United States v. Todd III

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.
Criminal Action No. 22-166 (BAH)
JOHN GEORGE TODD III,
Judge Beryl A. Howell
Defendant.

MEMORANDUM OPINION AND ORDER

Defendant John George Todd III faces trial on January 22, 2024, on a five-count

superseding indictment arising from his alleged conduct at the U.S. Capitol on January 6, 2021.

Pending before the Court are defendant’s Motion to Reveal Legal Instructions Given to Grand

Jury (“Def.’s Mot. to Reveal”), ECF No. 138, and Motion to Dismiss the Superseding Indictment

(“Def.’s Mot. to Dismiss”), ECF No. 139.1 The government opposes both motions, which are

now ripe for resolution. See Gov’t’s Opp’n to Def.’s Mot. to Reveal (“Gov’t’s MTR Opp’n”),

ECF No. 151; Gov’t’s Opp’n to Def.’s Mot. to Dismiss (“Gov’t’s MTD Opp’n”), ECF No. 147;

Def.’s Reply Supp. Mot. to Dismiss (“Def.’s MTD Reply”), ECF No. 153. For the reasons

discussed below, both motions are DENIED.

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Ten additional pretrial motions have already been resolved, including: (1) the government’s Motion in
Limine Regarding the Authentication of Publicly Available Video Evidence, ECF No. 29; (2) the government’s
Motion in Limine to Admit Defendant’s Statements, ECF No. 96; (3) the government’s Motion in Limine to
Preclude the Use of Improper First Amendment Defenses, ECF No. 110; (4) the government’s Motion in Limine to
Preclude Improper Defense Arguments About Law Enforcement, ECF No. 111; (5) defendant’s Motion to Compel,
ECF No. 117; (6) defendant’s Motion to Lift Protective Order and Motion in Limine Given Recent Public Release of
Surveillance Footage, ECF No. 118; (7) defendant’s Motion to Compel, ECF No. 142; (8) defendant’s Motion in
Limine to Preclude Post-Event Camera Footage, ECF No. 145; (9) defendant’s Motion to Prohibit Any Further
Contrived Superseding Indictments, ECF No. 146; and (10) the government’s Motion to Modify Standing Order
Relating to the Pretrial Statement, ECF No. 157. See Min. Order (Nov. 15, 2023); Min. Entry (Nov. 15, 2023); Min.
Orders (Nov. 22, 2023); Min. Orders (Jan. 9, 2024); Min. Order (Jan. 10, 2024).

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I. BACKGROUND

On May 12, 2022, a four-count information was filed, charging defendant with Entering

and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and

Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(2); Violent

Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D);

and Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C.

§ 5104(e)(2)(G). See Information, ECF No. 6. A trial on all charges was scheduled for

November 14, 2022, see Min. Order (Aug. 12, 2022), but the trial date was vacated in light of

defendant’s “continued need for mental health assessment and treatment” and inability to assist

in his defense, Status Report, No. 31; see also Min. Order (Oct. 12, 2022); Pretrial Compliance

Report, No. 30.

Defendant received new counsel on October 26, 2022, see Notice of Att’y Appearance by

John Pierce, ECF No. 33; see also Min. Order (Oct. 27, 2022) (granting Motion to Withdraw

filed by Ronna Holloman-Hughes, ECF No. 34), and moved, on November 4, 2022, with the

government’s consent, for a trial by magistrate judge, see Def.’s Mot. for Trial by Magistrate

Judge, ECF No. 38; Gov’t’s Resp. to Def.’s Mot. for Trial by Magistrate Judge, ECF No. 40.

Upon consideration of defendant’s “express and written election to be tried before a magistrate

judge” and his “express and specific waiver of trial, judgment, and sentencing by a district

judge,” as well as the government’s consent to the same, defendant’s motion was granted. Min.

Order (Nov. 9, 2022).

A bench trial before a magistrate judge was then scheduled to begin on October 16, 2023,

see Min. Entry (Dec. 9, 2022), but due to defense counsel’s “incredibly compressed and

overlapping trial schedule,” defendant sought and obtained a continuance of the trial until

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December 15, 2023, with a pre-trial conference scheduled for December 7, 2023, see Def.’s Mot.

to Continue Trial, ECF No. 77; see also Am. Pretrial Order, ECF No. 83.

