United States v. Grider

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
Criminal Action No. 21-0022 (CKK)
CHRISTOPHER RAY GRIDER,
Defendant

MEMORANDUM OPINION
(February 9, 2022)

This criminal case is one of several hundred arising from the insurrection at the United

States Capitol on January 6, 2021. For his actions at the Capitol on January 6, Defendant

Christopher Ray Grider (“Defendant” or “Grider”) is charged by indictment with one felony and

six misdemeanor counts. Before the Court is Defendant’s [69] Amended Motion to Dismiss Count

Four of the Indictment, the sole felony count. Upon consideration of the briefing, 1 the relevant

legal authorities, and the entire record, the Court shall DENY Defendant’s Motion.

I. BACKGROUND

Defendant is charged by indictment with: (1) Destruction of Government Property and

Aiding and Abetting, in violation of 18 U.S.C. § 1361-62; (2) Entering and Remaining in a

1
The Court’s consideration has focused on:
• Defendant’s Memorandum of Law in Support of Defendant’s Amended Motion to
Dismiss Count Four of the Indictment, ECF No. 70-2 (“Motion” or “Mot.”);
• The Government’s [74] Opposition to Defendant’s Amended Motion to Dismiss Count
Four of the Indictment, ECF No. 74 (“Opp.”);
• Defendant’s Reply to the Government’s Opposition to Defendant’s Amended Motion to
Dismiss Count Four of the Indictment (“Repl.”);
• The Government’s Affidavit in Support of its Sealed Complaint, ECF No. 1-1 (“Aff.”);
and
• The Indictment, ECF No. 6 (“Indictment”).
In an exercise of its discretion, the Court has concluded that oral argument would not be helpful
in the resolution of the Motion.
1
Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); (3) Disorderly and Disruptive

Conduct in a Restricted Building or Grounds, in violation 18 U.S.C. § 1752(a)(2); (4)

Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C.

§ 1512(c)(2); (5) Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C.

§ 5104(e)(2)(D); (6) Impeding Passage Through the Capitol Grounds or Buildings, in violation

of 40 U.S.C. § 5104(e)(2)(E); and Act of Physical Violence in the Capitol Grounds or Buildings,

in violation of 40 U.S.C. § 5104(e)(2)(F).

A. Certification of the 2020 Presidential Election and Capitol Riot

The Twelfth Amendment of the United States Constitution provides that, after the members

of the Electoral College “meet in their respective states and vote by ballot for President and Vice-

President,” they “shall sign and certify [their votes], and transmit [them] sealed to the seat of

government of the United States, directed to the President of the Senate.” U.S. Const. amend. XII.

The Vice President of the United States, as President of the Senate, must then, “in the presence of

the Senate and House of Representatives, open all the certificates[,], and the votes shall then be

counted.” To count the votes and “declar[e] the result” of the Electoral College, federal law

mandates that “Congress shall be in session on the sixth day of January succeeding every meeting

of the electors” and that “[t]he Senate and House of Representatives shall meet in the Hall of the

House at the hour of 1 o’clock in the afternoon on that day.” 3 U.S.C. §§ 15-16.

Pursuant to the Constitution and federal law, Congress convened in a joint session on 1:00

PM on January 6, 2021, to count the votes of the Electoral College and certify the results of the

2020 Presidential Election, which had taken place on November 3, 2020. See Compl., Stmt. of

Facts (“SOF”) at 1, ECF No. 1-1. With then-Vice President Michael R. Pence presiding,

proceedings began and continued until 1:30 PM, when the United States House of Representatives

2
and the United States Senate adjourned to separate chambers within the Capitol to debate and

consider an objection to the Electoral College vote from the State of Arizona. Id. Vice President

Pence continued to preside in the Senate chamber. Id.

Shortly before noon, then-President Donald J. Trump took the stage at a rally of his

supporters staged just south of the White House. Trump v. Thompson, 20 F.4th 10, 17 (D.C. Cir.

2021). Then-President Trump declared that the election was “rigged” and “stolen,” and urged the

crowd to “demand that Congress do the right thing and only count the electors who have been

lawfully slated.” Id. at 18 (cleaned up). During and after then-President Trump’s speech, a mass

of attendees marched on the Capitol. See id.

