United States v. Robertson

610 F.Supp.3d 229

UNITED STATES of America,

v.Thomas ROBERTSON, Defendant.

Case No. 21-cr-34 (CRC)

United States District Court, District of Columbia.

Signed July 5, 2022

Elizabeth Ann Aloi, Risa Berkower, Assistant U.S. Attorneys, United States Attorney's Office, Washington, DC, for United States of America.

Mark M. Rollins, Rollins & Chan, Washington, DC, Camille Wagner, Wagner PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

After hearing three days of evidence and deliberating for two, a jury convicted Thomas Robertson on six counts related to his conduct on and shortly after January 6, 2021. Mr. Robertson, a former police officer from Rocky Mount, Virginia, was among the rioters who breached the United States Capitol building, while a Joint Session of Congress convened to certify the 2020 presidential election results. At the close of the government's case in chief, Robertson moved for a judgment of acquittal. The Court reserved ruling on that motion until after the jury verdict. Robertson now renews his motion for acquittal specifically as to three counts: one for obstructing an official proceeding, and two others for trespassing and engaging in disorderly conduct in a restricted building and grounds. See Mot. at 1, ECF No. 114. The latter two charges involve his carrying a "deadly or dangerous weapon," that is, a large wooden stick. Robertson's challenge to the verdict focuses on the sufficiency of the evidence. He also revives legal arguments this Court rejected in a pretrial ruling on a motion to dismiss the obstruction count. See United States v. Robertson, 588 F.Supp.3d 114 (D.D.C. Feb. 25, 2022). Finding enough evidence to sustain a conviction and adhering to its prior decision, the Court will deny Robertson's motion.

I. Legal Standards

Federal Rule of Criminal Procedure 29(a) governs a motion for acquittal. Under Rule 29(a), "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." In reviewing the sufficiency of the evidence, the court "must accept the jury's guilty verdict if [it] conclude[s] that ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " United States v. Branham, 515 F.3d 1268, 1273 (D.C. Cir. 2008) (quoting United States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) ); see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The "evidence is to be viewed in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, and giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." Branham, 515 F.3d at 1273 (citation omitted).

II. Analysis

The Court will first address Robertson's arguments for acquittal on count one, obstruction of an official proceeding, and then turn to the question of whether a rational jury could find the wooden stick to constitute a dangerous or deadly weapon.

A. Obstruction of an Official Proceeding

To start, 18 U.S.C. § 1512(c) imposes criminal sanctions against anyone who "corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so"; the term "official proceeding" includes, as relevant here, "a proceeding before the Congress." 18 U.S.C. § 1515(a)(1)(B). Robertson "adopts and incorporates [his] previous arguments in support of the Motion to Dismiss" this count, Mot. at 3, which the Court has already denied. He maintains, for instance, that there is no evidence he "acted corruptly to obstruct, influence, or impede the due administration of justice." Id. at 5. But there is no "due administration of justice" element in § 1512(c), so this argument misses the point. See Robertson, 588 F.Supp.3d at 121 (noting 18 U.S.C. § 1503, which does have this element, requires "more ‘court-like’ proceedings," whereas § 1512(c)(2) "targets official proceedings more broadly" (citations omitted)).

Further echoing his motion to dismiss, Robertson contends that "Subsection (c)(2) has a serious ambiguity" and that the term "corruptly" is vague as applied to his case. Mot. at 3. But this Court's prior decision—and a slew of other decisions from fellow judges in this district—have explained why that is not so.¹ By way of brief summary, " ‘[t]he plain, obvious and common sense’ meaning of" official proceeding "reaches the Certification of the Electoral College vote." Robertson, 588 F.Supp.3d at 122 (quoting United States v. Caldwell, 581 F.Supp.3d 1, 15-17 (D.D.C. Dec. 20, 2021) ). It "has many trappings familiar from other types of proceedings," id. at 121 (quoting United States v. Mostofsky, 579 F.Supp.3d 9, 24-25 (D.D.C. Dec. 21, 2021) ), and can be quasi-adjudicative in nature, as the Congressional Record from the day illustrates. See id. (citing 167 Cong. Rec. H75, S13 (daily ed. Jan. 6, 2021) (House and Senate Sections)).