Two weeks before the December 2023 trial date, the government informed the Court and

defendant that, upon closer review of the evidence in preparation for trial, evidence, including

police officer body worn camera footage, was uncovered that could warrant a charge under 18

U.S.C. § 111. See Def.’s Notice at 2–3, ECF No. 128 (citing government’s Nov. 30, 2023 email

to chambers). On December 6, 2023, a grand jury was empaneled, before whom defendant

voluntarily testified. See Min. Order (Dec. 5, 2023). On the same day, this grand jury returned a

superseding indictment, charging defendant with, in addition to the four misdemeanor counts in

the original information, one count of Inflicting Bodily Injury on Certain Officers, in violation of

18 U.S.C. § 111(a)(1), (b). See Superseding Indictment, ECF No. 133. The additional felony

count necessitated the return of the case to the undersigned, as the original presiding judge, and a

new trial date is now set for January 22, 2024, on defendant’s demand for a speedy trial. See

Min. Order (Dec. 15, 2023); Min. Entry (Dec. 15, 2023).

II. DISCUSSION

Among the pre-trial motions filed by defendant are the instant Motion to Reveal Legal

Instructions Given to Grand Jury and Motion to Dismiss the Superseding Indictment. See supra

note 1. Both motions make the serious accusation that the District Court for the District of

Columbia and prosecutors in this district, have adopted an “explicit policy of punishing January

6 defendants who reject guilty plea offers,” suggesting a “high likelihood that the Super[s]eding

Indictment in this case was generated for purposes of spite, vindictiveness, and retaliation.”

Def.’s Mot. to Reveal at 2–5; see also Def.’s Mot. to Dismiss at 6–11. Defendant’s allegations

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of vindictive and retaliatory prosecution are first addressed, before turning to his arguments

specific to each motion.

A. Vindictive Prosecution

Prosecutors have “broad discretion to enforce the law, and their decisions are presumed

to be proper absent clear evidence to the contrary.” United States v. Slatten, 865 F.3d 767, 799

(D.C. Cir. 2017). To succeed on a claim of vindictive prosecution stemming from the nature of

the charges brought, a defendant must show that “the increased charge was ‘brought solely to

penalize him and could not be justified as a proper exercise of prosecutorial discretion.’” Id.

(alteration in original accepted) (quoting United States v. Goodwin, 457 U.S. 368, 380 n.12

(1982)). Such a showing may be made “through objective evidence showing actual

vindictiveness, or through evidence ‘indicating a realistic likelihood of vindictiveness,’ which

gives rise to a presumption that the government must then attempt to rebut.” Id. (alteration in

original accepted) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)).

Defendant offers no evidence of actual vindictiveness. Rather, he points to presumptive

evidence in the form of “a growing list of Jan. 6 defendants,” citing twelve such cases including

defendant, as to whom “federal prosecutors added (or threatened to add) an additional, 20-year

felony charge” when “the defendant expressed his innocence and intent to exercise his or her

right to trial” on misdemeanor charges. Def.’s Mot. to Reveal at 4; see also id. at 3–5; Def.’s

Mot. to Dismiss at 6–11.

In pre-trial presumption cases, as here, “‘the prosecutor’s assessment of the proper extent

of the prosecution may not have crystallized,’ so an increase in charges may be the result of

additional information or further consideration of known information, rather than a vindictive

motive.” Slatten, 865 F.3d at 799 (quoting Meyer, 810 F.2d at 1245). In this context, therefore,

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“a defendant must provide additional facts sufficient to show that ‘all of the circumstances, when

taken together, support a realistic likelihood of vindictiveness.’” Id. (quoting Meyer, 810 F.2d at

1245–46).

Defendant’s reliance on the government’s filing of a superseding indictment after he

refused to plead guilty, see Def.’s Mot. to Dismiss at 6–11, is insufficient to make this showing.

“[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its

case is insufficient to warrant a presumption that subsequent charges in the charging decision are

unjustified.” Goodwin, 457 U.S. at 382–383; see also Bordenkircher v. Hayes, 434 U.S. 357,

363 (1978) (“[O]penly present[ing] the defendant with the unpleasant alternatives of forgoing

trial or facing charges on which he was plainly subject to prosecution, d[oes] not violate the Due

Process Clause of the Fourteenth Amendment.”). Rather, what defendant describes is “nothing

more . . . than a run-of-the-mill pretrial situation.” United States v. Meadows, 867 F.3d 1305,

1320 (D.C. Cir. 2017) (Rogers, J., concurring) (internal citation omitted).

