United States v. Nordean

• Decision Date: 11 December 2022
• Docket Number: CRIMINAL ACTION 21-175 (TJK)
• Parties: UNITED STATES OF AMERICA, v. ETHAN NORDEAN et al., Defendants.
• Court: U.S. District Court — District of Columbia

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UNITED STATES OF AMERICA, v. ETHAN NORDEAN et al., Defendants.

CRIMINAL ACTION No. 21-175 (TJK)

United States District Court, District of Columbia

December 11, 2022

MEMORANDUM OPINION

TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE

DefendantsEthan Nordean, Joseph R. Biggs, Zachary Rehl, Enrique Tarrio and Dominic J. Pezzola are charged with various conspiracy and other offenses in connection with the attack on the U.S Capitol on January 6, 2021.Nordean and Rehl have moved to dismiss various counts in the Third Superseding Indictment particularly the newly added charges of seditious conspiracy, in violation of 18 U.S.C. § 2384, and conspiracy to prevent a United States officer from exercising his or her duties, in violation of 18 U.S.C. § 372.Biggs, Tarrio, and Pezzola join them.Pezzola has also moved to dismiss a count that charges him with robbing a riot shield from a Capitol Police officer under 18 U.S.C. § 2112.^[1] For the following reasons, the Court will deny the motions.

I.Background

Defendants are associated with the Proud Boys organization, charged with playing leadership or planning roles in the attack on the U.S. Capitol on January 6, 2021.In December 2021, the Court denied Defendants' motion to dismiss the First Superseding Indictment(“FSI”).SeeUnited States v. Nordean, 579 F.Supp.3d 28, 62(D.D.C.2021)(“Nordean I”).Since then, the grand jury has returned two more superseding indictments, including the operative Third Superseding Indictment in June 2022.ECF No. 380(“TSI”).

The Court assumes familiarity with the factual background related to these charges, as set forth in Nordean I.See579 F.Supp.3d at 37-40.But the TSI reflects some changes since then: As compared to the FSI, the TSI includes both Tarrio and Pezzola as defendants and omits Charles Donohoe, who pleaded guilty to violations of 18 U.S.C. §§ 1512(k)and111(a) on April 8, 2022.SeeECF No. 335.It also adds new charges for seditious conspiracy under 18 U.S.C. § 2384(Count 1) and conspiracy to prevent a federal officer from discharging his duties under 18 U.S.C. § 372(Count 4).Specifically, Count 1 alleges Defendants knowingly conspired “to oppose by force the authority of the Government of the United States and by force to prevent, hinder, and delay the execution of [a] law of the United States,” that is, the Twelfth Amendment to the U.S. Constitution and the Electoral Count Act, 3 U.S.C. § 15.TSI ¶¶ 26-27.And Count 4 charges that they knowingly conspired “to prevent by force, intimidation, and threat . . . Members of the United States Congress and law enforcement officers” from discharging the “duties of [an] office, trust, and place of confidence under the United States” and to, by the same means, induce members of Congress and law enforcement “to leave the place where their duties as officers were required to be performed.”Id.¶ 114.

Nordean moves to dismiss Counts 1, 4, 7, 8, and 9.In the alternative, he requests a bill of particulars on every count but Count 6, which charges destruction of government property in violation of 18 U.S.C. § 1361.Rehl moves to dismiss all counts on First Amendment and Presentment Clause grounds and to dismiss Counts 1 through 4 for more targeted reasons.Pezzola moves to dismiss his robbery charge in Count 10.The parties devote most of their briefing to Counts 1 and 4.Thus, the Court begins there and then tackles the various other grounds Defendants argue for dismissal.^[2]

II.Legal Standard

Before trial, a criminal defendant may move to dismiss a charge based on a “defect in the indictment.”Fed. R. Crim. P. 12(b)(3)(B).One such defect is “failure to state an offense.”Id.When considering such a challenge, “a district court is limited to reviewing the face of the indictment” and must assume the indictment's allegations are true.United States v. Sunia, 643 F.Supp.2d 51, 60(D.D.C.2009)(cleaned up).“The operative question is whether [those] allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed.”United States v. Sanford, Ltd., 859 F.Supp.2d 102, 107(D.D.C.2012).Courts also treat constitutional challenges to the statute on which a charge is based as a claim for failure to state an offense.SeeUnited States v. Stone, 394 F.Supp.3d 1, 7(D.D.C.2019);United States v. Seuss, 474 F.2d 385, 387 n.2(1st Cir.1973).

