United States v. Sturgeon

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
Vv. Case No. 1:21-cr-91-RCL
CRAIG MICHAEL BINGERT, et al.,

Defendants.

MEMORANDUM OPINION

On January 6, 2021, a violent mob attacked the United States Capitol as Congress
attempted to certify the Electoral College vote. Defendants Isaac Sturgeon, Craig Bingert, and
Taylor Johnatakis allegedly joined the fray and rammed a line of police officers with a metal
barricade. The government charged each defendant with eight different offenses related to their
participation in this unsuccessful insurrection. See Superseding Indictment, ECF No. 53. Isaac
Sturgeon moved to dismis$ Counts One, Three, Four, Five, and Six of the Superseding Indictment,
arguing that these counts do not state an offense and do not give defendants fair notice. See Defs.’
Mot. 1, ECF No. 55.! He also argues that Count Five infringes on defendants’ First Amendment
rights. Jd. Johnatakis and Bingert moved for joinder. ECF Nos. 56 & 59. The government opposed,
Gov’t Opp’n 1, ECF No. 60, and Sturgeon replied, Defs.’ Reply, ECF No. 62. Upon consideration
of the parties’ filings, applicable law, and the record herein, the Court will DENY defendants’

motion to dismiss.

' Because all defendants ultimately joined’in this motion, the Court will refer to ECF No. 55 as “defendants’ motion.”
I. BACKGROUND

On January 6, 2021, both houses of Congress assembled in the United States Capitol
building to certify the vote count of the Electoral College of the 2020 Presidential election.? Compl.
1, ECF No. 1. As President of the Senate, former Vice President Michael Pence was present to
perform his duties under the Twelfth Amendment. Jd. United States Capitol Police secure the
Capitol 24 hours a day, and on January 6, 2021, police had closed off both the Capitol building
itself and the exterior plaza to members of the public. Jd. The police blocked off the entrances to
the Capitol with temporary and permanent barricades. Jd.

As the certification proceeded in full swing, a large crowd began to gather outside of the
Capitol. Jd. Many members of the crowd had attended then-President Donald Trump’s political
rally on the National Mall, where he decried the 2020 election as fraudulent. United States v.
McHugh, No. 1:21-cr-453 (JDB), 2022 WL 296304, at *1 (D.D.C. Feb. 1, 2022). At the rally,
President Trump implored the crowd to march towards the Capitol and “demand that Congress do
the right thing and only count the electors who have been lawfully slated.” Jd. When members of
the mob who braved the two-mile trek from President Trump’s rally arrived at the Capitol, the
scene soon dissolved into chaos. Gov’t Opp’n 5. Agitated protestors became enraged rioters. Jd.
Rioters forced their way through police line perimeters and past metal barricades, assaulting
officers and breaking Capitol windows in an attempt to reach the lawmakers inside. Jd. Many of
these rioters were armed; they brought “tire irons, sledgehammers, bear spray, and Tasers.” Jd.

Defendants Sturgeon, Bingert, and Johnatakis were videotaped at the front of a large crowd
on the west terrace of the Capitol grounds. /d. at 6. Together with other members of the mob, they

picked up a metal fence and heaved it into a line of police officers. Jd. Johnatakis, armed with a

2 For the purposes of this motion, the Court will assume that the government’s alleged facts are true.
bullhorn; urged the crowd to “push them out of here, we’re just using our bodies.” /d. Once the
defendants jammed the barricade into the line of police officers, they ducked underneath it. Jd. at
7. The police officers used chemical irritants and physical force to push them back. Id.

The government has arrested and charged more than 800 individuals for their conduct on
January 6, 2021—a riot that caused millions of dollars in damage to the Capitol, injured over one
hundred police officers, and caused multiple deaths. Sturgeon, Bingert, and Johnatakis were each
arrested after the Federal Bureau of Investigation (“FBI”) posted photos and body-worn camera
footage of the three men and requested the public’s help to identify them. Compl. 2. All three were
charged with eight counts related to their participation on January 6, 2021. See Superseding
Indictment.

Defendants now challenge several of the counts charged in their indictments. They move
to dismiss Count One, obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2),
arguing that the Electoral College certification is not an “official proceeding” as contemplated in
§ 1512 and that the statute is unconstitutionally vague. Defs.” Mot. 7, 10. They also move to
dismiss Count Three, obstructing a police officer during civil disorder in violation of 18 U.S.C.
§ 231(a)(3), maintaining that § 231(a)(3) is unconstitutionally vague and fails to provide proper
notice. Defs.’ Mot. 15. Then, they argue that 18 U.S.C. § 1752(a)(1), the statute undergirding
Count Four, is unconstitutional as applied because it violates their First Amendment rights. Defs.’
Mot. 21. Finally, they move to dismiss Counts Four, Five, and Six, arguing that the Capitol
complex was not a “restricted building or grounds” as contemplated by § 1752. Defs.’ Mot. 24.

The government opposed on all counts. Gov’t Opp’n. Defendants’ motion is now ripe.
Defendants’ arguments echo those that other January 6, 2021 defendants have filed. Plenty
of ink has been spilled in this district denying motions that raise a combination of these arguments.’
One judge, however, has granted a motion to dismiss based on one of defendants’ arguments—
that § 1512(c)(2) does not apply to the conduct alleged. United States v. Miller, No. 1:21-cr-119
(CIN), 2022 WL 823070 (D.D.C. Mar. 7, 2022). Now, this Court has the opportunity to consider
these questions anew.

Il. LEGAL STANDARD

The purpose of an indictment is to “inform the defendant of the nature of the accusation
against him.” Russell v. United States, 369 U.S. 749, 767 (1962). Accordingly, an indictment need
only contain a “plain, concise, and definite written statement of the essential facts constituting the
offense charged.” Fed. R. Crim. P. 7(c)(1). The indictment must inform the defendant of the
“precise offense” he is accused of so that “he may prepare his defense and plead double jeopardy
in any further prosecution for the same offense,” United States v. Verrusio, 762 F.3d 1, 13 (D.C.
Cir. 2014), but need not include detailed allegations, United States v. Resendiz-Ponce, 549 U.S.
102, 110 (2007).

