United States v. Montgomery

• Decision Date: 28 December 2021
• Docket Number: CRIMINAL ACTION 21-46 (RDM)
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES OF AMERICA, v. PATRICK MONTGOMERY, BRADY KNOWLTON, Defendants.

UNITED STATES OF AMERICA, v. PATRICK MONTGOMERY, BRADY KNOWLTON, Defendants.

CRIMINAL ACTION No. 21-46 (RDM)

United States District Court, District of Columbia

December 28, 2021

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

Defendants Patrick Montgomery and Brady Knowlton are charged in a ten-count indictment with various crimes related to the breach of the United States Capitol on January 6, 2021. Dkt 74 (second superseding indictment). Both move to dismiss Count 10 pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Dkt. 80; see also Dkt. 39; Dkt. 40; Dkt. 44; Dkt. 47; Dkt. 48; Dkt. 59; Dkt. 60; Dkt. 66. That count charges Defendants with “corruptly obstruct[ing] influenc[ing], and imped[ing] an official proceeding, that is, a proceeding before Congress”-or attempting to do so-in violation of 18 U.S.C. § 1512(c)(2). Dkt 74 at 5.

Defendants raise three principal arguments. First, they contend that Count 10 is deficient as a matter of law because the joint session of the U.S. Senate and House of Representatives “to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States, ” 167 Cong. Rec. H76 (daily ed. Jan. 6, 2021), does not constitute an “official proceeding” for purposes of Section 1512(c). Dkt. 39-1 at 2-3. Second, they argue that, even if the certification of the electoral vote constitutes an “official proceeding, ” Section 1512(c) applies only to actions that “impair[] the availability or integrity of evidence” and does not apply to conduct that physically impedes the proceeding itself. Dkt. 60 at 25-30. Finally, Defendants argue that Section 1512(c)(2), as applied in this case, is unconstitutionally vague or overbroad. Id. at 33-54.

The question before the Court is a narrow one. The Court is not asked to review the sufficiency of the evidence against Defendants, which the government has yet to offer. Nor is the Court asked to craft jury instructions on the elements of Section 1512(c)(2), which the parties have yet to propose and which may turn, in part, on the evidence not yet offered. Instead, the sole question before the Court is the legal sufficiency of the indictment, and the Court's role in considering that question “is limited to reviewing the face of the indictment and, more specifically the language used to charge the crimes.” United States v. Thomas, No. 17-194, 2019 WL 4095569, at *3 (D.D.C. Aug. 29, 2019) (quotation marks omitted). In the present context, that means that the Court must determine whether Section 1512(c)(2) applies to the charged conduct, see Fed. R. Crim. P. 12(b)(3)(B)(v), and, if so, whether the statute is unconstitutionally vague or overbroad as applied to that conduct, see United States v. Eshetu, 863 F.3d 946, 952 (D.C. Cir. 2017), vacated on other grounds, 898 F.3d 36 (D.C. Cir. 2018) (“The defense of failure of an indictment to charge an offense includes the claim that the statute apparently creating the offense is unconstitutional.” (quoting United States v. Seuss, 474 F.2d 385, 387 n.2 (1st Cir. 1973))). The Court, in other words, need decide only whether the offense that the indictment charges-corruptly obstructing, influencing, or impeding “Congress's certification of the Electoral College vote” or attempting to do so-is, in fact, a crime, and, if so, whether Section 1512(c)(2), as applied to that charge, comports with due process and the First Amendment.

As explained below, the indictment clears these initial hurdles. The Court will, accordingly, DENY Defendants' motion to dismiss Count 10 of the second superseding indictment, Dkt. 80.

I.

A.

At 1:00 p.m. on January 6, 2021, Congress convened in a joint session, as required by the Twelfth Amendment and the Electoral Count Act, 3 U.S.C. § 15, to certify the Electoral College vote in the 2020 presidential election. Dkt. 1-1 at 1 (Apr. 1, 2021).^[1] Then-Vice President Mike Pence, as President of the Senate, presided over the session. Id. Around 1:30 p.m., the Senate returned to its own chamber so that the House and Senate could separately consider an objection to the Electoral College vote from the State of Arizona. Id. While the certification process was ongoing, a crowd marched toward the Capitol from a rally at which then-President Trump and others had spoken. Id.; see also United States v. Munchel, 991 F.3d 1273, 1275-76 (D.C. Cir. 2021); United States v. Hale-Cusanelli, No. 21-3029, 2021 WL 2816245, at *1 (D.C. Cir. July 7, 2021).

