United States v. McHugh

• Decision Date: 06 March 2023
• Docket Number: CRIMINAL ACTION 21-453 (JDB)
• Parties: UNITED STATES OF AMERICA v. SEAN MCHUGH, Defendant.
• Court: U.S. District Court — District of Columbia

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UNITED STATES OF AMERICA v. SEAN MCHUGH, Defendant.

CRIMINAL ACTION No. 21-453 (JDB)

United States District Court, District of Columbia

March 6, 2023

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

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 Indictment [ECF No. 39]. Before the Court is McHugh's third round of motions in this case. For the reasons set forth below, the Court will deny his motions for dismissal, venue transfer pretrial release, and further discovery to support a selective prosecution theory, and it will grant his motion for a protective order.

BACKGROUND

McHugh is one of more than a thousand people charged with criminal conduct in connection with the riot at the U.S. Capitol on January 6, 2021. The facts of his involvement in the events at the Capitol are set out in more detail in United States v. McHugh (“McHugh I”), 583 F.Supp.3d 1, 7-9 (D.D.C. 2022). Briefly, the government alleges that McHugh arrived at the Capitol by 1:30 p.m., when camera footage captured him shouting obscenities at a police barricade. Statement of Facts [ECF No. 1-1] ¶ 12. Shortly after, McHugh joined other rioters in pushing a large metal sign into the line of officers and yelling at the crowd, encouraging them to keep pushing it. See id. ¶ 13. Other videos from that day show McHugh “shooting officers with a yellow spray,”^[1]id. ¶ 16, “scuffling with an officer in an attempt to defeat a barricade,” id. ¶ 15, and “encouraging the crowd with his megaphone to intimidate officers and approach the police line,” id.¶ 14.

McHugh filed a motion to dismiss a number of counts of the indictment in December 2021, Def.'s Mot. to Dismiss Counts Two, Five, Six, Seven, and Eight of Superseding Indictment [ECF No. 41], which the Court denied, McHugh I, 583 F.Supp.3d at 35. He then filed a renewed motion to dismiss one count, Def.'s Mot to Dismiss Count Five of Superseding Indictment [ECF No. 54], and a motion to transfer venue, Def.'s Mot. for Transfer of Venue [ECF No. 55] (“Original Venue Mot.”). The Court denied both motions. United States v. McHugh (“McHugh II”), Crim. A. No. 21-453 (JDB), 2022 WL 1302880 at *13 (D.D.C. May 2, 2022) (denying motion to dismiss); May 4, 2022 Min. Entry (denying motion to transfer venue).

Following a change of counsel, see Notice of Termination [ECF No. 69], McHugh requested a new briefing schedule to file additional motions, see Sept. 26, 2022 Min. Entry. He then filed the instant five motions: (1) a motion to dismiss, Def.'s Mot. to Dismiss Superseding Indictment as Defective [ECF No. 70] (“Mot. to Dismiss”), (2) a motion for temporary release, Def.'s Mot. for Temporary Release Pursuant to 18 U.S.C. § 3142(i) [ECF No. 71] (“Mot. for Release”), (3) a motion for protective order, Def.'s Mot. for a Protective Order per Fed. R Crim. P. 49.1(e) [ECF No. 72] (“Mot. for Protective Order”), (4) a motion to transfer venue, Def.'s Mot. for Change of Venue Pursuant to 18 U.S.C. § 3237(a) [ECF No. 73] (“Venue Mot.”), and (5) a motion for discovery in pursuit of a selective prosecution claim, Def.'s Mot. for Discovery & Evidentiary Hearing in Supp. of Claim of Selective Prosecution [ECF No. 82] (“Selective Prosecution Mot.”). The government responded opposing each, and McHugh filed a reply in support of his motion for a protective order and his selective prosecution motion. All five motions are now ripe for decision.

