United States v. Decarlo

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UNITED STATES OF AMERICA v. NICHOLAS DECARLO and NICHOLAS OCHS, Defendants.

Criminal Action No. 21-00073

United States District Court, District of Columbia

November 1, 2024

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

On September 9, 2022, defendants Nicholas DeCarlo and Nicholas Ochs both entered guilty pleas, pursuant to plea agreements with the government, to one felony obstruction charge under 18 U.S.C. § 1512(c)(2), for their offense conduct on January 6, 2021, at the U.S. Capitol while acting with the intent to obstruct, influence, or impede Congress's certification of the Electoral College vote and using unlawful means to do so, Plea Hr'g Tr. at 37:22-38:23 51:1252:6, Sept. 9, 2022, ECF No. 116, and were each subsequently sentenced, on December 9, 2022, to 48 months' incarceration, Sent'g Hr'g Tr. at 71:11-16, 76:4-9, Dec. 9, 2022, ECF No. 110. Nearly two years after pleading guilty and eighteen months after being sentenced, the Supreme Court held, in Fischer v. United States, 603 U.S. --, 144 S.Ct. 2176 (2024), that their statute of conviction imposed criminal liability only on defendants who “impaired the availability or integrity for use in an official proceeding of records, documents objects, or . . . other things used in the proceeding, or attempted to do so.” Id. at 2190. Both defendants then promptly moved, under 28 U.S.C. § 2255 to vacate as “void” their convictions and associated imposed sentences for violating Section 1512(c)(2). Defs.' Mot. Post-Conviction Relief (“Defs.' Mot.”) at 2, 4 ECF No. 112.^[1]The government opposes defendants' pending motion, arguing that consideration of the merits is barred, due both to defendants' procedural default by failing to file a direct appeal of their convictions and to their plea agreement waivers of their right, under 28 U.S.C. § 2255, to bring a collateral attack. Gov't's Opp'n Defs.' Mot. Vacate Their Convictions Under 28 U.S.C. § 2255 (“Gov't's Opp'n”) at 2-3, 11-37, ECF No. 121.

For the reasons explained below, defendants' motion to vacate their convictions, pursuant to 28 U.S.C. § 2255, is GRANTED, subject to a 30-day stay, during which period defendants will be ordered released on the same conditions as their pre-sentence release, see Defs.' Mot. at 6 (requesting these conditions for release, at least pending resolution of defendants' Section 2255 motion).^[2]

I. BACKGROUND

The facts underlying defendants' offense conduct have been summarized previously in this Court's prior decision denying defendants' release from incarceration pending resolution of their Section 2255 motion, see United States v. DeCarlo, No. 21-cr-73 (BAH), 2024 WL 4039923, at *1-3 (D.D.C. Sept. 4, 2024), and is detailed below.

A. Offense Conduct

Defendants both traveled to Washington, D.C., on January 5, 2021-DeCarlo from Fort Worth, Texas, and Ochs, the founder of the Hawaii chapter of the Proud Boys, from Honolulu, Hawaii. Statement of Offense of Nicholas DeCarlo providing “factual basis for the defendant's guilty plea” (“DeCarlo SOF”) Introduction & ¶ 8, ECF No. 79; Statement of Offense of Nicholas Ochs providing “factual basis for the defendant's guilty plea” (“Ochs SOF”) Introduction & ¶¶ 89, ECF No. 82. DeCarlo explained that his trip to D.C. was to “expose those ‘tolerant' leftists for their lies and teach them a lesson they'll NEVER forget: The MAGA TRAIN will KEEP ON ROLLIN'! TRUMP 2020 BABAAAY!” DeCarlo SOF ¶ 8. Ochs also said he came to D.C. because “the president asked and said it was gonna be wild and that people should wear body cameras.” Ochs SOF ¶ 9. On January 6, 2021, defendants attended the former president's “Stop the Steal” rally at the Ellipse on the National Mall, following which they joined the crowd marching to the Capitol. DeCarlo SOF ¶ 9; Ochs SOF ¶ 10.

As they approached the Capitol building, DeCarlo, filming on a GoPro, said, “this is where they are going to steal it. And they called on us. They called on us to stop it. We are putting an end to it. They said calling all patriots.... We're going to put the kai-bosh on this.” DeCarlo SOF ¶ 10; U.S. Rep. Regarding Video Evidence Described in Statement of Offense (“SOF Video Evid.”) Ex. 8, ECF No. 74. Ochs said, “the steal is in fact right here and we are going to stop it.” Ochs SOF ¶ 11; SOF Video Evid., Ex. 8. The defendants passed through restricted grounds and reached the west side of the Capitol, where preparations were underway for the upcoming presidential inauguration, at which point Ochs told DeCarlo, who was still filming on his GoPro, “we're not supposed to be here, this is beyond the fence,” and DeCarlo responded, “we're all felons, yeah!” DeCarlo SOF ¶ 11; Ochs SOF ¶ 12; SOF Video Evid., Ex. 8. As police tried to keep the crowd away from the Capitol building, both defendants threw smoke bombs at the police line. DeCarlo SOF ¶ 12; Ochs SOF ¶ 13; SOF Video Evid., Ex. 12. DeCarlo lamented throwing his without “pulling the pin” and told Ochs, “yeah, pull the pin and throw it.” SOF Video Evid., Exs. 12, 13; DeCarlo SOF ¶ 12; Ochs SOF ¶ 13. As defendants filmed the large crowd of rioters amassing outside the Capitol, DeCarlo asked Ochs, “you think they are scared in there?,” and Ochs replied, “yeah, and I fucking love it.” SOF Video Evid., Ex. 14.

