UNITED STATES OF AMERICA v. RONALD SANDLIN, also known as RONALD L. SANDLIN, and NATHANIEL DEGRAVE
No. 21-cr-88 (DLF)
December 10, 2021
DABNEY L. FRIEDRICH, United States District Judge
MEMORANDUM OPINION
The indictment in this case charges defendants Ronald Sandlin and Nathaniel DeGrave with obstructing an official proceeding of Congress on January 6, 2021, in
I. BACKGROUND2
On January 6, 2021, at approximately 1:00 p.m., a joint session of Congress convened at the U.S. Capitol to certify the Electoral College results of the 2020 Presidential Election. Superseding Indictment ¶¶ 4, 7, Dkt. 46. That day, the Capitol building and its exterior plaza were closed to members of the public. Id. ¶ 6. As the Joint Session commenced, a large crowd gathered outside, and U.S. Capitol police attempted to keep the crowd away from the building. Id. ¶ 8. Individuals in the crowd forced their way over police barricades and into the Capitol by breaking windows, ramming doors, and assaulting Capitol police officers. Id. Other members of the crowd encouraged those actions. Id. At approximately 2:20 p.m., members of Congress and Vice President Pence were evacuated from their respective chambers. Id. ¶ 9. The Joint Session was suspended until shortly after 8:00 p.m. Id. ¶ 10.
Before this attack at the U.S. Capitol, Ronald Sandlin and Nathaniel DeGrave made plans to travel to Washington, D.C. together to “stop the steal.” Id. ¶ 15. Sandlin asked DeGrave if he was “down for danger,” and DeGrave replied that he was “bringing bullet proof clothing.” Id. ¶ 16. They drove to the D.C. area on January 5, bringing with them “paramilitary gear, one Glock .43 pistol, an M&P bodyguard pocket pistol, two magazines of ammunition, knives, a handheld taser/stun gun, an expendable baton, walkie talkies, and bear mace.” Id. ¶ 22.
On January 6, shortly before the Capitol attack, the defendants recorded a livestream video in which Sandlin said that “freedom is paid for with blood” and “there is going to be violence.” Id. ¶ 24. He “urge[d] other patriots” to “take the Capitol.” Id. He also said that “we are going to be there back by one o‘clock when it is action time[;] it is game time.” Id. ¶ 25. As Sandlin and DeGrave approached the Capitol, wearing protective gear and carrying two knives, they recorded another video discussing and encouraging the breach of the Capitol building. Id. ¶¶ 26-27.
Just after 2:00 p.m., the defendants “forcibly stormed past exterior barricades and law enforcement officers, and ignored building alarms, to breach the Capitol.” Id. ¶ 28. They pushed several Capitol police officers guarding an exterior door to the Capitol rotunda, thus allowing the mob outside to breach the building. Id. ¶ 29. Sandlin attempted to rip the helmet off one of the officers. Id. They made their way to the Senate Gallery, where they wrestled officers in order to get inside; Sandlin struck one of the officers in the back of his head. Id. ¶ 30. In the Senate Chamber, DeGrave shouted at the rioters to “take laptops, paperwork, take everything.” Id. ¶ 31
Sandlin and DeGrave were separately indicted on February 5, 2021. Indictment,
On September 13, 2021, Sandlin moved to dismiss this count. Sandlin‘s Mot. to Dismiss. On September 15, DeGrave was added as a defendant. And on October 15, he joined Sandlin‘s motion and filed a reply in support. DeGrave‘s Reply at 9. The Court heard argument on December 3. The motion is now ripe for resolution.
II. LEGAL STANDARDS
Under
III. ANALYSIS
Count Two of the Superseding Indictment charges Sandlin and DeGrave with obstruction of an official proceeding and aiding and abetting, in violation of
A. Failure to State an Offense Under § 1512(c)(2)
In 2002, following the collapse of Enron, Congress enacted a new obstruction provision in Section 1102 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 807: “Tampering with a record or otherwise impeding an official proceeding.” It was codified as subsection (c) of a pre-existing statute,
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.