As they gathered outside the Capitol, the crowd faced temporary and permanent barricades

and Capitol Police positioned to prevent unauthorized entry to the Capitol. Aff. at ¶ 6. Shortly

after 2:00 p.m., “crowd members forced entry into the Capitol building, including by breaking

windows and assaulting Capitol Police officers, while others in the crowd encouraged and assisted

those acts.” Id. These violent acts caused members of the Senate and House of Representatives

to evacuate the chambers of the Capitol and suspend the certification process of the presidential

election results. Id. at ¶ 7. The violent riot “desecrated [the Capitol], blood was shed, and several

individuals lost their lives.” Thompson, 20 F.4th at 19. All told, “[t]he events of January 6, 2021

marked the most significant assault on the Capitol since the War of 1812.” Id. at 18-19 (footnote

omitted).

B. Events Specific to Defendant

Defendant is one of more than 700 individuals charged with federal crimes for his

conduct on January 6th. According to the allegations in the Indictment and the Affidavit in

3
Support of Criminal Complaint, ECF No. 1-1, 2 Defendant traveled from central Texas to the

District of Columbia for then-President Trump’s rally. See Aff. at ¶ 10. After the rally, Grider

made his way to the Capitol and entered the building with the crowd. Id. at ¶ 13. Once inside,

Defendant continued all the way to the doors of the Speaker’s Lobby, an area directly outside of

and with access to the Floor of the United States House of Representatives. See id. at ¶¶ 10, 15.

The photos included in the Affidavit show that only three Capitol police officers, two doors, and

stacked furniture separated the mob from Members of Congress huddled behind the doors to the

Floor. See id. ¶¶ 11, 15. The photos show Grider at the very front of the mob, “attempt[ing] to

push open the doors and then kick the doors in an attempt to breach the entrance leading to the

House Chamber.” Id. at ¶ 15. The Affidavit also alleges that Grider handed a black helmet to

another rioter to assist the rioter in breaking open the windows on the doors. Id. That rioter

succeeded and another rioter standing next to Grider jumped through the broken window. Id. As

she jumped through the window, she was shot by a Capitol Police officer guarding Members of

Congress. Id. at 16. Grider later told a local news station that he was present when that rioter

was shot; “[a]t that point we were all panicked, we couldn’t leave because there were thousands

of people behind us pushing us forward.” Id. at 10.

C. Procedural History

On January 26, 2021, a grand jury in the District of Columbia returned the seven-count

2
“It is appropriate if not necessary to rely on other official documents for the specific factual
allegations underlying the [] Indictment, as the indictment itself contains few, if any, details
about [Defendant’s] alleged conduct.” United States v. McHugh, --- F Supp. 3d ---, 2022 WL
296304 at *2 n.2 (D.D.C. Feb. 1, 2022) (JDB); accord United States v. Mostofsky, Crim. Action
No. 21-138, 2021 WL 6049891 at *1 (D.D.C. Dec. 21, 2021) (JEB). In his reply, Defendant asks
the Court to consider several videos outside the record. Repl. at 3. As the government has not
addressed those videos and they are, in any event, irrelevant to the Court’s resolution of purely
legal questions of statutory interpretation, the Court shall not consider them. See United States v.
Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (when considering a challenge to the indictment, “a
district court is limited to reviewing the face of the indictment”).
4
indictment against Defendant. On February 22, 2021, Defendant entered a plea of “not guilty”

and the Court released him on personal recognizance with conditions. Defendant filed his initial

motion to dismiss Count Four of the Indictment on March 22, 2021. Per Defendant’s request,

Min. Order (May 4, 2021), the Court held the motion in abeyance until Defendant filed his [69]

Amended Motion. With the Motion fully briefed, the Court now turns to its resolution.

II. LEGAL STANDARD

Pursuant to Federal Rule of Criminal Procedure 12(b)(3), a criminal defendant may,

before trial, move to dismiss a count of the indictment based on a “defect in the indictment.” As

relevant here, defects include “failure to state an offense.” Id. “Failure to state an offense” may

be due to a question of statutory interpretation or a constitutional issue. See United States v.

Stone, 394 F. Supp. 3d 1, 8 (D.D.C. 2019). When considering a challenge to the indictment, “a

district court is limited to reviewing the face of the indictment;” the Court must “presume the

allegations [in the] indictment to be true.” United States v. Sunia, 643 F. Supp. 2d 51, 60

(D.D.C. 2009) (internal quotation marks removed). “The operative question is whether [those]

allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were

committed.” United States v. Sanford Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012).

