United States v. NORDEANUnited States v. NORDEAN
MEMORANDUM OPINION
Defendants Ethan Nordean, Joseph R. Biggs, Zachary Rehl, and Charles Donohoe are alleged, among other things, to have conspired to stop, delay, or hinder Congress‘s certification of the Electoral College vote on January 6, 2021, and to obstruct and interfere with law enforcement officers engaged in their official duties that day. They move to dismiss the First Superseding Indictment, arguing
I. Background
In March 2021, a grand jury returned the First Superseding Indictment charging Defendants for their alleged roles in the events of January 6, 2021. According to the First Superseding Indictment, the month after the 2020 United States presidential election on November 3, 2020, the presidential electors of the United States Electoral College met in the state capital of each state and the District of Columbia. ECF No. 26 ¶ 3. Their task was to formalize the results of the election: that Joe Biden and Kamala Harris had won enough votes to be the next president and vice president of the United States. Id. And on January 6, 2021, a Joint Session of the United States House of Representatives and the United States Senate convened in the United States Capitol to certify the Electoral College‘s vote. Id. ¶ 4. But, the First Superseding Indictment alleges, Congress was attacked by a crowd that breached barriers erected by the United States Capitol Police and entered the Capitol by breaking windows and ramming open doors, forcing the evacuation of members of Congress and the halting of the Joint Session until later that evening. Id. ¶ 20-22. By the time law enforcement regained control over the Capitol and its grounds, about 81 members of the Capitol Police and 58 members of the Metropolitan Police Department had been assaulted, and the Capitol building had suffered millions of dollars in damage. Id. ¶ 23.
The First Superseding Indictment alleges that Defendants helped plan and orchestrate the events of January 6. Count One charges them with conspiracy under
By December, Nordean and Rehl started to raise funds for January 6. ECF No. 26 ¶¶ 37-38. Nordean allegedly created an online crowdfunding campaign, soliciting money not only for “communications” but also for “[p]rotective gear” for Proud Boys who would attend. Id. ¶ 37. And he supposedly “shared a link to this crowdsourcing campaign on his social media page and encouraged others to share it” as well. Id. Rehl also allegedly shared a link to an online fundraiser with the name “Travel Expenses for upcoming Patriot Events.” Id. ¶ 38.
In the days before January 6, Defendants allegedly communicated covertly to plan for the events of that day. ECF No. 26 ¶¶ 39-48. On January 5, Defendants all joined a specific encrypted messaging channel called “Boots on the Ground,” which “was created for communications by Proud Boys members in Washington, D.C.” Id. ¶ 42. The channel had been created after Donohoe expressed concern that a prior channel might be compromised by law enforcement. Id. ¶ 39. Not long afterward, a co-conspirator allegedly posted on the channel: “We had originally planned on breaking the guys into teams. Let‘s start divying them up and getting baofeng channels picked out.” Id. ¶ 41. “Baofeng” is a “manufacturer of handheld radios and other communications equipment,” according to the First Superseding Indictment. Id. ¶ 41 n.1. Biggs allegedly posted a message shortly after the channel was created, noting that he was with Nordean and that “[t]omorrow‘s the day.” Id. ¶ 42. He then apparently asked for “numbers” so that he and others could “plan accordingly for tonight and go over tomorrow‘s plan.” Id. ¶ 43. Biggs later posted in one of the encrypted messaging channels, “We have a plan.” Id. ¶ 48. When Donohoe asked what the plan was so he could pass it on, Biggs allegedly responded that he had given a plan to the Proud Boys Chairman. Id.
On the morning of January 6, “a group of Proud Boys members gathered near the Washington Monument.” ECF No. 26 ¶ 51. Early that morning, Donohoe communicated that he “had the keys until [Nordean] and [Rehl] show up.” Id. at 50 (cleaned up). Nordean, Biggs, and Rehl allegedly “led the group, which included Donohoe, to the east side of the Capitol.” Id. ¶ 52 (capitalization altered). The group with Defendants “were not wearing Proud Boys colors of black and yellow,” id. ¶ 53, consistent with an earlier directive given by Defendants and others, id. ¶ 12. Just before 1:00 p.m.—when “the Joint Session convened in the Capitol to certify the Electoral College vote,” id. ¶ 17—the group, allegedly led again by Nordean, Biggs, and Rehl, and including Donohoe, moved to the Capitol entrance on First Street, “which was secured by a small number of Capitol
According to the First Superseding Indictment, shortly after Defendants got to the First Street entrance, the metal barriers were “violently disassembled and trampled by the crowd.” ECF No. 26 ¶ 55. Defendants crossed over the same barriers, and “charged” toward the Capitol. Id. As Defendants moved toward the building, individuals who had arrived with them apparently continued to remove metal barriers. Id. ¶ 56. Eventually, Defendants came to the “west plaza of the Capitol where additional metal barricades and law enforcement were deployed to protect the Capitol and its occupants from the advancing crowd.” Id. ¶ 57. Nordean and Biggs allegedly shook one of the barricades until they and others “were able to knock it down.” Id. ¶ 58. Defendants and the rest of the crowd then advanced past it, toward the Capitol. Id.
