United States v. Fischer
| Decision Date | 07 April 2023 |
| Docket Number | 22-3038,22-3039,22-3041 |
| Parties | UNITED STATES OF AMERICA, APPELLANT v. JOSEPH W. FISCHER, APPELLEE |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Argued December 12, 2022
Appeals from the United States District Court for the District of Columbia (No. 1:21-cr-00234-1) (No 1:21-cr-00119-1)
James I. Pearce, Attorney, Capitol Siege Section, U.S. Department of Justice, argued the cause for appellant. With him on the brief was John Crabb, Jr., Chief, Capitol Siege Section.
Nicholas D. Smith argued the cause for appellees. With him on the brief were Frederick W. Ulrich, Assistant Federal Public Defender, and F. Clinton Broden. A. J. Kramer, Federal Public Defender, and Ronald A. Krauss, Assistant Federal Public Defender, entered appearances.
Before: KATSAS, WALKER and PAN, Circuit Judges.
As Congress convened on January 6, 2021, to certify the results of the 2020 presidential election in favor of Joseph R. Biden, Jr., thousands of supporters of the losing candidate, Donald J. Trump, converged on the United States Capitol to disrupt the proceedings. The Trump supporters swarmed the building, overwhelming law enforcement officers who attempted to stop them. The chaos wrought by the mob forced members of Congress to stop the certification and flee for safety. Congress was not able to resume its work for six hours. The question raised in this case is whether individuals who allegedly assaulted law enforcement officers while participating in the Capitol riot can be charged with corruptly obstructing, influencing, or impeding an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). The district court held that the statute does not apply to assaultive conduct, committed in furtherance of an attempt to stop Congress from performing a constitutionally required duty. We disagree and reverse.
Appellees Joseph Fischer, Edward Lang, and Garret Miller were charged by indictment in separate cases with various offenses arising from their alleged participation in the Capitol riot on January 6, 2021. Although we draw from the criminal complaints and pre-trial briefing to describe their alleged conduct, we consider only the indictments to determine the sufficiency of any charge.
Fischer allegedly belonged to the mob that forced Congress to stop its certification process.[1] On January 6, 2021, he encouraged rioters to "charge" and "hold the line," had a "physical encounter" with at least one law enforcement officer, and participated in pushing the police. Fischer Crim. Compl., Appellant's Appendix ("App.") 423-27. Before January 6, he allegedly sent text messages to acquaintances, stating: "If Trump don't get in we better get to war"; ; and Gov't Opp'n to Mot. to Clarify and Modify Conditions of Release, App. 433-34. Fischer's seven-count indictment charges him with assaulting both Capitol Police and MPD officers. Fischer Indictment, App. 444.
Lang, as a member of the mob that forced Congress to stop its certification procedure, allegedly fought against police officers in the Capitol for more than two hours, repeatedly striking officers with a bat and brandishing a stolen police shield. His 13-count indictment alleges that he assaulted six Metropolitan Police Department ("MPD") officers, caused bodily injury to one of them, and engaged in disorderly conduct and physical violence with a bat and shield in a restricted area of the Capitol. See Lang Indictment, App. 52-57.
Miller allegedly traveled to the District of Columbia "for this [T]rump shit," bringing a grappling hook, rope, bulletproof vest, helmets, and a mouthguard: He believed that "crazy shit" was going to happen and a "civil war could start." Am. Crim. Compl., App. 75. In his 12-count indictment, the government alleges that Miller was part of the mob that forced its way into the Capitol and stopped Congress's certification process; and that he pushed against U.S. Capitol Police officers to gain entrance to the Rotunda. Shortly after the riot, Miller allegedly took to Twitter and Facebook to advocate the assassination of a U.S. Congresswoman, and to declare that a Capitol Police officer deserved to die, threatening to "hug his neck with a nice rope." Miller Indictment, App. 86-87.
The government charged all three appellees with, among other things, the felony offense of Assaulting, Resisting, or Impeding Certain Officers, in violation of 18 U.S.C. § 111(a)(1); and the misdemeanor offenses of Disorderly Conduct in a Capitol Building, in violation of 18 U.S.C. § 5104(e)(2)(D), and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2) and (b)(1)(A). The felony assault count alleges that each appellee "did forcibly assault, resist, oppose, impede, intimidate, and interfere with[] an officer and employee of the United States . . . and any person assisting such an officer and employee . . . and . . . the acts in violation of this section involve the intent to commit another felony." Miller Indictment, App. 86; see also Fischer Indictment, App. 444 (); Lang Indictment, App. 52 (same). The disorderly conduct charges specify that each appellee "willfully and knowingly engaged in disorderly and disruptive conduct in any of the Capitol Buildings with the intent to impede, disrupt, and disturb the orderly conduct of a session of Congress"; and "did knowingly, and with intent to impede and disrupt the orderly conduct of Government business and official functions, engage in disorderly and disruptive conduct . . . within the United States Capitol . . . so that such conduct did in fact impede and disrupt the orderly conduct of Government business and official functions." Miller Indictment, App. 87-88; see also Fischer Indictment, App. 445 (alleging similar charges); Lang Indictment, App. 55-57 (same). Appellees do not challenge the sufficiency of the counts that charge them with felony assault and disorderly conduct.
The government also charged each appellee with one count of Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2), as follows:
On or about January 6, 2021, within the District of Columbia and elsewhere, [Fischer, Lang, and Miller] 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.
Lang Indictment, App. 55; Miller Indictment, App. 85-86; Fischer Indictment, App. 444. Each appellee moved to dismiss the § 1512(c)(2) count, asserting that the statute did not prohibit his alleged conduct on January 6, 2021. Section 1512(c) provides in full:
18 U.S.C. § 1512(c).
The district court granted each appellee's motion to dismiss. After carefully reviewing the text and structure of the statute, the district court concluded that § 1512(c) is ambiguous with respect to how subsection (c)(2) relates to subsection (c)(1). Although subsection (c)(1) concerns obstructive conduct involving "a record, document, or other object," and the words of subsection (c)(2) more generally address "obstruct[ing], influenc[ing], or imped[ing] any official proceeding, or attempt[ing] to do so," the district court focused on the meaning of the word "otherwise" that connects the two provisions. United States v. Miller, 589 F.Supp.3d 60, 67-69 (D.D.C. 2022). Relying on its understanding of the Supreme Court's holding in Begay v. United States, 553 U.S. 137 (2008), as well as canons of statutory construction, statutory and legislative history, and the principles of restraint and lenity, the district court determined that subsection (c)(2) "must be interpreted as limited by subsection (c)(1)." Miller, 589 F.Supp.3d at 78. That led the district court to hold that subsection (c)(2) "requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding." Id. Because appellees' indictments do not allege that they violated § 1512(c)(2) by committing obstructive acts related to "a document, record, or other object," the district court dismissed the § 1512(c)(2) counts. Id. at 79; see also United States v. Fischer, No. 1:21-cr-234 (D.D.C. March 15, 2022) (); United States v. Lang, No. 1:21-cr-53 (D.D.C. June 7, 2022) (). The government filed a motion to reconsider in Miller's case, which the district court denied. United States v. Miller, No. 1:21-cr-119, 2022 WL 1718984 (May 27, 2022). This consolidated appeal followed.
A defendant in a criminal case may move to dismiss an indictment before trial for "failure to state an offense," Fed. R. Crim. P. 12(b)(3)(B)(v), including because the statute under which he is charged does not apply to his...
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