United States v. Andries
| Decision Date | 14 March 2022 |
| Docket Number | Criminal Action 21-93 (RC) |
| Court | U.S. District Court — District of Columbia |
| Parties | UNITED STATES OF AMERICA v. JOHN D. ANDRIES, Defendant. |
Re Document, : 20
Defendant John Andries is one of many charged with committing federal crimes during the breach of the United States Capitol on January 6, 2021. He moves to dismiss part of the Superseding Indictment filed against him on the ground that three of the charged counts are legally deficient. Count I alleges that Andries obstructed an “official proceeding” in violation of 18 U.S.C. § 1512(c)(2), but Andries says the January 6 joint session of Congress to count and certify the electoral votes was not an official proceeding within the meaning of the statute. Alternatively, he argues that 18 U.S.C. § 1512(c)(2) is unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Next, he claims that Counts II and III, which allege various unlawful activities in a restricted area that the Vice President was “temporarily visiting” in violation of 18 U.S.C § 1752, must be dismissed because the Capitol Police (rather than the Secret Service) restricted the Capitol grounds on January 6 and because then-Vice President Pence was not “temporarily visiting” the Capitol that day. Andries's as-applied vagueness challenge to § 1512(c)(2) is premature at the motion-to-dismiss stage, and each of his other claims is incorrect as a matter of law. The Court denies Andries's motion to dismiss Counts I, II, and III of the Superseding Indictment.
The Twelfth Amendment to the United States Constitution requires the President of the Senate-a position held by the Vice President, U.S. Const. art. I, § 3, cl. 4-to receive lists recording the votes of the Electoral College for President and to open and count them in the presence of the Senate and the House of Representatives. U.S. Const. amend. XII. In the Electoral Count Act of 1887, Congress added some detail to this constitutional procedure. That statute requires the Senate and House to gather in the Hall of the House of Representatives at 1:00 p.m. on the sixth day of January after each meeting of the electors. 3 U.S.C. § 15. The President of the Senate then must open each state's certificate reflecting its electoral vote and announce the state's vote. Id. Members of Congress may object to any state's vote in writing. Id. If at least one member of the House and one Senator sign an objection, the Senate and House gather separately to consider it. Id. An individual Senator or Member of the House may speak for up to five minutes regarding the objection; in all events debate on an objection may last no more than two hours in each House. Id. § 17. The statute provides for the scope and disposition of various potential objections; for example, “no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to [the statute] from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.” Id. § 15.
At 1:00 p.m. on January 6, 2021, both houses of Congress, as well as then-Vice President Mike Pence, convened in a joint session in the Hall of the House of Representatives to carry out their constitutional and statutory duty “to certify the Electoral College vote in the 2020 presidential election.” Montgomery, 2021 WL 6134591, at *2. Vice President Pence was, of course, under Secret Service Protection. Gov't's Opp'n Def.'s Mot. Dismiss Counts One, Two, and Three of the Superseding Indictment at 2 (“Opp'n”), ECF No. 22. And the United States Capitol Police, the agency responsible for security at the United States Capitol and its grounds, had cordoned off an area around the Capitol with metal barriers, fencing, and signs saying that the area was closed. Opp'n at 2-3; see Superseding Indictment at 2, ECF No. 15.
About thirty minutes into the session, certain members of Congress lodged an objection to Arizona's vote; the Senate withdrew to its chambers so that the two Houses could consider the objection. Montgomery, 2021 WL 6134591, at *2. Meanwhile, then-President Trump and others spoke at a “Stop the Steal” rally in protest of the election results. See United States v. Munchel, 991 F.3d 1273, 1275 (D.C. Cir. 2021). As is by now well known, a crowd, including attendees of the rally, advanced toward the Capitol. See Montgomery, 2021 WL 6134591, at *2. A large group massed on the steps outside the Capitol building. Opp'n at 3.
According to a grand jury's Superseding Indictment, Defendant John D. Andries was among this crowd. Superseding Indictment at 1-3. The government alleges that Andries entered the restricted Capitol area and engaged in disorderly or disruptive conduct there aimed at disrupting the certification proceeding. Id. Beyond that, the Superseding Indictment provides little detail about exactly what Andries allegedly did at the Capitol on January 6. It does, however, charge him with obstruction of an official proceeding and aiding and abetting in violation of 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 2 (Count I); entering and remaining in a restricted building and grounds, in violation of 18 U.S.C. § 1752(a)(1) (Count II); disorderly and disruptive conduct in a restricted building and grounds, in violation of 18 U.S.C. § 1752(a)(2) (Count III); disorderly conduct in a Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(D) (Count IV); and parading, demonstrating, or picketing in a Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(G) (Count V). Id.
Andries moved to dismiss Count I, Count II, and Count III under Federal Rule of Criminal Procedure Rule 12(b)(3)(v). Def.'s Mot. Dismiss Counts One, Two, and Three of the Superseding Indictment (“Def.'s Mot. Dismiss”), ECF No. 20. The Court heard oral argument on October 5, 2021, and the parties filed several supplemental briefs adding or expanding upon arguments thereafter.
“An indictment's main purpose is to inform the defendant of the nature of the accusation against him.” United States v. Ballestas, 795 F.3d 138, 148-49 (D.C. Cir. 2015) (cleaned up). Thus, the Federal Rules of Criminal Procedure require only that the indictment include “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c). A defendant may move to dismiss counts of an indictment for “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). A court considering such a motion must “assume[] the truth of th[e] factual allegations” in the indictment. Ballestas, 795 F.3d at 149. Indeed, the court's review is limited to “the four corners of the indictment.” United States v. Ring, 628 F.Supp.2d 195, 204 (D.D.C. 2009). This limitation “affords deference to the ‘fundamental role of the grand jury.'” United States v. Mostofsky, No. CR 21-138, 2021 WL 6049891, at *2 (D.D.C. Dec. 21, 2021) (quoting Ballestas, 795 F.3d at 148). “Adherence 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 of the indictment and, more specifically, the language used to charge the crimes.” Mostofsky, 2021 WL 6049891, at *2 (cleaned up).
Count I charges that Andries “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 vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.” Superseding Indictment at 1. According to the government, this violated 18 U.S.C. § 1512(c)(2), which reads:
18 U.S.C. § 1512 (emphasis added). “Official proceeding” is defined in a subsequent section to include “a proceeding before Congress”:
18 U.S.C. § 1515(a) (emphasis added). Andries advances two reasons for his claim that Count I...
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