United States v. Caldwell

• Decision Date: 20 December 2021
• Docket Number: Case No. 21-cr-28 (APM)
• Citation: 581 F.Supp.3d 1
• Parties: UNITED STATES of America, v. Thomas E. CALDWELL, et al., Defendants.
• Court: U.S. District Court — District of Columbia

581 F.Supp.3d 1

UNITED STATES of America,

v.Thomas E. CALDWELL, et al., Defendants.

Case No. 21-cr-28 (APM)

United States District Court, District of Columbia.

Signed December 20, 2021

Ahmed Muktadir Baset, Jeffrey S. Nestler, Kathryn Leigh Rakoczy, Troy A. Edwards, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office for the District of Columbia, Justin Todd Sher, Alexandra Stalimene Hughes, Louis J. Manzo, Assistant U.S. Attorneys, U.S. Department of Justice, Washington, DC, for United States of America.

David William Fischer, Sr., Fischer & Putzi, P.A., Glen Burnie, MD, Thomas K. Plofchan, Westlake Legal Group, Potomac Falls, VA, for DefendantThomas Edward Caldwell.

Carmen D. Hernandez, Highland, MD, for DefendantDonovan Ray Crowl.

Michelle M. Peterson, Public Defender, Federal Public Defender for the District of Columbia, Washington, DC, for DefendantJessica Marie Watkins.

John L. Machado, Law Office of John Machado, Washington, DC, for DefendantSandra Ruth Parker.

Stephen F. Brennwald, Brennwald & Robertson, LLP, Washington, DC, for DefendantBennie Alvin Parker.

Desiree Wilson, Cape Coral, FL, Robert Denis Foley, Pro Hac Vice, Robert Foley Law PA, Fort Myers, FL, for DefendantGraydon Young.

Peter A. Cooper, Washington, DC, for DefendantLaura Steele.

Bradford L. Geyer, Formerfedsgroup.Com Lcc, Cinnaminson, NJ, David A. Wilson, Law Office of David A. Wilson, Ocala, FL, Jonathon Alden Moseley, Jonathan Moseley Attorney at Law, Burke, VA, for DefendantKelly Meggs.

David A. Wilson, Law Office of David A. Wilson, Ocala, FL, Juli Zsuzsa Haller, Law Offices of Julia Haller, Stanley Edmund Woodward, Jr., Brand Woodward Law, Washington, DC, Mary Anderson, Lebanon, MO, for DefendantConnie Meggs.

Bradford L. Geyer, Pro Hac Vice, Formerfedsgroup.Com Lcc, Cinnaminson, NJ, John M. Pierce, John Pierce Law, Woodland Hills, CA, Jonathon Alden Moseley, Jonathan Moseley Attorney at Law, Burke, VA, Jeffrey Daniel Zimmerman, Jeffrey Zimmerman, PLLC, Nina J. Ginsberg, DiMuro Ginsberg, PC, Alexandria, VA, for DefendantKenneth Harrelson.

Alfred Guillaume, III, Law Office of Alfred Guillaume III, Greenbelt, MD, Jenifer Wicks, Blind Justice Legal Services Corporation, Washington, DC, for DefendantRoberto A. Minuta.

Christopher R. K. Leibig, Law Offices of Christopher Leibig, Edward John Ungvarsky, Ungvarsky Law, PLLC, Joan C. Robin, Pro Hac Vice, Law Office of Joni C. Robin, Alexandria, VA, for DefendantJoshua A. James.

Edward B. MacMahon, Jr., Edward B. MacMahon, Jr., PLC, Middleburg, VA, Thomas J. Spina, Birmingham, AL, for DefendantJonathan Walden.

Angela Halim, Public Defender, Federal Community Defender Office, Mythri Jayaraman, Public Defender, Federal Defender's Office, Philadelphia, PA, for DefendantJoseph Hackett.

Elizabeth Lauren Van Pelt, Libbey Van Pelt Law, PLLC, Arlington, VA, Michael T. Van Der Veen, Van Der Veen, O'Neill, Hartshorn & Levin, Philadelphia, PA, for DefendantJason Dolan.

Eugene Rossi, Carlton Fields P.A., Washington, DC, Natalie A. Napierala, Pro Hac Vice, Carlton Fields, P.A., New York, NY, Charles Greene, Pro Hac Vice, Law Office of Charles M. Greene, P.A., Orlando, FL, for DefendantWilliam Isaacs.

Nabeel Kibria, Ervin Kibria PLLC, Washington, DC, Scott Weinberg, Pro Hac Vice, Brown, Suarez, Rios & Weinberg, Punta Gorda, FL, for DefendantDavid Moerschel.

Attilio Joseph Balbo, Balbo & Gregg, Attorneys at Law, P.C., Richmond Hill, GA, Thomas Abbenante, Washington, DC, for DefendantBrian Ulrich.

