must exercise restraint when assessing the reach of criminal statutes
Because Miller challenges the scope of a federal criminal statute and its application to his alleged conduct, additional interpretive rules apply. First, federal courts have “traditionally exercised restraint in assessing the reach of a federal criminal statute.” United States v. Aguilar, 515 U.S. 593, 600 (1995). The Supreme Court has urged this restraint “both out of deference to the prerogatives of Congress and
Running parallel to this principle is the rule of lenity. “[T]he rule of lenity is venerable,” United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (en banc) (Bibas, J., concurring), having arisen to mitigate draconian sentences in England and having been firmly established in English law by the time of Blackstone, id. at 473. “[I]t took root in our law soon thereafter.” Id.
“Under the rule of lenity, courts construe penal laws strictly and resolve ambiguities in favor of the defendant,” id., so long as doing so would not “conflict with the implied or expressed intent of Congress,” Liparota v. United States, 471 U.S. 419, 427 (1985). Under current doctrine, the rule of lenity applies to instances of “grievous” ambiguity, see Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (collecting citations), a construction that is arguably in tension with the rule‘s historical origins, see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.“). See also Wooden v. United States, — U.S. —, — (2022) (Gorsuch, J., concurring in judgment) (slip op. at 9–12); but see id. (Kavanaugh, J., concurring) (slip op. at 1–4).
I. CONGRESSIONAL CERTIFICATION OF ELECTORAL COLLEGE RESULTS IS AN “OFFICIAL PROCEEDING”
Miller‘s first argument is that the Congressional certification of the Electoral College was not an “official proceeding.” Mot. at 8–11. But this argument essentially ignores that, as used in § 1512, “official proceeding” is a defined term, and its definition covers the Congressional certification of Electoral College results.
Miller argues that the “legal,” as opposed to “lay,” understanding of “proceeding” should control here. Mot. at 9; see also United States v. Ermoian, 752 F.3d 1165, 1170 (9th Cir. 2013). But Black‘s Law Dictionary—the leading authority on “legal” uses of words—defines a “proceeding” as “[t]he business conducted by a court or other official body; a hearing.” Proceeding, def. 4, Black‘s Law Dictionary (11th ed. 2019). The certification of the Electoral College results by Congress is “business conducted by a[n] . . . official body.” Id. Indeed, it is business required by both the
To be sure, several definitions of the word “proceeding“—whether “lay” or “legal”
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Miller‘s Indictment thus properly alleges an involvement with an official proceeding—“that is, a proceeding before Congress, specifically, Congress‘s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15–18.” Indictment at 2–3. On that ground, at least, his Motion to Dismiss fails.
II. MILLER‘S ALLEGED CONDUCT DOES NOT FIT WITHIN THE SCOPE OF SECTION 1512(c)(2)
Miller‘s second challenge is broader: he argues that
A. The text of § 1512(c) supports three possible readings of the statute
The Court begins, as it must, with the text. Recall what
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with intent to impair the object‘s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
Reading
Otherwise as a clean break between subsections. When
Relying on the first definition—“in a different way or manner“—and the breadth of the terms in
There are a number of problems with this interpretation. First, it ignores that “otherwise” has several different (though related) definitions, each of which implies a relationship to something else—here, subsection (c)(1).
Second, and more important, this interpretation does not give meaning to the word “otherwise.” When possible, of course, the Court must give effect to every word in a statute. Setser v. United States, 566 U.S. 231, 239 (2012). But if
Third, reading “otherwise” in this way is inconsistent with Begay v. United States, 553 U.S. 137 (2008), abrogated on other grounds by Johnson v. United States, 576 U.S. 591 (2015). There, the Supreme Court considered whether drunk driving was a “violent felony” under the Armed Career Criminal Act. The ACCA defined a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a risk of physical injury to another.” Begay, 553 U.S. at 139–40 (quoting
Both the five-Justice majority and Justice Scalia concluded that the ACCA‘s use of the word “otherwise” in some way tethered the text preceding the word to the text following it; the majority and Justice Scalia differed only in how it did so. The majority opinion concluded that the text preceding “otherwise” influenced the meaning of the text that followed: it “limit[ed] the scope of the clause to crimes that are similar to the examples themselves.” Begay, 553 U.S. at 143 (emphasis added). The Court thus held that “driving under the influence” fell outside of the ACCA‘s “violent felony” definition because it was not like burglary, arson, or extortion. Id. at 142.
