UNITED STATES OF AMERICA v. THOMAS ROBERTSON
Case No. 21-cr-34 (CRC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
July 5, 2022
After hearing three days of evidence and deliberating for two, a jury convicted Thomas Robertson on six counts related to his conduct on and shortly after January 6, 2021. Mr. Robertson, a former police officer from Rocky Mount, Virginia, was among the rioters who breached the United States Capitol building, while a Joint Session of Congress convened to certify the 2020 presidential election results. At the close of the government‘s case in chief, Robertson moved for a judgment of acquittal. The Court reserved ruling on that motion until after the jury verdict. Robertson now renews his motion for acquittal specifically as to three counts: one for obstructing an official proceeding, and two others for trespassing and engaging in disorderly conduct in a restricted building and grounds. See Mot. at 1, ECF No. 114. The latter two charges involve his carrying a “deadly or dangerous weapon,” that is, a large wooden stick. Robertson‘s challenge to the verdict focuses on the sufficiency of the evidence. He also revives legal arguments this Court rejected in a pretrial ruling on a motion to dismiss the obstruction count. See United States v. Robertson, — F. Supp. 3d —, 2022 WL 969546 (D.D.C. Feb. 25, 2022). Finding enough evidence to sustain a conviction and adhering to its prior decision, the Court will deny Robertson‘s motion.
I. Legal Standards
Federal Rule of Criminal Procedure 29(a) governs a motion for acquittal. Under Rule 29(a), “the court on the defendant‘s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” In reviewing the sufficiency of the
II. Analysis
The Court will first address Robertson‘s arguments for acquittal on count one, obstruction of an official proceeding, and then turn to the question of whether a rational jury could find the wooden stick to constitute a dangerous or deadly weapon.
A. Obstruction of an Official Proceeding
To start,
Further echoing his motion to dismiss, Robertson contends that “Subsection (c)(2) has a serious ambiguity” and that the term “corruptly” is vague as applied to his case. Mot. at 3. But this Court‘s prior decision—and a slew of other decisions from fellow judges in this district—have explained why that is not so.1 By way of brief summary, “‘[t]he plain,
Nor is the term “corruptly” unconstitutionally vague. The statute is properly narrowed by imposing this mens rea element, which requires “acting ‘with consciousness of wrongdoing.‘” Robertson, 2022 WL 969546, at *6 (citing Caldwell, 2021 WL 6062718, at *8–11); see also United States v. Sandlin, — F. Supp. 3d —, 2021 WL 5865006, at *11–14 (D.D.C. Dec. 10, 2021) (“unlawfully, and with the intent to obstruct“). And the jury instructions here “convey[ed] the requisite consciousness of wrongdoing,” Arthur Andersen LLP v. United States, 544 U.S. 696, 705–06 (2005); see Final Jury Instr. at 12, ECF No. 86, “thus rendering” Robertson‘s proposed insertion of “the word ‘dishonestly’ unnecessary.” See United States v. Reffitt, — F. Supp. 3d —, 2022 WL 1404247, at *6 (D.D.C. May 4, 2022) (rejecting this same argument). Robertson further contends that “corruptly” requires “that he influenced another to violate their legal duty.” Mot. at 4. Not so. Courts have adopted this interpretation when “the defendant must have ‘corrupted’ another person,” in the “transitive sense” of the word. Reffitt, 2022 WL 1404247, at *6. “[I]n
Next, Robertson gestures at a requirement that the government prove that he impaired “the integrity and availability of non-object information to be used in the official proceeding.” See Mot. at 4–5. Courts have rejected such a “limiting construction for
Robertson‘s proposed “non-object information” requirement, Mot. at 4, also differs from Judge Nichols‘s decision in United States v. Miller, which homed in on “action with respect to a document, record, or other object.” See — F. Supp. 3d —, 2022 WL 823070, at *15 (D.D.C. Mar. 7, 2022). But his motion partly relies on Miller, as did his proposed jury instructions, see Joint Proposed Jury Instr. at 6–7 (Def. Proposed Instr. No. 18), ECF No. 76, so the Court will lay out a few points rejecting it.
