United States v. Puma

Decision Date19 March 2022
Docket NumberCriminal No. 21-0454 (PLF)
Citation596 F.Supp.3d 90
Parties UNITED STATES of America v. Anthony PUMA, Defendant.
CourtU.S. District Court — District of Columbia

Amy Elizabeth Larson, Assistant U.S. Attorney, United States Attorney's Office, Washington, DC, Francesco Valentini, Assistant U.S. Attorney, DOJ-CRM, Criminal Division, Appellate Section, Washington, DC, James Pearce, Assistant U.S. Attorney, U.S. Department of Justice, Department of Justice, Criminal Division, Washington, DC, Amanda Jawad, Assistant U.S. Attorney, DOJ-USAO, Detroit, MI, for United States of America.

Maria Jacob, Public Defender, Celia Goetzl, Public Defender, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.


PAUL L. FRIEDMAN, United States District Judge Defendant Anthony Puma has filed a Motion to Dismiss Counts One, Two, and Three of the Indictment ("Def. Mot.") [Dkt. No. 20] pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, arguing that those counts "fail to state an offense and fail to give proper notice to the defendant." Id. at 1. The United States opposes the motion, asserting that the charges in the indictment satisfy the requirements of the applicable rules and of the United States Constitution, and that Mr. Puma incorrectly characterizes the statutes pursuant to which he has been charged. Opposition to Defendant's Motion to Dismiss Counts One, Two, and Three of the Indictment ("Gov't Opp.") [Dkt. No. 23] at 1-2.

For the following reasons, the Court concludes that the indictment adequately states the offenses with which Mr. Puma is charged and provides sufficient notice. The Court therefore will deny Mr. Puma's motion.1


The charges against Mr. Puma relate to the events at the United States Capitol on January 6, 2021. The Court provides the following factual summary "for background purposes only," and these facts "do not inform the Court's analysis of [Mr. Puma's] motion to dismiss, which must be limited to ‘the four corners of the indictment.’ " United States v. Montgomery, Crim. No. 21-046, 578 F.Supp.3d 54, 59 n.1 (D.D.C. Dec. 28, 2021) (quoting United States v. Safavian, 429 F. Supp. 2d 156, 161 n.2 (D.D.C. 2006) ).

On January 6, 2021, a joint session of Congress convened to certify the results of the 2020 presidential election. Statement of Facts at 1; see also Trump v. Thompson, 20 F.4th 10, 17 (D.C. Cir. 2021). This certification process is mandated by the Twelfth Amendment to the U.S. Constitution and by the Electoral Count Act. See U.S. CONST. amend. XII ; 3 U.S.C. § 15.

Then-Vice President Mike Pence was present and presided over the certification. Statement of Facts at 1. The U.S. Capitol Police "set up security barriers on the Capitol grounds" and posted signs indicating that the area was closed. Gov't Opp. at 2-3.

Shortly before noon, at a rally at the White House, then-President Donald Trump "reiterated his claims that the election was ‘rigged’ and ‘stolen,’ and urged then-Vice President Pence ... to ‘do the right thing’ by rejecting the various States’ electoral votes and refusing to certify the election in favor of [Joseph] Biden." Trump v. Thompson, 20 F.4th at 17-18. As the court of appeals has recounted:

Shortly after the speech, a large crowd of President Trump's supporters – including some armed with weapons and wearing full tactical gear – marched to the Capitol and violently broke into the building to try and prevent Congress's certification of the election results. The mob quickly overwhelmed law enforcement and scaled walls, smashed through barricades, and shattered windows to gain access to the interior of the Capitol. Police officers were attacked with chemical agents, beaten with flag poles and frozen water bottles, and crushed between doors and throngs of rioters. As rioters poured into the building, members of the House and Senate, as well as Vice President Pence, were hurriedly evacuated from the House and Senate chambers. Soon after, rioters breached the Senate chamber. In the House chamber, Capitol Police officers barricaded the door with furniture and drew their weapons to hold off rioters.... Capitol Police were not able to regain control of the building and establish a security perimeter for hours. The Joint Session reconvened late that night. It was not until 3:42 a.m. on January 7th that Congress officially certified Joseph Biden as the winner of the 2020 presidential election.

Id. at 18 (internal citations and quotation marks omitted); see also Statement of Facts at 1-2. The United States alleges that Mr. Puma was a member of the crowd that entered the Capitol building that day and engaged in certain activities while there. See Indictment at 2.

A week before the insurrection, on December 31, 2020, Mr. Puma posted the following comments on Facebook: "On the 6th when we are all there in the capital and he is givin (sic) his second term the people will see. Then you never know we might have to start killing some commie bastards. #stopthesteal." Statement of Facts at 7. Mr. Puma left his home in Michigan on January 5, 2021 and traveled by car to Washington, D.C., where he and his friends stayed until January 7, 2021. Id. at 3. On January 5, he commented on a Facebook photo of a crowd of people carrying Trump signs or flags, "Tomorrow is the big day. Rig for Red, War is coming." Id. at 8-9. In another post that same day, he wrote, "We are here. What time do we storm the House of Representatives? .... Hopefully we are storming the House of Representatives tomorrow at 100pm." Id. at 9.

