UNITED STATES OF AMERICA v. AARON MOSTOFSKY
Criminal Action No. 21-138 (JEB)
December 21, 2021
MEMORANDUM OPINION
On Jаnuary 6, 2021, Defendant Aaron Mostofsky was among the horde that descended on the United States Capitol while Congress was engaged in the certification of the Electoral College vote count for the 2020 Presidential election. In a Second Superseding Indictment, the Government charges Defendant with eight separate crimes, ranging from civil disorder and obstruction of an official proceeding to impeding officers and demonstrating in a Capitol building. In promulgating criminal statutes, past Congresses had understandably not fathomed that people might attempt to invalidate a lawful election by force in the Capitol itself. As a result, the Government has had to be somewhat more innovative in determining which charges to prosecute. Too innovative, claims Mostofsky, who contends in a Motion to Dismiss that certain counts are facially invalid, unconstitutional as applied to him, or violative of other legal doctrines. Although Defendant has offered many thoughtful and creative arguments in his lengthy and comprehensive Motion, the Court ultimately remains unpersuaded. As such, it will deny the Motion and permit the Indictment to stand.
I. Background
The Court gleans its understanding of the case by assuming as true the facts set forth in the Indictment and associated filings. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). According to the Criminal Complaint, filed January 11, 2021, with a joint session of Congress underway at the Capitol on the afternoon of January 6, Mostofsky was among a crowd
The Government indicted Mostofsky on February 19, 2021, on eight counts, see ECF No. 6 (Indictment), and then superseded several months later, also charging eight counts but with some minor tweaking. See ECF No. 25 (Super. Ind.). He has remained on release since his initial appearance. See Minute Entry of Jan. 25, 2021. During the pendency of the case, the parties have engaged in a number of legal and discovery disputes relating to, for example, the value of police items Mostofsky is alleged to have stolen, some specific language in particular counts, and whether the Government should be required to prоvide further information on certain charges. See, e.g., ECF Nos. 27 (First Motion for Bill of Particulars), 40 (Motion to Compel Federally Protected Function Evidence).
Being careful to shore up any technical defects in its charging documents, the Government recently filed a Second Superseding Indictment on November 10, 2021, see ECF No. 69, and trial is now set for March 23, 2022. This latest Indictment still charges eight counts, which are: I) Civil Disorder in violation of
In his current Motion, Mostofsky seeks the dismissal of Counts I, II, V, and VI. The Government opposes.
II. Legal Standard
Prior to trial, a defendant may move to dismiss an indictment (or specific cоunts) on the basis that there is a “defect in the indictment or information” including a “failure to state an offense.”
In reviewing the indictment, a court affords deference to the “fundamental role of the grand jury.” Ballestas, 795 F.3d at 148 (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995)). As a result, “[a]dherence to the language of the indictment is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury.” United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). A court accordingly cabins its analysis to “the face of the indictment and, more specifically, the language used to charge the crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphases and internal quotation marks omitted).
III. Analysis
Mostofsky argues that four counts of the Second Superseding Indictment should be dismissed. These counts were brought under several different statutes
A. 18 U.S.C. § 231(a)(3)
Defendant initially contends that Count One of the Second Superseding Indictment, which relies on
On or about January 6, 2021, within the District of Columbia, AARON MOSTOFSKY, committed and attempted to commit an act to obstruct, impede, and interfere with a law enforcement officer lawfully engaged in the lawful performance of his/her official duties incident to and during the commission of a civil disorder which in any way or degree obstructed, delayed, and adversely affected commerce and the movement of any article and commodity in commerce and the conduct and performance of any federally protected function.
Sec. Super. Ind. at 1-2. The language in the Second Superseding Indictment was drawn almost directly from the statute, as
Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function—Shall be fined under this title or imprisoned not more than five years, or both.
The term “commerce” is further defined as “commerce (A) between any State or the District of Columbia and any place outside thereof; (B) between points within any State or the District of Columbia, but through any place outside thereof; оr (C) wholly within the District of Columbia.”