As for Justice Scalia, he agreed with the majority that “otherwise” tethered the text preceding it to the text following, but he disagreed regarding how they related. In Justice Scalia‘s view, “by using the word ‘otherwise’ the writer draws a substantive connection between two sets only on one specific dimension—i.e., whatever follows ‘otherwise.‘” Id. at 151 (Scalia, J., concurring in judgment) (emphasis added). Thus, in Justice Scalia‘s view, the text before “otherwise” did not limit the text that follows it.6
concluded, it does. Id. This position, of course, is very similar to the interpretation suggested by the government here. See Montgomery Br. at 7–8. But it garnered only three votes.
The Court recognizes that certain courts of appeals have adopted this clean-break reading of “otherwise” in
While we acknowledge that § 1512(c)(1) is limited to obstruction relating to “a record, document, or other object,” § 1512(c)(2) is not so limited. Section 1512(c)(2) gives defendants fair warning in plain language that a crime will occur in a different (“otherwise“) manner compared to § 1512(c)(1) if the defendant “obstructs, influences, or impedes any official proceeding” without regard to whether the action relates to documents or records. See Webster‘s New World College Dictionary 1021 (4th ed. 2007) (defining “otherwise” as “in another manner; differently“). Thus, § 1512(c)(2) “operates as a catch-all to cover otherwise obstructive behavior that might not constitute a more specific offense like document destruction, which is listed in (c)(1).” United States v. Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014) (citation omitted) (internal quotation marks omitted); see also Aguilar, 515 U.S. at 598 (interpreting similar language in
18 U.S.C. § 1503(a) as a “catchall” omnibus clause that is “far more general in scope than the earlier clauses of the statute“).
The decision in Petruk does not mention, let alone discuss, the Supreme Court‘s decision in Begay. Moreover, it relies on an incorrect reading of the Court‘s decision in Aguilar. In particular, as reflected in the quotation above, Petruk described Aguilar as having “interpret[ed]” a clause in
“decisions of Courts of Appeals [that] have . . . place[d] metes and bounds on the very broad language of the catchall provision.” Id. at 599–600. And Aguilar explained the Court‘s traditional restraint in assessing the reach of criminal statutes as support for this holding. See id. at 600.7
This interpretation solves several of the problems posed by the interpretation discussed above. It acknowledges that “[b]y using the word ‘otherwise,’ Congress indicated a substantive connection between” the text preceding and the text following the word. United States v. Begay, 470 F.3d 964, 980 (McConnell, J., dissenting in part), overruled by Begay, 553 U.S. at 148. And it is consistent with Justice Scalia‘s concurrence in Begay.
But this interpretation has other problems. If Congress intended for the common, linking element in both subsections to be the pendency of an “official proceeding,” then the use of “otherwise” in
“official proceeding,” suggesting that the common link should be something other than the pendency of an official proceeding; otherwise there would be no reason to repeat the term in both subsections.
Moreover, while this approach echoes Justice Scalia‘s concurrence in Begay, there are important differences between
The structure of
This interpretation is consistent with Begay. In particular, 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‘].” Begay, 553 U.S. at 144 (emphasis in original); contra Montgomery Br. at 8 (“Section 1512(c)(2) criminalizes the same result prohibited by Section 1512(c)(1)—obstruction of an official proceeding—when the result is accomplished by a different means, i.e., by conduct other than destruction of a document, record, or other object.“). To be sure, Begay acknowledged that “otherwise” could sometimes have that meaning, but it made clear that it did not always have such a limited role. As the Court put it, “the word ‘otherwise’ can (we do not say must, cf. post, at [150–51] (Scalia, J., concurring in judgment)) refer to a crime that is similar to the listed examples in some respects but different in others.” Begay, 553 U.S. at 144.
Moreover, the Court held that “the provision‘s listed examples“—that is, the text before “otherwise“—“. . . indicate[] that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.‘” Id. at 142 (quoting
despite the fact that ‘otherwise’ means that the common element of risk must be presented ‘in a different way or manner.‘” Id. at 151 (Scalia, J., concurring in judgment) (emphasis in original).8
Under this interpretation, subsection (c)(2) operates to ensure that by delineating only certain specific unlawful acts in subsection (c)(1)—“alter[ation], destr[uction], mutilat[ion], or conceal[ment]“—Congress was not underinclusive. Compare, for example,
Loughrin dealt with a challenge to a conviction under the federal bank-fraud statute,
Whoever knowingly executes, or attempts to execute, a scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
The statute in Loughrin is different from
But the statutes are also similar. After all, both have separate numbering and line breaks, and as Loughrin makes clear, such choices matter. And when writing
* * *
In sum, looking just to the text of
While the text is this Court‘s lodestar, however, it is not the only factor it must consider. “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (quoting United States v. Heirs of Boisdore, 8 How. 113, 122 (1850)). The Court thus turns next to structure.