Arriving at the west plaza, Nordean and Biggs allegedly “positioned themselves at or near the front of the crowd.” ECF No. 26 ¶ 59. Biggs then recorded a video, announcing, “we‘ve just taken the Capitol.” Id. Donohoe helped the crowd “advance up a flight of stairs towards the Capitol,” overwhelming law enforcement officers trying to contain it. Id. ¶ 61. Fellow Proud Boys member Dominic Pezzola used a riot shield to break a window, which “allowed rioters to enter the building and force open an adjacent door from the inside.” Id. ¶ 62. Biggs allegedly entered the building through that adjacent door before leaving and, 30 minutes later, “forcibly” re-entered the building on the opposite side, “pushing past at least one law enforcement officer” and eventually making his way to the Senate chamber. Id. ¶¶ 62-65. A few minutes after Biggs first entered, a member of the “Boots on the Ground” channel posted “We just stormed the capitol.” Id. ¶ 62. Rehl entered the Capitol through the same door as Biggs. Id. ¶ 67. And Nordean “entered and remained in the Capitol, including in the Rotunda, before exiting the Capitol with another member of the Proud Boys.” Id. ¶ 66. Later, close to 4:00 p.m., Donohoe announced on one of the encrypted messaging platforms that some were “regrouping with a second force.” Id. ¶ 68.
As these events took place, “members of the House and Senate (including Vice President Pence) . . . were evacuated from their respective chambers. The Joint Session was halted while Capitol Police and other law-enforcement officers worked to restore order and clear the Capitol building and grounds of the unlawful occupants.” Id. ¶ 21. It was not until 8:00 p.m. that night that the “Joint Session reconvened, presided over by Vice President Pence, who had remained within the Capitol building in a secure location throughout these events.” Id. ¶ 22.
In the end, as asserted in the First Superseding Indictment, almost “81 members of the Capitol Police and 58 members of the Metropolitan Police Department were assaulted,” as were members of the media. ECF No. 26 ¶ 23. And the Capitol building “suffered millions of dollars in damage—including broken windows and doors, graffiti, and residue from pepper spray, tear gas, and fire extinguishers deployed both by crowd members who stormed the Capitol and by Capitol Police officers trying to restore order.” Id. Meanwhile, Defendants allegedly “celebrated the events” of that day “through communications on social media and in encrypted chat messages.” Id. ¶ 24.
Besides conspiring to violate
Defendants are also charged with violating three other statutes. Count Five alleges that they unlawfully and knowingly entered and remained in a restricted building and grounds—i.e., “any posted, cordoned-off, and otherwise restricted area within the United States Capitol and its grounds, where the Vice President and Vice President-Elect were temporarily visiting“—without lawful authority to do so, in violation of
Defendant Nordean moved to dismiss the First Superseding Indictment. ECF No. 94. Defendants Biggs, Donohoe, and Rehl later joined the motion. ECF Nos. 105, 128, 225. Defendants argue that the Section 1512(c)(2), Section 231(a)(3), and Section 1752 charges should be dismissed because the statutes do not apply to Defendants’ alleged conduct, and if the statutes do apply, they are unconstitutional. Defendants also contend that the Section 231(a)(3) and Section 1361 charges are otherwise inadequately alleged.
II. Legal Standard
Before trial, a criminal defendant may move to dismiss a count of the indictment based on a “defect in the indictment.”
A. 18 U.S.C. § 1512(c)(2)
Defendants first challenge the application of Section 1512(c)(2) to their alleged conduct both preceding January 6, 2021, and on that day. In full, Section 1512(c) reads:
Whoever corruptly—
(1) alters destroys, mutilates, or conceals a record, document, or other object, or 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.
1. Congress‘s Certification of the Electoral College Vote Was an “Official Proceeding” Under Section 1512(c)(2)
Defendants start by arguing that Congress‘s certification of the Electoral College vote was not an “official proceeding” because it did not involve “Congress‘s implied power of investigation in aid of legislation but instead formalized the result of the 2020 U.S. Presidential election.” ECF No. 94 at 19 (internal quotation marks omitted). The Court is not persuaded.
Section 1515 of title 18 defines terms used in Section 1512. It specifically provides that “the term ‘official proceeding’ means,” among other things, “a proceeding before the Congress.”
That said, the Court agrees with the court in United States v. Sandlin that not everything that falls under this general definition of “proceeding” qualifies as a
at *3 (D.D.C. Dec. 10, 2021) (internal quotation marks omitted) (quoting United States v. Ramos, 537 F.3d 439, 462-63 (5th Cir. 2008)). But even so, Congress‘s certification makes the grade. Once again, the certification process mandated under the Constitution requires the Senate and House to “convene[]” in Joint Session. ECF No. 26 ¶ 4;
Defendants argue that “official proceeding” refers to something more specific than a “series of actions” before a formally convened Congress. In their view, an “official proceeding” must be in some sense adjudicative or judicial. ECF No. 94 at 21. But the text of the statute does not suggest such an interpretation. To repeat, the law defines “official proceeding” simply as a “proceeding before the Congress.”