MOTION TO DISMISS THE INDICTMENT

McHugh filed a motion to dismiss every count of the indictment. The operative indictment contains ten counts: assaulting resisting, or impeding certain officers and aiding and abetting, in violation of 18 U.S.C. §§ 111(a)(1) and 2 (Count One); civil disorder, in violation of 18 U.S.C. § 231(a)(3) (Count Two); two counts of assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. § 111(a)(1) and (b) (Counts Three and Four); obstruction of an official proceeding and aiding and abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2 (Count Five); entering and remaining in a restricted building or grounds with a deadly or dangerous weapon, in violation of 18 U.S.C. § 1752(a)(1) and (b)(1)(A) (Count Six); 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) (Count Seven); engaging in physical violence in a restricted building or grounds with a deadly or dangerous weapon, in violation of 18 U.S.C. § 1752(a)(4) and (b)(1)(A) (Count Eight); disorderly conduct in the Capitol grounds or buildings, in violation of 40 U.S.C. § 5104(e)(2)(D) (Count Nine); and act of physical violence in the Capitol grounds or buildings, in violation of 40 U.S.C. § 5104(e)(2)(F) (Count Ten). See Indictment 2-6.

McHugh claims that the counts in the indictment lack specificity, are multiplicitous, and for some, fail to state a claim. Because the Court concludes that the indictment is not deficient for any of the reasons McHugh argues, it will deny the motion to dismiss.

I. Lack of Specificity

A criminal defendant may file a motion to dismiss an indictment against him for lack of specificity. See Fed. R. Crim. P. 12(b)(3)(B)(iii). The indictment must set forth only “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). “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 offence intended to be punished.'” Id. (quoting United States v. Carll, 105 U.S. 611, 612 (1882)); see also United States v. Haldeman, 559 F.2d 31, 123 (D.C. Cir. 1976) (“The validity of alleging the elements of an offense in the language of the statute is, of course, well established.”). In limited circumstances, “[w]here guilt depends so crucially upon such a specific identification of fact . . . an indictment must do more than simply repeat the language of the criminal statute.” Russell v. United States, 369 U.S. 749, 764 (1962).

McHugh alleges that each of the ten counts in the superseding indictment is impermissibly vague. See Mot. to Dismiss at 7-11. The Court concludes that, while bare-bones, each count sets forth the elements of the offense and fairly informs McHugh of the charge against which he must defend.

Count One, which charges violations of 18 U.S.C. §§ 111(a)(1) and 2, alleges that

[o]n or about January 6, 2021, within the District of Columbia, SEAN MICHAEL MCHUGH did forcibly assault, resist, oppose, impede, intimidate, and interfere with an officer and employee of the United States, and of any branch of the United States Government . . . while such person was engaged in and on account of the performance of official duties, and where the acts in violation of this section involve physical contact with the victim and the intent to commit another felony.

Indictment at 2. The other nine counts follow a similar format, some with even more specificity. That is, they recite the elements of the offense, specify where and when the charged conduct happened, and-when necessary-further describe the conduct. For example, Counts Three, Four, Six, Seven, and Nine charge violations of statutes involving a deadly or dangerous weapon, and the indictment specifies which weapon McHugh is alleged to have used. See Indictment at 2-5.

McHugh lodges a number of general complaints about the indictment. First, he argues that each count “simply restates the wording of the Statute” and does not clarify “what alleged actions were committed by [him]” that would meet the statutory language, or “how” he engaged in various actions. Mot. to Dismiss at 8-11. But that argument misunderstands the nature of an indictment. As the court in United States v. Verrusio put it,

The indictment certainly need not allege precisely how [the defendant committed the alleged offense]. Would he do it by himself or ask someone else to do it? Would that someone else be Colonel Mustard or Professor Plum? With a candlestick or a rope, in the library or the study? Answering those questions is not required at the indictment stage.

762 F.3d 1, 14-15 (D.C. Cir. 2014). There is no requirement that the indictment make out the government's case or provide any details as to the logistics of the alleged offense, and thus this criticism falls flat. See United States v. Sargent, Case No. 21-cr-00258, (TFH) 2022 WL 1124817, at *4 (D.D.C. April 4, 2022) (“[N]o factual allegations are required when the statutory language itself allows the defendant to prepare a defense to the charge.”).

Similarly, McHugh argues that the government has not “describe[d] or identif[ied] the alleged victim” in a number of counts related to his alleged violent actions against law enforcement officers. See Mot. to Dismiss at 8-11. But to find McHugh guilty, “the government need not prove the individual identity of” the officer with whom McHugh interacted, only that the person is an officer as described in the statute. Sargent, 2022 WL 1124817, at *4.

The case on which McHugh relies illustrates the type of indictment that may suffer from lack of specificity. In United States v. Hillie, the...