The structure and scope of
Subsection (c)(1) continues the statute‘s focus on specific and particularized actions, albeit in a slightly different manner. Instead of making unlawful an individual‘s action with respect to another person to achieve some illicit end—as subsections (a), (b), and (d) do—subsection (c)(1) prohibits an individual from taking certain actions directly. It prohibits “alter[ing], destroy[ing], mutilat[ing], or conceal[ing]” a record, document, or other object, or attempt[ing] to do so, with intent to impair the object‘s integrity or availability for use in an official proceeding.” Id.
If, however, the scope of subsection (c)(2) is not limited by subsection (c)(1)—if “otherwise” either signals a clean break or means subsection (c)(1) is only an example fitting within (c)(2)‘s scope—it would introduce something of an internal inconsistency: subsection 1512(c)(2) would be the only provision in
A different reading would also create substantial superfluity problems. After all, if subsection (c)(2) is not limited by subsection (c)(1), then the majority of
1512(a)(2)(B)(iv), 1512(b)(1), 1512(b)(2)(A), 1512(b)(2)(C), 1512(b)(2)(D), and 1512(d)(1)—would also run afoul of
Another court has sought to allay this overlap concern by pointing to the language Congress could have used:
[I]t would have been easy for Congress to craft language to achieve the goal that Defendants now hypothesize. Congress, for example, could have substituted Section 1512(c)(2) with the following: “engages in conduct that otherwise impairs the integrity or availability of evidence or testimony for use in an official proceeding.” The fact that Congress, instead, enacted language that more generally—and without the limitations that Defendants now ask the Court to adopt—criminalized efforts corruptly to obstruct official proceedings speaks volume.
Montgomery, 2021 WL 6134591, at *12. That is certainly true, and in fact is why the Court does not believe that there is a single obvious interpretation of the statute. But it is also the case that reading
C. The historical development of § 1512 suggests that § 1512(c)(2) operates as a catchall to § 1512(c)(1)
Prior to the enactment of subsection 1512(c) in 2002,
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object‘s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; . . .
shall be fined under this title or imprisoned not more than ten years, or both.
Section 1512(c) filled that gap, and took much of its language from
| (b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to | (c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or |
| do so, or engages in misleading conduct toward another person, with intent to—
(2) cause of induce any person to— (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object‘s integrity or availability for use in an official proceeding, (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process; . . . | attempts to do so, with the intent to impair the object‘s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. |
shall be fined under this title or imprisoned not more than ten years, or both.
| (2) cause or induce any person to— (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; | (a) . . .
(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to— (B) cause or induce any person to— (i) withhold testimony, or withhold a record, document, or other |
| (B) alter, destroy, mutilate, or conceal an object with intent to impair the object‘s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process; . . . | object, from an official proceeding;
(ii) alter, destroy, mutilate, or conceal an object with intent to impair the object‘s integrity or availability for use in an official proceeding; (iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (iv) be absent from an official proceeding to which such person has been summoned by legal process; . . . |
shall be fined under this title or imprisoned not more than ten years, or both.
shall be punished as provided in paragraph (3).
A fair inference is that, by adding subsection (c) to fill the gap in § 1512, and by drawing heavily from a single provision out of four already included in subsection (b), Congress intended subsection (c) to have a narrow, limited focus—just like subsection (b)(2)(B). The only difference is that subsection (c) does not include the requirement of acting through another person. That the same Congress further adopted all of § 1512(b)(2) in § 1512(a)(2)(B)—rather than just one subsection of § 1512(b)(2)—further suggests that its enactment of § 1512(c)(1) was intended to be narrow. Perhaps just as important, if subsection 1512(c)(2) is as broad as the government contends here, there would have been no need for the very same Congress to add § 1512(a)(2)(B) just three months later.
D. If anything, the legislative history supports a narrow reading of subsection (c)(2)
“Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Dep‘t of Navy, 562 U.S. 562, 574 (2011). The government relies on legislative history, but it does not support the government‘s position.