Rule 12 of the Federal Rules of Criminal Procedure permits defendants to raise by pretrial
motion “any defense, objection, or request that a court can determine without a trial on the merits.”
Fed. R. Crim. P. 12(b)(1). Under Rule 12, a defendant may move to dismiss an indictment for

“failure to state an offense” or “lack of specificity.” Fed. R. Crim. P. 12(b)(3)(B)(iii), (v). Because

3 See McHugh, 2022 WL 296304; United States v. Puma, No. 1:21-cr-0454 (PLF), 2022 WL 823079 (D.D.C. Mar.
19, 2022); United States v. Andries, No. 1:21-cr-093 (RC), 2022 WL 768684 (D.D.C. Mar. 14, 2022); United States
v. Bozell, No. 1:21-cr-216 (JDB), 2022 WL 474144 (D.D.C. Feb. 16, 2022); United States v. Grider, No. 1:21-cr-0022
(CKK), 2022 WL 392307 (D.D.C. Feb. 9, 2022); McHugh, 2022 WL 296304; United States v. Montgomery, No. 1:21-
cr-046 (RDM), 2021 WL 6134591 (D.D.C. Dec. 28, 2021); United States v. Nordean, 1:21-cr-175 (TJK), 2021 WL
6134595 (D.D.C. Dec. 28, 2021); United States v. Mostofsky, No. 1:21-cr-138 (JEB), 2021 WL 6049891 (D.D.C. Dec.
21, 2021); United States v. Caldwell, No. 1:21-cr-028 (APM), 2021 WL 6062718 (D.D.C. Dec. 20, 2021); United
States v. Sandlin, No. 1:21-cr-88 (DLF), 2021 WL 5865006 (D.D.C. Dec. 10, 2021); United States v. Griffin, No.
1:21-cr-92 (TNM), 549 F. Supp. 3d 49 (D.D.C. July 2, 2021).
a motion to dismiss an indictment “challenges the adequacy of an [i]ndictment on its face,” a court
determining a Rule 12(b) motion must accept all allegations in the indictment as true. United States
v. Bowdoin, 770 F. Supp. 2d 142, 145 (D.D.C. 2011). The relevant question in a Rule 12(b) motion
is whether the allegations are “sufficient to permit a jury to find that the crimes charged were
committed.” Jd. at 146. This standard is not difficult to meet—dismissal under Rule 12(b) is
. granted “only in unusual circumstances.” United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir.
2015).
II. COUNT ONE OF THE INDICTMENT PROPERLY STATES AN OFFENSE
Count One of the Superseding Indictment alleges that all three defendants “attempted to,
and did, corruptly obstruct, influence, and impede an official proceeding, that: is, a proceeding
before Congress, specifically, Congress’s certification of the Electoral College” in violation of
18 U.S.C. § 1512(c)(2). Superseding Indictment 1-2, ECF No. 52. The relevant statute states that

(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 an official
proceeding, or attempts to do so,

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

18 U.S.C. § 1512(c). Defendants raise three challenges to this count of the indictment. First, they
argue that the certification of the Electoral College vote was not an “official proceeding.” Defs.’
Mot. 7. Second, they assert that § 1512(c)(2) is unconstitutionally vague both facially and as
applied to this case. /d. at 10. Third, they contend that their alleged conduct does not fall within

the bounds of § 1512(c)(2). ECF No. 64. None of these arguments persuade the Court.
A. Congress’s Certification of the Electoral College Vote Is An “Official Proceeding”
For The Purposes Of 18 U.S.C. § 1512(c)

Defendants aver that an “official proceeding” under § 1512(c) must involve “‘adjudicative
or at least ‘quasi-adjudicative responsibilities.” Jd. (quoting United States v. Perez, 575 F.3d 164,
169 (2d Cir. 2009)). They appeal to “legislative history” and “Congress’s role in counting electoral
votes” to support their argument that the certification of the Electoral College is not an adjudicative
hearing, but instead a “ceremonial and administrative event that does not qualify as an ‘official
proceeding.’” Defs.’ Mot. 7.

The Court starts, “as it must, with the text.” United States v. Little, No. 1:21-cr-315 (RCL)
2022 WL 768685, at *3 (D.D.C. Mar. 14, 2022). When statutory language is disputed, a court must
first determine if the statute “has a plain and unambiguous meaning.” Robinson vy. Shell Oil Co.,
519 U.S. 337, 340 (1997) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).
Here, Congress has explicitly defined the term “official proceeding” as used in § 1512 as, among
other things, “a proceeding before Congress.” See 18 U.S.C. § 1515(a)(1)(B). This eliminates the
need to determine whether the vote certification was “official.” But this definition does not fully
answer the question. Because § 1515 does not explicitly define the term “proceeding,” “some
interpretation is required.” Puma, 2022 WL 823079, at *5.

“Proceeding” could be interpreted two ways: It could be read broadly by its lay
interpretation as any “act or step that is part of a larger action,” Proceeding, Black's Law Dictionary
(11th ed. 2019), or it could be read more narrowly as a formal proceeding. For several reasons, the
Court agrees with all other judges in this district to face the question that it is the formal, legal
understanding of the term “proceeding” that is implicated by § 1512(c). Puma, 2022 WL 823079,
at *5 (collecting cases). First, when a Court confronts a legal “term[] of art,” those terms should

be given their technical meanings. See Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 73. Second, using the broad lay interpretation here (any “act or step
that is part of a larger action”) would rip the term from its statutory context: the proceeding here
must be one “before” Congress, which implies that Congress “has convened in some formal respect
for the purpose of conducting that business.” Montgomery, 2021 WL 6134591, at *5 (emphasis
added). And there are additional statutory clues that support a technical reading of the term: as
defendants note, the term “official proceeding” further suggests a “formal appearance before a
tribunal.” Defs.’ Mot. 6 (quoting United States v. Ermoian, 752 F.3d 1165, 1170-71 (9th Cir.
2013)). Accordingly, under this understanding, a “proceeding before Congress” must involve
something akin to “a formal assembly or meeting of Congress for the purpose of conducting
official business,” as opposed to merely a “step that is part of the larger action.” Montgomery,
2021 WL 6134591, at *5.

Defendants are unsatisfied with this definition and seek to narrow the term further. They
would interpret “proceeding” as afi adjudicative or quasi-adjudicative event that involves “witness
testimony,” “documentary” evidence, or other “tangible evidence.” Defs.’ Mot. 9. They justify this
narrow reading by moving beyond the text itself and emphasizing the legislative history of the
Sarbanes-Oxley Act, through which Congress enacted § 1512(c)(2). But when the language of the
statute is “unambiguous, the ‘judicial inquiry is complete.’” Babb v. Wilkie, 140 S. Ct. 1168, 1177
(2020) (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003)). And besides, “[h]ad
Congress intended to limit the definition of ‘official proceeding’ to judicial and ‘quasi-judicial’
proceedings, to proceedings at which witnesses appear and give testimony, or to proceedings
related ‘to the administration of justice’ .. . it could easily have done so.” Montgomery, 2021 WL
6134591, at *6. For example, other statutes within the same chapter explicitly require a quasi-

adjudicative setting: 18 U.S.C. § 1505 criminalizes obstruction of “the due and proper
administration of law under which any pending proceeding is being had.” 18 U.S.C. § 1505. The
Court will not read “proceeding” to require a specific adjudicative event.