Mostofsky maintains that the count is infirm because the statute exceeds Congress‘s power under the Commerce Clause and, alternatively, because the Government has failed to show that the “civil disorder” on January 6, 2021, “obstruct[ed], delay[ed], or adversely affect[ed]” a “federally protected function.” ECF No. 47 (MTD) at 39-51. Since the
1. Interstate Commerce Clause
The Commerce Clause gives Congress the “[p]ower . . . [t]o regulate Commerce . . . among the several States.”
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities оf interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.
Id. at 558-59 (citations omitted); see also Sebelius, 567 U.S. at 536. Both parties agree that the relevant inquiry as to
“To determine whether an activity has a ‘substantial effect’ on interstate commerce, the court considers the ‘four Lopez factors‘: (1) whether the activity itself ‘has anything to do with commerce or any sort of economic enterprise, however broadly one might define those terms‘; (2) ‘whether the statute in question contains an express jurisdictional element‘; (3) ‘whether there are express congressional findings or legislative histоry regarding the effects upon interstate commerce of the regulated activity‘; and (4) ‘whether the relationship between the regulated activity and interstate commerce is too attenuated to be regarded as substantial.‘” United States v. Reed, No. 15-188, 2017 WL 3208458, at *8 (D.D.C. July 27, 2017) (quoting Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1068-69 (D.C. Cir. 2003)).
The Court will devote most of its attention to the “jurisdictional element” in the second factor above since that is where the parties focus the bulk of their briefing and because, as explained below, satisfying this prong is typically enough to satisfy the Commerce Clause. In striking down the Gun-Free School Zones Act of 1990, Lopez noted that the Act “contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” 514 U.S. at 561. Such an element “might limit [the statute‘s] reach to a discrete set of [activities] that additionally have an explicit connection with or effect on interstate
The Court later interpreted the same felon-in-possession statute in Scarborough v. United States, 431 U.S. 563 (1977), this time to decide “what would constitute an adequate nexus with commerce.” Id. at 568. The Court concluded that the statute required only a “minimal nexus” to interstate commerce: “that the firearm ha[s] been, at some time, in interstate commerce.” Id. at 575. In reliance on those Supreme Court cases, every circuit — including ours — has held after Lopez that a jurisdictional element “substantially identical” to the one in Bass and Scarborough satisfies the Commerce Clause. See Fraternal Order of Police v. United States, 173 F.3d 898, 907-08 & n.2 (D.C. Cir. 1999) (collecting cases).
So does
The Court acknowledges Mostofsky‘s critique that these cases arise out of our Circuit, see Def. Sec. Super. Ind. Br. at 10, but also notes that he offers no in-Circuit precedent on
a. Indirect Connection to Commerce
Mostofsky concedes that ”
The district court in Howard addressed a similar issue in concluding that
The Court finds the reasoning of Howard persuasive and concurs that, “[w]hen a person deliberately commits some act to obstruct, impede or interfere with those officers [who are “attempting to quell an interference with interstate commerce“], that person is impacting interstate commerce.” Howard, 2021 WL 3856290, at *10; see also Phomma, 2021 WL 4199961, at *3-4 (rejecting indirect-connection challenge). The connection to interstate commerce in
Mostofsky also maintains that other language in
Similarly, Mostofsky does not prevаil on his argument that the jurisdictional element is insufficient as it “does not require a substantial effect on interstate commerce, but instead requires a civil disorder that affects commerce ‘in any way or degree.‘” MTD at 48; see also Def. Sec. Super. Ind. Br. at 10. This misunderstands what is required in a jurisdictional element. The “‘substantiality’ requirement does not apply in the context of determining what quantum of evidence is required to satisfy statutory interstate commerce jurisdictional elements,” United States v. Harrington, 108 F.3d 1460, 1465 (D.C. Cir. 1997), and a statute may be upheld when it contains an element that requires that “the conduct criminalized must affect or attempt to affect commerce in some way or degree.” Taylor v. United States, 579 U.S. 301, 308 (2016) (emphasis added). Indeed, the Hobbs Act jurisdictional element, which Mostofsky cites with approval, regulates “whoever in any way or degree obstructs, delays or affects commerce . . . .”