This Court concurs with the heavy weight of authority concluding
That is “how an ordinary person (a reporter; a police officer; yes, even a lawyer)” would read the text. See Wooden v. United States, 142 S. Ct. 1063, 1069 (2022). The list of verbs in subsection (c)(1) “differ in material respects from the verbs in” (c)(2). Montgomery, 2021 WL 6134591, at *14. Same for the nouns—“record[s], document[s], or other object[s]” in subsection (c)(1), versus “official proceeding[s]” in subsection (c)(2). Id. (“[T]he Court might ask here: How anyone could alter, destroy, mutilate or conceal an ‘official proceeding’ or how anyone could ‘obstruct[ ], influence[ ], or impede[ ]’ ‘a record, document, or other object‘?” (alterations in original)). Thus, almost all courts in this district have “found that a defendant otherwise obstructs, impedes, or influences a proceeding under
Miller sidesteps the above interpretation first by invoking the rule of lenity as a background principle before starting its statutory interpretation, and then, with that lens, discovering ambiguity based on a singular focus on the word “otherwise.” See 2022 WL 823070, at *4–5, *6–11. That gets the analysis backwards. Lenity is reserved “for those situations in which a reasonable doubt persists about a statute‘s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Moskal v. United States, 498 U.S. 103, 108 (1990) (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)). No such doubt lingers as to
Miller then outlines three supposed buckets for what “otherwise” could mean. See 2022 WL 823070, at *6–11 (“otherwise” could be a “clean break” between subsections (c)(1) and (2); it could link the subsections by indicating that (c)(1) provides
Moving to the sufficiency of the evidence, Robertson‘s motion does not mount much of a challenge that, guided by the instructions given by the Court, a jury could have found him guilty of a violation of
First, “Congress‘s Joint Session to certify the Electoral College vote” is an “official proceeding,” Final Jury Instr. No. 19, at 12, and the evidence showed it was obstructed by the mob of people that breached the Capitol, including Robertson, who was among the first wave of rioters to enter. See Gov‘t Ex. 1002; Gov‘t Ex. 507; Trial Tr. 4/6/2022, at 638–61 (Schwager testimony); id. at 663–73 (Wade testimony). Second, the jury also heard evidence that Robertson intended to obstruct or impede the certification based on his belief that the 2020 presidential election was rigged. See, e.g., Trial Tr. 4/6/2022, at 688–91 (Fracker testimony); Gov‘t Exs. 100A, 100B, 100H, 100J (Facebook posts). Robertson stated on social media, in one example, that “[c]ivility has left me,” and that he was ready for “open armed rebellion.” Gov‘t Ex. 100H. After January 6th, too, he made statements indicative of his intent to stop the certification. See, e.g., Gov‘t Ex. 100C (“[W]e actually attacked the government who is the problem. . . . The Right IN ONE DAY (without weapons) took the fucking US Capitol. Keep poking us.“); Gov‘t Ex. 100G (“The picture of Senators cowering on the floor . . . is the most American thing I have seen in my life. Once....for real....you people ACTUALLY realized who you work for.“); see also Gov‘t Exs. 100D, 100E, 100F (Facebook posts). That evidence also supports a finding that the defendant acted “with awareness that the natural and probable effect of his conduct would be to obstruct or impede the official proceeding.” See Final Jury Instr. No. 19, at 12.
