United States v. Gray

• Decision Date: 26 January 2023
• Docket Number: Crim. Action 21-0495 (ABJ)
• Parties: UNITED STATES OF AMERICA, v. DANIEL PAUL GRAY, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA, v. DANIEL PAUL GRAY, Defendant.

Crim. Action No. 21-0495 (ABJ)

United States District Court, District of Columbia

January 26, 2023

MEMORANDUM OPINION AND ORDER

AMY BERMAN JACKSON United States District Judge.

Defendant Daniel Paul Gray has been charged in a nine-count indictment with the following offenses:

Count I - Civil Disorder in violation of 18 U.S.C. § 231(a)(3);

Count II - Obstruction of an Official Proceeding and Aiding and Abetting in violation of 18 U.S.C. §§ 1512(c)(2) and 2;

Count III - Assaulting, Resisting, or Impeding Certain Officers in violation of 18 U.S.C. § 111(a)(1);

Count IV - Entering and Remaining in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(1);

Count V - Disorderly and Disruptive Conduct in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(2);

Count VI - Engaging in Physical Violence in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(4);

Count VII - Disorderly Conduct in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D);

Count VIII - Act of Physical Violence in the Capitol Grounds or Buildings in violation of 40 U.S.C. § 5104(e)(2)(F); and

Count IX - Parading, Demonstrating, or Picketing in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G).

Superseding Ind. [Dkt. # 25] (“Indictment”).

Gray has filed separate motions to dismiss Count Two and Count Nine, as well as a motion to dismiss certain counts on the grounds that they are multiplicitous. See Def.'s Mot. to Dismiss Count II [Dkt. # 54] (“Count II Mot.”); Errata re Count II Mot. [Dkt. # 55]; Def.'s Mot. to Dismiss Count IX [Dkt. # 56] (“Count IX Mot.”); Def.'s Mot. to Dismiss Certain Counts Due to Multiplicity [Dkt. # 52] (“Multiplicity Mot.”). The government opposes each of them. See Gov't's Opp. to Mot. to Dismiss Count II [Dkt. # 58] (“Opp. Count II Mot.”) Gov't's Opp. to Def.'s Mot. to Dismiss Count IX [Dkt. # 62] (“Opp. Count IX Mot.”) Gov't's Opp. to Def.'s Mot. to Dismiss Certain Counts Due to Multiplicity [Dkt. # 59] (“Opp Multiplicity Mot.”). The matter is fully briefed. Def.'s Reply to Gov't's Opp. to Mot. to Dismiss Count II [Dkt. # 68] (“Count II Reply”) Def.'s Reply to Gov't's Opp. to Def.'s Mot. to Dismiss Count IX [Dkt. # 66] (“Count IX Reply”); Def.'s Reply to Gov't's Opp. to Def.'s Mot. to Dismiss Certain Counts Due to Multiplicity [Dkt. # 65] (“Multiplicity Reply”). For the reasons set forth below, the motions will be DENIED.

LEGAL STANDARD

The Federal Rules of Criminal Procedure require that an indictment must consist of “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). The charging document “need only inform the defendant of the precise offense of which he is accused so that he may prepare his defense and plead double jeopardy in any further prosecution for the same offense.” United States v. Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018), quoting United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014); see United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'” Hamling v. United States, 418 U.S. 87, 117 (1974), quoting United States v. Carll, 105 U.S. 611, 612 (1882).

A criminal defendant may move to dismiss an indictment before trial based on a “defect in the indictment,” Fed. R. Crim. P. 12(b)(3)(B), including constitutional challenges. See United States v. Eshetu, 863 F.3d 946, 952-3 (D.C. Cir. 2017), vacated in part on reh'g on other grounds, 898 F.3d 36 (D.C. Cir. 2018). “When considering a motion to dismiss an indictment, a court assumes the truth of those factual allegations.” United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015), citing Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952). A dismissal of an indictment “is granted only in unusual circumstances,” because “a court's ‘use [of] its supervisory power to dismiss an indictment . . . directly encroaches upon the fundamental role of the grand jury.'” Id. at 148, quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995).

ANALYSIS

I. Count Two: Violation of 18 U.S.C. §§ 1512(c)(2) and 2

Count Two charges defendant with obstructing an official proceeding and aiding and abetting in violation of 18 U.S.C. §§ 1512(c)(2) and 2:

On or about January 6, 2021, within the District of Columbia and elsewhere, [defendant] attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress' 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.

Indictment at 2. Defendant moves to dismiss Count Two on multiple grounds, arguing that the indictment fails to state an offense, his conduct is not covered by section 1512(c)(2), and the word “corruptly” is unconstitutionally vague or requires a pecuniary motive. Count II Mot. at 9, 14-15, 20.

