UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 21-444 (JEB)
BRIAN CHRISTOPHER MOCK,
Defendant.
MEMORANDUM OPINION
Defendant Brian Christopher Mock was a member of the crowd that stormed the U.S.
Capitol on January 6, 2021. He is charged with multiple criminal counts related to such conduct.
With trial now approaching, the Government has filed three Motions in Limine to preclude
certain evidence. As the parties are generally in agreement on these issues, there is little to
resolve, and the Court will largely grant the Government’s Motions. Defendant, meanwhile,
seeks to dismiss two counts, mainly rehashing several arguments that this Court, others in this
district, and the D.C. Circuit have previously rejected. The Court will deny each of his Motions.
I. Background
Mock has been indicted on no fewer than eleven counts. They are: Obstruction of an
Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2) (Count I); Civil Disorder, in violation
of 18 U.S.C. § 231(a)(3) (Count II); Assaulting, Resisting, or Impeding Certain Officers, in
violation of 18 U.S.C. § 111(a)(1) and (b) (Counts III–VI); Theft of Government Property, in
violation of 18 U.S.C. § 641 (Count VII); Entering and Remaining in a Restricted Building or
Grounds with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(1) and
(b)(1)(A) (Count VIII); Disorderly and Disruptive Conduct in a Restricted Building or Grounds
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with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(2) and (b)(1)(A)
(Count IX); Engaging in Physical Violence in a Restricted Building or Grounds with a Deadly or
Dangerous Weapon, in violation of 18 U.S.C. § 1752(a)(4) and (b)(1)(A) (Count X); and Act of
Physical Violence in the Capitol Grounds or Buildings, in violation of 40 U.S.C. § 5104(e)(2)(F)
(Count XI). See ECF No. 64 (Second Superseding Indictment).
The United States now moves in limine to restrict certain evidence and arguments at trial.
See ECF Nos. 66–68. Defendant, meanwhile, offers numerous separate Motions for the
dismissal of Counts I and II. See ECF Nos. 75–79. The Court looks at each set separately.
II. Legal Standard
A. Motions in Limine
“[M]otions in limine are a means for arguing why ‘evidence should or should not, for
evidentiary reasons, be introduced at trial.’” Graves v. District of Columbia, 850 F. Supp. 2d 6,
11 (D.D.C. 2011) (emphasis omitted) (quoting Williams v. Johnson, 747 F. Supp. 2d 10, 18
(D.D.C. 2010)). They “are ‘designed to narrow the evidentiary issues for trial and to eliminate
unnecessary trial interruptions.’” Id. at 10 (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d
1064, 1069 (3d Cir. 1990)). The court has “broad discretion in rendering evidentiary rulings, . . .
which extends . . . to the threshold question of whether a motion in limine presents an evidentiary
issue that is appropriate for ruling in advance of trial.” Barnes v. District of Columbia, 924 F.
Supp. 2d 74, 79 (D.D.C. 2013).
Although state and federal rulemakers have the prerogative to fashion standards for the
inclusion of evidence at trial, the Constitution guarantees to criminal defendants the right to a
“meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This limits courts’
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ability to impose “arbitrary” rules of evidence, including those that exclude “important defense
evidence” without serving “any legitimate interests,” or are otherwise “disproportionate to the
purposes they are designed to serve.” Id. at 324 (internal quotation marks omitted). At the same
time, it falls within a court’s discretion to exclude evidence that is not relevant or whose
probative value is outweighed by prejudicial factors. Id. at 326; see also id. at 330 (noting that
evidentiary rules seek to “focus the trial on the central issues by excluding evidence that has only
a very weak logical connection to the central issues”).
B. Motions to Dismiss an Indictment
A defendant may move prior to trial to dismiss an indictment (or specific counts) on the
basis that there is a “defect in the indictment,” including a “failure to state an offense.” Fed. R.
Crim P. 12(b)(3)(B)(v). “The operative question is whether the allegations, if proven, would be
sufficient to permit” the factfinder to conclude that the defendant committed the criminal offense
as charged. See United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012); United
States v. Bowdoin, 770 F. Supp. 2d 142, 146 (D.D.C. 2011). “[A]n indictment is sufficient if it,
first, contains the elements of the offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to plead an acquittal or conviction in bar
of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974).
