United States v. Moyihan

1

UNITED STATES OF AMERICA, v. CHRISTOPHER PATRICK MOYIHAN, Defendant.

No. 21-cr-226 (CRC)

United States District Court, District of Columbia

February 28, 2024

MEMORANDUM OPINION

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Christopher Patrick Moynihan's Motion for Release Pending Appeal. See Mot. for Release [ECF No. 68]. Having considered the motion, the Government's opposition, and Moynihan's reply, the Court will grant his motion. Because his appeal presents a substantial question likely to result in a reduced sentence of 12 months, the Court orders his detention terminated at the expiration of those 12 months.

I. Background

In March 2021, Moynihan was charged by indictment with one felony and five misdemeanors, all stemming from his conduct at the U.S. Capitol on January 6, 2021: obstruction of an official proceeding and aiding and abetting under 18 U.S.C § 1512(c)(2) and 2 (Count One); entering and remaining in a restricted building or ground under 18 U.S.C. § 1752(a)(1) (Count Two); disorderly and disruptive conduct in a restricted building or grounds under 18 U.S.C. § 1752(a)(2) (Count Three); entering and remaining on the Floor of Congress under 40 U.S.C. § 5104(e)(2)(A) (Count Four); disorderly conduct in a Capitol building under 40 U.S.C. § 5104(e)(2)(D) (Count Five); and parading, demonstrating, and picketing in a Capitol building under 40 U.S.C. § 5104(e)(2)(G) (Count Six). Indictment [ECF No. 9] at 1-3.

In August 2022, Moynihan filed a motion to dismiss Count One contending that because § 1512(c)(2) must be understood in reference to § 1512(c)(1), his conduct did not fall within the statute's scope. Mot. Dismiss [ECF No. 47] at 3. Section 1512(c) applies to anyone who “(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[.]” 18 U.S.C. § 1512(c). Moynihan argued that the “‘otherwise' clause in Section 1512(c)(2) must be construed in a similar vein to the terms that are in clause one.” Mot. Dismiss at 9. “Thus,” he contended, “in order for Count One to sufficiently allege a violation, it must allege that Mr. Moynihan took some action with respect to a document, record, or other object in order to corruptly obstruct, impede, or influence an official proceeding.” Id. (cleaned up).

In keeping with its prior rulings and the “heavy weight of authority” in this district, the Court denied Moynihan's motion to dismiss. Op. & Order [ECF No. 41] at 4. The Court held that “[n]aturally read, subsection (c)(1) is about the alteration of evidence and hindering its use in an official proceeding; subsection (c)(2) is about ‘otherwise'-meaning in a different way than what's provided in (c)(1)-hindering the official proceeding itself.” Id. (quoting United States v. Robertson, No. 21-cr-34 (CRC), 2022 WL 2438546, at *2 (D.D.C. July 5, 2022)). On this reading, the Court found that an indictment on § 1512(c)(2) “need not allege that a defendant took an action with respect to a document, record, or other object.” Id. at 5.

On August 23, 2022, Moynihan was convicted of the felony charge at a stipulated trial and pled guilty to the five misdemeanor charges. Judgment [ECF No. 55] at 1-2. The Court allowed Moynihan to remain free until sentencing, which took place on February 3, 2023. See Aug. 23, 2022 Min. Order. At sentencing, the Court calculated Moynihan's guideline range at 33 to 41 months, based on an offense level of 14 and a criminal history category of V due to a 12-point criminal history. Sentencing Tr. [ECF No. 65] at 4-5. At the government's urging, the Court applied a three-point enhancement to the offense level under U.S.S.G. 2J1.2(b)(2) for substantial interference with the administration of justice. Id. at 6. But the Court also applied a three-point reduction for acceptance of responsibility and a prompt plea. Id. at 5. The Court also agreed with Moynihan that because the calculated range overstated his criminal history, a departure from the range was warranted under U.S.S.G. § 4A1.3(b)(1). Id. at 42-43. The Court proceeded to sentence Moynihan to 21 months of incarceration on Court One; 12 months of incarceration on Counts Two and Three, to run concurrently; and 6 months of incarceration on Counts Four, Five, and Six, also to run concurrently. Judgment at 3. The Court permitted Moynihan to self-surrender to the Bureau of Prisons, Sentencing Tr. at 58, and he began serving his sentence on March 29, 2023, Mot. for Release at 3. He has thus served approximately eleven months of his total sentence. Moynihan has appealed his convictions to the D.C. Circuit.