III. DISCUSSION

Count Four of the Indictment charges Defendant with Obstruction of an Official

Proceeding and Aiding and Abetting, in violation of 18 U.S.C. § 1512(c)(2). Pursuant to section

1512(c):

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,

5
 shall be fined under this title or imprisoned not more than 20 years, or both.

Id. (2021 West). In support of dismissal, Defendant advances four broad arguments. First,

Defendant maintains that the certification of the vote of the Electoral College is not an “official

proceeding” within the meaning of section 1512(c)(2). Mot. at 4. Second, Defendant insists that

subsection 2’s residual clause only applies to witness or evidence tampering and not to any

obstructive act. Id. at 17. Third, Defendant argues that the statute’s mens rea, “corruptly,” is

unconstitutionally vague as applied to Grider. Id. at 31. Fourth and finally, Defendant suggests

that the rule of lenity otherwise controls and should lead to a limited reading of the statute. Id. at

51. As Defendant admits, six judges of this Court have already “addressed and rejected” these

same arguments “in one form or another.” 3 This Court shall be the seventh.

A. Official Proceeding

The plain meaning of the statutory text renders the review, count, and certification of the

Electoral College vote an “official proceeding” within the meaning of 1512(c)(2). For the

purposes of 1512(c)(2), an “official proceeding” is defined as:

(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 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.

3
United States v. Sandlin, --- F. Supp. 3d ---, 2021 WL 5865006 (D.D.C. Dec. 10, 2021) (DLF);
United States v. Caldwell, --- F. Supp. 3d ---, 2021 WL 6062718 (D.D.C. Dec. 20, 2021) (APM);
United States v. Mostofsky, Crim. Action No. 21-138, 2021 WL 6049891 (D.D.C. Dec. 21, 2021)
(JEB); United States v. Montgomery, Crim. Action No. 21-46, 2021 WL 6134591 (D.D.C. Dec.
28, 2021) (RDM); United States v. Nordean, Crim. Action No. 21-175, 2021 WL 6134595
(D.D.C. Dec. 28, 2021) (TJK); United States v. McHugh, --- F. Supp. 3d ---, 2022 WL 296304
(D.D.C. Feb. 1, 2022) (JDB).
6
18 U.S.C. § 1515(a)(1). As Judge John Bates explained, collecting cases, “[r]ather than ‘[t]he

carrying on of an action or series of actions,’ Proceeding, Oxford English Dictionary (3d ed.

2007); § 1515(a)(1) uses the term in its narrower, legal sense: ‘the business conducted by a court

or other official body; a hearing,’ Proceeding, Black’s Law Dictionary (11th ed. 2019).”

McHugh, 2022 WL 296304 at *5 (citing Sandlin, 2021 WL 5865006 at *3; United States v.

Ermoian, 752 F.3d 1165, 1169 (9th Cir. 2013)). Defendant is correct that not every

“proceeding” before Congress is an “official proceeding.” This conclusion naturally follows

from the modifier “official,” which means “formal” or “ceremonious.” Official, Oxford English

Dictionary (3d ed. 2004); Sandlin, 2021 WL 5865006 at *3. Therefore, informal or mundane

activities by Congress cannot be “official proceedings” within the meaning of section 1515. See

Ermoian, 752 F.3d at 1172 (holding an FBI investigation is not a “proceeding before a Federal

Government agency” because it is insufficiently ceremonious).

Few Congressional events could be more ceremonious and formal than the quadrennial

Joint Session of Congress mandated by the Constitution and federal statute. The Vice President

of the United States, as President of the Senate, must preside over a process “by which objections

can be heard, debated, and ruled upon.” Sandlin, 2021 WL 5865006 at *4. Federal law provides

for the placement of attendees with the Speaker of the House to the left of the Vice President, the

Senators “in the body of the Hall” to the right of the presiding officer, the Representatives “in the

body of the Hall not provided for the Senators,” etc. 3 U.S.C. § 16. If a Member objects, the

Senate and House of Representatives “withdraw” to their respective chambers to deliberate and

render “its decision” on the objection. 3 U.S.C. § 15. Only once the “electoral votes [are]

completed and the results declared” may Congress recess. Id. § 16.

