United States v. Nordean

• Decision Date: 28 December 2021
• Docket Number: Criminal Action No. 21-175 (TJK)
• Parties: UNITED STATES of America, v. Ethan NORDEAN et al., Defendants.
• Court: U.S. District Court — District of Columbia

579 F.Supp.3d 28

UNITED STATES of America,

v.Ethan NORDEAN et al., Defendants.

Criminal Action No. 21-175 (TJK)

United States District Court, District of Columbia.

Signed December 28, 2021

Erik Michael Kenerson, Luke Matthew Jones, James B. Nelson, Jason Bradley Adam McCullough, 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, Nicholas D. Smith, Pro Hac Vice, David B. Smith, PLLC, New York, NY, for Defendant Ethan Nordean.

John Daniel Hull, IV, Hull McGuire PC, Washington, DC, for Defendant Joseph R. Biggs.

Carmen D. Hernandez, Highland, MD, Jonathon Alden Moseley, Jonathan Moseley Attorney at Law, Burke, VA, Michelle M. Peterson, Federal Public Defender for the District of Columbia, Washington, DC, Shaka Johnson, Law Office of Shaka Johnson, LLC, Philadelphia, PA, for Defendant Zachary Rehl.

Ira Knight, Public Defender, Federal Public Defenders Office, Greensboro, NC, Lisa S. Costner, Public Defender, Federal Public Defender for the Middle District of North Car, Winston-Salem, NC, for Defendant Charles Donohoe.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Defendants Ethan Nordean, Joseph R. Biggs, Zachary Rehl, and Charles Donohoe are alleged, among other things, to have conspired to stop, delay, or hinder Congress's certification of the Electoral College vote on January 6, 2021, and to obstruct and interfere with law enforcement officers engaged in their official duties that day. They move to dismiss the First Superseding Indictment, arguing that the various statutes at issue do not apply to their alleged conduct, and that even if they do, the laws are unconstitutional as applied to them. They also argue that the First Superseding Indictment otherwise fails to adequately allege certain offenses. For the reasons explained below, the Court will deny the motion.

I. Background

In March 2021, a grand jury returned the First Superseding Indictment charging Defendants for their alleged roles in the events of January 6, 2021. According to the First Superseding Indictment, the month after the 2020 United States presidential election on November 3, 2020, the presidential electors of the United States Electoral College met in the state capital of each state and the District of Columbia. ECF No. 26 ¶ 3. Their task was to formalize the results of the election: that Joe Biden and Kamala Harris had won enough votes to be the next president and vice president of the United States. Id. And on January 6, 2021, a Joint Session of the United States House of Representatives and the United States Senate convened in the United States Capitol to certify the Electoral College's vote. Id. ¶ 4. But, the First Superseding Indictment alleges, Congress was attacked by a crowd that breached barriers erected by the United States Capitol Police and entered the Capitol by breaking windows and ramming open doors, forcing the evacuation of members of Congress and the halting of the Joint Session until later that evening. Id. ¶ 20–22. By the time law enforcement regained control over the Capitol and its grounds, about 81 members of the Capitol Police and 58 members of the Metropolitan Police Department had been assaulted, and the Capitol building had suffered millions of dollars in damage. Id. ¶ 23.

The First Superseding Indictment alleges that Defendants helped plan and orchestrate the events of January 6. Count One charges them with conspiracy under 18 U.S.C. § 371. ECF No. 26 ¶ 27. Defendants allegedly conspired "to stop, delay, or hinder Congress's certification of the Electoral College vote," in violation of 18 U.S.C. § 1512(c)(2), and "to obstruct and interfere with law enforcement officers engaged in their official duties to protect the Capitol and its occupants from those who had unlawfully advanced onto Capitol grounds," in violation of 18 U.S.C. § 231(a)(3). Id. Defendants—who allegedly held leadership positions or planning roles with the "Proud Boys" organization—purportedly carried out this conspiracy by, among other things, encouraging other Proud Boys to attend the protest on January 6; "[u]sing websites, social media, and other electronic communications to raise funds to support travel and equipment purchases for the visit to Washington, D.C."; "[o]btaining paramilitary gear and supplies—including tactical vests, protective equipment, and radio equipment—for the January 6 attack"; "[s]cheming to evade detection by law enforcement by dressing ‘incognito’ rather than wearing Proud Boys colors"; traveling to Washington, D.C., "prior to the attack"; using "programmable handheld radios, encrypted messaging applications, and other communications equipment to communicate and coordinate the January 6 attack"; "[d]ismantling" police barricades, and "[s]torming past" those barricades and law enforcement officers "in efforts to disrupt the proceedings at the Capitol"; and obtaining "entry into the Capitol building as a result of damage to windows and doors that otherwise would have precluded entry." Id. ¶ 28. The First Superseding Indictment also alleges that Defendants engaged in a series of detailed overt acts in furtherance of the conspiracy, described below.

