United States v. Miller
| Citation | 589 F.Supp.3d 60 |
| Docket Number | Criminal Action No. 1:21-cr-00119 (CJN) |
| Decision Date | 07 March 2022 |
| Parties | UNITED STATES of America, v. Garret MILLER, Defendant. |
| Court | U.S. District Court — District of Columbia |
Amanda Jawad, Assistant U.S. Attorney, DOJ-USAO, Detroit, MI, Benjamin Edward Kringer, Elizabeth C. Kelley, Assistant U.S. Attorneys, United States Attorney's Office, Washington, DC, David Lieberman, James Pearce, Assistant U.S. Attorneys, U.S. Department of Justice, Criminal Division, Washington, DC, for United States of America.
Camille Wagner, Wagner PLLC, Washington, DC, Clinton Broden, Pro Hac Vice, Broden & Mickelsen, Dallas, TX, for Defendant.
On January 6, 2021, as a joint session of Congress convened in the U.S. Capitol to certify the vote count of the Electoral College, thousands of people, many of whom had marched to the Capitol following a rally at which then-President Donald Trump spoke, gathered outside. ECF No. 1-1; United States v. Montgomery , No. 21-cr-46, 578 F.Supp.3d 54, 59–60 (D.D.C. 2021). Things soon turned violent. See ECF No. 1-1. By approximately 2:00 p.m., rioters had broken through the protective lines of the Capitol Police, assaulting officers and breaking windows in the process. Id. The violence escalated, often cheered on by certain members of the mob. Id. And the rioters soon stormed through the halls of Congress, forcing members of the House of Representatives, the Senate, and the Vice President to flee. Id. "The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol." Trump v. Thompson , 20 F.4th 10, 15 (D.C. Cir. 2021).
The government alleges that Defendant Garret Miller was an active participant in these events. On May 12, 2021, a grand jury returned a second superseding indictment that charges Miller with twelve different criminal offenses, several of which are felonies. The government asserts that Miller predicted the likelihood of violence on January 6; pushed past officers to gain entrance to the Capitol; posted videos and pictures on social media from inside; and made various self-incriminating statements in the days thereafter. See infra at 63. The government has also proffered evidence that Miller made several threats on social media following January 6, including to Representative Alexandria Ocasio-Cortez and a Capitol Police Officer. See id. at 63–64.
Miller has filed several pretrial motions. He moved to revoke the detention order that had been entered by the District Court for the Northern District of Texas. ECF No. 14. The Court denied that request on the ground that no conditions of release could reasonably ensure the safety of the community were Miller to be released before trial. See Minute Entry of April 1, 2021. Miller also moved for discovery and for an evidentiary hearing regarding what he claimed was the government's selective prosecution of him as compared to the protestors in Portland, Oregon, ECF No. 32, 33. The Court denied those motions. ECF No. 67.
Still pending is Miller's Motion to Dismiss Count Three of the Superseding Indictment ("Mot."), ECF No. 34, in which Miller seeks to dismiss one of the twelve counts in the Second Superseding Indictment. For the reasons discussed below, the Court agrees with Miller that his conduct does not fit within the scope of the statute he is charged with violating, 18 U.S.C. § 1512(c)(2).
At approximately 1:00 p.m. on January 6, 2021, a joint session of Congress convened in the U.S. Capitol. ECF No. 1-1 at 1. Its purpose was to certify the vote count of the Electoral College, as required by the Twelfth Amendment and the Electoral Count Act, 3 U.S.C. § 15. Then-Vice President Michael Pence, as President of the Senate, presided over the joint session. ECF No. 1-1 at 1.
The proceedings started relatively smoothly. After about thirty minutes, the Senate returned to its chambers so the two houses could separately consider an objection from the State of Arizona. Montgomery , 578 F.Supp.3d at 59–60. During this period, the mob mentioned above—having marched to the Capitol following a rally at which then-President Donald Trump spoke, id. —started to form outside, ECF No. 1-1 at 1.
