United States v. Mostofsky

• Decision Date: 21 December 2021
• Docket Number: Criminal Action No. 21-138 (JEB)
• Parties: UNITED STATES of America v. Aaron MOSTOFSKY, Defendant.
• Court: U.S. District Court — District of Columbia

579 F.Supp.3d 9

UNITED STATES of America

v.Aaron MOSTOFSKY, Defendant.

Criminal Action No. 21-138 (JEB)

United States District Court, District of Columbia.

Signed December 21, 2021

Graciela Rodriguez Lindberg, Assistant U.S. Attorney, United States Attorney's Office, Laredo Division, Laredo, TX, Jeffrey Napoleon Poulin, Kimberly Louise Paschall, Assistant U.S. Attorneys, U.S. Attorney's Office for District of Columbia, Washington, DC, for United States of America.

David Benjamin Smith, David B. Smith, PLLC, Alexandria, VA, Jeffrey Todd Schwartz, Law Office of Jeffrey T. Schwartz PC, Nicholas D. Smith, David B. Smith, PLLC, New York, NY, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

On January 6, 2021, Defendant Aaron Mostofsky was among the horde that descended on the United States Capitol while Congress was engaged in the certification of the Electoral College vote count for the 2020 Presidential election. In a Second Superseding Indictment, the Government charges Defendant with eight separate crimes, ranging from civil disorder and obstruction of an official proceeding to impeding officers and demonstrating in a Capitol building. In promulgating criminal statutes, past Congresses had understandably not fathomed that people might attempt to invalidate a lawful election by force in the Capitol itself. As a result, the Government has had to be somewhat more innovative in determining which charges to prosecute. Too innovative, claims Mostofsky, who contends in a Motion to Dismiss that certain counts are facially invalid, unconstitutional as applied to him, or violative of other legal doctrines. Although Defendant has offered many thoughtful and creative arguments in his lengthy and comprehensive Motion, the Court ultimately remains unpersuaded. As such, it will deny the Motion and permit the Indictment to stand.

I. Background

The Court gleans its understanding of the case by assuming as true the facts set forth in the Indictment and associated filings. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). According to the Criminal Complaint, filed January 11, 2021, with a joint session of Congress underway at the Capitol on the afternoon of January 6, Mostofsky was among a crowd that entered the building after certain individuals broke windows and overcame the U.S. Capitol Police. See ECF No. 1-1 (Statement of Facts) at 1. In an interview, Defendant explained that he had traveled from Brooklyn to Washington and stormed the U.S. Capitol in protest of the "stolen" election. Id. at 1–2. He was photographed inside the Capitol wearing a U.S. Capitol Police vest and holding a USCP riot shield. Id. at 2. According to the Government, he also "push[ed], individually or with others, against law enforcement officers setting up or adjusting barriers in a restricted area near the U.S. Capitol; and ... position[ed] himself in a way to prevent law enforcement from setting up or adjusting barriers between themselves and rioters outside the U.S. Capitol." ECF No. 38 (Gov. Resp. Bill of Particulars) at 2.

The Government indicted Mostofsky on February 19, 2021, on eight counts, see ECF No. 6 (Indictment), and then superseded several months later, also charging eight counts but with some minor tweaking. See ECF No. 25 (Super. Ind.). He has remained on release since his initial appearance. See Minute Entry of Jan. 25, 2021. During the pendency of the case, the parties have engaged in a number of legal and discovery disputes relating to, for example, the value of police items Mostofsky is alleged to have stolen, some specific language in particular counts, and whether the Government should be required to provide further information on certain charges. See, e.g., ECF Nos. 27 (First Motion for Bill of Particulars), 40 (Motion to Compel Federally Protected Function Evidence).