Besides, if Congress wanted to define “official proceeding” in a way that required something more like an adjudicative setting—rather than simply “a proceeding before the Congress“—it could have imported the language it used in
And finally, even if an “official proceeding” had to be quasi-adjudicative or quasi-judicial in some way—a requirement missing from the plain text of the statute—because Congress‘s certification of the Electoral College vote has some of those features, it would pass the test. As explained above, it is a formal process. See Ermoian, 752 F.3d at 1170 (“[T]he descriptor ‘official’ indicates a sense of formality normally associated with legal proceedings[.]“); United States v. Perez, 575 F.3d 164, 169 (2d Cir. 2009) (concluding that an agency‘s “detailed process of review and decision-making” was “sufficiently formal” to qualify as an “official proceeding“). In addition, the Vice President, as President of the Senate, serves as “presiding officer” while the votes cast by Electors are counted.
2. Section 1512(c)(2) Prohibits Conduct That Need Not Impair Evidence
Defendants next argue that Section 1512(c)(2) should be limited by the subsection that comes before it—i.e., Section 1512(c)(1). That section covers “corruptly . . . alter[ing], destroy[ing], multilat[ing] or conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object‘s integrity or availability for use in an official proceeding.”
Section 1512(c)(2) prohibits conduct that “corruptly . . . obstructs, influences, or impedes” congressional proceedings. Those verbs—“obstruct,” “influence,” and “impede“—cover a wide range of conduct. “[O]bstruct” and “impede” can “refer to anything that blocks, makes difficult, or hinders.” Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (cleaned up). And “influence” includes “affect[ing] the condition of” or “hav[ing] an effect on.” Influence, def. 1b, Oxford English Dictionary (3d ed. 2021), available at http://www.oed.com. This language is plainly “expansive” in scope, United States v. Burge, 711 F.3d 803, 809 (7th Cir. 2013), and does not suggest a limitation along the lines Defendants propose.
The structure of the statute confirms Section 1512(c)(2)‘s broad reach. Section 1512(c)(1) focuses on the destruction of documents and other records. See
Consistent with this reading, at least one Court of Appeals has affirmed the application of Section 1512(c)(2) to obstructive conduct without requiring that conduct to have impaired evidence. In United States v. Phillips, the Tenth Circuit upheld the application of Section 1512(c)(2) to a defendant‘s “disclos[ure] [of] the true identity of an undercover officer to a subject of” several investigations. 583 F.3d 1261, 1262 (10th Cir. 2009). The court never mentioned the impairment of evidence or testimony. It simply explained that “a reasonable jury could conclude that the natural and probable effect of” such disclosure “was impeding a federal grand jury investigation.” Id. at 1265. In fact, the court held, “a jury could find that [the defendant] had no purpose other than to thwart such an investigation.” Id. Similarly, there is no reason to think that Section 1512(c)(2) does not apply to Defendants’ conduct charged in the First Superseding Indictment, which was allegedly intended to “stop, delay, or hinder Congress‘s certification of the Electoral College vote,” ECF No. 26 ¶ 27, even if it did not involve the impairment of evidence.
Defendants’ argument that Section 1512(c)(2)‘s scope is more limited leans primarily on the canon of statutory interpretation known as ejusdem generis, Latin for “of the same kind.” Ass‘n of Am. R. R. v. United States, 603 F.2d 953, 963 n.28 (D.C. Cir. 1979). That canon teaches that “when a general term follows a specific one, the general term should be understood as a reference
to subjects akin to the one with specific enumeration.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991)). But that canon has no force here.
Yates v. United States—a case in which a plurality of the Court applied ejusdem generis—illustrates why. 574 U.S. 528 (2015) (plurality opinion). In that case, the Supreme Court considered the meaning of the term “tangible object” as it appeared in
Section 1512(c)(2) is different than Section 1519 because it has no “list of specific items separated by commas and followed by a general or collective term.” Ali, 552 U.S. at 225 (noting that the “absence of a list . . . undercuts the inference embodied in ejusdem generis“). Section 1512(c) has two separate clauses: Section 1512(c)(1) and Section 1512(c)(2). Section 1512(c)(1) refers to the destruction or manipulation of documents or other records. Then, set apart by a semicolon, and set off in different subsection, is the catch-all for all other efforts to obstruct an official proceeding—Section 1512(c)(2). The two subsections “have separate numbers, line breaks before, between, and after them, and equivalent indentation . . . placing the clauses visually on an equal footing.” Sandlin, 2021 WL 5865006, at *6 (quoting Loughrin v. United States, 573 U.S. 351, 359 (2014)). Such “circumstances” suggest “separate meanings.” Id.; see also NACS v. Bd. of Governors of Fed. Rsrv. Sys., 746 F.3d 474, 486 (D.C. Cir. 2014) (“Even if punctuation is sometimes a minor element in interpreting the meaning of language, punctuation is often crucial. . . . After all, Congress communicates through written language, and one component of written language is grammar, including punctuation.“).