Even if the timing in the procedural chronology triggered the presumption—which it does

not—no finding of vindictiveness is supportable. Given the terabytes of data in multiple formats

collected from many sources about the attack on the U.S. Capitol on January 6, 2021, ferreting

out who did what, when and where that day is a significant and time-consuming challenge in the

face of limited investigative and prosecutorial resources. This is important context in

understanding the timing of charges brought in this and other January 6 cases. The government,

when preparing for trial on the misdemeanor charges against this defendant, reasonably reviewed

the discovery related to defendant in more depth and thereby uncovered evidence of an alleged

assault of a law enforcement officer by defendant. Gov’t’s MTR Opp’n at 3. The government

then sought a superseding indictment from a grand jury. Id. This scenario of expending

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investigative and prosecutorial resources to drill down deeper into the terabytes of data in

preparation for trial likely plays out in similar fashion in other cases charging offense conduct at

the U.S. Capitol on January 6, 2021. Defendant points to nothing else and nothing unusual about

this case that would give rise to a presumption of vindictive prosecution. See, e.g., Order, United

States v. Speed, No. 22-cr-244, ECF No. 54 (denying defendant’s motion to dismiss for

vindictive prosecution); Transcript of Bench Trial (Day 1) at 5–9, Speed, No. 22-cr-244, ECF

No. 75 (explaining that defendant established presumption of vindictiveness because the felony

charge was added only after a mistrial was declared in defendant’s trial in Virginia district court

and prosecutors in the case were aware of the mistrial, but concluding nonetheless that the

government overcame the presumption by, inter alia, pointing to “additional video evidence”

supporting the alleged charge, which the government recovered several months later because

they “started reviewing the evidence and preparing in earnest only once the trial date

approached”).

On this record, the return of the Superseding Indictment presents no indication of

prosecutorial vindictiveness, let alone any irregularity in grand jury process. See United States v.

Gunby, No. 21-cr-626, 2023 WL 5672746, at *1 (D.D.C. Sept. 1, 2023) (denying defendant’s

motion to dismiss a new indictment on grounds of prosecutorial vindictiveness where “[t]he

government has explained that, as it prepared for trial and reviewed the evidence in detail, it

sought an additional charge commensurate with the conduct, and consistent with its approach in

January 6 prosecutions” (internal citation omitted)).

B. Motion to Reveal Legal Instructions to Grand Jury

“[L]ong-established policy . . . maintains the secrecy of the grand jury proceedings in the

federal courts,” United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958), and grand

jury proceedings are entitled to “a presumption of regularity, which generally may be dispelled
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only upon particularized proof of irregularities in the grand jury process,” United States v.

Mechanik, 475 U.S. 66, 75 (1986) (O’Connor, J., concurring). Specifically, grand jury materials

are subject to disclosure only when the defendant succeeds in carrying the heavy burden of

showing that “a particularized need exists” that “outweighs the policy of secrecy.” Pittsburg

Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). “Only in exceedingly rare cases are

defendants able to make a factually based showing of particularized need for the production and

inspection of grand jury materials.” United States v. Apodaca, 287 F. Supp. 3d 21, 47–48

(D.D.C. 2017) (cataloguing cases).

Recognizing this heavy burden, defendant nonetheless argues that he has established a

particularized need for the legal instructions given to the grand jury for three reasons that shift—

somewhat illogically—to substantive attacks on the validity of the Superseding Indictment.2

None of the reasons are persuasive. First, defendant argues that the Superseding Indictment was

not signed by the grand jury foreperson, does not name witnesses, and is thus invalid. Def.’s

Mot. to Reveal at 1. The Superseding Indictment was, in fact, signed by the foreperson, see

Superseding Indictment (Sealed), ECF No. 134, but even if not, such irregularity would not be

fatal, see Frisbie v. United States, 157 U.S. 160, 163–64 (1895). Furthermore, defendant offers

no support for the proposition that names of witnesses who testified before the grand jury must

be listed in the superseding indictment, and the Court is aware of none. Indeed, defendant’s

proposition runs directly counter to the secrecy required under Federal Rule of Criminal

Procedure 6(e). See Fed. R. Crim. P. 6(e)(6) (requiring “[r]ecords, orders, and subpoenas

relating to grand jury proceedings” to “be kept under seal to the extent and as long as necessary

to prevent the unauthorized disclosure of a matter occurring before a grand jury”).