Defendant insists that only those “official proceedings of justice or Congress’ power of

7
inquiry or investigation where witnesses are called or evidence is presented and considered” fall

within the statute. Mot. at 2, 15. Not so. Section 1515(a)(1)(B) defines an “official proceeding”

only as a “proceeding before Congress,” not “a proceeding before Congress involving

adjudication or evidence.” As Judge Amit Mehta explained, “Congress did not intend to limit

the congressional proceedings protected under 1512(c) to only those involving its adjudicatory

[or] legislative . . . functions.” Caldwell, 2021 WL 6062718 at *5. Had it wanted to, Congress

could have just as easily borrowed language from just a few statutory sections away. See 18

U.S.C. § 1505 (criminalizing obstruction of “any inquiry or investigation [that] is being had by”

Congress). Rather it chose broader language, perhaps in recognition that, as a legislative body,

the majority of its “official” functions are not quasi-adjudicative or evidentiary. See McHugh,

2022 WL 296304 at *8. In any event, the Court is not inclined to “‘read[] words or elements into

a statute that do not appear on its face.’” Sandlin, 2021 WL 5865006 at * 4 (citing Bates v. Unied

States, 522 U.S. 23, 29 (1997)).

Next, Defendant argues that the title of section 1512, “Tampering with a witness, victim,

or informant,” should control. It does not. Neither “the title of a statute” nor “the heading of a

section” can “limit the plain meaning of the text.” Brotherhood of R.R. Trainmen v. Baltimore &

Ohio R. Co., 331 U.S. 519, 528-29 (1947). Even if it were to offer some gloss on the plain

meaning of the statutory term, “[s]ection 1512(c) was added in the Sarbanes-Oxley Act, and the

title of the relevant part of the Act is “Tampering with a record or otherwise impeding an official

proceeding.” Sandlin, 2021 WL 5865006 at * 7 (emphasis original) (quoting § 1102, 116 Stat. at

807).

Similarly, Defendant’s reliance on United States v. Guertin, No. 21-cr-00262 (TNM),

2022 WL 203467 (D.D.C. Jan. 24, 2022), Repl. at 9, is misplaced. Defendant is correct that, in

8
that case, the court construed “official proceeding” in section 1512(c) to require a “formal

tribunal.” 2022 WL 203467 at *7. Yet the court reached that conclusion to hold that a security

clearance investigation, like the FBI investigation in Ermoian, is not an “official proceeding” in

part due to its lack of formality. Id. As such, the court confronted not 1515(a)(1)(B), governing

“a proceeding before Congress,” but (a)(1)(C), governing “a proceeding before a Federal

agency.” Moreover, even if there were some requirement that a Congressional proceeding be

“adjudicatory or evidentiary,” Mot. at 15, as Judge Dabney Friedrich reasoned, “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.” Sandlin, 2021 WL 5865006 at *4. Yet the Court concludes that there is no such

requirement; the Joint Session of Congress to certify the Electoral College is unambiguously an

“official proceeding” within the meaning of 1512(c)(2).

B. Otherwise Obstruct, Influence, or Impede

Next, Defendant argues that the word “otherwise” in section 1512(c)(2) cabins the

applicability of “obstruct[], influence[], or impede[]” to subsection (c)(1)’s prohibition on

“alter[ing], destroy[ing], mutilate[ing], or conceal[ing] a record, document, or other objection . . .

.” Defendant insists that subsection (c)(2) must be limited to “acts that have the same kind of

evidence-obstructive impact as the listed forms of obstruction in (c)(1)––altering, destroying,

mutilating, or concealing a record, document, or other object––but cause this impairment . . . in a

different way or manner and/or other forms of evidence.” Mot. at 24. Defendant’s reading

conflicts with the plain meaning of the statute.

Defendant’s argument is a flavor of the canon of statutory instruction esjudem 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.

9
Cir. 1979). That canon provides 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. BOP, 552 U.S. 214, 223 (2008) (quoting Norfolk & W. R. Co. v. Train Dispatchers, 499

U.S. 117, 129 (1991)). Defendant relies principally on Begay v. United States, 553 U.S. 137

(2008) which held that, in the context of the Armed Career Criminal Act, the word “otherwise”

“limit[ed] the scope of the clause to the [preceding] examples themselves.” Id. at 143. The

Supreme Court was careful to note that “the word ‘otherwise’ can (we do not say must) refer to a

crime that is similar to the listed examples in some respects but different in others.” Id. at 144.

