United States v. Sheppard

• Decision Date: 28 December 2022
• Docket Number: CRIMINAL ACTION 21-203 (JDB)
• Parties: UNITED STATES OF AMERICA v. ALEXANDER SHEPPARD, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. ALEXANDER SHEPPARD, Defendant.

CRIMINAL ACTION No. 21-203 (JDB)

United States District Court, District of Columbia

December 28, 2022

MEMORANDUM OPINION

JOHN D. BATES, UNITED STATES DISTRICT JUDGE

DefendantAlexander Sheppard is charged via indictment with six offenses related to the breach of the United States Capitol on January 6, 2021.Sheppard has filed three motions seeking dismissal of some counts, transfer of venue, and further discovery.He also filed a notice informing the Court and the government that he intends to present a public authority defense, and the government has requested that the Court preclude him from doing so.For the reasons set forth below the Court will deny his motion to dismiss and motion to transfer venue, deny in part and grant in part his motion to compel discovery, and preclude Sheppard from relying on a public authority defense at trial.

Background

Alexander Sheppard traveled to Washington, D.C. in early January 2021 to protest the results of the November 2020 presidential election.SeeStatement of Facts [ECF No. 1-1]at 4.On January 6, while Sheppard was in Washington, the U.S Congress was convened in the Capitol for a joint session to certify the electoral vote count.Id. at 1.The joint session began at approximately 1:00 p.m. and was supposed to continue throughout the afternoon.SeeId.However, in the early afternoon, a large crowd gathered outside the Capitol.Id.Despite the presence of barricades and U.S. Capitol Police (“USCP”) attempting to keep the protesters out of the Capitol and away from the building, the crowd overwhelmed the USCP and forced their way into the Capitol around 2:00 p.m. Id.Shortly after around 2:20 p.m., members of the House of Representatives and Senate, as well as then-Vice President Michael Pence, were forced to evacuate and effectively suspend the joint session.Id.

Social media posts and video footage show Sheppard inside the Capitol on January 6.SeeStatement of Facts¶ 3-4.The government asserts that Sheppard entered around 2:15 p.m. and, while inside the Capitol, “confront[ed] the officers guarding the doors while members of Congress were still being evacuated from the House Chamber” and recorded video of the members of Congress evacuating and of himself announcing “they've shut down Congress, let's f***ing go!”Gov't's Opp'n to Def.'s Mot. to Transfer Venue[ECF No. 45](“Opp'n to Venue Mot.”)at 2.

A grand jury charged Sheppard with six offenses via indictment: obstruction of an official proceeding and aiding and abetting in violation of 18 U.S.C. §§ 1512(c)(2)and2(Count One); entering and remaining in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(1)(Count Two); disorderly and disruptive conduct in a restricted building or grounds in violation of 18 U.S.C. § 1752(a)(2)(Count Three); entering and remaining on the floor of Congress in violation of 40 U.S.C. § 5104(e)(2)(A)(Count Four); disorderly conduct in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D)(Count Five); and parading, demonstrating, or picketing in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G)(Count Six).Indictment[ECF No. 8].

On October 21, 2022, Sheppard filed three motions: (1) a motion to dismiss four counts of the indictment, seeMot. to Dismiss Counts One, Two, Three, and Six of the Indictment[ECF No. 37](“Mot. to Dismiss”);(2) a motion to transfer venue, seeMot. for Transfer of Venue[ECF No. 38](“Venue Mot.”); and (3) a motion to compel additional discovery from the government, seeMot. to Compel Disc.[ECF No. 39](“Disc.Mot.”).Sheppard also filed a notice of public authority defense, informing the Court pursuant to Federal Rule of Criminal Procedure 12.3 that he intends to assert a defense at trial that “he was acting under actual or believed public authority at the time of the alleged offenses.”Notice of Public Authority Defense[ECF No. 40].

The government timely responded to all three motions.SeeOpp'n to Mot. to Dismiss[ECF No. 46]; Opp'n to Venue Mot.; Resp. to Disc. Mot.[ECF No. 53].It also filed a response to Sheppard's notice of public authority defense, arguing that the Court should preclude Sheppard from pursuing a public authority defense.Opp'n to Notice of Public Authority Defense[ECF No. 43].Sheppard filed a reply in support of his motion to compel discovery, Reply in Supp. of Disc. Mot.[ECF No. 54], and the parties further briefed the propriety of a public authority defense, seeReply to Opp'n to Notice of Public Authority Defense[ECF No. 51];Gov't's Further Resp. in Opp'n to Notice of Public Authority Defense[ECF No. 56]; Def.'s Resp. to Gov't's Suppl.Brief Regarding Notice of Public Authority Defense[ECF No. 57].The motions are now ripe for decision.

