United States v. McHugh
| Decision Date | 02 May 2022 |
| Docket Number | CRIMINAL ACTION 21-453 (JDB) |
| Parties | UNITED STATES OF AMERICA, v. SEAN MCHUGH, Defendant. |
| Court | U.S. District Court — District of Columbia |
Defendant Sean McHugh is charged by indictment with eight felonies and two misdemeanors in connection with his conduct at the United States Capitol on January 6, 2021. See Superseding Indictment [ECF No. 39]. Currently before the Court is a renewed Motion to Dismiss Count Five of the Superseding Indictment, which charges McHugh with obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). Relying almost entirely on Judge Carl Nichols's recent opinion in United States v Miller, Crim. A. No. 1:21-cr-00119 (CJN), 2022 WL 823070 (D.D.C. Mar. 7, 2022), McHugh argues that § 1512(c)(2) prohibits only obstruction that occurs “with respect to a document, record, or other object.” Def.'s Mot to Dismiss Count Five of the Superseding Indictment [ECF No 54] (“Def.'s Renewed Mot.”) at 4; see also Miller, 2022 WL 823070, at *15. The Court disagrees. For the reasons set forth below, the Court reiterates its conclusion that 18 U.S.C. § 1512(c)(2) is a broad prohibition on all forms of obstruction and accordingly, that Count Five of the Superseding Indictment properly states a claim.
The facts underlying the Superseding Indictment are set out in detail in the Court's prior memorandum opinion denying McHugh's first motion to dismiss. United States v. McHugh, Crim. A. No. 21-453 (JDB), 2022 WL 296304, at *1-3 (D.D.C. Feb. 1, 2022) (“McHugh I”). In short, McHugh is alleged to have been an active participant in the riot at the United States Capitol on January 6, 2021, and he has now been charged with eight felonies and two misdemeanors arising from his conduct on that day. See Superseding Indictment [ECF No. 39]; McHugh I, 2022 WL 296304, at *3. Among other things, McHugh is accused of using a megaphone to encourage and direct other rioters, assaulting law enforcement officers with a large metal sign, and spraying multiple officers with bear spray. See McHugh I, 2022 WL 296304, at *2; see also Gov't's Opp'n to Def.'s Renewed Mot. [ECF No. 57] (“Gov't Opp'n) at 3; Gov't's Resp. in Opp'n to Def.'s Mot. to Dismiss [ECF No. 42] (“Original Gov't Opp'n”) at 4-11.
On December 2, 2021, McHugh moved to dismiss five of the felony counts against him on a variety of constitutional and statutory grounds. See McHugh I, 2022 WL 296304, at *3 (summarizing grounds); see generally Def's Mot. to Dismiss Counts Two, Five, Six, Seven, and Eight of the Superseding Indictment [ECF No. 41] (“Def.'s First Mot. to Dismiss”). As relevant here, McHugh sought the dismissal of Count Five on the grounds that the joint session of Congress on January 6th was not an “official proceeding” and that § 1512(c)(2) is unconstitutionally vague. Def.'s First Mot. to Dismiss at 3-17. McHugh also briefly suggested, without argument, that § 1512(c)(2) requires “the charged conduct [to] have some reasonable nexus to a record, document or tangible object, or to witness testimony.” Id. at 6 (internal quotation marks and citations omitted). This Court denied McHugh's motion in full on February 1, 2022, see McHugh I, 2022 WL 296304, at *4-22, a footnote its disagreement with McHugh's nexus-to-evidence assertion, id. at *4 n.5.
On March 15, 2022, McHugh renewed his motion to dismiss, this time only with respect to Count Five and arguing explicitly (and exclusively) that § 1512(c)(2) applies only to obstructive acts related to documents, records, or other objects (and thus not to his alleged conduct). See generally Def.'s Renewed Mot. McHugh relies entirely on the reasoning of United States v. Miller, in which Judge Carl Nichols of this District adopted this narrower interpretation of § 1512(c)(2). See Miller, 2022 WL 823070, at *15 (). McHugh asks this Court to adopt Judge Nichols's reasoning, apply it in this case, and dismiss Count Five. See Def.'s Renewed Mot. at 1. The government submitted an opposition to McHugh's renewed motion on April 5, see generally Gov't Opp'n, and McHugh filed his reply on April 28, see Def.'s Reply in Further Supp. of Def.'s Renewed Mot. [ECF No. 62] (“Def.'s Reply”). Briefing is therefore complete, and the motion is ripe for decision.