Shortly after other rioters had broken into the Capitol, both defendants also breached the building through the Senate Wing doors at approximately 2:23 p.m. DeCarlo SOF ¶ 13; Ochs SOF ¶ 14. They walked through the halls of the building and arrived in the Crypt in the center of the Capitol building at approximately 2:26 p.m. Id. Here, defendants smoked cigarettes and took pictures of themselves doing so, which pictures Ochs posted to social media with the caption “Hello from the Capital lol.” DeCarlo SOF ¶ 14; Ochs SOF ¶ 15. In a video obtained from a flashdrive owned by DeCarlo, while inside the Crypt, DeCarlo can be heard yelling out asking about the location of then-Speaker of the House Nancy Pelosi and being aware that Congress had gone into lockdown. DeCarlo SOF ¶ 14; SOF Video Evid., Ex. 18.

Both defendants then moved to the East Lobby of the Crypt. DeCarlo SOF ¶ 15; Ochs SOF ¶ 16. At approximately 2:30 p.m., as retreating Capitol police officers sought to close crash doors in an effort to seal off certain parts of the building from the rioters, defendants encouraged and recorded other individuals, including Proud Boy William Chrestman, who were attempting to block the doors from closing by wedging them open with objects. DeCarlo SOF ¶ 15; Ochs SOF ¶ 16; see also SOF Video Evid., Exs. 20, 21. Both defendants continued to walk around the building, roaming into the Capitol Visitor's Center, the East Foyer of the Capitol, the Rotunda, and Statuary Hall. DeCarlo SOF ¶ 16; Ochs SOF ¶ 17. At approximately 2:42 p.m., defendants met up with other rioters, including Proud Boys Ethan Nordean, Paul Rae, and at least one other person, in the East Foyer. Id. The group hugged, and Ochs, Nordean, and Rae walked towards the Capitol Rotunda. Id. DeCarlo walked from the East Foyer into the Rotunda less than a minute later. Id. In the Rotunda, both defendants pointed out directions to Pelosi's office to a group of rioters gathering there. DeCarlo SOF ¶ 17; Ochs SOF ¶ 18.

Defendants exited the Capitol building through the Rotunda doors at approximately 3:00 p.m. Id. Between 3:08 and 3:12 p.m., defendants approached the Chestnut-Gibson Memorial Door to the Capitol, where Ochs used his cell phone to film DeCarlo writing “Murder the Media,” the name of defendants' social media channel, on the door in permanent marker, DeCarlo SOF ¶ 18; Ochs SOF ¶ 19; SOF Video Evid., Ex. 30, and both men posed for photos with their promotional graffiti, DeCarlo SOF ¶ 18; Ochs SOF ¶ 19; SOF Video Evid., Ex. 31. Near the door, DeCarlo stole a pair of flexcuffs from a Capitol Police duffel bag they found in the area. DeCarlo SOF ¶ 19; Ochs SOF ¶ 20; SOF Video Evid., Ex. 31.

Defendants then walked away from the building and documented on video the pride they had about their conduct that day. For example, Ochs, in a video filmed on his cell phone, said, “sorry we couldn't go live when we stormed the fuckin' U.S. Capitol and made Congress flee.” Ochs SOF ¶ 22; SOF Video Evid., Ex. 32. In another video filmed by Ochs the same day, while walking through the streets of D.C. with DeCarlo, both defendants celebrated the fact that their conduct contributed to Congress stopping its certification of the electoral college due to the riot. Ochs said, “it may resume, but the steal is for now stopped,” while DeCarlo said, “we fucking did it,” “that's what I came down here to do,” and “we did our job.” DeCarlo SOF ¶ 21; Ochs SOF ¶ 23; SOF Video Evid., Ex. 33.

B. Charges, Guilty Pleas and Sentences

Due to this offense conduct, defendants were each charged together in seven counts, including two felony counts for violating 18 U.S.C. §§ 371 (conspiracy to obstruct, influence, and impede an official proceeding) and 1512(c)(2) (obstruction of an official proceeding), as well as five misdemeanor counts for violating 18 U.S.C. §§ 1361, 641, 1752(a)(1), (2), and (4), and 2. Indictment, Feb. 4, 2021, ECF No. 17.^[3]

Defendants moved to dismiss the two felony counts for conspiracy to obstruct and substantive obstruction of an official proceeding, see Def. DeCarlo Mot. Dismiss Counts One and Two (“Defs.' MTD”), Dec. 10, 2021, ECF No. 55; Def. Ochs Notice of Adoption of Mot., Dec. 14, 2021 ECF No. 56, on two grounds. First, defendants asserted that Section 1512(c)(2) did not cover defendants' conduct on January 6 because the certification proceeding was only “‘ministerial' or ‘ceremonial,'” and thus not an official proceeding as defined by the statute, Defs.' MTD at 1-2; see also id...