Nor is the term "corruptly" unconstitutionally vague. The statute is properly narrowed by imposing this mens rea element, which requires "acting ‘with consciousness of wrongdoing.’ " Robertson, 588 F.Supp.3d at 123 (citing Caldwell, 581 F.Supp.3d at 15-21 ); see also United States v. Sandlin, 575 F.Supp.3d 16, 31–34 (D.D.C. 2021) ("unlawfully, and with the intent to obstruct"). And the jury instructions here "convey[ed] the requisite consciousness of wrongdoing," Arthur Andersen LLP v. United States, 544 U.S. 696, 705–06, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) ; see Final Jury Instr. at 12, ECF No. 86, "thus rendering" Robertson's proposed insertion of "the word ‘dishonestly’ unnecessary." See United States v. Reffitt, 602 F.Supp.3d 85, 96 (D.D.C. May 4, 2022) (rejecting this same argument). Robertson further contends that "corruptly" requires "that he influenced another to violate their legal duty." Mot. at 4. Not so. Courts have adopted this interpretation when "the defendant must have ‘corrupted’ another person," in the "transitive sense" of the word. Reffitt, 602 F.Supp.3d at 97. "[I]n § 1512(c)(2)"—the offense at issue here—" ‘corruptly’ is used in the intransitive, such that the defendant's own behavior must be corrupt." Id. (internal citation omitted). As will be explained later, the evidence here showed that.

Next, Robertson gestures at a requirement that the government prove that he impaired "the integrity and availability of non-object information to be used in the official proceeding." See Mot. at 4–5. Courts have rejected such a "limiting construction for § 1512(c)" because the statute's plain meaning "cover[s] more than just acts affecting evidence." See Reffitt, 602 F.Supp.3d at 98 ; see also Sandlin, 575 F.Supp.3d at 24–31. This Court agrees. Section 1512(c)(2) proscribes "obstruct[ing], influenc[ing], or imped[ing] any official proceeding." "These terms are expansive and seemingly encompass all sorts of actions that affect or interfere with official proceedings, including blocking or altering the evidence that may be considered during an official proceeding or , as the defendant[ ] attempted, halting the occurrence of the proceeding altogether." Sandlin, 575 F.Supp.3d at 24.

Robertson's proposed "non-object information" requirement, Mot. at 4, also differs from Judge Nichols's decision in United States v. Miller, which homed in on "action with respect to a document, record, or other object." See 589 F.Supp.3d 60, 78 (D.D.C. Mar. 7, 2022). But his motion partly relies on Miller, as did his proposed jury instructions, see Joint Proposed Jury Instr. at 6–7 (Def. Proposed Instr. No. 18), ECF No. 76, so the Court will lay out a few points rejecting it.

This Court concurs with the heavy weight of authority concluding § 1512(c)(2) —which refers to obstructing "any official proceeding" generally—is not limited by subsection (c)(1)—which refers to "alter[ing], destroy[ing], mutilat[ing] or conceal[ing] a record, document, or other object" specifically. See, e.g., United States v. Puma, 596 F.Supp.3d 90, 105-08 (D.D.C. Mar. 19, 2022) ; United States v. Bingert, No. 21-cr-91-RCL, 605 F.Supp.3d 111, 123-28 (D.D.C. May 25, 2022) ; Reffitt, 602 F.Supp.3d at 94-103 ; United States v. McHugh, Crim. A. No. 21-453 (JDB), 2022 WL 1302880, at *4–12 (D.D.C. May 2, 2022) ; United States v. Montgomery, 578 F.Supp.3d 54, 69-80 (D.D.C. Dec. 28, 2021). Naturally 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. The word "otherwise" simply "signals a shift in emphasis, from actions directed at evidence to actions directed at the official proceeding itself." Montgomery, 578 F.Supp.3d at 72 (internal citation omitted).

That is "how an ordinary person (a reporter; a police officer; yes, even a lawyer)" would read the text. See Wooden v. United States, ––– U.S. ––––, 142 S. Ct. 1063, 1069, 212 L.Ed.2d 187 (2022). The list of verbs in subsection (c)(1) "differ in material respects from the verbs in" (c)(2). Montgomery, 578 F.Supp.3d at 75. Same for the nouns—"record[s], document[s], or other object[s]" in subsection (c)(1), versus "official proceeding[s]" in subsection (c)(2). Id. ("[T]he Court might ask here: How anyone could alter, destroy, mutilate or conceal an ‘official proceeding’ or how anyone could ‘obstruct[ ], influence[ ], or impede[ ]’ ‘a record, document, or other object’?" (alterations in original)). Thus, almost all courts in this district have "found that a defendant otherwise obstructs, impedes, or influences a proceeding under § 1512(c)(2) when he does so by means different than those proscribed by the preceding § 1512(c)(1)." Reffitt, 602 F.Supp.3d at 99.

Miller sidesteps the above interpretation first by invoking the rule of lenity as a background principle before starting its...