As Judge Randolph Moss found, there is no conflict with Begay here insofar as “if one looks to

the ‘particular similarity specified after the ‘otherwise’ in Section 1512(c)(2), the link or

similarity between the crimes covered by Sections 1512(c)(1) and (c)(2) is that both provisions

apply to conduct that––directly or indirectly––‘obstructs, influences, or impedes any official

proceeding.’” Montgomery, 2021 WL 6134591 at *12.

Nor, as Defendant argues, does the word “otherwise” become surplusage if read to

include conduct that does not involve tampering with a physical object. Mot. at 27. Section

1512(c) criminalizes two classes of actions: (1) tampering with evidence that may go before an

official body and (2) obstructing the official body itself. See Montgomery, 2021 WL 6134591 at

*12. As such, “‘otherwise’ . . . signifies a shift in emphasis,’ from actions directed at evidence to

actions directed at the official proceeding itself.” Id. (citation omitted). 4 It seems natural that

Congress would have created a second subsection addressing the latter as there is a class of

actions that can impede or obstruct an official proceeding absent even the mere presence of

4
Accord Mostofsky, 2021 WL 6049891 at *11; Caldwell, 2021 WL 6062718 at *14; Nordean,
2021 WL 6134595 at *7; United States v. De Bruhl-Daniels, 491 F. Supp. 3d 237, 252 (S.D.
Tex. 2020); United States v. Ring, 628 F. Supp. 2d 195, 224-25 (D.D.C. 2009) (“1512(c)(2)’s
application is not limited to the destruction of documents”).
10
evidence. See id. at *16. For instance, one could envision a defendant calling in a false bomb

threat to prevent a proceeding from continuing. The bomb threat does not “alter[], destroy[],

mutilate[], or conceal[] a record,” but it does “impede[] an[] official proceeding.” It seems likely

that Congress would have intended to protect the integrity of their proceedings in their entirety

by enacting (c)(2)’s catchall clause. Even if not, as Judge Moss notes, “‘statutory prohibitions

often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the

provisions of our laws rather than the principal concerns of our legislators by which we are

governed.’” Id. (quoting Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).

Accordingly, the Court concludes that 1512(c)’s residual clause encompasses Defendant’s

alleged behavior to the extent that it did not tamper with physical evidence.

C. Mens Rea and Vagueness

Defendant next argues that the statute’s mens rea, “corruptly,” is unconstitutionally

vague. The Court begins from the presumption that “statutes are not automatically invalidated as

vague simply because difficulty is found in determining whether certain marginal offenses fall

within their language.” United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963). A

law is unconstitutionally vague when it “fails to give ordinary people fair notice of the conduct it

punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United States,

576 U.S. 591, 595 (2015). This is a “‘stringent standard.’” Sandlin, 2021 WL 5865006 at *10

(quoting United States v. Harmon, No. 19-cr-395 (BAH), 2021 WL 1518344 at *4 (D.D.C. Apr.

16, 2021)). The vagueness determination “must be made on the basis of the of the statute itself

and other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective

expectations of particular defendants.” Bouie v. City of Columbia, 378 U.S. 347, 355 n.5 (1964).

11
 Defendant relies principally on United States v. Poindexter, 951 F.2d 369 (D.C. Cir.

1991) which found that “corruptly,” undefined in 18 U.S.C. § 1505, was unconstitutionally

vague as applied to the defendant’s conduct of lying to Congress. Id. at 386. Courts have

subsequently cabined Poindexter, including the D.C. Circuit Court of Appeals in United States v.

Morrison, 98 F.3d 619 (1996). 5 Post-Poindexter, the Supreme Court had little trouble

concluding that a “corruptly” mens rea in a similar criminal statute means, unambiguously,

“wrongful, immoral, depraved, or evil” acts. Arthur Andersen LLP v. Untied States, 544 U.S.

696, 705 (2005) (citation omitted). Faced with an additional term, “knowingly,” the Court held

that the mens rea in that case would require a showing of “consciousness of wrongdoing” and a

nexus between the action and the proceeding to be obstructed. Id. at 707. Relying on Arthur

Andersen, federal Courts of Appeals vary slightly in their definition of “corruptly.” See, e.g.,

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”); United

States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013) (same); United States v. Watters, 505

F.3d 698, 705 (7th Cir. 2007) (defining “corruptly” as acting “with the purpose of wrongfully

impeding the due administration of justice”). Each, however, has settled on a definition that is

not unconstitutionally vague.

