United States v. GossJankowski

• Decision Date: 09 January 2023
• Docket Number: CRIMINAL 21-0123 (PLF)
• Parties: UNITED STATES OF AMERICA v. VITALI GOSSJANKOWSKI, Defendant.
• Court: U.S. District Court — District of Columbia

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UNITED STATES OF AMERICA v. VITALI GOSSJANKOWSKI, Defendant.

CRIMINAL No. 21-0123 (PLF)

United States District Court, District of Columbia

January 9, 2023

OPINION AND ORDER

PAUL L. FRIEDMAN, UNITED STATES DISTRICT JUDGE

Defendant Vitali GossJankowski has filed a Motion to Dismiss Restricted Area Charges Under 18 U.S.C. § 1752(a) (Counts Four and Five) (“Counts Four and Five Mot.”) [Dkt. No 67]; a Motion to Dismiss Obstruction Charge Under 18 U.S.C § 1512(c)(2) (Count Two) (“Count Two Mot.”) [Dkt. No. 68]; and a Motion to Dismiss Civil Disorder Charge Under 18 U.S.C. § 231(a)(3) (Count One) (“Count One Mot.”) [Dkt. No. 69]. Mr. GossJankowski moves to dismiss these counts pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure for failure to state an offense as well as on constitutional grounds.

The legal challenges that Mr. GossJankowski raises in the first two motions have been considered and rejected by this Court in United States v. Puma, 596 F.Supp.3d 90 (D.D.C. 2022) and the legal challenges in all three motions have been addressed by many other judges in this district. See e.g., United States v. Griffin, 549 F.Supp.3d 49, 52-58 (D.D.C. 2021) (18 U.S.C. § 1752(a)); United States v. Sandlin, 575 F.Supp.3d 16, 21-34 (D.D.C. 2021) (18 U.S.C. § 1512(c)(2)); United States v. Caldwell, 581 F.Supp.3d 1, 10-34 (D.D.C. 2021) (18 U.S.C. § 1512(c)(2)); United States v. Mostofsky, 579 F.Supp.3d 9, 15-28 (D.D.C. 2021) (18 U.S.C. § 231(a)(3); 18 U.S.C. § 1512(c)(2); 18 U.S.C. § 1752(a)); United States v. Montgomery, 578 F.Supp.3d 54, 62-87 (D.D.C. 2021) (18 U.S.C. § 1512(c)(2)); United States v. Nordean, 579 F.Supp.3d 28, 41-61 (D.D.C. 2021) (18 U.S.C. § 231(a)(3); 18 U.S.C. § 1512(c)(2); 18 U.S.C. § 1752(a)); United States v. McHugh, 583 F.Supp.3d 1, 11-35 (D.D.C. 2022) (18 U.S.C. § 231(a)(3); 18 U.S.C. § 1512(c)(2); 18 U.S.C. § 1752(a)); United States v. Bozell, Crim. No. 21-216, 2022 WL 474144, at *2-9 (D.D.C. Feb. 16, 2022) (18 U.S.C. § 1512(c)(2); 18 U.S.C. § 1752(a)); United States v. Andries, Crim. No. 21-93, 2022 WL 768684, at *3-17 (D.D.C. Mar. 14, 2022) (18 U.S.C. § 1512(c)(2); 18 U.S.C. § 1752(a)).

For the following reasons, the Court concludes that the superseding indictment adequately states the offenses with which Mr. GossJankowski is charged and provides him with sufficient notice. The Court therefore will deny Mr. GossJankowski's motions.^[1]

I. BACKGROUND

The charges against Mr. GossJankowski relate to the events at the U.S. Capitol on January 6, 2021. The events of January 6, 2021 are summarized in the Court's opinion in United States v. Puma. See United States v. Puma, 596 F.Supp.3d at 93-94. This factual summary is “for background purposes only,” and these facts “do not inform the Court's analysis of [Mr. GossJankowski's] motions to dismiss, which must be limited to ‘the four corners of the indictment.'” United States v. Montgomery, 578 F.Supp.3d at 59 n.1 (quoting United States v. Safavian, 429 F.Supp.2d 156, 161 n.2 (D.D.C. 2006)).

The United States alleges that Mr. GossJankowski was a member of the crowd that entered the Capitol building on January 6, 2021 and engaged in certain activities while there. See Superseding Indictment. According to the statement of facts accompanying the criminal complaint in this case, a publicly available video depicts Mr. GossJankowski attempting to gain access to the U.S. Capitol building on January 6, 2021. See Statement of Facts ¶ 2. The video depicts Mr. GossJankowski handling and activating a Taser. See Id. On January 14, 2021, Mr. GossJankowski contacted law enforcement regarding an FBI “Be on the Lookout” poster that included a picture of him, and FBI agents and Metropolitan Police Department officers interviewed him that same day. See Id. at 4. Law enforcement interviewed Mr. GossJankowski again on January 17, 2021. See Id. at 5. During these interviews, Mr. GossJankowski admitted to possessing a Taser but denied using the Taser on a law enforcement officer. See id.