The Court can reject defendants’ final argument off the bat because it is not interpretive at
all—it instead assumes a different set of facts and attempts to recharacterize the alleged proceeding
at question here. Defendants reason that the Electoral College certification is not a proceeding
under § 1512(c)(2) because it is merely “administrative” and “ceremonial.” Defs.’ Mot. 8. This..
Court disagrees. It is “inaccurate to characterize the Certification . . . as a purely ministerial,
legislative vote-counting event.” Caldwell, 2021 WL 6062718, at *7. Even defendants concede
that Congress’s role in counting electoral votes includes “[s]ettl[ing] procedural issues for
conducting the joint session at which Congress counts the states’ electoral votes” and determining
penerally whether “procedural rules have been followed.” Defs.’ Mot. 8—9. Such tasks are hardly
“ceremonial” in nature. This Court will also reject defendants’ contention that, because 3 U.S.C.
§ 15 (which governs counting electoral votes) twice uses the phrase “meet,” the Electoral College
certification is merely a ceremonial “meeting” of Congress and not a proceeding. See Defs.’ Reply
5. The language they quote from 3 U.S.C. § 15 conveniently skips over the extensive procedural
requirements of the Electoral College certification delineated in the same. section. The use of the
term “meeting” does not negate the fact that the certification is a proceeding before Congress.

Like every other court in the district to decide the issue, this Court concludes that the
Electoral College vote certification constituted an official proceeding as described in 18 U.S.C.
§ 1512(c).

B. 18 U.S.C. § 1512(c)(2) Is Not Unconstitutionally Vague
Defendants next argue that § 1512(c)(2) is unconstitutionally vague and fails to provide

fair notice of the conduct it punishes. Defs.” Mot. 10. A criminal law violates the Fifth Amendment
if it is either “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or
so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595
(2015). Unconstitutional vagueness accordingly involves two separate but often interlocking
inquiries. Subsection 1512(c)(2) is not vague under either rubric.

First, criminal statutes do not provide fair notice when they tie culpability to “wholly
subjective judgments. without statutory definitions, narrowing context, or settled legal meanings.”
United States v. Williams, 553 U.S. 285, 306 (2008). Fair notice does not concern itself with the
possibility that “it will sometimes be difficult to determine whether the incriminating fact it
establishes has been proved.” Jd. Instead, to provide fair notice the relevant incriminating fact
simply must not be “‘indetermina[te].” Jd. A statute is not vague because certain cases may present
“close calls,” id. at 305, or because it is “broad,” United States v. Andries, No. 1:21 -cr-93 (RC),
2022 WL 768684, at *9 (D.D.C. Mar. 14, 2022). A statute is vague if it is unclear what the relevant
incriminating fact is.

Second, a law authorizes “arbitrary and discriminatory enforcement” when it lacks any
standards to govern the discretion it grants. Agnew v. Gov’t of D.C., 920 F.3d 49, 55 (D.C. Cir.
2019). This category includes laws whose application turns on subjective judgments or
preferences. Jd. A statute that criminalized “annoying” a passerby, for example, would invite
arbitrary and discriminatory enforcement—what “annoys some people does not annoy others.” See
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). But a statute that sets an “imprecise” but
ultimately comprehensible normative standard is not unconstitutionally vague. Jd.

Using both of these frameworks (often somewhat interchangeably), a majority of
defendants’ argument is addressed towards the term “corruptly.” Subsection 1512(c) criminalizes

one who “corruptly . . . [o]therwise obstructs, influences, or impedes any official proceeding.” 18
U.S.C. § 1512(c). Defendants rely on United States v. Poindexter, where the D.C. Circuit held that
the term “corruptly” as used in 18 U.S.C. § 15054 was unconstitutionally vague. 951 F.2d 369, 379
(D.C. Cir. 1991). They argue that here, too, “corruptly” invites arbitrary enforcement and requires
people to guess at its meaning. Defs.’ Mot. 11-12. But subsequent Supreme Court decisions and
acts of Congress have cabined Poindexter into a narrow holding related solely to 18 U.S.C. § 1505,
not a broad holding about the term “corruptly.”

In Poindexter, former National Security Advisor John M. Poindexter was charged with
violating 18 U.S.C. § 1505 by lying to or misleading Congress during the Iran/Contra Affair. 951
F.2d at 371. The Court first found that, absent some “narrowing gloss,” the term “corruptly” was
vague because people are forced to “guess at its meaning and differ as to its application.” Jd. at
378. analepizins 4 phrases like “immoral,” the Circuit explained that “corruptly” affords too
much discretion for “individual assessment of the morality of another’s behavior.” Jd. at 379. The
Circuit found no help from Congress to decipher the term, either. “If the legislative history of
§ 1505 clearly indicate[d] a more specific meaning of the term ‘corruptly,’ then the statute might
constitutionally be applied to conduct” within that meaning. Jd. But the Circuit found no such
instruction from Congress. Nor had the statute “been sufficiently clarified by prior judicial
decisions to give requisite notice and to protect against” prosecutors and jurors with their own

agendas and interpretations. Jd. at 384. Ultimately, while noting that “corruptly” can either be

* At the time, 18 U.S.C. § 1505 provided that:

Whoever corruptly, or by threats or force, or by any threatening letter or
communication influences, obstructs, or impedes or endeavors to influence,
obstruct, or impede the due and proper administration of the law under which any
pending proceeding is being had before any department or agency of the United
States, or the due and proper exercise of the power of inquiry under which any
inquiry or investigation is being had by either House, or any committee of either
House or any joint committee of the Congress [s]hall be fined not more than
$5,000 or imprisoned not more than five years, or both.

18 U.S.C. § 1505 (1991).

10
intransitive (a person acting corruptly) or transitive (a person acting to corrupt another), the Circuit
concluded that reading the statute intransitively to cover conduct related to lying to Congress was
too broad and failed to give constitutionally required fair notice. /d. at 386.

But five years after Poindexter, Congress expressly defined “corruptly”: “As used in
section 1505, the term ‘corruptly’ means acting with improper purpose, personally or by
influencing another, including making a false or misleading statement, or withholding, concealing,
altering, or destroying a document or another information.” 18 U.S.C. § 1515(b) (1996) (emphasis
added). So while defendants argue that the Circuit in Poindexter “ruled specifically that the adverb
‘corruptly’ should be read ‘transitively’ and requires that the defendant ‘corrupt’ another,” Defs.’
Reply 9, that holding is of no matter—Congress has cured any vagueness by setting forth a more
specific meaning of the term and endorsing the intransitive reading. Defendants maintain that “this
amendment did not resolve the vagueness that still exists in § 1512 as Congress did not amend
§ 1515 as it applies to § 1512.” Defs.’ Mot. 12. But defendants ask the Court to find § 1512 vague
because of the similarities to § 1505 and the issues the Circuit raised in Poindexter. So the fact
that Congress promptly set forth a new definition for § 1505 is highly relevant.

