United States v. Fischer
| Decision Date | 15 March 2022 |
| Docket Number | CRIMINAL ACTION 1:21-cr-00234 (CJN) |
| Court | U.S. District Court — District of Columbia |
| Parties | UNITED STATES OF AMERICA, v. JOSEPH W. FISCHER, Defendant. |
The government alleges that Defendant Joseph Fischer was an active participant in the notorious events that took place at the U.S. Capitol on January 6, 2021. On November 10, 2021, a grand jury returned a Superseding Indictment that charges Fischer with seven different criminal offenses, several of which are felonies. See Superseding Indictment, ECF No. 53. Fischer has moved to dismiss Counts One, Three, Four and Five. See Fischer's Motion to Dismiss (“Def.'s Mot”) ECF No. 54. For the reasons stated below, the Court grants in part and denies in part Fischer's motion.
I. Legal Standard
Before trial, a defendant may move to dismiss an indictment on the basis that a “defect in the indictment or information” exists. Fed. R. Crim P. 12(b)(3)(B)(v). “The operative question is whether the allegations, if proven, would be sufficient to permit a jury to” conclude that the defendant committed the criminal offense as charged. United States v. Sanford, Ltd., 859 F.Supp.2d 102, 107 (D.D.C. 2012). “[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). Courts must assume as true the allegations contained in the indictment-but may rely only on those allegations. United States v. Akinyoyenu, 199 F.Supp.3d. 106, 109-10 (D.D.C. 2016) (citing United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015)). Strict “[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).
Count One of the Superseding Indictment charges Fischer with civil disorder in violation of 18 U.S.C. § 231(a)(3).
On or about January 6, 2021, within the District of Columbia JOSEPH W. FISCHER, committed and attempted to commit an act to obstruct, impede, and interfere with a law enforcement officer lawfully engaged in the lawful performance of his/her official duties incident to and during the commission of a civil disorder which in any way and degree obstructed, delayed, and adversely affected commerce and the movement of any article and commodity in commerce and the conduct and performance of any federally protected function.
18 U.S.C. § 231(a)(3) provides:
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 which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function shall be fined under this title or imprisoned not more than five years or both.
Fischer argues that portions of § 231(a)(3) are unconstitutionally vague because the provision's “imprecise and subjective standards fail to provide fair notice and creates significant risk of arbitrary enforcement.” Def.'s Mot. at 4-5. Fischer further contends that § 231(a)(3) is unconstitutionally overbroad because “several of the statute's terms are so broad and indefinite as to impose unqualified burdens on a range of protected expression.” Id. at 5. In particular, Fischer points to “any act to obstruct, impede, or interfere with” as well as “incident to and during the commission of a civil disorder” as the problematic components of the civil disorder statute. Id. at 4 (emphasis added). The Court, joining the company of other judges in this district, rejects these arguments. See United States v. Mostofsky, No. CR 21-138 (JEB), 2021 WL 6049891, at *8 (D.D.C. Dec. 21, 2021) ( an overbreadth challenge to § 231(a)(3)); United States v. Nordean, No. CR 21-175 (TJK), 2021 WL 6134595, at *16 (D.D.C. Dec. 28, 2021) (); United States v. McHugh, No. CR 21-453 (JDB), 2022 WL 296304, at *13 (D.D.C. Feb. 1, 2022) (same).
The void-for-vagueness doctrine as currently understood[1] arises from both “ordinary notions of fair play and the settled rules of law.” Sessions v. Dimaya, 138 S.Ct. 1204, 1212 (2018) (quotation omitted). The doctrine “guarantees that ordinary people have fair notice of the conduct a statute proscribes” and “guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” Id. (quotations omitted). A court will therefore decline to enforce a statute as impermissibly vague if it either (1) “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
Section 231(a)(3) criminalizes any “act” or “attempt[ed]” act to “obstruct, impede, or interfere” with a law enforcement officer “lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder.” 18 U.S.C. § 231(a)(3). The alleged civil disorder must “in any way or degree obstruct[], delay[], or adversely affect[] commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function.” Id. The statute defines civil disorder as “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).
The Court concludes that the statute, taken as a whole, is not unconstitutionally vague. Section 231(a)(3) provides sufficient notice of the conduct it prohibits. It prohibits any “act” done “to obstruct, impede, or interfere” with law enforcement responding to a “civil disorder.” 18 U.S.C. 231(a)(3). As Judge Kelly has persuasively concluded, “these terms are not dependent on the subjective reaction of others, ” but are rather subject to “specific fact-based ways to determine whether a defendant's conduct interferes with or impedes others, or if a law enforcement officer is performing his official duties incident to and during a civil disorder.” Nordean, 2021 WL 6134595 at *16.
Fischer argues that “by penalizing any act to obstruct, impede, or interfere, § 231(a)(3) reaches the outer limits of verbal and expressive conduct without drawing any distinction that could exclude acts undertaken merely to convey a message or symbolic content.” Def.'s Mot at 6. But the terms Fischer attacks do not carry the potential for misunderstanding or make the statute “so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). As Judge Bates has convincingly concluded: “There is a crucial difference between reasonable people differing over the meaning of a word and reasonable people differing over its application to a given situation-the latter is perfectly normal, while the former is indicative of constitutional difficulty.” McHugh, 2022 WL 296304 at *16.
Fischer further contends that the term “civil disorder, as defined under § 232(1), is extremely far-reaching, applying to any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of . . . injury to the property, ” and that this “definition of civil disorder offers no limitation to solve the vagueness problem because it could apply to virtually any tumultuous public gathering to which police might be called, not just largescale protests or riots.” Def.'s Mot. at 7. But civil disorder's “fulsome statutory definition” makes plain that to constitute a “civil disorder, ” the “gathering” must “involve acts of violence” and either cause or “immediate[ly]” threaten bodily injury or property damage.” McHugh, 2022 WL 296304 at *15 n.22. The definition, in other words, “limits the application of “civil disorder” to a small (obviously unlawful) subset of “public gatherings.” Id.
Fischer also claims that “because § 231(a)(3) contains no scienter requirement, . . . it is left to police, prosecutors, and judges to decide whether the statute requires knowledge or specific intent or neither.” Def.'s Mot. at 8. But the contrary is true: “§ 231(a)(3) is a specific intent statute, criminalizing only acts performed with the intent to obstruct, impede, or interfere with a law enforcement officer.” McHugh, 2022 WL 296304 at *14. Even the government acknowledges that the defendant must have acted with intent to violate § 231(a)(3). See Gov.'s Br. in Opp'n (“Gov.'s Br.”), ECF No. 57 at 9.
All in all, § 231(a)(3) survives Fischer's void-for-vagueness challenge because it provides Fischer with sufficient notice of the conduct it prohibits.
In the typical case, a litigant bringing a facial constitutional challenge “must establish that no set of circumstances exists under which the [law] would be valid, ” or the litigant must “show that the law lacks a plainly legitimate sweep.” Americans for Prosperity Found v. Bonta, 141 S.Ct. 2373, 2387 (20...
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