On January 18, 2021, the United States charged Mr. GossJankowski by criminal complaint for offenses arising out of his conduct in relation to the Capitol riot. See Complaint [Dkt No. 1]. A grand jury returned an indictment on February 17, 2021, and a superseding indictment on November 10, 2021, which charges Mr. GossJankowski with five felony offenses and one misdemeanor offense. See Superseding Indictment. On September 9, 2022, Mr. GossJankowski moved to dismiss Count One, Civil Disorder, in violation of 18 U.S.C. § 231(a)(3); Count Two, Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2; and Counts Four and Five, Entering and Remaining in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, in violation of U.S.C. §§ 1752(a)(1) and (b)(1)(A), and Disorderly and Disruptive Conduct in a Restricted Building or Grounds with a Deadly or Dangerous Weapon, in violation of 18 U.S.C. §§ 1752(a)(2) and (b)(1)(A). These motions are now ripe for decision.

II. LEGAL STANDARD

A defendant in a criminal case may move to dismiss an indictment or count before trial for “failure to state an offense.” FED. R. CRIM. P. 12(b)(3)(B)(v). An indictment may fail to state an offense if the statutory provision at issue does not apply to the charged conduct or if the statutory provision at issue is unconstitutional. See, e.g., United States v. Eshetu, 863 F.3d 946, 952 (D.C. Cir. 2017) (“The defense of failure of an indictment to charge an offense includes the claim that the statute apparently creating the offense is unconstitutional.” (citation omitted)), vacated on other grounds, 898 F.3d 36 (D.C. Cir. 2018). In determining if an offense has been properly charged, the operative question is “whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed.” United States v. Bowdoin, 770 F.Supp.2d 142, 146 (D.D.C. 2011) (citing United States v. Sampson, 371 U.S. 75, 76 (1962)). In considering a motion to dismiss, a court must accept the allegations in the indictment as true. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015).

“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 at 148-49 (quoting United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001)). “It therefore need only contain ‘a plain, concise, and definite written statement of the essential facts constituting the offense charged.'” Id. at 149 (quoting Fed. R. Crim. P. 7(c)(1)). An indictment “is sufficiently specific where it (1) contains the elements of the offense charged and fairly informs the defendant of those charges so that he may defend against them, and (2) enables him to plead acquittal or conviction in bar of future prosecutions for the same offense.'” United States v. Safavian, 429 F.Supp.2d at 158 (quoting Hamling v. United States, 418 U.S. 87, 117-18 (1974)).

“In ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes.” United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C. 2009). “Because a court's use of its supervisory power to dismiss an indictment directly encroaches upon the fundamental role of the grand jury, dismissal is granted only in unusual circumstances.” United States v. Ballestas, 795 F.3d at 148 (alterations and quotation marks omitted).

III. DISCUSSION

A. 18 U.S.C. § 1752(a)(1) and 18 U.S.C. § 1752(a)(2)

Mr. GossJankowski moves to dismiss Counts Four and Five of the superseding indictment, which charges him pursuant to 18 U.S.C. §§ 1752(a)(1) and (a)(2), respectively. See Superseding Indictment [Dkt. No. 41] at 3. That statute provides:

(a) Whoever-

(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;

(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; . . .

or attempts or conspires to do so, shall be punished as provided in subsection (b) ....

(c) In this section-

(1) the term “restricted building or grounds” means any posted, cordoned off, or otherwise restricted area- (A) of the White House or its grounds, or the Vice President's official residence or its grounds;

(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or

(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance.

18 U.S.C. §§ 1752(a), (c).

Mr GossJankowski asserts that Counts Four and Five fail to state an offense because the United States Capitol and its grounds do not meet the statutory definition of a “restricted building or grounds.” Counts Four and Five Mot. at 3. He maintains that in order for an area to be “restricted” within the meaning of subsections (a)(1) and (a)(2), the Secret Service must designate, post, cordon off, or otherwise restrict the area, and that the Secret Service did not do so to the Capitol building and grounds on January 6, 2021. Id. at 5-6. In addition, he argues that the area in question does not meet the statutory definition of a “restricted building or grounds” because Vice President Pence was not “temporarily visiting” the Capitol and its grounds. Id. at 7. Finally, Mr. GossJankowski argues that Count Five, alleging a violation of § 1752(a)(2),...