Analysis

I.Motion to Dismiss

Sheppard's first motion seeks dismissal of Counts One, Two, Three, and Six of the indictment.Mot. to Dismissat 1.As he acknowledges, the challenges to Counts One, Two, and Three are “identical to the ones raised” and rejected in a case before this Court, United States v. McHugh (McHugh I), 583 F.Supp.3d 1(D.D.C.2022), as well as decisions from other courts in this District, see, e.g., United States v. Andries, Crim. A.No. 21-93 (RC), 2022 WL 768684(D.D.C.Mar. 14, 2022).Mot. to Dismissat 2.And although Sheppard describes his challenge to Count Six as a “new facial constitutional challenge,”id. at 1, this Court has already denied an almost identical motion.SeeUnited States v. Nassif, Crim. A.No. 21-421 (JDB), 2022 WL 4130841, at *2-6(D.D.C.Sept. 12, 2022).

A criminal defendant may move to dismiss the indictment against him for “failure to state an offense” pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v).Two bases for dismissal are relevant here.First, if the statutory provision at issue does not cover the charged conduct, the indictment fails to state an offense.McHugh I,583 F.Supp.3d at 10(citingUnited States v. Montgomery,578 F.Supp.3d 54, 59(D.D.C.2021)).In assessing whether to grant a motion to dismiss under Rule 12(b)(3)(B)(v), courts consider whether the allegations in the indictment, assumed to be true, “would be sufficient to permit a jury to find that the crimes charged were committed.”United States v. Bozell,No. 21-CR-216 (JDB), 2022 WL 474144, at *2(D.D.C.Feb. 16, 2022)(quotingUnited States v. Bowdoin,770 F.Supp.2d 142, 146(D.D.C.2011)).Second, if a statute is unconstitutional, the charges based on that statute must be dismissed.Id.On either basis, courts dismiss indictments “only in unusual circumstances.”United States v. Ballestas,795 F.3d 138, 148(D.C. Cir.2015).

A.Challenges to 18 U.S.C. § 1512(c)(2)

The statute under which Sheppard is charged in Count One reads:

(c) Whoever corruptly--

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512(c).

Sheppard makes three arguments as to why this count should be dismissed: (1) the vote certification on January 6, 2021 was not an “official proceeding” as required by the statute, Mot. to Dismissat 7-10, (2)the statute is unconstitutionally vague, id. at 10-18, and (3)the statute requires an “action with respect to a document, record, or other object,” which the indictment does not allege, id. at 18-21.

Starting with Sheppard's first argument, “official proceeding” is defined as “a proceeding before the Congress.”18 U.S.C. § 1515(a)(1)(B).Sheppard argues that the history and context of the statute suggest “official proceeding” is limited to proceedings with a similar “‘adversarial nature' as court proceedings where there is a potential for witnesses to be influenced or documents destroyed.”Mot. to Dismiss at 6.Thus, Sheppard argues, Congress's certification of the 2020 presidential election results was not an “official proceeding” as used in § 1512(c) because it was a “ceremonial and administrative event,” not a traditional investigative hearing.Seeid. at 7-10.

Courts have repeatedly heard and rejected this argument.See e.g., McHugh I,583 F.Supp.3d at 11-18(rejecting this challenge and noting that “five other judges in this District” had already done so).^[1]Courts considering the question have concluded that a “proceeding before Congress” is broader than purely investigatory hearings, id. at 17 n.10, but that “not every activity undertaken by Congress” qualifies, id. at 12.Rather, the word “official” and, in the statutory definition, the word “before” connote some level of formality that a proceeding must have to fall within the ambit of the statute.SeeUnited States v. Sandlin,575 F.Supp.3d 16, 22-23(D.D.C.2021).Courts have also concluded that the Congressional vote certification is a sufficiently formal event: “[t]here is a presiding officer, a process by which objections can be heard, debated, and ruled upon, and a decision-the certification of the results-that must be reached before the session can be adjourned.”Id. at 23;see alsoMcHugh I,583 F.Supp.3d at 14(noting that the formality is evident because the “Constitution of the United States mandates the proceeding's occurrence” and a statute prescribes even the minute details like the date, seating arrangements, and time allotted for debate).And Sheppard's argument that the definition of official proceeding is limited in some other way-it must be “adjudicative” or feature evidence or witnesses, Mot. to Dismissat 9-10-is...