United States v. Rhodes

• Decision Date: 28 June 2022
• Docket Number: 22-cr-15 (APM)
• Parties: UNITED STATES OF AMERICA v. ELMER STEWART RHODES, III et al., Defendants.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. ELMER STEWART RHODES, III et al., Defendants.

No. 22-cr-15 (APM)

United States District Court, District of Columbia

June 28, 2022

MEMORANDUM OPINION AND ORDER

Amit P. Mehta United States District Court Judge

I. INTRODUCTION

Defendants in this case-nine in total-are Elmer Stewart Rhodes, III Kelly Meggs; Kenneth Harrelson; Jessica Watkins; Roberto Minuta; Joseph Hackett; David Moerschel; Thomas Caldwell; and Edward Vallejo. They are alleged to be members of a group known as the Oath Keepers. Defendants stand accused of four common counts related to the Certification of the Electoral College vote on January 6, 2021, before a Joint Session of Congress. Those counts are: (1) seditious conspiracy, in violation of 18 U.S.C. § 2384 (Count One); (2) conspiracy to obstruct an official proceeding, in violation of 18 U.S.C. § 1512(k) (Count Two); (3) obstruction of an official proceeding and aiding and abetting, in violation of 18 U.S.C. §§ 1512(c)(2), 2 (Count Three); and (4) conspiracy to prevent an officer from discharging any duties, in violation of 18 U.S.C. § 372 (Count Four). All Defendants have moved to dismiss each of these counts.

In addition, all Defendants except Watkins and Vallejo are charged with tampering with documents or proceedings and aiding and abetting in violation of 18 U.S.C. §§ 1512(c)(1), 2 (Counts Nine-Eleven, Thirteen-Fifteen, Seventeen).^[1] Four Defendants-Hackett, Meggs, Harrelson, and Minuta-have moved to dismiss their respective tampering counts or, in the alternative, to sever them from the remaining charges.^[2]

Last, all Defendants seek to transfer the case from this District Court to the Alexandria Division of the U.S. District Court for the Eastern District of Virginia.

For the reasons that follow, the court holds that the indictment sufficiently states the offenses of seditious conspiracy, obstruction and conspiracy to obstruct an official proceeding, and conspiracy to prevent an officer from discharging official duties. It also sufficiently states offenses of tampering with documents or proceedings. Additionally, Defendants have not shown that a change in venue is warranted. Accordingly, Defendants' motions are denied.

II. BACKGROUND

A. United States v. Caldwell

The roots of this case trace back to the weeks immediately following the attack on the U.S. Capitol Building on January 6, 2021. On or about January 27, 2021, a grand jury charged Defendants Caldwell and Watkins and a third person, Donovan Crowl, in a four-count indictment in a case titled United States v. Caldwell. The lead charges in that case were (1) conspiracy to “stop, delay, and hinder Congress's certification of the Electoral College vote,” in violation of 18 U.S.C. § 371, and (2) obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). See Indictment, United States v. Caldwell, 21-cr-28 (APM) (D.D.C.) [hereinafter Caldwell Docket], ECF No. 4, ¶¶ 18, 55-56.

Over time, the grand jury issued multiple superseding indictments in Caldwell, adding both new defendants and counts. The Sixth Superseding Indictment, returned on or about December 1, 2021, named 17 defendants and charged them with seven different offenses over 15 counts. See Sixth Superseding Indictment, Caldwell Docket, ECF No. 513. The lead counts against all 17 Caldwell defendants remained violations of § 371 and § 1512(c)(2). See id. ¶¶ 36-180. The Caldwell defendants moved to dismiss those counts, and the court denied their motions on December 20, 2021. See United States v. Caldwell (Caldwell I), No. 21-cr-28 (APM), 2021 WL 6062718, at *22 (D.D.C. Dec. 20, 2021). The court also denied a motion for reconsideration. See United States v. Caldwell (Caldwell II), No. 21-cr-28 (APM), 2022 WL 203456, at *3 (D.D.C. Jan. 24, 2022).

The Caldwell defendants also filed a motion to transfer the case from the District of Columbia. The court denied the request. Omnibus Order, Caldwell Docket, ECF No. 415 [hereinafter Caldwell Omnibus Order], at 10-11.

B. United States v. Rhodes

In mid-January 2022, the Caldwell matter split into three different cases. The grand jury returned the indictment in the present case, titled United States v. Rhodes, on January 12, 2022, against 11 defendants alleging eight separate violations of law over 17 counts. Indictment, ECF No. 1. The persons charged included nine original Caldwell defendants-Kelly Meggs, Kenneth Harrelson, Jessica Watkins, Joshua James, Roberto Minuta, Joseph Hackett, David Moerschel, Brian Ulrich, and Thomas Caldwell-plus the alleged leader of the Oath Keepers, Elmer Stewart Rhodes, III and one other alleged member, Edward Vallejo.^[3] Id. The remaining Caldwell defendants, except Jonathan Walden, were named in a new indictment on the same docket, with the case re-titled United States v. Crowl. Seventh Superseding Indictment, Caldwell Docket, ECF No. 583. Walden was spun out to a stand-alone case. Indictment, United States v. Walden, 22-cr-14 (APM) (D.D.C.), ECF No. 1.