Section 1512(c) was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat.
Indeed, even in the current Andersen case, prosecutors have been forced to use the “witness tampering” statute,
18 U.S.C. § 1512 , and to proceed under the legal fiction that the defendants are being prosecuted for telling other people to shred documents, not simply for destroying evidence themselves. Although prosecutors have been able to bring charges thus far in the case, in a case with a single person doing the shredding, this legal hurdle might present an insurmountable bar to a successful prosecution.
S. Rep. No. 107–146, p. 7 (2002).
As the plurality opinion in Yates explains,
is pending and a subpoena has been issued for the evidence that has been destroyed or altered. Timing is very important.” Id. at S6545 (emphasis added). In Senator Lott‘s view, his amendment would fill this gap: “So this section would allow the Government to charge obstruction against individuals who acted alone, even if the tampering took place prior to the issuance of a grand jury subpoena. I think this is something we need to make clear so we do not have a repeat of what we saw with the Enron matter earlier this year.” Id. (emphasis added) Then-Senator Joseph Biden referred to new subsection (c) as “making it a crime for document shredding,” something he thought the pending bill already did. Id. at S6546.
Senator Hatch made similar statements regarding the focus of the proposed new subsection on documents and document-shredding, as well as its ties to the then-recent Enron scandal. Senator Hatch explained that “the amendment strengthens an existing federal offense that is often used to prosecute document shredding and other forms of obstruction of justice,” noting that current law “does not prohibit an act of destruction committed by a defendant acting alone. While other existing obstruction of justice statutes cover acts of destruction that are committed by an[] individual acting alone, such statutes have been interpreted as applying only where a proceeding is pending, and a subpoena has been issued for the evidence destroyed.” Id. at S6550. To Senator Hatch, the addition of § 1512(c) “closes this loophole by broadening the scope of Section 1512.” Id. It ”
To the extent it is relevant at all, the weight of this legislative history is inconsistent with the government‘s position here. It suggests that, in the wake of the Enron scandal, Congress was faced with a very specific loophole: that then-existing criminal statutes made it illegal to cause or induce another person to destroy documents, but did not make it illegal to do so by oneself. Congress closed that loop by passing subsection (c), and nothing in the legislative history suggests a broader purpose than that.
E. Miller‘s alleged conduct falls outside of § 1512(c)(2)
For all the foregoing reasons, the Court believes there are two plausible interpretations of the statute: either § 1512(c)(1) merely includes examples of conduct that violates § 1512(c)(2), or § 1512(c)(1) limits the scope of § 1512(c)(2). The text, structure, and development of the statute over time suggest that the second reading is the better one. But the first is, at a minimum, plausible.
At the very least, the Court is left with a serious ambiguity in a criminal statute. As noted above, courts have “traditionally exercised restraint in assessing the reach of a federal criminal statute,” Aguilar, 515 U.S. at 600, and have “construe[d] penal laws strictly and resolve[d] ambiguities in favor of the defendant,” Nasir, 17 F.4th at 473 (Bibas, J., concurring) (citing Liparota, 471 U.S. at 427). Applying these principles here “gives citizens fair warning of what conduct is illegal, ensuring that [an] ambiguous statute[] do[es] not reach beyond [its] clear scope.” Nasir, 17 F.4th at 473 (Bibas, J., concurring). And it makes sure that “the power of punishment is vested in the legislative, not the judicial department.” Id. (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.)). The Court therefore concludes that
Miller, however, is not alleged to have taken such action. Instead, Count Three of the Second Superseding Indictment alleges only that he “attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress‘s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15–18.” Indictment at 2–3. Nothing in Count Three (or the Indictment more generally) alleges, let alone implies, that Miller took some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence Congress‘s certification of the electoral vote.
The government nevertheless argues that Miller‘s conduct “‘otherwise obstruct[ed], influence[d], or impede[d]’ Congress‘s ability to review documents that it was constitutionally and statutorily required to receive and act upon, thereby obstructing the certification of the Electoral College vote.” Montgomery Br. at 40–41 (modifications in original). But none of
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For the foregoing reasons, the Court will grant Miller‘s Motion to Dismiss Count Three of the Superseding Indictment, ECF No. 34. An appropriate order will follow.
DATE: March 7, 2022
CARL J. NICHOLS
United States District Judge