United States v. Bingert

• Decision Date: 25 May 2022
• Docket Number: Case No. 1:21-cr-91-RCL
• Citation: United States v. Bingert, 605 F.Supp.3d 111 (D. D.C. 2022)
• Parties: UNITED STATES of America v. Craig Michael BINGERT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

605 F.Supp.3d 111

UNITED STATES of America

v.Craig Michael BINGERT, et al., Defendants.

Case No. 1:21-cr-91-RCL

United States District Court, District of Columbia.

Signed May 25, 2022

Angela Nichole Buckner, Assistant U.S. Attorney, U.S. Attorney's Office DOJ/USAO, Washington, DC, for United States of America.

Allen Howard Orenberg, The Orenberg Law Firm, P.C., Potomac, MD, for DefendantCraig Michael Bingert.

Maria Jacob, Public Defender, Office of the Federal Public Defender, Washington, DC, Tony W. Miles, Public Defender, Kaiserdillon PLLC, Washington, DC, for DefendantIsaac Steve Sturgeon.

Chris Black, Black & Askerov, PLLC, Seattle, WA, for DefendantTaylor James Johnatakis.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

On January 6, 2021, a violent mob attacked the United States Capitol as Congress attempted to certify the Electoral College vote.DefendantsIsaac 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.SeeSuperseding Indictment, ECF No. 53.Isaac Sturgeon moved to dismiss 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.SeeDefs.'Mot. 1, ECF No. 55.¹He also argues that Count Five infringes on defendants' First Amendment rights.Id.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 DENYdefendants' motion to dismiss.

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.²Compl.1, ECF No. 1.As President of the Senate, former Vice President Michael Pence was present to perform his duties under the Twelfth Amendment.Id.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.Id.The police blocked off the entrances to the Capitol with temporary and permanent barricades.Id.

As the certification proceeded in full swing, a large crowd began to gather outside of the Capitol.Id.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), 583 F.Supp.3d 1, 7–8(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."Id.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.Id.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.Id.Many of these rioters were armed; they brought "tire irons, sledgehammers, bear spray, and Tasers."Id.

Defendants Sturgeon, Bingert, and Johnatakis were videotaped at the front of a large crowd on the west terrace of the Capitol grounds.Id. at 6.Together with other members of the mob, they picked up a metal fence and heaved it into a line of police officers.Id.Johnatakis, armed with a bullhorn, urged the crowd to "push them out of here, we're just using our bodies."Id.Once the defendants jammed the barricade into the line of police officers, they ducked underneath it.Id. 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, 2021defendants have filed.Plenty of ink has been spilled in this district denying motions that raise a combination of these arguments.³One 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 (CJN), 2022 WL 823070(D.D.C.Mar. 7, 2022).Now, this Court has the opportunity to consider these questions anew.

II.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, 82 S.Ct. 1038, 8 L.Ed.2d 240(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, 127 S.Ct. 782, 166 L.Ed.2d 591(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 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."Id. 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).

III.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.Id. 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.’ "Id.(quotingUnited 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), 590...