In mid-April 2022, various Defendants in this matter filed motions to dismiss the first four counts of the Rhodes indictment for failure to state an offense, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(v). The lead motion is Defendant Caldwell's Motion to Dismiss Counts 1, 2, 3 & 4 of the Indictment, ECF No. 84 [hereinafter Caldwell MTD].^[4] All other Defendants joined in this motion.^[5] Defendants Meggs, Hackett, and Vallejo also filed motions advancing complementary theories of dismissal. See Def. Kelly Meggs's Mot. to Dismiss Count I of the Indictment, ECF No. 82 [hereinafter Meggs MTD]; Def. Hackett's Mot. to Dismiss Counts One, Two, Three, & Four of the Indictment & Mem. of L. in Supp. Thereof, ECF No. 89 [hereinafter Hackett MTD Counts 1-4]; Def. Vallejo's Mot. to Dismiss Count One & to Strike Any Remaining Surplusage, ECF No. 94 [hereinafter Vallejo MTD]. Defendants Hackett and Vallejo, in particular, assert that Counts One through Four must be dismissed for lack of specificity pursuant to Rule 12(b)(3)(v).

In addition, Defendant Hackett filed a motion to dismiss Count Fourteen, which charges a violation of § 1512(c)(1). See Def. Hackett's Mot. to Dismiss Count Fourteen of the Indictment & Mem. of L., ECF No. 90 [hereinafter Hackett MTD Count 14]. Alternatively, he moved to sever that count pursuant to Rule 12(b)(3)(D). See Def. Hackett's Mot. to Sever Count Fourteen & Mem. of L., ECF No. 91 [hereinafter Hackett Mot. to Sever]. Defendants Meggs, Harrelson, and Minuta, charged, respectively, in counts Ten, Eleven, and Thirteen with violations of § 1512(c)(1), joined in Hackett's motions. See Hr'g Tr. (draft), June 24, 2022 [hereinafter June Status Conf. Tr.], at 31 (Meggs); ECF No. 103 (Harrelson); ECF No. 101 (Minuta).

Finally, pursuant to Rule 21(a), Defendant Caldwell and a defendant in the now-Crowl matter, Connie Meggs, jointly moved to transfer both cases from this District to the U.S. District Court for the Eastern District of Virginia, Alexandria Division. Defs.' Joint Mot. to Transfer Venue & Mem. of P. & A. in Supp., ECF No. 93 [hereinafter Defs.' Mot. to Transfer]. All Defendants joined in this request.^[6]

The court first addresses the motions to dismiss Counts One through Four, then takes up Defendant Hackett's motions as to the tampering counts, and concludes with the motion to transfer venue.

III. DISCUSSION

A. Count One: Seditious Conspiracy

Defendants' challenges to the seditious conspiracy charge fall into two general categories. First, Defendants argue that Count One fails to state an offense. See Caldwell MTD at 5-19; Meggs MTD at 6-15; Vallejo MTD at 2-4. Second, they contend that Count One fails to sufficiently apprise them of the factual basis for the charge. See Hackett MTD Counts 1-4 at 1113; Vallejo MTD at 4-5. Applying the relevant legal standards, the court finds neither argument persuasive. See United States v. Concord Mgmt. & Consulting LLC, 347 F.Supp.3d 38, 44 (D.D.C. 2018) (setting forth the applicable legal standards of review for motions to dismiss under Rule 12(b)(3)(B)(iii) and (v)).

1. Failure to State an Offense

a. Historical background

At the start of the Civil War, the national government had limited authority under federal criminal law to detain and punish those who supported the rebellion. The charge of treason, which carried the death penalty, was the primary tool available, but the Constitution defined that offense strictly, and judicial opinions imposed rigorous elements of proof. See Catherine M. Tarrant, To “insure domestic Tranquility”: Congress and the Law of Seditious Conspiracy, 1859-1861, 15 AM. J. LEGAL HIST. 107, 107 (1971). “As part of the effort to meet the emergency war posed, Congress enacted statutes to define crimes less than treason. Congressmen believed these measures were necessary since no statute law on the subject existed, and the common law was not applicable.” Id. at 118. Approximately 100 days after the first shots were fired at Fort Sumter on April 12, 1861, Congress passed “An Act to Define and Punish Certain Conspiracies,” which eventually would become the seditious conspiracy statute. Id. at 118-19. The Act became law on July 31, 1861. Id.; see Act of July 31, 1861, ch. 33, 12 Stat. 284. One of the bill's sponsors, Senator Lyman Trumbull of Illinois, explained that the “object of this bill is not under any other name to punish traitors, but it is to punish persons who conspire together to commit offenses against the United States not analogous to treason.” Cong. Globe, 37th Cong., 1st Sess. 277 (1861).

Ten years later, Congress passed the Enforcement Act of 1871 also known as the Ku Klux Klan Act, “to enforce the Provisions of the Fourteenth Amendment of the Constitution of the United States.” See ...