Defendants also invoke the noscitur a sociis canon of statutory interpretation. Noscitur a sociis is the principle that “a word is known by the company it keeps.” Yates, 574 U.S. at 543. The canon is used 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.” Id. (quoting Gustagson v. Alloyd Co., 513 U.S. 561, 575 (1995)). Defendants point to the Yates plurality‘s use of this canon, along with ejusdem generis, to limit the meaning of the term “tangible object” in
As for the potential for superfluity, admittedly, that gives the Court some pause. But the “preference for avoiding surplusage constructions is not absolute.” Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004). In fact, “overlap . . . is not uncommon in criminal statutes.” Loughrin, 573 U.S. at 358 n.4. This Court agrees with the court in Sandlin that reading Section 1512(c)(2) to extend beyond the impairment of evidence does not “create[] intolerable overlap.”5 2021 WL 5865006, at *7. As that court explained, “a broad interpretation of [Section] 1512(c)(2) does not entirely subsume numerous provisions with[in] the chapter. For instance, [Section] 1512(a)(1)(C), (a)(2)(C), (b)(3), and (d)(2)–(4) proscribe conduct unrelated to an ‘official proceeding.‘” Id. The same is true with Section 1505, which concerns congressional inquiries and investigations.
Thus, even if there is some overlap in these provisions without Defendants’ limiting construction, it is still the better reading. The “cardinal canon” to which “a court should always turn” to “first” is that “a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253-54 (1992); see also Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019) (“Redundancy is not a silver bullet. . . . Sometimes the better overall reading of the statute contains some redundancy.“). Reading Section 1512(c)(2) to include conduct unrelated to the impairment of evidence is most consistent with the text and structure of the statute, so the “rule[] of thumb” of trying to avoid superfluity when construing statutes must “give way.” Sebelius v. Cloer, 569 U.S. 369, 381 (2013) (quoting Conn. Nat‘l Bank, 503 U.S. at 253-54).
3. Section 1512(c)(2) Is Not Unconstitutionally Vague
Defendants next argue that Section 1512(c)(2) is unconstitutionally vague in several ways. The “void for vagueness” doctrine prevents the enforcement
Defendants argue that Section 1512(c)(2) is impermissibly vague in three ways. First, they argue, the term “official proceeding” is vague if it is applied to Congress‘s certification. Second, they say that applying the phrase “otherwise obstructs, influences, or impedes” to conduct other than the “impairment of evidence” is vague. Finally, they assert that, as applied to them, the word “corruptly” renders the entire section vague. They are wrong on all counts.
a. “Official proceeding”
To start, the term “official proceeding” is not vague as applied to Congress‘s certification of the Electoral College vote. As explained above, an “official proceeding” is defined in the statute as a “proceeding before the Congress,”
b. “Otherwise obstructs, influences, or impedes”
The phrase “otherwise obstructs, influences, or impedes” is not vague as applied to Defendants’ conduct for similar reasons. As explained above, that language is best read broadly, not as constrained by the subsection preceding it. And so read, “otherwise obstructs, influences, or impedes” plainly encompasses the conduct alleged here, even if no court has had the
c. “Corruptly”
Defendants’ vagueness argument centered on the term “corruptly” also fails. They argue that because the D.C. Circuit found the term unconstitutionally vague in
In Poindexter, the defendant was charged with violating Section 1505 by, among other things, lying to Congress. Section 1505 bars “corruptly, or by threats or force, or by any threatening letter or communication influenc[ing], obstruct[ing], or impede[ing] or endeavor[ing] to influence, obstruct, or impede . . . the due and proper exercise of” Congress‘s “power of inquiry.”
did not declare “corruptly” unconstitutionally vague in all legal or factual contexts. Id. at 377–78, 385. In fact, it “approved” of one interpretation of the word as used in Section 1505. United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996) (discussing Poindexter). The Poindexter court explained that Section 1505 “favors the transitive reading” of “corruptly“—i.e., the word refers to “corrupting another” rather than “acting oneself ‘in a corrupt or depraved manner.‘” Poindexter, 951 F.2d at 379. Thus, the court approved of interpreting “corruptly” in Section 1505 to mean “‘corrupting’ another person by influencing him to violate his legal duty.” Id. (emphasis removed). But because that interpretation did not cover lying to Congress, the court held that the word was still impermissibly vague as applied to Poindexter‘s conduct.