Additionally, § 1512(c)(2) has now “been sufficiently clarified by prior judicial decisions
to give requisite notice.” Poindexter, 951 F.2d at 384. First, “courts of appeal since Poindexter
have refused to extend its holding to other obstruction provisions.” Caldwell, 2021 WL 6062718,
at *9 (collecting cases). “[N]o court of appeals, including the D.C. Circuit [in United States v.
Morrison, 98 F.3d 619 (D.C. Cir. 1996)], has read Poindexter to mean, as [djefendants seem to
urge, that the term ‘corruptly’ in any obstruction statute is fatally vague.” Jd. Even the Supreme
Court now has had the opportunity to address the term “corruptly” in 18 U.S.C. § 1512(b). In

Arthur Andersen LLP v. United States, the Supreme Court defined “corrupt” and “corruptly” as

11
terms “normally associated with wrongful, immoral, depraved, or evil.” 544 U.S. 696, 705 (2005).
Relying on these terms to provide the mens rea requirement of § 1512(b)(2), the Supreme Court
did not raise any issues of vagueness. Jd.

The term “corruptly” thus requires the government to prove that a defendant not only
intended to obstruct but also had “consciousness of wrongdoing.” Jd. at 706; see Caldwell, 2021
WL 6062718; at *11 (holding that the term “corruptly,” “at the very least, requires [d]efendants to

have acted with consciousness of wrongdoing”). The courts of appeals have “built upon this focus

999 399

to interpret ‘corruptly’” as requiring “at least an ‘improper purpose’ and an ‘intent to obstruct.
Andries, 2022 WL 768684, at *10 (quoting Montgomery, 2021 WL 6134591, at *21 & n4
(collecting cases)). Using this definition does not rely on an “individual assessment of the morality
of another’s behavior,” Poindexter, 951 F.2d at 378, and resolves the vagueness isenes the D.C.
Circuit identified in Poindexter.

Moving beyond “corruptly,” defendants also gesture towards the term “official
proceeding” to illustrate that § 1512(c)(2) is unconstitutionally vague. Defs.’ Mot. 11. But while
they highlight the potential for “resulting ambiguity caused by a wide range of interpretation and
disparity among courts,” id., this Court does not find any ambiguity in practice. Every. court in this
district to address the issue has come to a similar conclusion as to what constitutes an “official

proceeding.” To be sure, the “failure of persistent efforts to establish a standard can provide

evidence of vagueness.” Johnson, 576 U.S. at 598. But there is no such failure here.°

5 Defendants also point to the “government’s approach to charging defendants with violating § 1512(c)(2)” to
“illustrat[e] how vague and arbitrary the enforcement of this statute can be.” Defs.’ Reply 13. This argument
misunderstands the nature of the vagueness challenge. The mere fact that a statute is precise but includes a wide variety
of conduct does not make it vague. Subsection 1512(c)(2) may be a “broad, catch-all prohibition” but that does not
mean it is “a vague one.” Andries, 2022 WL 768684, at *9. Defendants’ sister argument, that Sturgeon “could not
have possibly been on notice that he was committing a felony obstruction of an ‘official proceeding,’” Defs.’ Mot. 15,
similarly misunderstands the theory of unconstitutional vagueness. If defendants’ argument is that Sturgeon did not
intend to obstruct a proceeding occurring inside the building, that problem is “addressed, not by the doctrine of

12
Neither the term “corruptly” nor the phrase “official proceeding” render § 1512(c)(2)

unconstitutionally vague.
C. Defendants’ Conduct Fits Within The Scope Of 18 U.S.C. § 1512(c)(2)

The district courts have uniformly held that the certification of the Electoral College was
an official proceeding and that the term “corruptly” is not unconstitutionally vague. But in a
supplemental notice, defendants raise a new argument that the term “otherwise” in § 1512(c)(2)
indicates that the subsection is limited by § 1512(c)(1) and should be narrowly construed to
prohibit only actions taken “with respect to a document, record, or other object.” ECF No. 64 at 3.
The government responds both that this understanding of § 1512(c)(2) is improper and that even
if this was the proper interpretation, pretrial dismissal based on this interpretation is premature.
ECF No. 65 at 1, 22. Though this argument has split the district, the Court agrees with the
government’s broad interpretation of § 1512(c)(2). Defendants’ conduct fits within the scope of
§ 1512(c)(2) and so Count One properly states an offense against them.

1. The Plain Meaning Of § 1512(c)(2) Indicates That It Is Not Narrowed By
§ 1512(c)(1)

To determine what conduct is proscribed by § 1512(c)(2), the Court again starts with the
text. A court must, after all, read a criminal statute “in accordance with its ordinary or natural
meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). And if the meaning of the statute’s language
is plain, the court has no need to inquire further. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749
(2020). To refresh, § 1512(c) states:

(c) Whoever corruptly—

vagueness, but by the requirement of proof beyond a reasonable doubt.” Williams, 553 U.S. at 305. Perhaps it may be
difficult to determine whether Sturgeon intended to impede or obstruct the Electoral College vote certification with
an improper purpose. But “what renders a statute vague is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been proved”; instead, a statute is vague when it is unclear
precisely what that fact is. Jd. at 306. There is no such indeterminacy here.

13
(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 an official
proceeding, or attempts to do so,

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

18 U.S.C. § 1512(c)(2) (emphasis added).

The crux of defendants’ argument is the meaning of the term “otherwise.” The term
“otherwise” is typically interpreted to mean “in a different way.” United States v. McHugh, No.
1:21-cr-453 (JDB), 2022 WL 1302880, at *4 (D.D.C. May 2, 2022); see Otherwise, Webster’s
Third New Int’l Dictionary (1965) (defining otherwise as meaning “in a different way or manner’).
Using this definition, § 1512(c)(2) would criminalize all activity that “obstructs, influences, or
impedes” an official proceeding “in a different way” than the examples listed in § 1512(c)(1). The
government urges the Court to adopt this broader reading—a reading which, to this Court, appears
the most natural.