The Capitol is a secure building, guarded at all times by the United States Capitol Police. Id. But on January 6, 2021, the Capitol Police had taken extra precautions, erecting temporary and permanent barriers around the building's perimeter. Id. The Capitol Police also closed the entire exterior plaza of the building to the public. Id.
Those extra precautions were not enough. The mob soon turned violent. See id. Rioters broke through the protective lines of the Capitol Police, assaulted officers, and shattered windows in the process. Id. Members of the House of Representatives, the Senate, and the Vice President fled as rioters mobbed the halls. Id. All the while, looting and destruction continued, see id. , producing devastating results, see Thompson , 20 F.4th at 15–16.
The government alleges that Miller was part of this violent mob, pushing past officers to gain entrance to the building. ECF No. 1-1 at 2, 5. The government alleges that he foresaw the violence coming, as he posted to Facebook four days before that he was Id. at 2.2 It further alleges that Miller posted videos to his Twitter account from the Capitol rotunda, showing rioters waving flags of support for then-President Trump. Id. Miller allegedly captioned the video as being "From inside [C]ongress." Id. And he is claimed to have posted a selfie of himself inside the Capitol. When a commentor wrote Miller allegedly replied, "just wanted to incriminate myself a little lol." Id. at 4.
The government contends that Miller made several additional incriminating social-media posts in the days following the attack on January 6. When individuals on Twitter claimed that those who stormed the Capitol were "paid infiltrators" or "antifa," Miller is alleged to have consistently corrected them: Id. at 6. And when others asked him if he was in the building, he allegedly responded, "Yah ... we charged ... We where [sic] going in ... No matter what ... Decided before the [T]rump speech ... I charged the back gates myself with an anti[-]masker." Id.
The government also alleges that Miller made several threats on social media following January 6. Regarding Representative Alexandria Ocasio-Cortez, he tweeted, "Assassinate AOC." Id. at 8. And when discussing the shooting of a woman by a Capitol Police Officer during the riot, Miller is alleged to have written, "We going to get a hold [sic] of [the officer] and hug his neck with a nice rope[.]" Id. at 9. When the person with whom he was chatting responded, "Didn't you say you were a Christian or some lie?," Miller is alleged to have typed, "Justice ... Not murder ... Read the commandment ... there[’]s a difference." Id. He also is alleged to have made several additional comments about "huntin[g]" this police officer. See id. And he is alleged to have later written in a Facebook chat, "Happy to make death threats so I been just off the rails tonight lol." Id.
For purposes of Miller's Motion to Dismiss Count III, the Court must assume as true the allegations contained in the Indictment—but may rely only on those allegations. United States v. Akinyoyenu , 199 F. Supp. 3d. 106, 109–10 (D.D.C. 2016) (citing United States v. Ballestas , 795 F.3d 138, 149 (D.C. Cir. 2015) ). The Second Superseding Indictment, and particularly Count Three, is quite sparse. It provides:
Second Superseding Indictment ("Indictment"), ECF No. 61 at 2–3.3 The Indictment further specifies that this is an alleged violation of 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 2, what the government titles "Obstruction of an Official Proceeding and Aiding and Abetting" the same. Id. at 3. The Indictment provides no other facts in support of this Count.
Miller moves to dismiss only Count Three. See generally Mot. The statute he is charged with violating, 18 U.S.C. § 1512(c)(2), provides:
18 U.S.C. § 1512(c).4 Miller presents various objections to Count III, either in his own briefs or by adopting arguments made by other January 6 defendants.
First, Miller claims that Congress's certification of the 2020 presidential election was not an "official proceeding." Mot. at 8–11. He argues that because the certification was not judicial in nature, it was not a "proceeding" at all. Miller marshals several definitions of "proceeding" to support this position. See id.
Second, Miller argues that § 1512(c)(2) must be read as a catchall to the narrowly focused subsection preceding it, § 1512(c)(1) —not as an untethered, wholly unrelated crime. See Miller's Second Supplemental Brief ("Sec. Supp."), ECF No. 59 at 3–7. In Miller's view,...
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