In reviewing the indictment, a court affords deference to the “fundamental role of the
grand jury.” Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015) (quoting Whitehouse v. U.S. Dist.
Court, 53 F.3d 1349, 1360 (1st Cir. 1995)). As a result, “[a]dherence to the language of the
indictment is essential because the Fifth Amendment requires that criminal prosecutions be
limited to the unique allegations of the indictments returned by the grand jury.” United States v.
Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). A court accordingly cabins its analysis to “the face
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of the indictment and, more specifically, the language used to charge the crimes.” United States
v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphases and internal quotation marks omitted).
III. Analysis
A. Government Motions
The Government has filed three Motions in Limine. They respectively request that this
Court restrict: (1) evidence regarding the precise locations of U.S. Capitol Police surveillance
cameras, see ECF No. 66 (Camera Motion), (2) cross-examination regarding the Secret Service’s
protocols for protecting high-ranking executive officials, see ECF No. 67 (Secret Service
Motion), and (3) arguments and evidence regarding Capitol Police behavior on January 6, 2021.
See ECF No. 68 (Entrapment-by-Estoppel Motion). The Court considers each Motion in turn.
1. Camera Motion
In moving in limine to exclude information about the precise locations of Capitol Police
cameras, the Government notes concerns for national security. See Camera Mot. at 4. It believes
that evidence showing which areas of the Capitol building are not under video surveillance could
result in security breaches. Id. at 5. Mock acknowledges that the precise location of the cameras
will likely not factor into his defense, but he wishes to reserve the right to raise the issue should
such information become relevant at trial. See ECF No. 73 (Defense Response to MILs) at 1–2.
The Government therefore requests that if Defendant desires to raise any issues regarding the
location of cameras during trial, those should be pre-screened by the Court, a procedure to which
Mock has no objection. See Camera Mot. at 5; Def. Resp. at 1–2. The parties thus essentially
agree. With the Government’s suggested proviso in place, the Court will grant the Motion.
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2. Secret Service Motion
The United States next moves to limit the cross-examination of U.S. Secret Service
witnesses, seeking to exclude testimony about agency protocols for protecting high-ranking
executive-branch officials at the U.S. Capitol. See Secret Serv. Mot. at 2. Out of a concern for
national security, the Government requests that questioning of such witnesses be limited to
general information about their duties and whether the Capitol and its grounds were “restricted”
on January 6, 2021. Id. Defendant asserts that he does not plan to cross-examine those
witnesses on protocols outside the scope of direct examination. See Def. Resp. at 2.
As the parties are largely in agreement on these issues as well, the Court will grant in part
the Government’s Motion with only the clarification that Defendant may cross-examine within
the scope of direct testimony.
3. Entrapment-by-Estoppel Motion
The United States last moves in limine to preclude Mock from (1) raising as an
affirmative defense entrapment by law-enforcement officials and (2) offering any evidence or
argument concerning alleged inaction by such officials. If (2) is denied, the Government asks the
Court to preclude Mock from offering evidence of law-enforcement officials’ conduct unless
actually observed by Defendant. See Entrap. Mot. at 4. In response, Defendant filed a notice
informing the Court and the Government that although he does not intend to raise an entrapment-
by-estoppel defense, he should be able to testify “to what he saw and heard that day,” and if “trial
evidence turns out to support such a[n] [entrapment-by-estoppel] defense, the Court should
permit it.” Def. Resp. at 2. This Court has previously agreed with that position, holding in
United States v. Carpenter, No. 21-305, 2023 WL 1860978 (D.D.C. Feb. 9, 2023), that
precluding all evidence related to law-enforcement inaction on January 6 “would be premature
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and should await the presentation of evidence at trial.” Id. at *3. It reaffirms that position now
and will not at this point categorically preclude an entrapment-by-estoppel defense.
As to the Government’s alternative position, Mock does not appear to disagree. He does
not contend that evidence of alleged police inaction is admissible if he did not observe it. Nor
could he, as unobserved behavior could not possibly have influenced his state of mind on
January 6 and would therefore be irrelevant under Federal Rule of Evidence 401. But, as the
Government acknowledges, anything he actually did see could be relevant to his state of mind.