In November 2020, Nordean, Biggs, and Rehl allegedly described what would happen if the election were "stolen." ECF No. 26 ¶¶ 31–36. Two days after Election Day, Biggs posted on social media, "It's time for fucking War if they steal this shit." Id. ¶ 31. Nordean supposedly said, "What's more disturbing to me than the Dems trying to steal this election, is how many people ... just accepted Biden won, despite the obvious corruption[.]" Id. ¶ 32 (ellipsis in original). And he allegedly later warned, "We tried playing nice and by the rules, now you will deal with the monster you created." Id. ¶ 34. Rehl posted: "Hopefully the firing squads are for the traitors that are trying to steal the election from the American people." Id. ¶ 35. And Rehl allegedly described January 6 as "the day where Congress gets to argue the legitimacy of the [E]lectoral [C]ollege votes, and yes, there will be a big rally on that day." Id. ¶ 36 (alterations in original).

By December, Nordean and Rehl started to raise funds for January 6. ECF No. 26 ¶¶ 37–38. Nordean allegedly created an online crowdfunding campaign, soliciting money not only for "communications" but also for "[p]rotective gear" for Proud Boys who would attend. Id. ¶ 37. And he supposedly "shared a link to this crowdsourcing campaign on his social media page and encouraged others to share it" as well. Id. Rehl also allegedly shared a link to an online fundraiser with the name "Travel Expenses for upcoming Patriot Events." Id. ¶ 38.

In the days before January 6, Defendants allegedly communicated covertly to plan for the events of that day. ECF No. 26 ¶¶ 39–48. On January 5, Defendants all joined a specific encrypted messaging channel called "Boots on the Ground," which "was created for communications by Proud Boys members in Washington, D.C." Id. ¶ 42. The channel had been created after Donohoe expressed concern that a prior channel might be compromised by law enforcement. Id. ¶ 39. Not long afterward, a co-conspirator allegedly posted on the channel: "We had originally planned on breaking the guys into teams. Let's start divying them up and getting baofeng channels picked out." Id. ¶ 41. "Baofeng" is a "manufacturer of handheld radios and other communications equipment," according to the First Superseding Indictment. Id. ¶ 41 n.1. Biggs allegedly posted a message shortly after the channel was created, noting that he was with Nordean and that "[t]omorrow's the day." Id. ¶ 42. He then apparently asked for "numbers" so that he and others could "plan accordingly for tonight and go over tomorrow's plan." Id. ¶ 43. Biggs later posted in one of the encrypted messaging channels, "We have a plan." Id. ¶ 48. When Donohoe asked what the plan was so he could pass it on, Biggs allegedly responded that he had given a plan to the Proud Boys Chairman. Id.

On the morning of January 6, "a group of Proud Boys members gathered near the Washington Monument." ECF No. 26 ¶ 51. Early that morning, Donohoe communicated that he "had the keys until [Nordean] and [Rehl] show up." Id. at 50 (cleaned up). Nordean, Biggs, and Rehl allegedly "led the group, which included Donohoe, to the east side of the Capitol." Id. ¶ 52 (capitalization altered). The group with Defendants "were not wearing Proud Boys colors of black and yellow," id. ¶ 53, consistent with an earlier directive given by Defendants and others, id. ¶ 12. Just before 1:00 p.m.—when "the Joint Session convened in the Capitol to certify the Electoral College vote," id. ¶ 17—the group, allegedly led again by Nordean, Biggs, and Rehl, and including Donohoe, moved to the Capitol entrance on First Street, "which was secured by a small number of Capitol Police who were standing behind waist height metal barriers," id. ¶ 54.

According to the First Superseding Indictment, shortly after Defendants got to the First Street entrance, the metal barriers were "violently disassembled and trampled by the crowd." ECF No. 26 ¶ 55. Defendants crossed over the same barriers, and "charged" toward the Capitol. Id. As Defendants moved toward the building, individuals who had arrived with them apparently continued to remove metal barriers. Id. ¶ 56. Eventually, Defendants came to the "west plaza of the Capitol where additional metal barricades and law enforcement were deployed to protect the Capitol and its occupants from the advancing crowd." Id. ¶ 57. Nordean and Biggs allegedly shook one of the barricades until they and others "were able to knock it down." Id. ¶ 58. Defendants and the rest of the crowd then advanced past it, toward the Capitol. Id.

Arriving at the west plaza, Nordean and Biggs allegedly "positioned themselves at or near the front of the crowd." ECF No. 26 ¶ 59. Biggs then...