In the 30 years it has been on the books, courts have not applied Poindexter widely to render impotent the many obstruction statutes that use the word “corruptly.” Rather, as other judges in this district pointed out recently, courts have recognized “the narrow reasoning used in Poindexter” and “cabined that vagueness holding to its unusual circumstances.” United States v. Edwards, 869 F.3d 490, 502 (7th Cir. 2017) (citing cases); see Sandlin, 2021 WL 5865006, at *11; United States v. Caldwell, --- F. Supp. 3d ----, 2021 WL 6062718, at *9 (D.D.C. Dec. 20, 2021). That trend could only have been reinforced by the Supreme Court‘s later decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). See, e.g., Edwards, 869 F.3d at 502. There, in addressing the meaning of “corruptly” in Section 1512(b), the Supreme Court held that “corrupt” and “corruptly” were associated with “wrongful, immoral, depraved, or evil” behavior. Arthur Andersen, 544 U.S. at 705 (citing dictionaries). In that context, the Court suggested that the word meant “wrongdoing,” without suggesting that it was unconstitutionally vague. Id. at 705–06 (“consciousness of wrongdoing” joins the meanings of “knowingly” and “corruptly” together); see Edwards, 869 F.3d at 502.
In any event, a key reason Poindexter does not control the outcome here is because of an important textual difference between Section 1505 and Section 1512(c):
For these reasons, Poindexter does not mandate that the Court hold Section 1512(c) unconstitutionally vague in this case. And for those that follow, the Court finds that applying “corruptly” in Section 1512(c)(2) to Defendants’ alleged conduct does not render the statute infirm in that way. For these Defendants are alleged to have acted (1) intentionally and (2) wrongfully, in this case by unlawful means.
To begin with, the Court notes that the parties do not contest that Section 1512(c)—either through the term “corruptly” or otherwise—requires a defendant to specifically intend to obstruct, influence, or impede an official proceeding. See United States v. Delgado, 984 F.3d 435, 452 (5th Cir. 2021); United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (to act “corruptly” is to act “with an improper purpose” and “with the specific intent to subvert, impede or obstruct“) (quoting United States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir. 2007)); United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013) (same). Some courts have held that the “nexus” requirement in obstruction statutes—the requirement that “the obstructive conduct be connected to a specific official proceeding“—is best understood as an articulation of this intent requirement. United States v. Young, 916 F.3d 368, 385 & n.12 (4th Cir. 2019) (citing cases); see also United States v. Hawkins, 185 F. Supp. 3d 114, 127 (D.D.C. 2016). But either way, the parties do not contest that the statute requires a specific intent to obstruct.
Against that backdrop, the Court turns to the word “corruptly.” As Judge Silberman has observed, that word must mean something more than an intent to obstruct when a statute like this one criminalizes merely “influenc[ing]” a proceeding before the Congress.8 See United States v. North, 910 F.2d 843, 942 (D.C. Cir. 1990)
Many courts have, in one way or another, applied this definition in the context of alleged obstructive conduct. As some have noted, a defendant can act “wrongfully“—i.e., “corruptly“—through either his means or his purpose. See Sandlin, 2021 WL 5865006, at *11; see also North, 910 F.2d at 942–43 (Silberman, J., concurring in part and dissenting in part) (“[T]o say that someone corruptly endeavors to obstruct an inquiry might mean (1) that he does so with a corrupt purpose, or (2) that he does so by independently corrupt means, or (3) both.“). Here, the Court need not wade into Section 1512(c)‘s application to corrupt purposes because “independently criminal” means qualify as corrupt. North, 910 F.2d at 943. Indeed, “[u]nlawful activities clearly fall within the meaning of ‘corrupt’ acts under any plain construction of the term.” United States v. Bailey, 72 F.3d 138 (Table), 1995 WL 716276, at *3 (10th Cir. Nov. 22, 1995).9 Even courts that have not described “corruptly” specifically in terms of unlawful means have used similar definitions.10
Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12–13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh‘s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive‘s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov‘t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, --- F. Supp. 3d ----, 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant‘s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh‘s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).
4. Applying Section 1512(c)(2) Το Defendants Does Not Violate the Rule of Lenity
Defendants next claim that even if Section 1512(c)(2) is not unconstitutionally vague as applied, “any ambiguities in the statute should be resolved in [their] favor under the rule of lenity.” ECF No. 94 at 30. The rule of lenity stands “for the principle that if a criminal statute is subject to multiple meanings, the court should resolve any ambiguity in favor of the defendant.” United States v. Sun-Diamond Growers of Cal., 941 F. Supp. 1262, 1268 n.8 (D.D.C. 1996). But the rule “only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the
5. Applying Section 1512(c)(2) To Defendants Is Not a Novel Construction
Defendants also insist that applying Section 1512(c)(2) to the facts alleged here amounts to a novel construction of the statute in violation of due process, because no court has applied it to a proceeding like Congress‘s certification. ECF No. 94 at 31–32. Not so. “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 259, 266 (1997). That is because when a court “unexpectedly broadens a statute which on its face had been definite and precise,” that “judicial enlargement . . . applied retroactively, operates precisely like an ex post facto law.” Bouie v. City of Columbia, 378 U.S. 347, 353 (1964). True, no court has interpreted Section 1512(c)(2) to include the precise allegations made here. But that does not mean that this reading “unexpectedly broadens” it. Id.; see also United States v. E-Gold, Ltd., 550 F. Supp. 2d 82, 101 (D.D.C. 2008) (rejecting argument “that because no court has ever construed Section 1960 to deem a business that does not transact in cash to be a money transmitting business, such a construction would be novel” and thus unconstitutional). As discussed above, Section 1512(c)(2)‘s application to the allegations in the First Superseding Indictment is “fairly disclosed” by the text. Lanier, 520 U.S. at 266. Thus, the Due Process Clause does not require dismissal.
