United States v. Robertson
| Decision Date | 25 February 2022 |
| Docket Number | 21-cr-34 (CRC) |
| Parties | UNITED STATES OF AMERICA, v. THOMAS ROBERTSON, and JACOB FRACKER, Defendants. |
| Court | U.S. District Court — District of Columbia |
Defendants Thomas Robertson and Jacob Fracker were among those who descended on the United States Capitol on January 6, 2021 while a Joint Session of Congress convened for the certification of the 2020 presidential election results. The government charges defendants with various crimes, including the felony offense of “corruptly” obstructing an “official proceeding” in violation of 18 U.S.C § 1512(c)(2). An “official proceeding” includes “a proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B). Defendants move to dismiss only that one charge. In deciding the motions, this Court is not writing on a blank slate. Uniformly denying similar motions fellow judges in this district have thoughtfully addressed the issues presented here, and this Court finds their opinions persuasive. The Court will therefore deny defendants' motions.
In the 2020 presidential election, Americans elected Joseph Biden as President. Their votes, however, Chiafalo v. Washington, 140 S.Ct. 2316, 2319 (2020), though throughout American history, they have been “trusty transmitters of” the people's votes. Id. at 2326. In 2020, Mr. Biden collected 306 electoral votes to then-President Trump's 232 votes.
These electoral votes are then “transmit[ted] sealed” to Congress to be counted and certified. U.S. Const. amend XII. The Constitution says that the Vice President, acting as President of the Senate, “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes [of the Electoral College] shall then be counted”; “[t]he person having the greatest number of votes for President, ” assuming they have a majority, “shall be the President.” U.S. Const. amend XII; see also U.S. Const. art II, § 1, cl. 3. A law called the Electoral Count Act of 1887 provides more structure for how disputes regarding electoral votes are handled by Congress. That law also sets the date and time for Congress to conduct this task: “the sixth day of January” at “1 o'clock in the afternoon.” 3 U.S.C. § 15.
So, on January 6, 2021, at approximately 1:00 p.m., the United States House of Representatives and Senate convened for a Joint Session of Congress at the U.S. Capitol building to certify the Electoral College vote count for the 2020 presidential election. See Statement of Facts ¶ 1, ECF No. 1-1. Then-Vice President Mike Pence presided. Id. By 1:30 p.m., the House and Senate retired to separate chambers to resolve an objection to the votes. Id. Although the Capitol was closed to the public that day-announced by permanent and temporary security barriers-a massive crowd gathered outside the building as the certification continued. Id. Around 2:00 p.m., the crowd forced its way into the building, causing the members of the House and Senate, and Vice President Pence, to evacuate. Id. The crowd's breach and subsequent occupation of the Capitol suspended the Joint Session for about six hours, until after 8:00 p.m. Id.
According to the government, defendants Thomas Robertson and Jacob Fracker were among the crowd and entered the Capitol during the suspension of the certification, while the building was on lockdown.[1] They were photographed inside the Capitol, with Fracker holding up his middle finger in front of a statue. See Statement of Facts ¶ 1-2 & Ex. A. Robertson later stated on social media, “CNN and the Left are just mad because we actually attacked the government, ” and Id. at 2. He further stated in Instagram and Facebook posts that he was “PROUD” of the picture, because it showed he and Fracker were “willing to actually put skin in the game and stand up for their rights.” Id., Ex. B. Fracker said, in a now-deleted Facebook post, Id. at 2 & Ex. C. Robertson also claimed that he was “escorted ‘in' by the Capitol Police” and that he “did not know about the violence” that transpired on January 6th. See id. at 2.
On January 29, 2021, a federal grand jury returned an indictment, listing one felony count and multiple misdemeanors. See Indictment, ECF No. 8. The government recently obtained a superseding indictment, which adds another felony count against Robertson (as well as other tweaks). See Superseding Indictment, ECF No. 58. Only count one, against both defendants, is relevant here: Obstruction of an Official Proceeding in violation of 18 U.S.C. § 1512(c)(2). Neither defendant has filed any motions challenging the changes reflected in the superseding indictment. Trial is scheduled for April 4, 2022.