III.Analysis

A.Count 1 States an Offense Under 18 U.S.C. § 2384

Nordean and Rehl both move to dismiss Count 1, which charges Defendants with seditious conspiracy under 18 U.S.C. § 2384.Specifically, Count 1 alleges that Defendants knowingly conspired “to oppose by force the authority of the Government of the United States and by force to prevent, hinder, and delay the execution of any law of the United States.”TSI ¶ 26.The TSI further alleges that “[t]he purpose of the conspiracy was to oppose the lawful transfer of presidential power by force, by opposing the authority of the Government of the United States and by preventing, hindering, or delaying by force the execution of the laws governing the transfer of power, including the Twelfth Amendment to the Constitution and [the Electoral Count Act].”Id.¶ 27.

Nordean argues that Count 1 fails to state an offense because it does not charge Defendants with conspiring to prevent, hinder, or delay by force the execution of a law in all its applications and because it does not allege sufficient facts showing Defendants conspired to employ the statute's requisite “force.”ECF No. 434at 11-32.Rehl similarly argues that Count 1 fails to adequately state Section 2384's “force” element and that the element is unconstitutionally vague.ECF No. 443at 2-5.On all fronts, the Court is unpersuaded.

1.Statutory Background

Under Section 2384, a “seditious conspiracy” is any conspiracy

[(1)] to overthrow, put down, or to destroy by force the Government of the United States, or [(2)] to levy war against them, or [(3)] to oppose by force the authority thereof, or [(4)] by force to prevent, hinder, or delay the execution of any law of the United States, or [(5)] by force to seize, take, or possess any property of the United States contrary to the authority thereof.

18 U.S.C. § 2384.Relevant here are clauses three and four, which the Court refers to as the “authority clause” and the “execution clause,” respectively.

Some background on the statute's history, including its predecessors, informs the Court's construction of Section 2384's reach.At the outset of the Civil War, Congress passed the first precursor to Section 2384.The Conspiracies Act of 1861 made it a crime, punishable by up to six years' imprisonment, to engage in any of the conspiracies listed in Section 2384, or “by force, or intimidation, or threat to prevent any person from accepting or holding any office, or trust, or place of confidence under the United States.”Act ofJuly 31, 1861, ch. 33, 12 Stat. 284.The statute filled a gap in the criminal law, covering crimes short of treason but greater than misdemeanor obstruction of a federal officer.SeeLeslie Friedman Goldstein, Legal Histories of America's Second Revolutionary War (1860-1876), 52 TulsaL. Rev. 495, 504(2017).

Ten years later, the same conspiracy provisions reemerged as part of the Enforcement Act of 1871, or the Ku Klux Klan Act.Act of Apr. 20, 1871, ch. 22, § 2,17 Stat. 13(codified at Rev. Stat. title 70, ch. 2, § 5336(1878)).Congress reenacted these conspiracy offenses along with several provisions designed to combat private violence by the Ku Klux Klan and like organizations.SeeJett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 722(1989).

Materially identical provisions appeared in Title 18 for the first time in 1909.SeeAct ofMar. 4, 1909, ch. 1, § 6, 35 Stat. 1089(codified at 18 U.S.C. § 6(1940)).A series of prosecutions for these offenses followed.After World War I broke out, several groups allegedly conspired to oppose the military draft by force.The government brought charges under 18 U.S.C. § 6, which courts upheld consistently.See, e.g., Isenhouer v. United States, 256 F. 842, 843(8th Cir.1919);Orear v. United States, 261 F. 257, 260(5th Cir.1919);Bryant v. United States, 257 F. 378, 38082(5th Cir.1919).

In 1948, Congress recodified these offenses in 18 U.S.C. § 2384.With this change, Congress also adopted the term “seditious conspiracy” as the statute's title.See18 U.S.C. § 2384.Despite its new name, the law's substance remained unchanged from the 1909 version.SeeH.R. Rep. No. 80-304, at ¶ 148(1947)(noting the new Section 2384 was “[u]nchanged” from the 1909statute).And finally, Congress raised the act's maximum penalty from six to twenty years' incarceration after the attack on the U.S. Capitol in 1954, in which armed Puerto Rican nationals opened fire in the House of Representatives' gallery, wounding five members of Congress.SeeAct ofJuly 24, 1956, Pub. L. No. 84-766, ch. 678, 70 Stat. 623.

2.The TSI Alleges that Defendants Conspired to Prevent, Hinder, or Delay by Force the Execution of a Law in All its Applications

Nordean's first argument is that the seditious-conspiracy statute reaches “attempts to prevent the law's execution in all cases,” but not “attempts to prevent the execution of a federal law in order to avoid its application to a particular set of facts.”ECF No. 434at 13.And he contends Count 1 alleges only that “Nordean and the defendants conspired to prevent the Twelfth Amendment and [Electoral Count Act] from being applied in a mannerthey apparently sincerely believed to be mistaken,” not that they intended “to prevent the execution of the Twelfth Amendment and [Electoral Count Act]as such.”Id. at 15(emphasis added).The Court disagrees...