A defendant in a criminal case may move to dismiss the indictment against him on the ground that it “fail[s] to state an offense, ” Fed. R. Crim. P. 12(b)(3)(B)(v), including because the statutory provision at issue does not apply to the charged conduct, e.g., United States v. Montgomery, Crim. A. No. 21-46 (RDM), 2021 WL 6134591, at *1 (D.D.C. Dec. 28, 2021). “In deciding a motion to dismiss an indictment, the question before the Court is a narrow one, and the court will neither review the sufficiency of the evidence against the defendant nor craft jury instructions on the elements of the crimes charged.” McHugh I, 2022 WL 296304, at *3 (). Instead, “the court determines only the ‘legal sufficiency of the indictment, '” id. (citation omitted), and must assume the truth of the government's proffered facts, see United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). 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.” Ballestas, 795 F.3d at 148 (D.C. Cir. 2015) (cleaned up) (quoting Whitehouse v. U.S. Dist. Ct., 53 F.3d 1349, 1360 (1st Cir. 1995)).
18 U.S.C. § 1512(c). The question presented here is whether paragraph (c)(2) applies to any act that “obstructs, influences, or impedes” an official proceeding, or if it encompasses only obstructive acts of a type similar to those proscribed in paragraph (c)(1), i.e., actions taken with respect to a record, document, or other object.[1]
McHugh urges the Court to adopt the latter position and construe § 1512(c)(2) narrowly, relying exclusively on Judge Nichols's decision in Miller. SeeDef.'s Renewed Mot. at 1.[2] To the Court's knowledge, two other district courts have also adopted this view of the statute. See United States v. Singleton, Crim. A. No. H-06-080, 2006 WL 1984467, at *3 (S.D. Tex. July 14, 2006); United States v. Hutcherson, No. CRIM. 6:05-CR-00039, 2006 WL 270019, at *2 (W.D. Va. Feb. 3, 2006).
The government, on the other hand, argues for a broader interpretation, construing § 1512(c)(2) to apply to all forms of corrupt obstruction of an official proceeding. See Gov't Opp'n at 11-22; see also Original Gov't Opp'n at 13-23. Seven judges in this District, including this one, have adopted this interpretation in January 6th cases, [3] and in the weeks since Miller was decided, two more have signaled disagreement with its interpretation in the course of rejecting vagueness challenges to § 1512(c)(2).[4] In addition, Judge Friedrich has indicated in a substantial oral opinion that she is “not inclined to reconsider” her interpretation of § 1512(c)(2) in light of Miller. See Trial Tr., Mar. 8, 2022, at 1502:20-1505:22, United States v. Reffitt, Crim. A. No. 21-32, ECF No. 145. Several other courts around the country have previously adopted this broad interpretation, [5] and many circuits have upheld convictions under § 1512(c)(2) where the conduct in question had no connection to documents or other physical evidence.[6]
This Court's previous two discussions of § 1512(c)(2) were rather abbreviated. In McHugh I, the Court adopted the broad interpretation of the statute only in a footnote and without the benefit of briefing by the defendant. 2022 WL 296304, at *4 n.5. The Court then reaffirmed its position in United States v. Bozell, Case No. 21-CR-216 (JDB), 2022 WL 474144 at *5 (D.D.C. Feb. 16, 2022), but kept its reasoning brief in light of the then-unanimous conclusions of judges in this District. Now that McHugh has squarely presented this question and the judges of this District are no longer unanimous, the Court deems it appropriate to thoroughly explain its view. For the reasons set forth below, the Court again holds that 18 U.S.C. § 1512(c)(2) is not limited to obstructive acts taken with respect to a document or other object and instead applies broadly to all manner of obstructive conduct.[7]
I. The Broad Interpretation of § 1512(c) Is the Most Natural Reading of the Text
As always, the Court begins with the text. The Court agrees with Judge Nichols that the meaning of “otherwise” is central to the meaning of § 1512(c)(2). As he notes, “[r]eading § 1512(c)(2) alone is linguistically awkward, ” Miller, 2022 WL 823070, at *6, and the word “otherwise” signals some sort of semantic link between paragraphs (c)(1) and (c)(2), see, e.g., Begay v. United States, 553 U.S. 137, 151 (2007) (Scalia, J., concurring in the judgment) (). The first step in interpreting § 1512(c)(2), then, is determining what “otherwise” means.
“Otherwise” generally means “in a different way.” See Otherwise, Oxford English Dictionary (3d ed. 2004) (defining the word as “[i]n...
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