Being careful to shore up any technical defects in its charging documents, the Government recently filed a Second Superseding Indictment on November 10, 2021, see ECF No. 69, and trial is now set for March 23, 2022. This latest Indictment still charges eight counts, which are: I) Civil Disorder in violation of 18 U.S.C. § 231(a)(3) ; II) Obstruction of an Official Proceeding and Aiding and Abetting in violation of 18 U.S.C. §§ 1512(c)(2) and 2; III) Assaulting, Resisting, or Impeding Certain Officers in violation of 18 U.S.C. § 111(a)(1) ; IV) Theft of Government Property in violation of 18 U.S.C. § 641 ; V) Entering and Remaining in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(1) ; VI) Disorderly and Disruptive Conduct in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(2) ; VII) Disorderly Conduct in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D) ; and VIII) Parading, Demonstrating, or Picketing in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G).

In his current Motion, Mostofsky seeks the dismissal of Counts I, II, V, and VI. The Government opposes.

II. Legal Standard

Prior to trial, a defendant may move to dismiss an indictment (or specific counts) on the basis that there is a "defect in the indictment or information" including a "failure to state an offense." Fed. R. Crim P. 12(b)(3)(B)(v). "The operative question is whether the allegations, if proven, would be sufficient to permit a jury to" conclude that the defendant committed the criminal offense as charged. United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012) ; United States v. Bowdoin, 770 F. Supp. 2d 142, 146 (D.D.C. 2011). "[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, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

In reviewing the indictment, a court affords deference to the "fundamental role of the grand jury." Ballestas, 795 F.3d at 148 (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995) ). As a result, "[a]dherence to the language of the indictment is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury." United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). A court accordingly cabins its analysis to "the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphases and internal quotation marks omitted).

III. Analysis

Mostofsky argues that four counts of the Second Superseding Indictment should be dismissed. These counts were brought under several different statutes — 18 U.S.C. § 231(a)(3), 18 U.S.C. § 1512(c)(2) and § 2, and 18 U.S.C. § 1752(a)(1) and (2). The Court will consider each in the order it was presented in the Indictment.

A. 18 U.S.C. § 231(a)(3)

Defendant initially contends that Count One of the Second Superseding Indictment, which relies on 18 U.S.C. § 231(a)(3), should be dismissed. That count charges:

On or about January 6, 2021, within the District of Columbia, AARON MOSTOFSKY, committed and attempted to commit an act to obstruct, impede, and interfere with a law enforcement officer lawfully engaged in the lawful performance of his/her official duties incident to and during the commission of a civil disorder which in any way or degree obstructed, delayed, and adversely affected commerce and the movement of any article and commodity in commerce and the conduct and performance of any federally protected function.

Sec. Super. Ind. at 1–2. The language in the Second Superseding Indictment was drawn almost directly from the statute, as § 231(a)(3) states:

Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function—Shall be fined under this title or imprisoned not more than five years, or both.

The term "commerce" is further defined as "commerce (A) between any State or the District of Columbia and any place outside thereof; (B) between points within any State or the District of Columbia, but through any place outside thereof; or (C) wholly within the District of Columbia." 18 U.S.C. § 232(2). And "civil disorder" is defined as "any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual." 18 U.S.C. § 232(1).

Mostofsky maintains that the count is infirm because the statute exceeds Congress's power under the Commerce Clause and, alternatively, because the Government has failed to show that the "civil disorder" on January 6, 2021, "obstruct[ed], delay[ed], or adversely affect[ed]" a "federally protected function." ECF No. 47 (MTD) at 39–51. Since the Court can resolve the Motion purely on Commerce Clause grounds, it need not decide at this point whether any "federally protected function" was affected that day. Of course, should the Government seek to obtain a conviction at trial via the federally-protected-function prong, Defendant will have an opportunity to challenge that element down the road. Mostofsky also argues that the statute is overbroad under the First Amendment; either the statute must be limited or the charge dismissed. Id. at 51–54. The Court looks first at the Commerce Clause and then the First Amendment.

1. Interstate Commerce Clause

The Commerce Clause gives Congress the "[p]ower ... [t]o regulate Commerce ... among the several States."...