In their motion, the defendants argue that Count Two fails to state an offense because they understand
1. The Congressional certification is an “official proceeding”
To determine the meaning of “official proceeding,” the Court starts, as it must, with the text. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
(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;
Thus defined, the meaning of “‘official proceeding’ depends heavily on the meaning of the word ‘proceeding.‘” United States v. Ermoian, 752 F.3d 1165, 1169 (9th Cir. 2013). The word can be defined broadly, in a “lay” sense, as “[t]he carrying on of an action or series of actions.” Proceeding, def. 2a, Oxford English Dictionary (3d ed. 2007); Ermoian, 752 F.3d at 1169. Or it can be understood narrowly, in a “legal” sense, as “[t]he business conducted by a court or other official body; a hearing.” Proceeding, def. 4, Black‘s Law Dictionary (11th ed. 2019).
Although no court has interpreted the phrase “proceeding before the Congress,” as it appears in
Congress‘s Joint Session to certify the electoral results is such a formal hearing. The Constitution requires the Vice President, acting as President of the Senate, to “open all the certificates” of the electoral results “in the presence of the Senate and House of Representatives.”
The Joint Session thus has the trappings of a formal hearing before an official body. There is a presiding officer, a process by which objections can be heard, debated, and ruled upon, and a decision—the certification of the results—that must be reached before the session can be adjourned. Indeed, the certificates of electoral results are akin to records or documents that are produced during judicial proceedings, and any objections to these certificates can be analogized to evidentiary objections. Accordingly, the congressional certification at issue here is a “proceeding before the Congress.”3
The defendants resist this conclusion by arguing that the “official proceeding” must relate to the “administration of justice,” and that it must have the ability to secure witness testimony and evidence. Sandlin‘s Mot. to Dismiss at 19, 23. They further
For the reasons above, Congress‘s Joint Session to certify the electoral results on January 6 constituted an “official proceeding” under
2. Section 1512(c)(2) is not limited to acts affecting evidence
The indictment alleges that the defendants violated
Because the statute does not define “obstruct,” “influence,” or “impede,” the Court begins with their ordinary meanings. See Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). To “obstruct” is “[t]o prevent” or to “hinder” something‘s “passage” or “progress.” Obstruct, def. 2a, Oxford English Dictionary (3d ed. 2004). Similarly, to “impede” is to “hinder” or to “retard in progress or action by putting obstacles in the way.” Impede, def. a, Oxford English Dictionary (2d ed. 1989). See also Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (citing similar definitions and referring to these terms as “broad“). And to “influence” is “[t]o affect the condition of” or “to have an effect on” something. Influence, def. 1(b), Oxford English Dictionary (2d ed. 1989). These terms are expansive and seemingly encompass all sorts of actions that affect or interfere with official proceedings, including blocking or altering the evidence that may be considered during an official proceeding or, as the defendants attempted, halting the occurrence of the proceeding altogether. In addition to the plain text, the Court must also consider “the specific context in which [the terms are] used, and the broader context of the statute as a whole.” Robinson, 519 U.S. at 341.
