United States v. McCaughey
| Decision Date | 20 May 2022 |
| Docket Number | Case No. 1:21-cr-00040 (TNM) |
| Citation | 605 F.Supp.3d 84 |
| Parties | UNITED STATES of America, v. Patrick Edward MCCAUGHEY, III, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
James Pearce, Assistant U.S. Attorney, U.S. Department of Justice, Department of Justice, Criminal Division, Washington, DC, Kimberley Charlene Nielsen, Assistant U.S. Attorney, U.S. Attorney's Office Homicide Section, Washington, DC, Kimberly Louise Paschall, Jocelyn Patricia Bond, Melissa Joy Jackson, Assistant U.S. Attorneys, U.S. Attorney's Office for the District of Columbia, Washington, DC, Ashley Akers, Assistant U.S. Attorney, DOJ-CIV, Commercial Litigation Branch, Washington, DC, for United States of America.
Lindy R. Urso, Pro Hac Vice, Lindy R. Urso, Attorney at Law, Stamford, CT, Stephan Erich Seeger, Law Office of S.J. Carriero, LLC, Stamford, CT, for Defendant Patrick Edward McCaughey, III.
Lauren Cobb, Public Defender, Office of the Federal Defender, Pensacola, FL, for Defendant Tristan Chandler Stevens.
Elizabeth Ann Mullin, Public Defender, Federal Public Defender for the District of Columbia, Washington, DC, Edward John Ungvarsky, Ungvarsky Law, PLLC, Alexandria, VA, for Defendant David Lee Judd.
Carlos Diaz-Cobo, Law Offices of Carlos Diaz-Cobo, Freehold, NJ, Joseph Daniel McBride, The McBride Law Firm, PLLC, New York, NY, for Defendant Christopher Joseph Quaglin.
Elizabeth L. Toplin, Kathleen M. Gaughan, Public Defenders, Federal Community Defender Office, Philadelphia, PA, John C. Kiyonaga, John C. Kiyonaga Law Office, Alexandria, VA, for Defendant Robert Morss.
John C. Kiyonaga, John C. Kiyonaga Law Office, Alexandria, VA, for Defendant Geoffrey William Sills.
John M. Pierce, John Pierce Law, Woodland Hills, CA, William Lee Shipley, Jr., Law Offices of William L. Shipley, Honolulu, HI, Ryan Marshall, Pro Hac Vice, Los Angeles, CA, Sabrina P. Shroff, Public Defender, New York City, NY, for Defendant David Mehaffie.
Edgar H. Holguin, Public Defender, Federal Public Defender, TXW, El Paso, TX, Marina Thais Douenat, Public Defender, Federal Public Defender's Office Western District of Texas, San Antonio, TX, for Defendant Steven Cappuccio.
Stanley Edmund Woodward, Jr., Brand Woodward Law, Washington, DC, for Defendant Federico Guillermo Klein.
TREVOR N. McFADDEN, United States District Judge This Capitol breach case began with an indictment against one Defendant. See ECF No. 5. Over multiple superseding indictments, the Government has added other Defendants—ultimately, nine of them. According to the Government, all Defendants infiltrated the Lower West Terrace of the Capitol and then battled with police blocking their entry. Their actions varied. Some Defendants allegedly struck police officers with objects. Others pushed in a large group against a police line, and still others encouraged those efforts. There is no allegation that Defendants knew each other beforehand. But the Government does allege that each Defendant joined, at various times, the group that converged on the Terrace and ultimately swarmed the tunnel.
The Indictment charges each Defendant with a different mix of offenses. See generally Fifth Supers. Indictment (Indictment), ECF No. 179. For example, multiple Defendants face charges of assaulting federal officers. Others face robbery charges. Yet despite the different charges, the Indictment charges every Defendant with Civil Disorder, in violation of 18 U.S.C. § 231, see id. at 17, and Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512, see id. at 16.1
Before the Court are motions from Defendants David Judd, Steven Cappuccio, and Federico Klein to sever their trials from the group.2 See David Judd Mot. to Sever, ECF No. 206 (Judd Mot.) ; Steven Cappuccio Mot. to Sever, ECF No. 207 (Cappuccio Mot.) ; Federico Klein Mot. to Sever, ECF No. 249 (Klein Mot.). Upon consideration of these motions and the Government's opposition, see Opp'n to Mots. to Sever, ECF No. 277 (Opp'n), the Court denies the motions. As alleged by the Government, Defendants acted in concert by battling police blocking a doorway to the Capitol to achieve a common goal:
obstruction of the certification of the Electoral College count. It is appropriate for them to be tried together.
"There is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States , 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Two Federal Rules of Criminal Procedure govern the propriety of a joint trial. The movants make arguments under both.