Robertson‘s main sufficiency-of-the-evidence challenge seems to be directed at the “corruptly” mens rea element, but it
Again, the evidence comfortably supports such a finding. In addition to Robertson‘s statements noted above, other evidence further showed that he intended to use violence on January 6th, which in turn is indicative of using unlawful means or acting with an unlawful purpose. He packed gas masks for himself (which he wore), his co-defendant Jacob Fracker, and a third individual who accompanied them, as well as military-style food rations. See Trial Tr. 4/6/2022, at 693–94, 702–03 (Fracker testimony); Gov‘t Exs. 201B, 201C, & 201D (body-worn-camera footage screenshots). As the Court will address next, Robertson also brought a large wooden stick, which the jury found to be a dangerous weapon, and he carried it throughout the day. And his counsel has essentially conceded that he “engag[ed] in other independently unlawful conduct,” Final Jury Instr. No. 19, at 12–13, by entering and remaining in a restricted area without lawful authority and by engaging in disruptive and disorderly conduct in a restricted area. See Trial Tr. 4/8/2022, at 1040–41 (defense counsel‘s closing, conceding guilt on certain lesser-included offenses); see also Mot. at 6 (“Mr. Robertson does not dispute that” based on the evidence “a rational jury could infer that he resisted or impeded [law enforcement] officers when they were coming through the crowd.“); Trial Tr. 4/6/2022, at 600–01 (Officer Duckett testifying that he was trying to move Robertson out of the way).
Evidence of corrupt intent is further illustrated in Mr. Fracker‘s testimony that, when he and Robertson arrived, he recognized that the situation was not safe, officers were in trouble, and that the crowd was obviously “out of hand” and overwhelming the officers. Trial Tr. 4/6/2022, at 699–702. Yet Robertson remained among the crowd with his gas mask on, id. at 702–03, 713; again, he stood in the path of officers making their way through the crowd, concededly impeding their progress; and he eventually joined the first wave of people who made their way to the Upper West Terrace to enter the Capitol building. Trial Tr. 4/7/2022, at 892–93 (Camiliere testimony); Gov‘t Ex. 801. Once inside, Robertson advanced to the Crypt area, where he reconvened with Fracker. Trial Tr. 4/6/2022, at 728 (Fracker testimony). There, they were part of another crowd that well outnumbered police. As that crowd chanted, Robertson banged his stick in time against the ground and Fracker clapped along. See id. at 730–32, 735–36; Gov‘t Exs. 406 & 407. The evidence permitted the jury to infer that they left only after police finally outnumbered the rioters and ordered them to leave. Trial Tr. 4/6/2022, at 736–42 (Fracker testimony); Gov‘t Exs. 408 & 403A. In short, a jury could rationally conclude that Robertson knowingly entered a dangerous, volatile situation, and, rather than leave, he joined in and supported the chaos.
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Looking at the entire events of the day, Robertson‘s preparation for and participation in them, and his statements revealing how he viewed his own actions that day, the evidence supports the jury‘s verdict on count one.
B. Deadly or Dangerous Weapon
Robertson also takes aim at the jury‘s verdict on counts three and four involving violations of
The indictment charged Robertson with “carry[ing]“—but not “using“—“a large wooden stick.” See Second Superseding Indictment at 2–3, ECF No. 74. The Court instructed the jury that the term “deadly or dangerous weapon” meant that the stick had to be “capable of causing serious bodily injury or death to another person and the defendant intends that it be used . . . in that manner.” Final Jury Instr. No. 21, at 21. Then, in response to a jury question about the meaning of “in that manner,” Jury Note No. 2, ECF No. 91, the Court elaborated:
In order for you to find that the stick is a deadly or dangerous weapon, you must find that (1) it is capable of causing serious bodily injury, and (2) the defendant carried it with the intent to use it in a manner capable of causing serious injury. The defendant need not have actually used the stick in that manner.
See Court‘s Resp. to Jury Note No. 2, ECF No. 93. This response followed briefing from the parties and incorporated parts of each side‘s proposed response to the jury note. No objections were raised to this response. See Trial Tr. 4/11/2022, at 1104; cf. Trial Tr. 4/8/2022, at 1096 (defense counsel not objecting to a similar proposed response, including a requirement that “the defendant intended to use the object in a manner capable of causing serious bodily injury“).