Although the Court of Appeals has not yet weighed in, various judges of this Court have

consistently held that “corruptly” requires (1) some degree of specific intent to obstruct and (2) a

nexus between the obstruction and the proceeding to be obstructed. McHugh, 2022 WL 296304

at *11 (collecting cases). Because the affidavit in support of the government’s Complaint alleges

that Defendant “knowingly, and with the intent to impede or disrupt” used unlawful means to

5
See also United States v. Edwards, 869 F.3d 490, 502 (7th Cir. 2017); United States v. Kelly,
147 F.3d 172, 176 (2d Cir. 1998); United States v. Shotts, 145 F.3d 1289, 1300 (11th Cir. 1998).
12
obstruct the certification of the Electoral College vote, see Aff. at ¶ 18, it cannot be said that

defendant himself did not have fair notice that the statute criminalized the conduct alleged in the

complaint. See Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute

clearly applies may not successfully challenge it for vagueness.”).

Lastly, Defendant insists that the government’s decision not to charge violations of

1512(c) in subsequent cases alleging similar facts renders the statute’s mens rea “entirely

arbitrary, entirely unclear, and entirely vague.” 6 Mot. at 51. The government’s charging

decisions have no bearing on the vagueness analysis, and Defendant cites no authority to support

such a proposition. Indeed, “[i]t is not unusual for a particular act to violate more than one

criminal statute, and in such situations the Government may proceed under any statute that

applies.” United States v. Aguilar, 515 U.S. 593, 616 (1995) (Scalia, J., concurring in part and

dissenting in part). As Judge Timothy Kelly concluded, “the presence of enforcement discretion

alone does not render a statutory scheme unconstitutionally vague.” Nordean, 2021 WL

6134595 at *12. The key question on a vagueness challenge is whether the statute, “as

construed, made it reasonably clear at the relevant time that the defendant’s conduct was

criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997). “There is little question that

violent [unlawful entry and destruction of property] constitute obstructive acts” that are criminal.

See Sandlin, 2021 WL 5865006 at *9; Nordean, 2021 WL 6134595 at *13 (“Section 1512(c)(2)

6
In addition to highlighting other January 6th cases, Defendant suggests that a “sit-in” on the
House Floor by several Democratic Members of Congress should have been charged as a
violation of 1512(c)(2). As Judge Friedrich discussed, the unlawfulness of the underlying,
predicate action may bear on the applicability of 1512(c)(2). See Sandlin, 2021 WL 5865006 at
*13 (“The Court recognizes that other cases, such as those involving lawful means, will present
closer questions.” (citation omitted)). Although the Members’ actions may have been a violation
of House Rules, the Court is unaware of any criminal statute barring the presence of Members of
Congress from the House Floor. As such, Defendant’s proposition is quite different from the
allegations here that Defendant unlawfully entered and remained in the Capitol.
13
is not ‘narrow’ at all. It sweeps broadly––punishing a host of ‘corrupt’ conduct. Thus, it hardly

lulled Defendant[] into a false sense of security . . . .”). As such, the Court concludes that

1512(c)(2), as applied, is not unconstitutionally vague.

D. Rule of Lenity

As a final argument, Defendant urges this Court to invoke the rule of lenity and find that

his alleged conduct falls outside the scope of § 1512(c)(2). Mot. at 51–53. The rule of lenity

provides that, “ambiguity concerning the ambit of criminal statutes should be resolved in favor

of lenity.” Cleveland v. United States, 531 U.S. 12, 25 (2000) (quoting Rewis v. United States,

401 U.S. 808, 812 (1971)). Even in its most robust form, the rule of lenity only applies when,

“after all legitimate tools of interpretation have been exhausted, ‘a reasonable doubt persists’

regarding whether Congress has made the defendant’s conduct a federal crime.” Abramski v.

United States, 573 U.S. 169, 264 (2014) (Scalia, J., dissenting) (quoting Moskal v. United States,

498 U.S. 103, 108 (1990)); accord Barber v. Thomas, 560 U.S. 474, 488 (2010) (“[T]he rule of

lenity only applies if, after considering text, structure, history, and purpose, there remains a

‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply ‘guess as to

what Congress intended.’”) (citations omitted).