Relying on United States v. Miller, defendants entreat this Court to interpret “otherwise”
more narrowly: as essentially meaning “in a different, but similar in type, way.” ECF No. 64 at 2.
They contend the term “‘otherwise” renders § 1512(c)(2) “a residual clause . . . for the prohibition
contained in subsection [(c)(1)].” /d. (quoting Miller, 2022 WL 823070, at *9). The court in Miller
rested this textual interpretation on the Supreme Court’s discussion of the méaning of the word
“otherwise” in Begay v. United States, 553 U.S. 137 (2008). Miller, 2022 WL 823070, at *6—15.
But this narrow interpretation strains the statute beyond its ordinary meaning.

To start, the decision in Begay does not compel the defendants’ requested meaning of the

term “otherwise.” In Begay, the Supreme Court determined whether driving under the influence

14
was a “violent felony” as defined by the Armed Career Criminal Act (“ACCA”). The ACCA
defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one
year” that

(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

(11) is burglary, arson, or extortion, involves the use of explosives,

or otherwise involves conduct that. presents a serious potential risk
of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The Supreme Court concluded that the examples at
the beginning of clause (ii), which appear before the term “otherwise,” “limit the scope of the
clause to crimes that are similar to the examples themselves.” Begay, 553 U.S. at 143. In other
words, the conduct that “otherwise . . . presents a serious potential risk of physical injury” must be
similar in type to burglary, arson, or extortion. But the Supreme Court’s conclusion hardly rested
on the term “otherwise” itself. In a single paragraph, the Supreme Court noted that “otherwise” is
not “sufficient to demonstrate that the examples do not limit the scope of” clause (ii), because the
word “can (we do not say must) refer to a crime that is similar to the listed examples in some
respects but different in others.” Jd. at 144 (emphasis in original) (citation omitted).

It was only Justice Scalia’s concurrence (and Justice Alito’s dissent) that opined
extensively on the function of the term “otherwise.” Justice Scalia argued that “otherwise”
“signifies a similarity” between the example crimes and the unenumerated crimes. Jd. at 150
(Scalia, J., concurring in the judgment). And that similarity is the “particular similarity specified
after the ‘otherwise’—.e., that they all pose a serious potential risk of physical injury to another.
They need not be similar in any other way.” Jd. at 151. Justice Alito’s dissent, which Justice Souter
and Justice Thomas joined, reiterated this understanding of the term “otherwise.” Justice Alito

explained that “offenses falling within the residual clause must be similar to the named offenses

15
in one respect only: They must ‘otherwise’—which is to say, ‘in a different manner,’ —‘involv[e]
conduct that presents a serious potential risk of physical injury to another.’” /d. at 159 (Alito, J.,
dissenting) (citations omitted) (alteration in original).

So the textual discussion of the term “otherwise” from Begay does little to help defendants
here. Five Justices held that “otherwise” can “refer to a crime that is similar to the listed examples
in some respects.but different in others.” /d. at 144. Four Justices contend that “otherwise” must
refer to a crime that is similar based only on the specified similarity that appears after the term
“otherwise.” Jd. at 151 (Scalia, J., concurring in the judgment); id. at 159 (Alito, J., dissenting).
No Justices contend that the term “otherwise,” on its own, somehow inherently narrows the scope
of a statute so that the antecedent clause is limited by what precedes “otherwise”—the defendants’
requested interpretation of the term.

Because the Begay decision tells us little about the meaning of the term “otherwise” and
because the plain, ordinary meaning of the term “otherwise” would not limit § 1512(c)(2) to only
those crimes which are “different, but similar in type” to those enumerated in § 1512(c)(1), the
Court rejects defendants’ requested interpretation of § 1512(c)(2). “[G]iving ‘otherwise’ its
ordinary meaning—‘in a different way’—makes paragraph (c)(2) a catch-all provision that
prohibits a set of actions inclusive of, but broader than, the acts proscribed by paragraph (c)(1).”
McHugh, 2022 WL 1302880, at *7.

In total, the Court finds that the text answers the question of whether defendants’ alleged
behavior is criminalized under § 1512(c)(2): it is. And so the inquiry can stop there—‘if the

399

statutory language is unambiguous and ‘the statutory scheme is coherent and consistent,’” a court

need not look any further. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United

16
States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)). But the Court will address defendants’
additional arguments and why they are unpersuasive.

2. Neither The Context Of § 1512(c)(2) Nor Its Historical Development Suggest That
§ 1512(c)(2) Is Limited By 1512(c)(1)

Moving beyond the text itself, defendants argue that the context and purpose—the
“structure and scope”—of § 1512 “suggests that subsection (c)(2) has a narrow focus, because the
other subsections criminalize specific conduct in narrow contexts.” ECF No. 64 at 2. They present
a number of contextual reasons why, contrary to the plain meaning of the statute’s text, it should
be read narrowly. None is sufficient to “displace the statute's ordinary meaning.” McHugh, 2022
WL 1302880, at *7.

First, this Court can find no case law or statutory interpretation canon that insists that
narrow and broader criminal provisions cannot exist side-by-side in the same statutory section.
While Congress may not “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 468 (2001), there is no hiding here—the elephant has been “standing before us all along,”
Bostock, 140 S. Ct. at 1753. Within a statute that targets various types of obstruction and
harassment, Congress has criminalized directly obstructing or impeding an official proceeding.
This Court will not disregard Congress’s plain text because defendants feel it is not similar in
breadth to neighboring subsections. It is similarly unsurprising that, if § 1512(c)(2) is interpreted
broadly, the main or more comprehensive offense of § 1512(c) is included in the second
subsection. “[T]hat is simply how catch-alls work. Indeed, the exact same critique could be
levelled at any . . . statutes that end with catch-all provisions introduced by ‘otherwise.’” McHugh,
2022 WL 1302880, at *7.

Nor does this Court agree that “the historical development of § 1512 supports the

conclusion that § 1512(c)(2)” is limited by the offenses in § 1512(c)(1). ECF No. 64 at 3. As

17
another court inthis district has identified, “[p]rior to the enactment of subsection 1512(c) in 2002,
§ 1512 made criminal only actions directed at other persons.” Miller, 2022 WL 823070, at *12.
Subsection 1512(b)(2), for example, stated:

b) Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or attempts to do
so, or engages in misleading conduct toward another person, .with
intent to—

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or
other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with intent
to impair the object's integrity or availability for use in an
official proceeding;

(C) evade legal process summoning that person to appear as
a witness, or to produce a record, document, or other object,
in an official proceeding; or

(D) be absent from an official proceeding to which such
person has been summoned by legal process; . . .

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

18 U.S.C. §§ 1512(b)(1) (1996) (emphasis added). This created a gap in the statutory scheme—
persuading others to take certain actions was criminalized, while taking those actions directly was
not. When § 1512(c) was added in 2002, § 1512(c)(1) quoted language from only one subsection
of § 1512(b)(2) nearly verbatim:

(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 an official
proceeding, or attempts to do so,

18
shall be fined under this title or imprisoned not more than 20 years,
or both.