b. Regulation of Non-Commercial Activity
Mostofsky also argues that
Elaborating on this argument, Mostofsky objects to the Government‘s reliance on Hill because the relevant statute there “specifically required that the victim of an
c. Remaining Lopez Factors
Finally, turning to the other factors considered in Lopez and Morrison, Defendant argues at the outset that the Government forfeited its arguments as to these by focusing entirely on the jurisdictional element. See Def. Sec. Super. Ind. Br. at 7; Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019). This is correct, although the Government did indirectly address the first Lopez factor in discussing Congress‘s power to regulate “non-commercial criminal activity.” Gov. Sec. Super. Ind. Br. at 11. In any event, looking beyond the jurisdictional element is not required, and the Court observes that all recent district-court opinions to have considered whether
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In sum, the Court concurs with the Government and the other district courts that
The Court may conceivably have an independent ground to uphold the statute. Because all of the conduct at issue here occurred in the District of Columbia, the Government argues that Congress was empowered to enact
Defendant disagrees, arguing that more recent precedent suggests that the Court cannot decide a facial Commerce Clause challenge based on the fact that the statute happens to have a legitimate application in one location. See Gordon v. Holder, 721 F.3d 638, 654 (D.C. Cir. 2013) (noting that “when a statute erases the boundaries that define a sovereign‘s jurisdiction[,] . . . any legitimate application is pure happenstance[,]” which may have “led the Supreme Court to sustain facial challenges to laws that omit constitutionally-required jurisdictional elements, even though all such laws necessarily have a ‘plainly legitimate sweep‘“); Def. Sec. Super. Ind. Br. at 3-5. Neither Gordon, which dealt with a due-process challenge, nor any subsequent Circuit case has addressed the specific question of how courts should now consider facial Commerce Clause challenges when the relevant activity oсcurs within the District. This leaves the Court with scant guidance on how to treat Mostofsky‘s situation. But see Pettaway, 297 F. Supp. 3d at 149 n.9 (explaining, post-Gordon, that although not raised by the parties, “the government would likely have authority [under Article 1, Section 8, Clause 17] to indict the defendant under [
Mostofsky also argues that
To begin, while Defendant asserts that
The statute would also not “make unlawful a substantial amount of constitutionally protected conduct,” City of Houston, 482 U.S. at 459, even though some expressive conduct may fall within its remit. Mostofsky argues that the language of
For starters, it is not clear that these examples would in fact rise to the level of
In his Reply, Mostofsky focuses on one category of protected expressive conduct — picketing — that he believes his actions were akin to and that
Finally, the Court need not adopt a limiting construction such that
It will not address a vagueness challenge to
B. 18 U.S.C. § 1512(c)(2)
Mostofsky next contends that Count II should be dismissed. That count cites
(A) 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 Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is authorized by law; or
(D) 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.
As relatively simple as the language in
To begin, Mostofsky believes that the Electoral College vote is not an official
Mostofsky also maintains that the doctrine of ejusdem generis requires that the language in
Defendant alternatively contends that, as applied to him,
The Court also concurs with how the court defined “corruptly” in Sandlin — i.e., requiring that defendants acted “unlawfully, and with the intent to obstruct[,]” impede, or influence an official proceeding. See 2021 WL 5865006 at *14. As Judge Friedrich noted, United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), on which Mostofsky relies heavily, see MTD at 30-34, has since had its holding “cabined . . . to its facts[,]” and that case alone cannot “show[] that
Mostofsky adds three final arguments to the mix, but none carries the day. First, he asserts that the rule of lenity should require the resolution of ambiguities in the statute in his favor. See MTD at 34. That “last resort,” Guedes v. ATF, 920 F.3d 1, 27 (D.C. Cir. 2019), has no application where the statute is reasonably clear on its face and contains no “grievous ambiguity or uncertainty.” Barber v. Thomas, 560 U.S. 474, 488 (2010); see also Sandlin, 2021 WL 5865006, at *10. Next, he posits that the Government‘s interpretation would operate as an ex post facto law given its novelty. See MTD at 34-36. The Court has already rejected the notion that this is such a novel interpretation, and it cannot say that applying it to his conduct is so “unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.” Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).