II. Analysis

Moynihan now seeks release pending the resolution of his appeal under 18 U.S.C. § 3143(b). That provision requires the Court to detain a defendant pending appeal unless it finds both: “(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released”; and “(B) that the appeal is not for the purpose of delay and raises a substantial question of fact or law likely to result in,” as relevant here, “(iv) a reduced sentence to a term of imprisonment less than the total of the time already serviced plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b).

A. Flight Risk or Danger

On the first prong of § 3143(b), the Court finds by clear and convincing evidence that Moynihan would not present a danger to the community or a flight risk were he to be released pending his appeal. Indeed, the government does not contest this point, and Moynihan voluntarily appeared at trial, at sentencing, and at his designated prison facility. See March 3, 2022 Min. Order; Aug. 23, 2022 Min. Order; Mot. for Release at 3.

B. Substantial Question

Moving to § 3143(b)'s second prong, the Court follows a two-step inquiry: “(1) Does the [defendant's] appeal raise a substantial question? (2) If so, would the resolution of that question in the defendant's favor be likely to lead to reversal [or one of the other outcomes enumerated in § 3143(b)(1)(B)(ii)-(iv)]?'” United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987). Under the first step of this inquiry, the D.C. Circuit has defined a “substantial question” as a “close question or one that very well could be decided the other way.” Perholtz, 836 F.2d at 555 (cleaned up). The Court assumes the “defendant was validly convicted,” and therefore it is the defendant's burden to “rebut[] this presumption and demonstrat[e] that he has a substantial question to present upon appeal.” Sheppard, 2024 WL 127016, at *2 (quoting United States v. Libby, 498 F.Supp.2d 1, 3 (D.D.C. 2007)).

Moynihan argues that the Supreme Court's grant of certiorari in Fischer v. United States, a case concerning the scope of § 1512(c)(2), shows that his appeal raises a “substantial question.” Mot. for Release at 6; see also Fischer v. United States, No. 23-5572, 2023 WL 8605748 (U.S. Dec. 13, 2023). To understand how the Supreme Court's decision in Fischer might impact Moynihan's appeal, some background on Fischer is helpful. Ruling on a motion to dismiss, the district court in Fischer held that § 1512(c)(2) “must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.” United States v. Miller, 589 F.Supp.3d 60, 78 (D.D.C.), reconsideration denied, 605 F.Supp.3d 63 (D.D.C. 2022), and rev'd and remanded sub nom. United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023), cert. granted, No. 23-5572, 2023 WL 8605748 (U.S. Dec. 13,2023).^[1] A panel of the D.C. Circuit reversed, adopting the “broad meaning” of the statute endorsed by a majority of district court judges and finding the statute “encompasses all forms of obstructive conduct.” United States v. Fischer, 64 F.4th 329, 335 (D.C. Cir. 2023), cert. granted, No. 23-5572, 2023 WL 8605748 (U.S. Dec. 13, 2023). Circuit Judge Katsas dissented and offered yet a third interpretation of § 1512(c)(2). Id. at 370 (Katsas, J., dissenting). He found that § 1512(c)(2) “covers only acts that impair the integrity or availability of evidence.” Id. at 64 F.4th at 376. The Supreme Court granted certiorari on the question of whether 18 U.S.C. § 1512(c)(2) applies to “acts unrelated to investigations and evidence.” Pet. for Writ of Cert., Fischer v. United States, No. 23-5572 (filed Sept. 11, 2023).

As perhaps this history of Fischer suggests, it is anyone's guess which interpretation of § 1512(c)(2) the Supreme Court will adopt. It may choose one of the three theories advanced by the lower courts or adopt an entirely different interpretation of the statute.

For many January 6th defendants who took no action with respect to a document and no action related to “investigations [or] evidence,” the question of substantiality has been relatively straightforward. Their convictions would likely be reversed on appeal should the Supreme Court adopt either the district court's or Judge Katsas's interpretation of § 1512(c)(2). As a result, judges in this district including this Court, have found that while a reversal of the D.C. Circuit's majority opinion is far from guaranteed, the garnering of four votes in favor of certiorari indicates the presence of a “substantial question.” See Mem. Op., United States v. Adams, No. 21-cr-354-APM [ECF No. 85], at 3 (“[T]he Supreme Court's decision to review Fischer means, at a minimum, that this case presents a ‘close question.'”)...