Jessica Arden Ettinger, Public Defender, Federal Defender Services of Wisconsin, Madison, WI, Joshua Uller, Public Defender, Federal Defender Services of Wisconsin, Milwaukee, WI, for DefendantJames Beeks.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

I.INTRODUCTION

Thousands descended upon the U.S. Capitol building on January 6, 2021, as Congress convened to certify the Electoral College vote.Among them were the seventeen Defendants who stand before the court.All are alleged to be members of or affiliated with an organization known as the Oath Keepers.According to the Sixth Superseding Indictment, some Oath Keepers "believe that the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights."The government contends that Defendants acted on this belief on January 6.Defendants are indicted on a host of offenses, but this opinion concerns only two: Count One charges each Defendant with conspiring to "corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote," in violation of 18 U.S.C. § 1512(c)(2); and Count Two accuses each Defendant individually of violating section 1512(c)(2).

Defendants move to dismiss Counts One and Two, raising a host of arguments why those counts are fatally deficient.The court is persuaded by none of their contentions.In short, the court concludes that Counts One and Two state offenses that are encompassed by the plain text of section 1512(c)(2), and that section 1512(c)(2) is neither void for vagueness nor vague as applied to these Defendants.The charged offenses also do not run afoul of the First Amendment.Accordingly, the court denies Defendants’ motions to dismiss.

II.BACKGROUND

A.The Allegations

On January 6, 2021, a Joint Session of Congress convened in the U.S. Capitol building to certify the results of the Electoral College vote of the 2020 U.S. Presidential Election.Sixth Superseding Indictment, ECF No. 513[hereinafter Indictment], ¶ 4.The Joint Session commenced at 1:00 p.m., with Vice President Michael R. Pence, as part of his constitutional duty as President of the Senate, presiding.Id.¶ 6.Crowds began to gather outside the perimeter of the Capitol building as the Joint Session began.Id.¶ 7."Crowd members eventually forced their way through, up, and over Capitol Police barricades and ... forced entry into the Capitol building by breaking windows, ramming open doors, and assaulting Capitol Police officers."Id.These individuals were "not lawfully authorized to enter or remain" in the Capitol building, and none of them submitted to the requisite security and weapons screenings by Capitol Police officers.Id.Over the course of this hours-long siege of the Capitol, members of Congress were evacuated, dozens of law enforcement officers were injured, and "[t]he Capitol suffered millions of dollars in damage—including broken windows and doors, graffiti, and residue from pepper spray, tear gas, and fire extinguishers."Id.¶¶ 8–10.

Among those who entered the Capitol building that day are Defendants(except one),¹ all of whom are alleged to be members of or affiliated with a group known as the Oath Keepers.The Oath Keepers are "a large but loosely organized collection of individuals" and associated militias recruited extensively from "current and former military, law enforcement, and first-responder personnel."Id.¶ 11.Some of its members "believe that the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights."Id.On January 4, 2021, the Oath Keepers’ leader posted a message to the group's website exhorting members to "get to DC to stand tall in support of President Trump's fight to defeat the enemies foreign and domestic who are attempting a coup, through the massive vote fraud and related attacks on our Republic."Id.¶ 12.Defendants allegedly answered this call.

Even before this posting, Defendants began preparing for January 6.They scheduled and attended military-style and combat trainings.Id.¶¶ 41, 52.They recruited others through social media and messaging applications, with DefendantJessica Watkins telling one potential recruit, "[I]t is our duty as Americans to fight, kill and die for our rights."Id.¶¶ 43, 47.They collected "paramilitary gear and supplies—including firearms, camouflaged combat uniforms, tactical vests with plates, helmets, eye protection, and radio equipment[.]"Id.¶ 39.Over half of Defendants joined various encrypted Signal chats for planning purposes in the days leading up to January 6.Id.¶¶ 60, 79.That planning included having firearms at the ready, if needed.For instance, DefendantsThomas Caldwell, Watkins, and Joshua James discussed amongst themselves and others the creation of a "quick reaction force" that would be "on standby with an arsenal""if something goes to hell."Id.¶¶ 57, 63.The "operation"they planned and prepared for, according to the Indictment, was "to interfere with the Certification of the Electoral College vote."Id.¶ 39a.Defendant Caldwell warned in writings, "It begins for real Jan 5 and 6 on Washington D.C. when we mobilize in the streets.Let them try to certify some crud on capitol hill with a million or more patriots in the streets.This kettle is set to boil...."Id.¶ 58(ellipsis in original).

Defendants stand accused of carrying out their plan.In the morning of January 6, various Defendants"prepared themselves for battle ... by equipping themselves with communication devices and donning reinforced vests, helmets, and goggles."Id.¶ 107.That afternoon, when news of individuals breaching the Capitol spread, Defendant James instructed Defendants in his group—including DefendantsRoberto Minuta and Brian Ulrich—"to get their gear and get ready to head to the Capitol."Id.¶ 128.Defendant Minuta "donned battle apparel and gear, including hard-knuckle tactical gloves, ballistic goggles, [and] a tactical vest" and also brought along "a radio with an ear piece, and bear spray."Id.Others likewise wore tactical gear.Id.This group of Defendants—who were joined by DefendantJonathan Walden—raced to the Capitol building in two golf carts.Id.¶ 137.Defendant Minuta said during the ride: "Patriots storming the Capitol building ... fucking war in the streets right now ... word is they got in the building ... let's go."Id.

Meanwhile, eleven other Defendants entered the Capitol...