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The limited nature of this request must be highlighted since the government has already produced to
defendant part of the grand jury presentation, namely, a transcript of defendant’s own voluntary testimony, on
December 6, 2023, before the grand jury. See Gov’t’s MTR Opp’n at 5.

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 Second, defendant argues that “[n]either the [l]aw nor application of law to the evidence”

supported the new assault count, and thus the government “must have deceived the grand jury.”

Def.’s Mot. to Reveal at 1–2. Defendant acknowledges, however, that body camera footage

shows that defendant’s fiberglass flagpole broke and that the officer “punctured his own hand”

on the flagpole. Id. at 2. Just because defendant vigorously asserts that he would not have found

himself guilty on this evidence is insufficient to meet his high burden of establishing irregularity

or a particular need for the grand jury materials. In any event, in making this argument,

defendant minimizes his own conduct by ignoring the remainder of the government’s proffer

about the overall circumstances of his interaction with law enforcement officers underlying the

new assault charge. As the government alleges, in response to U.S. Capitol police officers’

efforts and directions to clear unauthorized rioters, including defendant, from the U.S. Capitol

Rotunda area, defendant “repeatedly pushed against [the] officers when being told to leave,” and

shouted at the officers and threatened them with physical violence, yelling “I swear to God, I’ll

hip toss your ass into the fuckin’ crowd, mother fucker!” Gov’t’s MTR Opp’n at 1–2. The

government further alleges that Officer N.R., believing that “defendant was about to strike

someone with his fiberglass tent pole,” “attempted to take the pole from the defendant.” Id. at 2.

Defendant then wrestled with Officer N.R. for control of the pole, splintering the pole, and

defendant, who saw the “splintered fiberglass,” nonetheless “ripped the splintered pole out of

[the officer’s] hands,” resulting in a “deep cut” through the officer’s knuckle that exposed a

tendon in the officer’s finger and required further medical attention. Id.

Finally, in a last gasp attack on the new felony assault charge against him, defendant

makes the serious accusation of prosecutorial retaliation. See Def.’s Mot. to Reveal at 3–4.

Normally, vindictive prosecution claims are made to obtain relief in the form of dismissal of the

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indictment, but here is apparently thrown into the mix merely to show “irregularities in the grand

jury process” to obtain inspection of the instructions to the grand jury. Id. at 5. For the reasons

explained above, defendant’s claims of vindictive prosecution fail.

In sum, defendant offers no reason—let alone a particularized need—to overcome the

presumption against disclosure of grand jury materials and his request for disclosure of the legal

instructions provided to the grand jury is therefore denied.

C. Motion to Dismiss

Defendant raises two arguments, in addition to his contentions of vindictive prosecution,

to support his motion to dismiss the Superseding Indictment’s new charge in Count One for

Inflicting Bodily Injury on Certain Officers, in violation of 18 U.S.C. § 111(a)(1), (b). Neither

argument is persuasive.

First, defendant posits, in a conclusory fashion, that “no plausible legal theory” supports

the new Count One charge for forcibly assaulting, resisting, opposing, impeding, intimidating,

interfering, and inflicting bodily injury on “N.R., an officer with the Metropolitan Police

Department while such officer . . . was engaged in or on account of the performance of official

duties or where the acts in violation of this section involve physical contact with the victim and

the intent to commit another felony.” Superseding Indictment; see also Def.’s Mot. to Dismiss at

1. This argument simply ignores the dispositive weight of contrary law.

“An indictment returned by a legally constituted and unbiased grand jury, like an

information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge

on the merits.” Costello v. United States, 350 U.S. 359, 363 (1956). Courts have repeatedly

rejected the notion that “defendants [can] challenge indictments on the ground that they are not

supported by adequate or competent evidence,” criticizing the position as “run[ning] counter to

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the whole history of the grand jury institution.” Id. at 364; see also United States v. Williams,

504 U.S. 36, 54 (1992). Rather, pretrial dismissal of an indictment is unwarranted on sufficiency

of evidence grounds unless “the material facts are undisputed and only an issue of law is

presented.” United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (cataloguing cases and

noting, as an exception, the Eleventh Circuit, which has held that “even where there are

undisputed facts a district court may not engage in a pretrial determination of the sufficiency of

the evidence”).