Robertson filed his motion to dismiss first, and the government opposed. Fracker then adopted and joined his co-defendant's motion in full.
A criminal defendant “may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Pretrial motions may challenge “a defect in the indictment, ” including “lack of specificity” and “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(iii), (v). Because pretrial dismissal of an indictment “‘directly encroaches upon the fundamental role of the grand jury,' dismissal is granted only in unusual circumstances.” United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015) (citation omitted). An indictment requires only “a plain, concise, and definite written statement of the essential facts constituting the offense charged, ” Fed. R. Crim. P. 7(c)(1), in order “to inform the defendant of the nature of the accusation against him.” Ballestas, 795 F.3d at 148-49 (quoting United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001)). The Court “assumes the truth of those factual allegations.” Id. at 149. “The operative question is whether the 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).
Defendants lodge three main arguments against count one of the indictment, but none has merit. First, they assert that the charge is defective for failing to specify the precise official proceeding they are alleged to have obstructed. Second, they contend that the Joint Session of Congress to certify the electoral votes of the presidential election was not an “official proceeding” under the statute. Third, defendants argue that the statute is unconstitutionally vague, and Robertson specifically maintains it is vague as applied to his case. These arguments have been rejected by other courts in this district over the last few months. See United States v. McHugh, __ F.Supp.3d. __, 2022 WL 296304, at *3 (D.D.C. Feb. 1, 2022) (collecting cases); United States v. Grider, Crim. A. No. 21-0022 (CKK), 2022 WL 392307 (D.D.C. Feb. 16, 2022); United States v. Nordean, Crim. A. No. 21-175 (TJK), 2021 WL 6134595 (D.D.C. Dec. 28, 2021); United States v. Montgomery, Crim. A. No. 21-46 (RDM), 2021 WL 6134591 (D.D.C. Dec. 28, 2021); United States v. Mostofsky, Crim A. No. 21-138 (JEB), 2021 WL 6049891 (D.D.C. Dec. 21, 2021); United States v. Caldwell, --- F.Supp.3d __, 2021 WL 6062718 (D.D.C. Dec. 20, 2021); United States v. Sandlin, __ F.Supp.3d __, 2021 WL 5865006 (D.D.C. Dec. 10, 2021). Finding these cases persuasive, this Court will follow suit.
A. Specification of the Official Proceeding
The superseding indictment effectively moots defendants' first argument based on lack of specificity. Count one now reads:
On or about the January 6, 2021, in the District of Columbia and elsewhere, the defendants, THOMAS ROBERTSON and JACOB FRACKER, attempted to and did, corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress's certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15[-]18, by entering and remaining in the United States Capitol without authority and participating in disruptive behavior.
See Superseding Indictment at 1 (). Defendants have not challenged this new language, and the Court easily concludes that it is sufficiently specific.
The Court will also briefly note that this clarification was unnecessary to survive defendants' motions. The first indictment-sans the emphasized text above-still provided all the essential elements of the offense and thus “inform[ed] the defendant[s] of the nature of the accusation against” them. See Ballestas, 795 F.3d at 148-49 (citation omitted). It “echoe[d] the operative statutory text while also specifying the time and place of the offense” (January 6, 2021, at the U.S. Capitol), the type of official proceeding (a proceeding before Congress), and the acts constituting obstruction (entering and remaining, without lawful authority, and disruptive behavior). See United States v. Williamson, 903 F.3d 124, 130-31 (D.C. Cir. 2018). That's generally enough. See United States v. Resendiz-Ponce, 549 U.S. 102, 108-109 (2007) (“[A]n indictment parroting the language of a federal criminal statute is often sufficient”); Williamson, 903 F.3d at 130-31 (...
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