The Supreme Court‘s decision in Begay v. United States, 553 U.S. 137 (2008), does not alter this conclusion. There, the Court interpreted the residual clause in the Armed Career Criminal Act, which covers “any crime . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
More importantly, the residual clause at issue in Begay is a clause in the same provision, not a separate subsection. There, the “otherwise” clause forms part of the ACCA‘s definition of a “violent felony” and is separated from the listed examples only by a comma. By contrast,
Yates v. United States, 574 U.S. 528 (2015), is inapposite for the same reasons. There, the Supreme Court applied the ejusdem generus and noscitur a sociis canons to interpret the term “tangible object” in
Like the “otherwise involves” clause in Begay, the “tangible object” phrase in Yates appears in the same list—in the same sentence—as the other words that the Court used to give the term its meaning. See
Indeed,
Nor does the plain text of
To start, a broad interpretation of
It is true that killing a witness to prevent his testimony at an official proceeding, see
More importantly, the defendants’ narrow construction of
The majority of courts that have considered the interplay between the subsections agree that
Finally, at least one court of appeals has affirmed a
Based on the plain text, the broader context, and the weight of authority, the Court concludes that
3. The defendants’ other arguments do not persuade
First, the defendants invoke legislative history to prove that
As noted, Congress enacted
Second, the defendants argue that adopting the government‘s broad interpretation would render
Moreover, on the issue of arbitrary enforcement, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (internal quotation marks omitted) (alteration in original). Even if other similarly-situated defendants have not been charged with this offense, that is not enough to constitute the “clear evidence” needed for the Court to question whether “prosecutors have properly discharged their official duties.” Griffin, 2021 WL 2778557, at *6 (quoting Fokker Servs. B.V., 818 F.3d at 741). “Disparate charging decisions in different circumstances may be relevant at sentencing,” but they are not an appropriate consideration at this stage. Id. at *7. The defendants’ challenge to the enforcement of
Finally, the rule of lenity does not apply. Lenity only comes into play when the court has exhausted all tools of statutory construction and is still left with “grievous ambiguity.” Barber v. Thomas, 560 U.S. 474, 488 (2010). For the reasons stated, the Court concludes that
Accordingly, the Court will deny the defendants’ motion to dismiss on the basis that Count Two fails to state an offense.
B. Vagueness
Finally, DeGrave argues that Count Two must be dismissed because the word “corruptly” renders
Further, a criminal statute is not unconstitutionally vague on its face unless it is “impermissibly vague in all of its applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497 (1982). And “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756 (1974). Accordingly, to the extent that DeGrave mounts a facial challenge to
DeGrave‘s claim derives from the Poindexter decision, in which the court found that “corruptly,” undefined in
Courts have since cabined Poindexter‘s holding to its facts and have not read it “as a broad indictment of the use of the word ‘corruptly’ in the various obstruction-of-justice statutes.” United States v. Shotts, 145 F.3d 1289, 1300 (11th Cir. 1998) (construing
To determine if “corruptly” renders the statute unconstitutionally vague, the Court must look to the meaning of the term in this particular provision, as well as any judicial gloss placed on it. Lanier, 520 U.S. at 266–67. Because Congress has not supplied a definition of “corruptly” for purposes of
In this sense, the plain meaning of “corruptly” encompasses both corrupt (improper) means and corrupt (morally debased) purposes. As Judge Silberman put it in North, “[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.” North, 910 F.2d at 942-43 (Silberman, J., concurring in part and dissenting in part) (construing
Although the D.C. Circuit has not addressed the meaning of “corruptly” in
The Court agrees that
In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of
These real-world examples draw a line that is consistent with the definition of “wrongful“: “[t]hat is contrary to law, statute, or established rule.” Wrongful, def. 3(a), Oxford English Dictionary (2d ed. 1989). The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which
The indictment in this case alleges obstructive acts that fall on the obviously unlawful side of the line. It alleges that the defendants obstructed and impeded the congressional proceeding to certify the election results. Superseding Indictment ¶ 37. And it further alleges that the defendants engaged in advance planning, forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others to steal laptops and paperwork from the Senate Chamber. Id. ¶¶ 15-33. This alleged conduct is both “independently criminal,” North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) and “inherently malign,” Arthur Andersen, 544 U.S. at 704. And it was allegedly done with the intent to obstruct the congressional proceeding, see Friske, 640 F.3d at 1291. Assuming that the government can meet its burden at trial, which is appropriate to assume for purposes of this motion, the defendants were sufficiently on notice that they corruptly obstructed, or attempted to obstruct, an official proceeding under
The Court recognizes that other cases, such as those involving lawful means, see, e.g., Arthur Andersen, 544 U.S. at 703, will present closer questions.14 But the Court need not
In sum, because the government has alleged that the defendants acted corruptly, or unlawfully, and with the intent to obstruct, as defined in
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is denied. A separate order consistent with this decision accompanies this memorandum opinion.
DABNEY L. FRIEDRICH
United States District Judge
Date: December 10, 2021