Defendant is not the first to question the validity of indictments charging January 6 defendants under section 1512(c)(2), and this Court has already addressed many of the legal issues raised here. See generally United States v. Williams, No. 21-cr-618, 2022 WL 2237301 (D.D.C. June 22, 2022); see also United States v. Rodriguez, No. CR 21-cr-246, 2022 WL 3910580 (D.D.C. Aug. 31, 2022); Order, United States v. Black, Case No. 21-cr-127 (D.D.C. July 26, 2022). As noted in these opinions, similar challenges have been rejected by every court in this district to consider them - with one exception. See United States v. Sandlin, 575 F.Supp.3d 16, 21-34 (D.D.C. 2021); United States v. Caldwell, 581 F.Supp.3d 1, 10-34 (D.D.C. 2021); United States v. Mostofsky, 579 F.Supp.3d 9, 24-27 (D.D.C. 2021); United States v. Montgomery, 578 F.Supp.3d 54, 61-87 (D.D.C. 2021); United States v. Nordean, 579 F.Supp. 28, 41-54 (D.D.C. 2021); Order, United States v. Reffitt, No. 21-cr-32 (D.D.C. Dec. 29, 2021); United States v. McHugh, 583 F.Supp.3d 1, 11-23 (D.D.C. 2022), recons. denied, No. 21-cr-453 (JDB), 2022 WL 1302880, at *2-13 (D.D.C. May 2, 2022); United States v. Grider, 585 F.Supp.3d 21, 27-34 (D.D.C. 2022), recons. denied, No. 21-cr-22 (CKK), 2022 WL 3016775, at *3-8 (D.D.C. July 29, 2022); United States v. Bozell, Case No. 21-cr-216 (JDB), 2022 WL 474144, at *1-7 (D.D.C. Feb. 16, 2022); United States v. Robertson, 588 F.Supp.3d 114, 119-124 (D.D.C. 2022), recons. denied, No. 21- cr-34 (CRC), 2022 WL 2438546, at *1-8 (D.D.C. July 5, 2022); United States v. Andries, No. 21-cr-93 (RC), 2022 WL 768684, at *3-17 (D.D.C. Mar. 14, 2022); United States v. Puma, 596 F.Supp.3d 90, 96-115 (D.D.C. 2022); United States v. Bingert, Case No. 21-cr-91 (RCL), 2022 WL 1659163, at *3-11, *12-15 (D.D.C. May 25, 2022); United States v. Fitzsimons, Case No. 21- cr-158 (RC), 2022 WL 1698063, at *3-13 (D.D.C. May 26, 2022); United States v. Rhodes, No. 22-cr-15 (APM), 2022 WL 2315554, at *13-14 (D.D.C. June 28, 2022); United States v. Robertson, No. 21-cr-34 (CRC), 2022 WL 2438546, at *1-5 (D.D.C. July 5, 2022); United States v. Rhodes, No. 22-cr-15 (APM), 2022 WL 3042200, at *2-4, 6 (D.D.C. Aug. 2, 2022); United States v. Brock, No. 21-140 (JDB), 2022 WL 3910549, at *2-5 (D.D.C. Aug. 31, 2022); United States v. Hale-Cusanelli, No. 21-cr-37 (TNM), 2022 WL 4300000, at *1 (D.D.C. Sept. 19, 2022); United States v. Weeks, No. 21-247 (TFH), 2022 WL 9296415, at *3-6 (D.D.C. Oct. 14, 2022); United States v. Gillespie, No. CR 22-60 (BAH), 2022 WL 17262218, at *3-6 (D.D.C. Nov. 29, 2022); United States v. Nordean, No. CR 21-175 (TJK), 2022 WL 17583799, at *15 (D.D.C. Dec. 11, 2022); United States v. Sheppard, No. CR 21-203 (JDB), 2022 WL 17978837, at *2-4 (D.D.C. Dec. 28, 2022); United States v. Gossjankowski, No. CR 21-0123 (PLF), 2023 WL 130817, at *7-10 (D.D.C. Jan. 9, 2023).

One court has granted a motion to dismiss a charge alleging a violation of 18 U.S.C. § 1512(c)(2). In United States v. Miller, the district judge agreed with the government that the congressional certification of the Electoral College results is an “official proceeding” for purposes of the statute, but he found that section 1512(c)(2) did not cover the alleged conduct because the provision only applies if the defendant took some action with respect to a document, record, or other object. 589 F.Supp.3d 60, 67, 79 (D.D.C. 2022), recons. denied, No. 1:21-CR-00119 (CJN), 2022 WL 1718984 (D.D.C. May 27, 2022). See also United States v. Fischer, Case No. 21-234 (CJN), 2022 WL 782413, at *4 (D.D.C. Mar. 15, 2022) (same); United States v. Lang, No. 21-cr-53 (D.D.C. June 7, 2022) (dismissing section 1512(c)(2) count via minute order for the reasons discussed in Miller). While an appeal of the Miller decision is pending before the Court of Appeals, no other court in the district has followed that ruling since, and this Court's view of how the question should be resolved has not changed.

A. Count II provides sufficient notice of the offense charged.

Defendant first argues that there are “no factual allegations . that Defendant Gray in any way obstructed an official proceeding,” and that the indictment is “insufficient to put him on notice of the exact crime he is being charged with.” Count II Mot. at 9-10; Count II Reply at 3. This is not a basis to dismiss the charge, as the indictment “contains the elements of the offense charged” under section 1512 (c)(2): that defendant “attempted to,...