18 U.S.C. § 1512(c) (emphasis added). Defendants theorize this indicates § 1512(c) was used
merely “close the gap,” not criminalize other obstructive behavior. ECF No. 64 at 3.

Miller further highlights that, when Congress added § 1512(a)(2)(b) the same year, which
created harsher penalties for using force against another, Congress adopted “all of § 1512(b)(2) in
§ 1512(a)(2)(B).” 2022 WL 823070, at *13. The new § 1512(a)(2)(B) provided: -

(2) Whoever uses physical force or the threat of physical force
against any person, or attempts to do so, with intent to—

(B) cause or induce any person to—

(i) withhold testimony, or withhold a record, document, or
other object, from an official proceeding;

(ii) alter, destroy, mutilate, or conceal an object with intent
to impair the object's integrity or availability for use in an
official proceeding;

(iii) evade legal process summoning that person to appear as
a witness, or to produce a record, document, or other object,
in an official proceeding; or

(iv) be absent from an official proceeding to which such
person has been summoned by legal process; .. .

shall be punished as provided in paragraph (3).
18 U.S.C. § 1512(a)(2)(B).

Relying on Miller, defendants argue that by “drawing heavily from a single provision
already included in subsection (b),” Congress intended § 1512(c) to have a narrow, limited focus.
Miller, 2022 WL 823070, at *13. Defendants contend that Congress’s choice to adopt all the
language from § 1512(b)(2) in § 1512(a)(2)(B), which it could have done in § 1512(c), further
supports a narrow reading. But none of this historical reasoning reckons with the fact that Congress

chose to include a second, broader statement about other types of obstruction in § 1512(c).

19
In their last contextual argument, relying on the canon against surplusage, defendants argue
that if § 1512(c)(2) could be read broadly, Congress would not need many of the other subsections:
“the majority of § 1512 would be unnecessary’ and paragraph (c)(2) would be ‘a duplicate to
nearly all of § 1512.” McHugh, 2022 WL 1302880, at *8 (quoting Miller, 2022 WL 823070, at
*12): see ECF No. 64 at 1. When interpreting a statute, courts “presume that Congress did not
‘include words that have no effect,’ and so we generally ‘avoid a reading that renders some words ,
altogether redundant.’” Mercy Hosp., Inc. v. Azar, 891 F.3d 1062, 1068 (D.C. Cir. 2018) (quoting
Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 176-77).
Defendants? arsumrent recalls the Supreme Court’s considerations in Begay, which in truth relied
much more on the canon against surplusage than the term “otherwise.” Begay, 553 U.S. at 142.
Unluckily for defendants, the canon against surplusage does not aid them here for three reasons.

To start, the canon against surplusage is not helpful where, like here, the plain meaning of
the statutory text is ‘clear. Textual redundancies that are “subtle or pitted against otherwise plain
meanings” are “feeble interpretive tools.” Mercy Hosp., Inc., 891 F.3d at 1068. While courts
should avoid interpreting ambiguous statutes in a way that creates redundancies in the law, a court
cannot rewrite an unambiguous statute because it identifies a purported redundancy.

Second, the Court is not convinced there is a redundancy here. Defendants’ argument
ignores crucial differences between the subsections within § 1512. Subsection 1512(c)(2)
criminalizes direct obstruction (specifically obstructing, influencing, or impeding an official
proceeding), while other subsections of § 1512 criminalize indirect obstruction (taking action
against a witness or evidence with the intent of ultimately obstructing, influencing, or impeding
an official proceeding). Direct obstruction necessarily includes indirect obstruction—like “squares

and rectangles, every example of indirect obstruction—say, threatening a witness to keep them

20
from testifying at a hearing—is also an example of (or an attempt at) direct obstruction, since the
act of threatening the witness itself obstructs, influences, or impedes the hearing.” McHugh, 2022
WL 1302880, at *8. So a broad reading of § 1512(c)(2) would not swallow the other subsections
of § 1512 and render them surplusage: the statutes have different direct objects and target different
types of behavior. Montgomery, 2021 WL 6134591, at *12. While it is true that the conduct

66.

criminalized sometimes overlaps, substantial overlap between criminal statutes is “not’

uncommon.” See Loughrin v. United States, 573 U.S. 351, 411 n.4 (2014).

Third, using defendants’ proposed narrow interpretation would not solve the alleged
surplusage problem they identify. Even using their narrower definition of § 1512(c)(2), “conduct
proscribed by seven other provisions of § 1512—subparagraphs (a)(1)(B), (a)(2)(B)(i)Hili), and
(b)(2)(A){C)—would also violate § 1512(c).” McHugh, 2022 WL 1302880, at *9. The “canon
against surplusage merely favors that interpretation which avoids surplusage”—it is not a tool for
the court to use to “‘substitut[e] one instance of superfluous language for another.” United States
v. Ali, 718 F.3d 929, 938 (D.C. Cir. 2013). The alleged redundancy present here would not be
avoided with a narrower interpretation of § 1512(c)(2).

3. The Legislative History Here Is Neither Helpful Nor Dispositive

Legislative history is an uneven tool that cannot be used to contravene plain text. When,
for example, a court is “presented, on one hand, with clear statutory language and, on the other,
with dueling committee reports, [it] must choose the language.” Milner v. Dep’t of Navy, 562 U.S.
562, 574 (2011). And because § 1512(c) originated as a floor amendment, this Court lacks even
the guidance of committee reports. 148 Cong. Rec. $6542 (daily ed. July 10, 2002). Instead, it is
left with mere floor statements, which the Supreme Court has considered a wholly unreliable form

of legislative history for over a hundred years. See Duplex Printing Press Co. v. Deering, 254 U.S.

21
443, 474 (1921) (“By repeated decisions of this court it has come to be well established that the
debates in Congress expressive of the views and motives of individual members are not a safe
guide, and hence may not be resorted to, in ascertaining the meaning and purpose of the law-
making body.’’). The text of 18 U.S.C. § 1512(c)(2) is unambiguous, however, and so the Court
need not analyze the scant legislative history here.
IV. SECTION.231(A)(3) IS NOT UNCONSTITUTIONALLY VAGUE
Mirroring their § 1512(c)(2) arguments, defendants argue that 18 U.S.C. § 231(a)(3) is void
for vagueness because it fails to give fair notice and encourages arbitrary enforcement. Defs.’ Mot.
16. Section 231(a)(3) provides:
Whoever commits or attempts to commit any act to obstruct,
impede, or interfere with any fireman or law enforcement officer
lawfully engaged in the lawful performance of his official duties
incident to and during the commission of a civil disorder which in
any way or degree obstructs, delays, or adversely affects commerce
or the movement of any article or commodity in commerce or the
conduct or performance of any federally protected function

... [sJhall be fined under this title or imprisoned not more than five
years, or both.