Last, he contends that the statute is invalid under the First Amendment as applied to him. See MTD at 36-39. As
Count II may thus also proceed to trial.
C. 18 U.S.C. § 1752(a)(1) and (2)
Mostofsky next contends that Counts V and VI, which rely on
Aaron Mostofsky did knowingly, and with intent to impede and disrupt the orderly conduct of Gоvernment business and official functions, engage in disorderly and disruptive conduct in and within such proximity to, a restricted building and grounds, that is, any posted, cordoned-off, and otherwise restricted area within the United States Capitol and its grounds, where the Vice President was temporarily visiting, when and so that such conduct did in fact impede and disrupt the orderly conduct of Government business and official functions.
Id.
In seeking dismissal, Mostofsky maintains that these charges are infirm because they can be brought only where the U.S. Secret Service has restricted a particular area. Here, conversely, the evidence shows that the U.S. Capitol Police was the only law-enforcement entity to set up a barrier and cordon off the Capitol building. Defendant also contends that the Government‘s application of the section to him is unconstitutionally vague, that the rule of lenity dictates a resolution of the section‘s ambiguitiеs in his favor, and that the Government‘s interpretation “would operate as an ex post facto law.” See MTD at 54-60.
In considering these challenges, the Court starts with the text of the statute, bearing in mind that Mostofsky is charged with one count under
(a) Whoever—
(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;
. . .
(c) In this section—
(1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area—
(A) of the White House or its grounds, or the Vice President‘s official residence or its grounds; (B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
(C) of a building or grounds so restricted in cоnjunction with an event designated as a special event of national significance.
(2) the term “other person protected by the Secret Service” means any person whom the United States Secret Service is authorized to protect under
section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.
The text plainly does not require that the Secret Service be the entity to restrict or cordon off a particular area. While Mostofsky talks about the original 1970 statute being geared toward the Secret Service, see MTD at 8-10, 55-58, its current language now has no such reference. In a thorough opinion rejecting all of the same arguments Mostofsky raises here (in a case in which the defendant was represented by the same counsel retained in this case), Judge Trevor McFadden of this district noted: “[T]he only reference in the statute to the Secret Service is to its protectees. Section 1752 says nothing about who must do the restricting.” United States v. Griffin, No. 21-92, 2021 WL 2778557, at *4 (D.D.C. July 2, 2021); see also Caldwell, No. 21-28, ECF No. 415 (Order) at 4 (adopting reasoning in Griffin). Not only does Mostofsky nowhere mention this decision, but he also drops any argument about
Defendant‘s other cursory contentions — namely, unconstitutional vagueness as applied, violation of rule of lenity, and ex post facto law, see MTD at 58-60 — similarly gain no traction because they also all focus on the purported role of the Secret Service. In other words, Defendant believes that there was insufficient notice that this statute could be applied to someone who was not warned by the Secret Service to stay out. Once again, the statute says nothing about any requirement that the Secret Service be involved in restricting an area, so there is no likelihood of potential violators being misled. See Griffin, 2021 WL 2778557, at *6 (“This law is no trap awaiting the unwary.“); id. (“Section 1752 is capacious, not ambiguous.“).
The Court, accordingly, will deny Mostofsky‘s Motion as to
IV. Conclusion
For these reasons, the Court will deny Defendant‘s Motion to Dismiss. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: December 21, 2021