Here, no facts have been stipulated to by the parties and thus, as the government

concisely states, “[e]very material fact of the case remains in dispute.” Gov’t’s MTD Opp’n at 4.

Defendant argues that no factual disputes exist because “[t]here is no hint of evidence to show

that Todd manipulated the flagpole in any manner towards the direction of the officer,” and

“[r]ather, the injury and contact was self-inflicted and initiated by the officer himself.” Def.’s

MTD Reply at 2–3. In so arguing, defendant acknowledges that evidence of defendant and the

officer interacting exists, that defendant’s flagpole was instrumental in the officer’s injury, and

that the officer was, in fact, injured. That upon his view of the evidence, “the injury and contact”

was self-inflicted by the officer—not defendant—or that the officer’s injury was not sufficiently

severe to constitute a “bodily injury,” id. at 3–4, reflect quintessential disputes of material fact

best left for a jury. In any event, as explained above, defendant minimizes his own conduct by

ignoring the government’s proffer about the full context and circumstances of his interaction

with law enforcement officers underlying the new charge, including allegations that he

“repeatedly pushed,” yelled at, and threatened officers, and wrestled with Officer N.R. for

control over a fiberglass pole—an altercation that resulted in a laceration that exposed a tendon

in the officer’s finger. Gov’t’s MTD Opp’n at 1–2.

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 Second, defendant relies on law-of-the case doctrine as support for dismissal of Count

One. This doctrine, which is not a “binding rule,” provides that “a court involved in later phases

of a lawsuit should not re-open questions decided by that court or a higher one in earlier phases.”

Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 697 (D.C. Cir. 2022) (alteration in

original accepted and citation omitted). “Colloquially speaking, the doctrine ensures that the

same issue presented a second time in the same case in the same court should lead to the same

result.” Id. Defendant suggests that the Court’s statement at a status conference on November 4,

2022, that the government was “running out of time” to file a superseding indictment amounted

to a court order that the government violated by subsequently filing the Superseding Indictment.

Def.’s Mot. to Dismiss at 3; see also Transcript of Nov. 4, 2022 Status Conference (“Nov. 4

Conf. Tr.”) at 4, ECF No. 88. Read in context, however, this statement simply reflected the

Court’s expectation that a trial, which had already been rescheduled once, would be soon. See

Nov. 4 Conf. Tr. at 7 (the Court stating: “This case has been pending now for some time. I just

had a trial date free up on December 5th. This case was supposed to be tried November 14th.

What’s wrong with the December 5th date?”). In fact, when defendant urged for a trial date in

2023, the Court warned: “I have no idea how far into 2023 you’re contemplating, but that’s just

going to give [the government] plenty of more time to be investigating Mr. Todd and potentially

bring superseding charges.” Id. at 11. No reasonable person could read the Court’s passing

statement that the government was “running out of time” to file a superseding indictment to

represent a court order that the government was prohibited from filing one.

Defendant then argues that by transferring the case to a magistrate judge, the Court ruled

that the government could not bring a Superseding Indictment. Def.’s Mot. to Dismiss at 6. This

contention also has no merit. The Court granted defendant’s Motion for Trial by Magistrate

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Judge, ECF No. 38, pursuant to 18 U.S.C. § 3401(b), which provides that a defendant may

“expressly consent[] to be tried before [a] magistrate judge and expressly and specifically

waive[] trial, judgment, and sentencing by a district judge.” See Min. Order (Nov. 9, 2022). The

minute order granting defendant’s motion makes no mention of any potential superseding

indictment. In sum, the law-of-the-case doctrine is not implicated because the issue of whether

the government was precluded from filing a superseding indictment was simply never decided.

III. CONCLUSION

For the foregoing reasons, it is:

ORDERED that defendant’s Motion to Reveal Legal Instructions Given to Grand Jury,

ECF No. 138, is DENIED, and it is further

ORDERED that defendant’s Motion to Dismiss the Superseding Indictment, ECF No.

139, is DENIED.

SO ORDERED.

Date: January 10, 2024

__________________________
BERYL A. HOWELL
United States District Judge

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