In advancing this argument, Defendants rely heavily on Bouie, but the statute addressed in that case is quite different than Section 1512(c)(2). In Bouie, the Supreme Court considered a challenge to a South Carolina law that “was admirably narrow and precise.” 378 U.S. at 351. Thus, the Court found, it “lull[ed] . . . potential defendant[s] into a false sense of security, giving [them] no reason even to suspect that” certain conduct could be “brought within it by an act of judicial construction.” Id. at 352. In contrast, as described above, Section 1512(c)(2) is not “narrow” at all. It sweeps broadly—punishing a host of “corrupt” conduct. Thus, it hardly lulled Defendants into a false sense of security, giving them no reason to suspect that the conduct charged in the First Superseding Indictment was prohibited under Section 1512(c)(2). Id.; see also McDonald v. Champion, 962 F.2d 1455, 1458–59 (10th Cir. 1992).
6. Applying Section 1512(c)(2) Το Defendants Does Not Violate the First Amendment
Finally, Defendants argue that, as applied to them, Section 1512(c)(2) violates the First Amendment. According to Defendants, the statute‘s “incidental restriction on alleged First Amendment freedoms is . . . greater than is essential to the furtherance of” the Government‘s interest. ECF No. 94 at 32 (quoting United States v. O‘Brien, 391 U.S. 367, 377 (1968)). But “to prevail on an as-applied First Amendment challenge,” Defendants “must demonstrate that the statute is unconstitutional as applied to [their] particular expressive activity.” United States v. Caputo, 201 F. Supp. 3d 65, 71 (D.D.C. 2016). The Court easily concludes that it is not.
The Court first turns to the threshold question of whether the conduct with which Defendants are charged is protected by the First Amendment at all. See Caputo, 201 F. Supp. 3d at 71 (explaining that “[t]he Court must first assess whether [the defendant‘s] conduct is, in fact, expressive“); see also Texas v. Johnson, 491 U.S. 397, 403 (1989) (“We must first determine whether Johnson‘s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction.“). It is not. Defendants are alleged to have “corruptly” obstructed, influenced, and impeded an official proceeding, and aided and abetted others to do the same—that is, they allegedly “unlawfully entered the Capitol grounds or the Capitol building to . . . stop, delay, and hinder Congress‘s certification of the Electoral College vote,” and succeeded in doing so. ECF No. 26 ¶ 70. And more specifically, they are charged with conduct involving acts of trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress‘s performance of its constitutional duties. No matter Defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment. Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests. ECF No. 94 at 33. Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had. See Grayned, 408 U.S. at 116 (“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment.“); Cameron v. Johnson, 390 U.S. 611, 617 (1968) (government may punish physical obstruction); Cox v. Louisiana, 379 U.S. 536, 555 (1965) (The First Amendment does not allow a “group of demonstrators” to “insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.“); United States v. Gregg, 226 F.3d 253, 267-68 (3d Cir. 2000) (“Activities that injure, threaten, or obstruct are not protected by the First Amendment, whether or not such conduct communicates a message.“).
Even assuming some aspect of Defendants’ charged conduct warranted First Amendment protection, applying Section 1512(c)(2) to them still passes muster. The Supreme Court has “held that when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” O‘Brien, 391 U.S. at 376 (cleaned up). The Government has a weighty interest in protecting Congress‘s ability to function without “corrupt” interference, and that interest is unrelated to the suppression of free expression.
B. 18 U.S.C. § 231(a)(3)
Defendants next challenge the applicability and constitutionality of
1. The First Superseding Indictment Identifies a Federally Protected Function That Was Obstructed, Delayed or Adversely Affected by a Civil Disorder
According to Defendants, Congress‘s certification of the 2020 election is not a “federally protected function,” and because it is not, the First Superseding Indictment fails to identify one affected by the events of January 6, 2021. They are right on the former, but wrong on the latter.
To begin with, the Court agrees with Defendants that Congress‘s certification of the 2020 election was not a “federally protected function,” for purposes of Section 231(a)(3). A “federally protected function” is defined in the statute as a “function, operation, or action carried out, under the laws of the United States, by any department, agency, or instrumentality of the United States or by an officer or employee thereof; and such term shall specifically include, but not be limited to, the collection and distribution of the United States mails.”
The question of whether the First Superseding Indictment identifies a federally protected function under Section 231(a)(3) does not end there, though. In the alternative, the Government argues that the United States Secret Service‘s protection of the Vice President and Vice President-elect on January 6 is also a federally protected function. ECF No. 133-1 at 15. And here, the Government is on firmer ground. Unlike Congress, the Secret Service is plainly an executive department. It is part of the Department of Homeland Security, which is one of the “executive departments enumerated in section 1 of Title 5.”