18 U.S.C. § 231(a)(3). Defendants claim that this statute lacks a scienter requirement, relies on
“subjective reactions” that render violations unpredictable, and hinders a “person of ordinary
intelligence” from deciphering what conduct it prohibits. Defs.” Mot. 16, 19-20. Each of these
three claims is incorrect. Like all other courts in this district to have considered the question, the
Court holds that § 231(a)(3) is not void for vagueness.

The Court will start with the scienter argument because much of defendants’ arguments
rest on the concern that an individual “could not predict the potential consequences” of his or her
actions during a civil disorder. See Defs.’? Mot. 19. Section 231(a)(3) has a scienter requirement:
it criminalizes “any act” done with the intent “to obstruct, impede, or interfere with a law

enforcement officer” during the commission of a civil disorder. While the D.C. Circuit has not

22
addressed the issue, the Seventh and Eighth Circuits have both found that § 231(a)(3) requires the
defendant to act with obstructive intent. McHugh, 2022 WL 296304, at *14 (citing Nat’l
Mobilization Comm. to End War in Vietnam v. Foran, 411 F.2d 934, 937 (7th Cir. 1969) and
United States v. Mechanic, 454 F.2d 849, 854 (8th Cir. 1971)). This specific intent requirement
“may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the
complainant that his conduct is proscribed.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc.,
455 U.S. 489, 499 (1982). And because specific intent is required, defendants’ arguments that an
individual could not predict the consequences of her actions is baseless—to be convicted under
§ 231(a)(3), obstruction must be the intended outcome.

Moving next to subjectivity, Section 231(a)(3) does not criminalize conduct that relies on
subjective reactions. As explored above, see supra Part III.B, statutes that rely on a subjective
reaction—like whether conduct is “annoying”—do not give fair notice. See Coates, 402 U.S. at
614. What annoys one person might not annoy another. Accordingly, a statute that criminalizes
“annoying” conduct does not give a citizen sufficient notice to properly conform their conduct
with the law. But § 231(a)(3) contains no such subjective terms.

First, defendants’ argument that Section 231(a)(3) requires a police officer to subjectively
“feel impeded or interfered with” has no basis in the text of the statute, which requires specific
intent. Defs.’ Mot. 19 (emphasis added). The officer’s feelings are irrelevant.

Second, the phrase “incident to and during a civil disorder” is not subjective. Defendants
claim a person has “no way of knowing what civil disorder is.” Defs.” Mot. 62. But the statute
itself defines a civil disorder as “any public disturbance involving acts of violence by assemblages
of three or more persons, which causes an immediate danger of or results in damage or injury to

the property or person of any other individual.” 18 U.S.C. § 232(1). While certain parties may

23
disagree whether a given action is “incident to and during” a civil disorder, “there is a crucial
difference between reasonable people differing over the meaning of a word and reasonable people
differing over its application to a given situation—the latter is perfectly normal, while the former
is indicative of constitutional difficulty.” McHugh, 2022 WL 296304 at *16. Here, the terms
“incident to a civil disorder” are not subjective like “indecent” or “annoying,” words defendants
cite. Defs.’ Mot. 14. They do not require a potential defendant or a jury to guess at their meaning
or import their own sense of morality. See United States v. Fischer, No. 1:21-cr-00234 (CJN),
2022 WL 782413, at *3 (D.D.C. Mar. 15, 2022) (“[T]he terms [defendant] attacks do not carry the
potential for misunderstanding or make the statute ‘so standardless that it invites arbitrary
enforcement.’” (quoting Johnson, 576 U.S. at 595)).

Defendants final argument is that the statute uses “imprecise language” that would
“hinde[r] a person of ordinary intelligence from discerning what conduct it prohibits.” Defs.’ Mot.
16. But an “ordinary person would have an intuitive understanding of what is proscribed by a ban
on obstructing, impeding, or interfering with law enforcement.” McHugh, 2022 WL 296304, at
*16. An ordinary person would intuitively understand what it means for an act to be “incident to
and during” a civil disorder—which the statute defines in detail. These are questions of fact that
can be determined. The statutory language is precise. That some people may differ on their
interpretation of what conduct falls under this statutory language, which may not “mean the same
thing to all people, all the time, everywhere,” does not render the statute unconstitutionally vague.
United States v. Bronstein, 849 F.3d 1101, 1107 (D.C. Cir. 2017) (quoting Roth v United States,

354 U.S. 476, 491 (1957)). “The law is full of instances where a man’s fate depends on his

24
estimating rightly ... some matter of degree.” Johnson, 576 U.S. at 604 (quotirig Nash v. United
States, 229 U.S. 373, 377 (1913)).° That does not make those statutes unconstitutionally vague.

Vv. 180U.S.C. § 1752(A)(1) IS CONSTITUTIONAL AS APPLIED TO DEFENDANTS’
CONDUCT

Section 1752(a)(1) criminalizes “knowingly enter[ing] and remain[ing] in any restricted
building or grounds without the lawful authority to do so.” 18 U.S.C. § 1752(a)(1). Defendants
argue that, as applied to their conduct, § 1752(a)(1) violates the First Amendment because the

3 66.

statute’s “restrictions on [their] First Amendment rights go beyond what is essential to further the
government’s interests.” Defs.’ Mot. 21. Prevailing on an as-applied First Amendment challenge
requires defendants to demonstrate that the statute is unconstitutional as applied to their particular
expressive activity. Edwards v. District of Columbia, 755 F.3d 996, 1001 (D.C. Cir. 2014). But if
defendants’ activity was not expressive conduct, defendants cannot succeed on their challenge.
United States v. Caputo, 201 F. Supp. 3d 65, 71 (D.D.C. 2016). Defendants’ activity here was
plainly not expressive conduct.

As the government points out, defendant Sturgeon’s actions “culminated with him
grabbing a barricade on Capitol grounds and pushing it into officers to gain further access to
restricted grounds,” Gov’t Opp’n 45—actions that were allegedly caught on video, see ECF No.
20 at 5. Defendants Bingert and Johnatakis face similar allegations and were caught on video

allegedly ramming a metal barricade into a line of police officers. Compl. at 3, ECF No. 1-1. In

fact, an image of the three men at the barricade together appears in the first complaint on the

® Like our fellow district judge, this Court rejects defendants’ comparison of this statute to the statute held
unconstitutionally vague in McCoy v. City of Columbia, 929 F. Supp. 2d 541 (D.S.C. 2013). Defs.’ Mot. 17; see
McHugh, 2022 WL 296304, at *16 n.24. The statute there made it “unlawful for any person to interfere with or molest
a police officer in the lawful discharge of his duties.” McCoy, 929 F. Supp. 2d at 546. The district court found that the
statute was “not intelligible” in part because it lacked “neighboring words” that would give the statute “more precise
content.” Jd. at 553 (quoting United States v. Stevens, 559 U.S. 460, 474 (2010)). But the statute here contains a
number of additional words that clarify and narrow the statute. McCoy is not relevant here.