See Entrap. Mot. at 4. As Defendant may thus offer such evidence, the Court grants the
Government’s Motion in part.
B. Defense Motions
In five separate Motions, Mock argues that two counts of the Second Superseding
Indictment should be dismissed. The Court will consider each independently.
1. Count I: Failure to State an Offense
Defendant first contends that Count I fails to state an offense under 18 U.S.C.
§ 1512(c)(2) because it does not allege any obstructive conduct related to “a document, record,
or object.” ECF No. 75 (MTD #1) at 1. He concedes, however, that, in light of the D.C.
Circuit’s binding decision in United States v. Fischer, 64 F.4th 329, 350 (D.C. Cir. 2023), this
ground is not tenable. As he acknowledges that this Motion is largely meant to preserve the issue
for appeal, see MTD #1 at 1, the Court will deny it.
2. Count I: Unconstitutionally Vague
Mock next moves to dismiss Count I on the ground that § 1512(c) violates the Due
Process Clause of the Fifth Amendment because it is unconstitutionally vague. See ECF No. 76
(MTD #2). That statute reads in part:
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(c) Whoever corruptly —
...
(2) . . . obstructs, influences, or impedes any official
proceeding, or attempts to do so, shall be fined under this
title or imprisoned not more than 20 years, or both.
Defendant maintains that (1) the statute fails to give fair notice that “official proceeding”
includes congressional certification of the Electoral College count; and (2) the statute’s use of
“corruptly” does not distinguish between criminal and lawful conduct. Id. Because Mock
acknowledges that the D.C. Circuit has rejected his first contention, see MTD #2 at 1–2 (citing
Fischer, 64 F.4th at 342–43), the only issue is whether the term “corruptly” is unconstitutionally
vague.
Generally, a statute violates due process only if it is “so vague that it fails to give ordinary
people fair notice of the conduct it punishes . . . .” Johnson v. United States, 576 U.S. 591, 595
(2015). A statute is valid, conversely, even if it requires individuals to use their own judgment to
determine if an action is illegal. Id. at 603–04 (“[W]e do not doubt the constitutionality of laws
that call for the application of a qualitative standard . . . to real-world conduct.”). It is the
citizen’s duty to know the law, and a law is not unconstitutionally vague simply because two
citizens may interpret it differently. See United States v. Bronstein, 849 F.3d 1101, 1107 (D.C.
Cir. 2017).
Mock’s argument here has already been rejected by courts in this district (including this
one), which have offered full and persuasive analyses of motions that mirror his. See, e.g.,
United States v. Oseguera Gonzalez, No. 20-40, 2020 WL 6342948, at *7 (D.D.C. Oct 29, 2020);
United States v. Sandlin, 575 F. Supp. 3d 16, 34 (D.D.C. 2021); United States v. Mostofsky, 579
F. Supp. 3d 9, 26 (D.D.C. 2021). The reasoning in these opinions remains persuasive.
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Defendant nonetheless argues that the D.C. Circuit’s split decision in Fischer suggests
that the term “corruptly” is unconstitutionally vague and requires this Court to reconsider its
earlier decision in Mostofsky. That mischaracterizes what actually occurred in Fischer. The
Circuit decided the case 2–1, with Judge Florence Pan writing the lead opinion and Judge Justin
Walker writing a concurrence to lay out his interpretation of “corruptly.” Although he and Judge
Pan disagreed on the precise definition of the term, neither judge found “corruptly” overly vague.
Judge Pan did not take a position on how to define the term, concluding that § 1512(c) was not
vague under any definition of “corruptly.” 64 F.4th at 339. Judge Walker, on the other hand, did
define the term, but he also did not find that the statute was unconstitutionally vague. Id. at 352,
361 (Walker, J., concurring). While there was no consensus as to the exact definition of the term,
neither judge evinced any belief that § 1512(c)(2) was unconstitutionally vague. Defendant’s
Motion thus does not succeed.
3. Count I: Official Proceeding
Mock’s next contention is that Count I falls because the congressional certification of the
Electoral College vote does not qualify as an “official proceeding” as understood in § 1512(c)(2).