Because application of the rule of lenity first requires a demonstration that, even after

exhausting the traditional tools of statutory interpretation, the statutory language is ambiguous,

the Court must determine whether ambiguity exists in § 1512(c)(2). A criminal statute is

ambiguous when, for instance, it “has two possible readings,” one favorable to the defendant and

the other unfavorable. Abramski v. United States, 573 U.S. 169, 203 (2014) (Scalia, J.,

dissenting); accord United States v. Santos, 553 U.S. 507, 512 (2008) (finding a statutory term

ambiguous where two plausible readings of the term existed). Defendant does not directly

14
address this point, which is ultimately fatal to his argument. Instead, Defendant argues that the

meaning of “corruptly obstructing, influencing, or impeding a proceeding before Congress” is

not “clear and definite.” See Def.’s Mot. at 52 (quoting Yates, 574 U.S. at 548) (citations

omitted). To the extent that Defendant argues that the rule of lenity should apply due to

vagueness in the statutory language, such an argument is foreclosed by the Court’s earlier

finding, discussed supra, that § 1512(c)(2) is not unconstitutionally vague. Moreover, vagueness

is a separate inquiry than that relevant to a rule of lenity analysis—vagueness is not equivalent to

ambiguity. See, e.g., United States v. Lanier, 520 U.S. 259, 266 (1997) (distinguishing

vagueness doctrine from rule of lenity ambiguity); United States v. Davis, 139 S. Ct. 2319, 2333

(2019) (same). Moreover, Congress is not prohibited from drafting statutes that sweep broadly,

so long as it is clear what is criminalized. See Yates, 574 U.S. at 566 (Kagan, J., dissenting)

(“Lenity offers no proper refuge from [a] straightforward (even though capacious)

construction.”); cf. United States v. Batchelder, 442 U.S. 114, 123 (1979) (“So long as

overlapping criminal provisions clearly define the conduct prohibited and the punishment

authorized, the notice requirements of the Due Process Clause are satisfied.”). That is exactly

the case here.

Although Defendant relies largely on Yates for his lenity argument, Yates provides little

support for Defendant’s position. In Yates, the Court was confronted with construing the

meaning of “tangible object” in 18 U.S.C. § 1519, a statute similar in language and object to §

1512(c). See, e.g., Yates, 574 U.S. at 541–43 (comparing the language of §§ 1512(c) and 1519).

Regarding the rule of lenity, the Court briefly noted that if they had any doubts about the

meaning of “tangible object” after having gone through the traditional canons of statutory

interpretation, they would then invoke lenity to construe “tangible object” in a narrow way to

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exclude Defendant’s conduct. 7 Id. at 547–48. On the contrary, in the instant case, Defendant

has not pointed to language in § 1512(c)(2) that, like “tangible object” in § 1519, is arguably

ambiguous. Nor has defendant demonstrated that such ambiguity exists even after exhausting

the traditional tools of statutory construction.

Defendant also argues that “there are other more definitive statutes available to charge

[Defendant] for his alleged obstructive conduct.” Def.’s Mot. at 52–53. That Defendant’s

conduct may also be criminalized under some other statute adds nothing to Defendant’s rule of

lenity argument and is itself neither surprising nor uncommon. See, e.g., Loughrin v. United

States, 573 U.S. 351, 358 n.4 (2014); see also Hubbard v. United States, 514 U.S. 695, 715 n.14

(1995) (“Congress may, and often does, enact separate criminal statutes that may, in practice,

cover some of the same conduct.”).

Because Defendant has not demonstrated any ambiguity in the language of § 1512(c)(2),

let alone ambiguity remaining after exhaustion of the traditional tools and canons of statutory

interpretation, Defendant’s rule of lenity argument necessarily fails.

IV. CONCLUSION

For the foregoing reasons, Defendant’s [69] Amended Motion to Dismiss is DENIED.

An appropriate order consistent with this decision accompanies this memorandum opinion.

Dated: February 9, 2022 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

7
It is unclear what role the rule of lenity played in Yates given that the Court phrased its lenity
analysis as a hypothetical where ambiguity in the statutory language still existed even after
applying the tools of statutory interpretation. See Yates, 574 U.S. at 547–48 (“Finally, if our
recourse to traditional tools of statutory construction leaves any doubt about the meaning of
‘tangible object,’ . . . we would invoke the rule [of lenity] . . . .”) (emphasis added). However,
because the Court had already resolved the meaning of “tangible object” through application of
the traditional interpretative canons, the rule of lenity discussion is not relevant to the holding.
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