25
docket. Jd. This is not expressive conduct. “[W]here demonstrations turn violent, they lose their
protected quality as expression under the First Amendment.” Grayned v. City of Rockford, 408
U.S. 104, 116 (1972). The mere fact that defendants were “present at the Capitol to convey [their]
disagreement with the results of the 2020 election” does not render this conduct expressive. Defs.’
Mot. 22. “We cannot accept the view that an apparently limitless variety of conduct can be labeled
* “sneech’ whenever the person engaging in the conduct intends thereby, to express an idea.” United
States v. O’Brien, 391 U.S. 367, 376 (1968).

The Court is not required, as defendants suggest, to consider only defendants’ alleged
trespassing when determining whether their conduct was “expressive.” Defs.’ Reply 15.
Defendants emphasize that only trespass, not assault, is required for conviction under § 1752(a)(1).
“Tt is this alleged conduct that [defendants] argu[e] is protected conduct, not allegedly pushing a
barricade into an officer.” Jd. (emphasis added). But the Court is not limited in considering
only defendants’ conduct that-would be sufficient for conviction. The Court considers-defendants’
“particular expressive activity.” Caputo, 201 F. Supp. 3d at 71. And here, that activity allegedly
included violence against police officers. That is not expressive conduct. Grayned, 408 U.S. at
116.

VI. COUNTS FOUR, FIVE, AND SIX STATE AN OFFENSE

Counts Four, Five, and Six charged defendants with “entering and remaining in a
restricted” area in violation of 18 U.S.C. § 1752. Defendants argue that these counts fail to state-a
claim because only the United States Secret Service (“Secret Service”) can designate restricted
areas under § 1752. Defs.’ Mot. 25. Because the Capitol Police, not the Secret Service, designated
the Capitol as “restricted” on January 6, 2021, defendants claim the area does not qualify as

“restricted” for the purposes of § 1752. Jd. In the alternate, defendants argue that the area could

26
not have been restricted because the Vice President was not “temporarily visiting” the Capitol.
Defs.’ Mot. 27.

A. The Capitol Police May Properly Designate Restricted Areas Under § 1752

Section 1752 criminalizes various activities related to trespassing in any “restricted
building or grounds.” 18 U.S.C. § 1752(a). The statute explains that a “restricted building or
grounds” is any “posted, cordoned off, or otherwise restricted area . . . of a building where the
President or other person protected by the Secret Service is or will temporarily visiting.” Jd.
§ 1752(c)(1)(B). The Vice President and his family are protected by Secret Service. 18 U.S.C.
§ 3056(a)(1). From this language, defendants fashion a bizarre requirement, seemingly out of thin
air: that only the Secret Service can designate an area as restricted. Defs.’ Mot. 24.

Nothing in the text indicates that the Secret Service is the only, agency that can designate a
restricted area. And the statutory history defendants point to leaves them grasping. It is true that
when § 1752 was enacted, it granted the Treasury Department (and the Secret Service, as part of
the Treasury) the authority to “designate by regulations the buildings and grounds which constitute
the temporary residences of the President” and “prescribe regulations governing ingress or egress
to ... posted, cordoned off, or otherwise restricted areas” where Secret Service protectees were
present. 18 U.S.C. § 1752(d) (1971). But the previous statute “did not say who must restrict an
area of a building or grounds.” United States v. Griffin, 549 F. Supp. 3d 49, 55 (D.D.C. 2021). And
even if § 1752(d) did limit who could designate a restricted area, Congress removed that subsection
in its entirety in 2006. See USA Patriot Improvement and Reauthorization Act of 2005, Pub. L.
109-177, 120 Stat. 192, 252 (Mar. 9, 2006). So what does this statutory history really tell us? As

Judge McFadden explained, “Not much.” Griffin, 549 F. Supp. 3d at 56.

27
B. Former Vice President Michael Pence Was “Temporarily Visiting” The Capitol
Building On January 6, 2021

Defendants’ final argument is perhaps their most peculiar: because former Vice President
Michael Pence, in his capacity as President of the Senate, maintains an office within the Capitol
building, he was not “temporarily visiting.” Defs.’ Mot. 27. Accordingly, the area could not be
restricted under § 1752(c)(B).

The semantic games defendants play here are laughable. They define “temporary” as
“lasting for a time only.” Defs.’ Mot. 28 (citing Black’s Law Dictionary (11th ed. 2019)).
“Visiting,” they contend, means “invited to join or attend an institution for a limited time.”’ Jd.
(citing Merriam-Webster Online (2021)). Despite the opportunity to cherry-pick the exact
definitions of “temporarily” and “visiting” that would support their argument, defendants’ chosen
definitions confirm what is evident to anyone with a basic grasp of the English language: former
Vice President Pence was temporarily visiting the Capitol building on January 6, 2021. He was
“invited to join or attend” a meeting of Congress for a finite time—a period “lasting for a time
only.” The former Vice President did not remain or reside in the Capitol building indefinitely.
Defendants’ bizarre alternate construction of the phrase “temporarily visit”—‘temporary travel to
a location where the person does not normally live or work on a regular basis,” Defs.’ Mot. 28—
would mean that no one could “temporarily visit” a place they attend regularly.

Because the Capitol Police properly restricted an area where the former Vice President was

temporarily visiting, Counts Four, Five, and Six state a claim against defendants.

7 Defendants provide the definition for the adjective “visiting”—as in, “visiting professor” or “visiting team.” See
Defs.’ Mot. 18. But the word “visiting” in the statute is used as a present continuous and future continuous verb. See
18 U.S.C. § 1752(c)(1)(A) (“. . .where the President is or will be ... visiting.”). And the verb definitions of “visit”
support the government’s argument that the former Vice President was temporarily visiting the Capitol building. See
Visit, Webster’s Third New Int’l Dictionary (1965) (defining “visit” as, inter alia, “to go to see or sojourn at (a place)
for a particular purpose (such for business, pleasure, or sightseeing)” and “to go or come officially to oversee or correct
the operation of”).

28
VII. CONCLUSION

Based on the foregoing, the Court will DENY defendants’ motion to dismiss by separate
order.
“hoes Cr Kentish

Date: s|/ ts fas Royce C. Lamberth
United States District Judge

29