Defendants counter that interpreting “federally protected function” to include the actions of federal law enforcement officers like the Secret Service would write the term “federally protected function” out of the statute. ECF No. 135 at 26. They argue that, under that reading, “the ‘law enforcement officers’ referenced in the statute would constitute both the entities protecting the ‘function’ adversely affected by the civil disorder but also the ‘federally protected function at the same time.‘” ECF No. 113 at 30; see also ECF No. 135 at 26. But that is not necessarily so. For instance, here, the federally protected function with which the civil disorder interfered was the Secret Service‘s statutorily required protection of the Vice President and Vice President-elect. But the statute prohibits a defendant from obstructing any “law enforcement officer” performing official duties “incident to and during” the civil disorder, which in this case would also include the members of the Capitol Police and Metropolitan Police Department who responded to the Capitol and its grounds that day.11 ECF No. 26 ¶ 23. And even if Defendants are right in some cases, that does not make the term “federally protected function” a nullity. “Language in a statute is not rendered
Besides, “no canon of construction justifies construing the actual statutory language beyond what the terms can reasonably bear.” Pub. Citizen, Inc. v. Rubber Mfrs. Ass‘n, 533 F.3d 810, 816 (D.C. Cir. 2008) (cleaned up). Defendants effectively ask the Court “to do just that, by adding words that are not in the statute that the legislature enacted,” id. at 816–17—i.e., that “[t]he term ‘federally protected function’ means any function, operation, or action carried out, under the laws of the United States, by any department, agency, or instrumentality of the United States [except law enforcement agencies].” That construction makes no sense, especially given that “department” includes the Department of Defense, the Department of Justice, and the Department of Homeland Security—all of which include component law enforcement agencies. See
Finally, the Court‘s construction of “federally protected function” is nothing new, even if cases interpreting the phrase are scarce. For example, in United States v. Dodge, 538 F.2d 770, 780 (8th Cir. 1976), the Eighth Circuit described law enforcement officers responding to a civil disorder on a federal enclave as “engag[ing] in a federally-protected function.” And a district court in Nevada upheld a conviction under Section 231(a)(3) for interfering with agents from the Federal Bureau of Investigation when they responded to the occupation of a reservation; according to that court, both the “investigating of reported crimes and the operation of the post office were federally protected functions.” United States v. Jaramillo, 380 F. Supp. 1375, 1377–78 (D. Neb. 1974). Defendants try to distinguish these cases by pointing out that they occurred on American Indian reservations. ECF No. 135 at 27–28. But regardless of the location, these courts still concluded that the efforts of federal law enforcement agencies qualified as federally protected functions under the statute.12
2. Section 231(a)(3) Is Not Unconstitutionally Vague or Overbroad
Defendants also attack to the constitutionality of Section 231(a)(3), arguing
Section 231(a)(3) does not carry the potential for misunderstanding or arbitrary enforcement like the statutes in the cases Defendants cite. It prohibits any “act” done “to obstruct, impede, or interfere” with law enforcement responding to a “civil disorder.”
Defendants’ overbreadth argument fares no better. “[I]n a facial challenge to the overbreadth . . . of a law, a court‘s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” City of Houston, Tex. v. Hill, 482 U.S. 451, 458 (1987) (quoting Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). A defendant must show “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Id. at 801. “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 (such as picketing or demonstrating).” Virginia v. Hicks, 539 U.S. 113, 124 (2003).
Defendants argue that they could not have violated Section 1752 without entering an area restricted by the Secret Service, and the First Superseding Indictment does not allege that the Secret Service restricted either the Capitol or its grounds on January 6. ECF No. 94 at 46. They are right that the First Superseding Indictment alleges that the United States Capitol Police Board “closed” the area. ECF No. 26 ¶ 15. And the Government does not argue that any law enforcement agency other than the Capitol Police restricted the area. See ECF No. 106 at 32–36. But Defendants are wrong that the Secret Service must have restricted the Capitol building and its grounds for Section 1752 to apply. As several other courts in this district have already found, the statute imposes no such requirement. See, e.g., Griffin, 2021 WL 2778557, at *2; United States v. Caldwell, No. 21-cr-28 (APM), ECF No. 415 (D.D.C. Sept. 14, 2021).
Section 1752 prohibits “knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so,” as well as “knowingly” and intentionally “engag[ing] 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.”
At bottom, nothing in the statute‘s text dictates that the Secret Service must restrict the area at issue. The statute‘s focus is on where a defendant enters, not who does the restricting. Indeed, “Section 1752 says nothing about who must do the restricting.” Griffin, 2021 WL 2778557, at *4. And “the only reference in the statute to the Secret Service is to its protectees.” Id.. Thus, the statute is not ambiguous as to who may restrict an area under it. ECF No. 113 at 35–36; see also Griffin, 2021 WL 2778557, at *4 (“Just because Congress left this part of the statute open-ended does not mean any word or phrase is ambiguous or that the statute is inoperable unless the Court fills in the blank.“). And given the “straightforward” text of the statute, “there is no reason to resort to legislative history” to discern its meaning on this point. United States v. Gonzales, 520 U.S. 1, 6 (1997).