Rule 8(b) permits joinder of defendants in the same indictment when "they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Cr. P. 8(b). Joinder is appropriate if there is "a logical relationship between the acts or transactions." United States v. Perry , 731 F.2d 985, 990 (D.C. Cir. 1984). The Court reviews the indictment and the Government's pretrial evidence to evaluate that relationship. See United States v. Carson , 455 F.3d 336, 372 (D.C. Cir. 2006).
Even if joinder is proper under Rule 8(b), however, Rule 14(a) allows the Court to sever a defendant's trial if joinder "appears to prejudice a defendant or the government." Fed. R. Cr. P. 14(a). Prejudice arises where there is "a serious risk that a joint trial [will] compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro , 506 U.S. at 539, 113 S.Ct. 933. But as the Rule's permissive language suggests, "severance is not required even if prejudice is shown." United States v. Tucker , 12 F.4th 804, 825 (D.C. Cir. 2021) (cleaned up).
The tailoring of appropriate relief is instead left "to the district court's sound discretion." Zafiro , 506 U.S. at 539, 113 S.Ct. 933. Often, "less drastic measures, such as limiting instructions, [ ] will suffice to cure any risk of prejudice." Id. For these reasons, Defendants seeking severance under Rule 14 bear a "heavy burden," United States v. Williams , 507 F. Supp. 3d 181, 196 (D.D.C. 2020) (cleaned up), and courts "sparingly" grant motions under the Rule. Tucker , 12 F.4th at 825 (cleaned up).
Judd and Klein argue that joinder of their alleged offenses violates Rule 8(b) because those offenses have no "logical nexus" with the offenses of their co-defendants. Judd Mot. at 5. For support, they note that the joined Defendants "did not know one another prior to January 6," "did not travel to the Capitol together," and "are not associated with the same group or organization." Judd Reply at 7, ECF No. 285. Nor has the Government charged them with conspiracy. See Judd Mot. at 4. From these facts, Judd and Klein conclude that their actions "were wholly separate and distinct" from their co-defendants, Klein Mot. at 6, without a "single, common thread tying" them all together, id. at 9.
The Court disagrees. Defendants’ acts have a clear "logical relationship" based on the facts alleged in the Indictment. Perry , 731 F.2d at 990. Start with the obvious. Defendants allegedly battled police officers in the same location and at the same time. But the Indictment and pretrial evidence show commonality beyond mere spatial and temporal proximity. The Indictment charges every Defendant with furthering a "civil disorder," which is defined as any public disturbance "involving acts of violence by assemblages of three or more persons." 18 U.S.C. § 232(1).
In other words, one cannot advance or engage in a civil disorder alone. That activity, like a conspiracy, requires multiple people.3 Defendants worked together. It is appropriate for them to be tried together.
The factual allegations here show their concerted activity. Defendants joined a mob that collectively moved against police on the Terrace and in the tunnel. Judd and Klein then joined a group of rioters who pushed against officers lined across the tunnel. See Opp'n at 8. In the moment, both men also encouraged collective action. Klein yelled "we need more people" as he prevented an officer from shutting a door in the tunnel. Id. And Judd urged others to pass riot shields forward to construct a "shield wall" against police. Id. at 9. They both then engaged in their own acts of violence—Judd threw a firecracker at police, see id. , and Klein wielded a riot shield to push against police, see id. at 10. Other Defendants individually battered police in similar ways and assisted nearby rioters by "using their collective force" to push against the police line in the tunnel. Id. at 10.
Based on those allegations, the actions of Judd and Klein were not "separate and distinct" from their co-defendants. Klein Mot. at 6. They worked collectively "in the same series of acts" to overwhelm police and to enter the Capitol. Fed. R. Civ. P. 8(b). And their individual acts of violence contributed to that collective effort. More, all Defendants face an obstruction charge, which alleges that they undertook these actions with corrupt intent to obstruct an official proceeding. See 18 U.S.C. § 1512(c). So the Government has alleged not only collective action but also a shared motive for that action.
Those allegations distinguish this case from United States v. Jackson , 562 F.2d 789 (D.C. Cir. 1977). There, one man emerged from the passenger side of a car and threatened two women at gunpoint. See id. at 791. He ordered them to a secluded area, where he tore some of their clothing. See id. The women managed to escape, and the assailant fled. See id. "A short while later," a man from inside the passenger side of the same car snatched a different woman's purse out of her hands. Id. Police ultimately found the two men in the car and charged both with assault with intent to rape and robbery. See id. at 792. The D.C. Circuit overturned joinder of the robbery charge with the rape charge because the crimes were ...
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