On January 6, 2021, after attending the rally at which former President Trump spoke, Mr. Puma and his friends walked with the crowd to the U.S. Capitol. Statement of Facts at 3. In a video, Mr. Puma reportedly "can be heard encouraging others in front of him to move forward and clear the way for others trying to scale the wall of the Capitol." Id. at 5. Mr. Puma also "can be heard telling someone that he just scaled the wall." Id. at 6. The footage shows Mr. Puma "enter[ing] the U.S. Capitol through a window which was breached next to the west entrance." Id. In subsequent Facebook posts, Mr. Puma wrote: "When I got up and over the wall I walked right into the front door and walked around in the capital bldg. Cops everywhere everyone peaceful." Id. at 11. In comments on Facebook following the Capitol riot, Mr. Puma wrote: "I was there. They were flash banging us. Tear Gassing us. Pepper spraying us. We were outside. Don't believe the NEWS. I have hours of video on my go pro." Id. at 9. Mr. Puma allegedly live-streamed his activities at the Capitol on January 6. Id. at 2; Gov't Opp. at 5.

On May 25, 2021, the United States charged Mr. Puma by criminal complaint with four misdemeanor offenses arising out of his conduct in relation to the Capitol riot. See Complaint [Dkt No. 1]. On July 7, 2021, a grand jury returned an indictment charging Mr. Puma with the same four misdemeanor offenses and one felony. See Indictment.

On November 1, 2021, Mr. Puma moved to dismiss Count One, Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2; Count Two, Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1) ; and Count Three, Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2). Indictment at 1-2; Def. Mot. at 1. The parties appeared via videoconference on January 28, 2022 for oral argument. The motion is now ripe for decision.

Mr. Puma makes four arguments in favor of dismissal. First, he contends that Count One fails to state an offense as charged because "Congress's role in counting the electoral votes ... is not an ‘official proceeding’ contemplated in § 1512." Def. Mot. at 8. Second, Mr. Puma argues that Section 1512(c)(2) is unconstitutionally vague because it refers to acting "corruptly" in relation to an "official proceeding," and because it includes a residual clause. Id. at 10-17. Third, Mr. Puma argues that Counts Two and Three, which both charge violations of 18 U.S.C. § 1752, fail to state offenses because the U.S. Capitol Police, rather than the U.S. Secret Service, restricted the Capitol and its grounds. Id. at 17-20. And fourth, he argues that Counts Two and Three fail to state offenses because then-Vice President Pence and then-Vice President-elect Harris were not "temporarily visiting" the Capitol on January 6, 2021. Id. at 20-22.

At least eleven other decisions from this Court have denied motions to dismiss filed by Capitol insurrection defendants raising some combination of these and other arguments. See United States v. Andries, Crim. No. 21-093, 2022 WL 768684 (D.D.C. Mar. 14, 2022) (Contreras, J.); United States v. Bozell, Crim. No. 21-216, 2022 WL 474144 (D.D.C. Feb. 16, 2022) (Bates, J.); United States v. Grider, Crim. No. 21-0022, 585 F.Supp.3d 21 (D.D.C. Feb. 9, 2022) (Kollar-Kotelly, J.); United States v. McHugh, Crim. No. 21-453, 583 F.Supp.3d 1 (D.D.C. Feb. 1, 2022) (Bates, J.); United States v. Reffitt, Crim. No. 21-032 (D.D.C. Dec. 29, 2021) [Dkt. No. 81] (Friedrich, J.); United States v. Montgomery, Crim. No. 21-046, 578 F.Supp.3d 54 (D.D.C. Dec. 28, 2021) (Moss, J.); United States v. Nordean, Crim. No. 21-175, 579 F.Supp.3d 28 (D.D.C. Dec. 28, 2021) (Kelly, J.); United States v. Mostofsky, Crim. No. 21-138, 579 F.Supp.3d 9 (D.D.C. Dec. 21, 2021) (Boasberg, J.); United States v. Caldwell, Crim. No. 21-028, 581 F.Supp.3d 1 (D.D.C. Dec. 20, 2021) (Mehta, J.); United States v. Sandlin, Crim. No. 21-88, 575 F.Supp.3d 16 (D.D.C. Dec. 10, 2021) (Friedrich, J.); United States v. Griffin, 549 F.Supp.3d 49 (D.D.C. 2021) (McFadden, J.). Each of these judges has rejected the same or analogous arguments advanced by Mr. Puma. One judge of this Court, however, has accepted some of these arguments and granted, in full and in part, two defendantsmotions to dismiss. See ...

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