None of Defendants’ other arguments that the statute requires the Secret Service to do the restricting are persuasive, either. First, the “absurdities” of which Defendants warn amount to nothing. The Court in Griffin already rejected the notion that this interpretation would allow the Postal Service to “resolve[], unilaterally, that the ‘restricted area’ of the White
Second, the statute is not unconstitutionally vague such that Defendant‘s preferred constriction is necessary.16 The text is clear and gives fair notice of the conduct it punishes, and it is not standardless enough to invite arbitrary enforcement. Put simply, “[t]his law is no trap awaiting the unwary.” Griffin, 2021 WL 2778557, at *6. On top of that, the First Superseding Indictment alleges that the Capitol grounds were restricted in a highly visible way, by being cordoned off by metal barricades and a row of Capitol Police officers. ECF No. 26 ¶¶ 54–56, 58.
Third, neither the rule of lenity nor the “novel construction principle” require the Secret Service to have restricted the area in question. For both doctrines “the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant‘s conduct was criminal.” Lanier, 520 U.S. at 267. As explained above, lenity only comes into play “when a court has exhausted all canons of statutory construction” but ambiguity remains. Griffin, 2021 WL 2778557, at *6. And the novel construction principle “applies only where the judicial ‘construction unexpectedly broadens a statute which on its face had been definite and precise.‘” E-Gold, Ltd., 550 F. Supp. 2d at 101 (quoting Bouie, 378 U.S. at 353). Here, the statute is not ambiguous, nor does applying it to Defendants’ alleged conduct unexpectedly broaden it.
D. The First Superseding Indictment Otherwise Adequately Alleges Violations of 18 U.S.C. §§ 231(a)(3) and 1361
Finally, Defendants argue that the First Superseding Indictment does not state offenses under Section 231(a)(3) and Section 1361 because it includes no relevant “specific acts or circumstances.” ECF No. 94 at 55. Once again, the Court disagrees. Under
The Court explained why the Section 231(a)(3) charges hold up when it denied Nordean‘s motion for a bill of particulars. See ECF No. 138. As explained there, “[t]he First Superseding Indictment specifies in great detail how [Defendants] are alleged to have” “‘commit[ted] or attempt[ed] to commit any act to obstruct, impede, or interfere with‘” a “‘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 . . . the conduct or performance of any federally protected function,‘” either as a principal or under an aiding and abetting theory. Id. at 4–5 (ellipses in original) (quoting
The Section 1361 charge also passes muster. The First Superseding Indictment alleges that “[o]n January 6, 2021,” Defendants “attempted to, and did, willfully injure and commit depredation against property of the United States, and did aid and abet other known and unknown to do so.” ECF No. 26 ¶ 74. It also charges that Defendants “together and with others known and unknown, aided and abetted others known and unknown to forcibly enter the Capitol and thereby caused damage to the building in an amount more than $1,000.” Id. And the Section 1361 count incorporates earlier paragraphs in the document, which include allegations that a Capitol building “door was opened after a Proud Boys member, Dominic Pezzola, charged elsewhere, used a riot shield at 2:13 p.m. to break a window that allowed rioters to enter the building and force open an adjacent door from the inside.” Id. ¶ 62. These allegations, taken together and with the rest of the First Superseding Indictment, are enough to withstand a motion to dismiss.
None of this is to say that the First Superseding Indictment is a model of clarity on Section 1361. It does not specifically allege, as the Government has since represented in response to Nordean‘s motion for a bill of particulars, that the depredation at issue “was Pezzola‘s breaking of the Capitol window.” ECF No. 138 at 7. As the Court noted in denying the motion, that is information it would have required the Government to provide in a bill of particulars had it not already done so. Id. But the First Superseding Indictment is not deficient just because it lacks this information. See United States v. Brantley, 461 F. App‘x 849, 852 (11th Cir. 2012) (“The sufficiency of the indictment was also not undermined by the filing of a more detailed bill of particulars.“). Dismissal is required only when an omitted fact “is a material element of the offense.” United States v. Thomas, 444 F.2d 919, 922 (D.C. Cir. 1971). And the identification of the exact property depredated is not that. Nor does guilt “depend so crucially upon” that clarification. Resendiz-Ponce, 549 U.S. at 110 (cleaned up). The First Superseding Indictment alleges the required facts here. See United States v. Conlon, 628 F.2d 150, 156 n.33 (D.C. Cir. 1980) (“There is a difference . . . between failing to state an element of the offense and being less specific than one could be in spelling out the acts that constitute the offense.“).
For all the above reasons, the Court will deny Defendants’ motion to dismiss. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: December 28, 2021