The Capitol and its exterior plaza were closed to members of the public that day. Dkt. 1-1 at 1 (Apr. 1, 2021). The United States Capitol Police had erected barriers around the Capitol grounds, and the exterior doors of the Capitol were locked. Id. As the crowd outside the Capitol swelled, the protest turned into a violent riot. The mob pushed past police barriers and, around 2:00 p.m., breached the Capitol. Id. Twenty minutes later, “[t]hen-Vice President Pence, Senators, and Representatives were all forced to halt their constitutional duties and [to] flee the House and Senate chambers for safety.” Trump v. Thompson, No. 21-5254, 2021 WL 5832713, at *1 (D.C. Cir. Dec. 9, 2021). “The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.” Id. Of particular relevance here, the rampage also required Congress to suspend the electoral vote certification proceedings for over five-and-a-half hours. It was not until 3:40 a.m. the next day that Congress ultimately certified “the ascertainment and counting of the electoral votes” and reported “that Joe Biden and Kamala Harris will be the President and Vice President, according to the ballots that have been given to us.” 167 Cong. Rec. at ¶ 114-15.

According to the government, “body-worn camera footage from the Metropolitan Police Department . . . shows Knowlton and Montgomery [together] outside the Capitol at around 2:00 p.m.” on January 6, 2021. Dkt. 41 at 3. During the melee, Montgomery allegedly “tried to grab a Metropolitan Police Department officer's baton, wrestled him to the ground for it, and then kicked the officer in the chest.” Dkt. 31 at 4. Knowlton wore a “tactical vest, ” Dkt. 1-1 at 2 (Apr. 1, 2021), and, with Montgomery standing behind him, yelled at the police officers, “You took an oath! You took an oath! . . . Are you our brothers?” Dkt. 41 at 3. Video footage then shows Defendants entering the Capitol “through a door on the Upper West Terrace at approximately 2:25 p.m., ” before proceeding to the Rotunda and then the Rotunda Lobby. Dkt. 1-1 at 3-4 (Apr. 1, 2021). From there, Defendants made their way to the third floor and entered the Senate Chamber Gallery. Id. at 5. Later, “after leaving the Gallery, . . . [D]efendants encountered additional law enforcement officers.” Dkt. 63 at 12. Body-worn camera video shows both Defendants “confronting officers inside the Capitol in a hallway near Senate Majority Leader [Charles] Schumer's office” and “direct[ing] officers to move out of the way.” Dkt. 41 at 3. At one point, the government alleges, “Knowlton told the officers, ‘This is not about us. This is bigger than me, it's bigger than you. It's about everyone's right to self-government. . . . This is happening. Our vote doesn't matter, so we are here for change.'” Dkt. 63 at 12. Montgomery added: “You gotta quit doing your job and be an American.” Id.

The following day, an acquaintance emailed Montgomery to inform him that he had been reported to the authorities. Dkt. 1-1 at 3 (Jan. 13, 2021). Montgomery responded that he was “not a scared cat or running from anything” and that he was “so deeply covered by the best Federal Defense lawyers in the country in case you chicken shit cry boys don't want [to do what] it takes to defend our freedom from these corrupt politicians.” Id. Montgomery also posted photos of the riot to his Facebook page, including photos showing him and Knowlton at the Capitol. Id. at 6. He wrote: “This is Americans fighting for their country!” Id. He also posted a photograph from inside the Senate chamber, with the caption “[w]e stormed the Senate . . . [and] opened those Chamber door[s] for Transparency.” Id. at 7.

B.

Defendants are charged in the second superseding incitement with ten counts, only the last of which is at issue here. Dkt. 74. The first four counts name only Montgomery and relate to his alleged assault of a Metropolitan Police Department officer. Id. at 2-3. In those counts, Montgomery is charged with assaulting, resisting, or impeding certain officers in violation of 18 U.S.C. § 111(a)(1); civil disorder in violation of 18 U.S.C. § 231(a)(3); engaging in physical violence in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(4); and an act of physical violence in the Capitol grounds or buildings in violation of 40 U.S.C. § 5014(e)(2)(F). Id. The remaining six counts charge both Montgomery and Knowlton with entering and remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1); disorderly and disruptive conduct in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(2); disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(D); parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G); entering and remaining in the gallery of Congress in violation of 40 U.S.C. § 5104(e)(2)(B); and, finally, obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2) and aiding and abetting the obstruction of an official proceeding in violation of 18 U.S.C. § 2. Dkt. 74 at 3- 5.

On June 18, 2021, Knowlton filed a motion to dismiss the obstruction-of-an-official-proceeding charge...