He concedes that the D.C. Circuit’s decision in Fischer, 64 F.4th at 342–43, said otherwise. See
ECF No. 77 (MTD #3). Indeed, the Court of Appeals there affirmed the district court’s finding
that “[t]he statutory definition of ‘official proceeding’ . . . includes a ‘proceeding before
Congress” like the Electoral College certification. Fischer, 64 F.4th at 342. This reasoning is
controlling.
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4. Count II: Unconstitutionally Vague
Mock also moves to dismiss Count II of the Indictment, first arguing that 18 U.S.C. § 231
violates the Due Process Clause of the Fifth Amendment because it is unconstitutionally vague.
See ECF No. 78 (MTD #4). That statute states in relevant part:
(a) (3) 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 . . . .
Defendant argues that the phrases “any act to obstruct, impede, or interfere” and “incident
to and during the commission of a civil disorder” do not give a person of ordinary intelligence a
reasonable opportunity to separate lawful from unlawful conduct and thus violate the Fifth
Amendment. See MTD #4.
This Court and a number of its peers have previously rejected identical arguments. See,
e.g., United States v. Dennis, No. 21-679, 2022 WL 17475401, at *2 (D.D.C. Dec. 6, 2022);
United States v. McHugh, 583 F. Supp. 3d 1, 25–26 (D.D.C. 2022) (holding that additional
specific-intent requirements of § 231 demonstrate that the statute is not vague); United States v.
Nordean, 579 F. Supp. 3d 28, 56–57 (D.D.C. 2021) (holding that straightforward reading of §
231 shows statute is not vague)). In one such opinion, Judge John Bates noted: “An ordinary
person would have an intuitive understanding of what is proscribed by a ban on obstructing,
impeding, or interfering with law enforcement.” McHugh, 583 F. Supp. 3d at 27. The U.S.
Code, furthermore, explicitly defines civil disorder in the very next subsection: “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).
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In rejecting the same challenge in Dennis, this Court concluded: “[Defendant] presents
[no arguments for dismissal] that have not already been rejected in January 6 cases by either this
Court or others in this district — cases that Defendant does not . . . distinguish.” 2022 WL
17475401, at *3. The same is true here.
5. Count II: First Amendment
Mock last moves to dismiss Count II on the ground that § 231 violates the Free Speech
Clause of the First Amendment to the U.S. Constitution. See ECF No. 79 (MTD #5). He
maintains that the statute is substantially overbroad, prohibiting too much otherwise legal
conduct to pass muster under that Amendment. Id.
If a statute prohibits “a substantial amount of constitutionally protected conduct,” it may
violate the First Amendment regardless of whether the law has a legitimate application. See City
of Houston v. Hill, 482 U.S. 451, 459 (1987). That there may be “some impermissible
applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”
Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). The
proper inquiry requires this Court to ask whether a statute is overbroad and whether that
overbreadth is substantial. See United States v. Williams, 553 U.S. 285, 292 (2008) (“[W]e have
vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an
absolute sense, but also relative to the statute’s plainly legitimate sweep.”).
This Court has previously rejected overbreadth arguments about § 231 similar to those
advanced by Defendant. See Mostofsky, 579 F. Supp. 3d at 22 (“[T]he ‘strong medicine of
overbreadth invalidation’ is not necessary here because the statute’s potentially unconstitutional
applications are few compared to its legitimate ones.”) (quoting Virginia v. Hicks, 589 U.S. 113,
120 (2003)); see also Dennis, 2022 WL 17475401, at *2 (finding that defendant’s challenge was
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a “word-for-word recitation of the overbreadth challenge” in Mostofsky). Mock, furthermore,
fails to point to any impermissible applications of § 231 that could suggest overbreadth. As a
result, his Motion and those of the defendants in Dennis and Mostofsky are largely congruent.
There is little reason to depart from these previous decisions.
IV. Conclusion
The Court, accordingly, will grant the Government’s Motion in Limine to restrict
information about the precise location of U.S. Capitol Police cameras, grant in part the
Government’s Motion in Limine to restrict cross-examination of U.S. Secret Service witnesses,
and grant in part the Government’s Entrapment-by-Estoppel Motion. The Court will also deny
Defendant’s five Motions to Dismiss. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: June 6, 2023
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