To begin, Robertson‘s motion seems to accept the jury instruction, see Mot. at 6 (arguing the government must show “the defendant intended to use [the stick] in that manner” (emphasis added)); however, elsewhere the motion suggests that there is no evidence he “in fact[] used it in such a manner” or that he ”purposely used his walking stick as a dangerous or deadly weapon.” Id. at 6–7 (emphasis added). Again, Robertson was charged only with carrying—not using—a dangerous weapon, so the implication that the evidence must show he actually used the stick as a weapon is wrong. Interpreting a D.C. law with an analogous prohibition on “carry[ing] . . . any deadly or dangerous weapon,” the D.C. Circuit has explained that it is sufficient if a defendant “intended to use [an object] as a dangerous weapon.” See United States v. Vinton, 594 F.3d 14, 22 (D.C. Cir. 2010) (interpreting
With that table setting, sufficient evidence supported the jury finding that Robertson carried the stick with an intent to use it in a manner capable of causing serious injury. He does not dispute the first prong—that the large wooden stick was capable of causing serious bodily injury—and instead focuses his challenge to the second “intent” prong. The government‘s best evidence is the body-worn-camera footage showing Robertson raising the stick in front of his chest and clutching it in a military-trained “port arms” position as officers approached him, while working their way through the crowd just outside the Capitol building. See Trial Tr. 4/6/22, at 523 (Hackerman testimony); Gov‘t Exs. 200, 201, & 202 (body-worn-camera footage); Gov‘t Exs. 201B, 201C, & 201D (video screenshots). Notably, he is also wearing a gas mask at this time. Gov‘t Exs. 201B, 201C, & 201D. Law enforcement witnesses and Fracker (a former police officer himself) further testified that port arms is a position where an officer holds an object, usually a baton, in front of the chest as a means to block or push people back. See, e.g., Trial Tr. 4/6/22, at 589–90 (Duckett testimony) (describing it as “a means of force to push [people] back“); id. at 705 (Fracker testimony) (describing it as “a blocking tool initially” when using a baton).
The government also relies on Robertson‘s background experience in the military and as a law enforcement officer, arguing that in his “trained hands[] the stick constituted a dangerous weapon.” Gov‘t Opp‘n at 19, ECF No. 116. That evidence strikes the Court as less compelling on the question of intent, however, because it mostly goes to whether the stick was capable of causing a serious injury. Nonetheless, in the light most favorable to the verdict, a jury could reasonably conclude that, given Robertson‘s training as a police officer, he held the stick in port arms with an intent to use the stick as “a means of force” or as “a blocking tool.” See Trial Tr. 4/6/22, at 589–90, 602 (Duckett testimony); id. at 705 (Fracker testimony). And the officers on the scene testified that Robertson indeed blocked their path. Trial Tr. 4/6/2022, at 534 (Hackerman testimony); id. at 600–02 (Duckett testimony).
On the other hand, the defense offered a theory that Robertson used the stick only as a walking stick. See Trial Tr. 4/7/2022, at 940–41 (Bobbouine testimony) (testifying that Robertson used a walking stick after an injury he sustained in 2010 or 2011, while serving in Afghanistan); id. at 944–45 (Lavado testimony). While most of
A jury perhaps could have found that Robertson raising the stick into a port-arms position was merely reflexive and not actually indicative of his intent. Or it could find—as this jury rationally did—that his holding the stick in port arms while officers approached, and while he wore a gas mask amid a violent crowd, evinced his intent to use the large wooden stick as a means of force if he came into a confrontation with the officers or others in the crowd, even though he ultimately did not use the stick that way. In sum, the Court concludes that the evidence, including the surrounding circumstances of what was happening at the Capitol, is sufficient to support the jury verdict on counts three and four with respect to the defendant carrying a deadly or dangerous weapon.
III. Conclusion
For these reasons, the Court will deny [114] Thomas Robertson‘s Motion for Acquittal.
A separate Order accompanies this Memorandum Opinion.
Date: July 5, 2022
CHRISTOPHER R. COOPER
United States District Judge