UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. No. 21-cr-32 (DLF) GUY WESLEY REFFITT,

Defendant.

MEMORANDUM OPINION

On March 8, 2022, a jury convicted Guy Wesley Reffitt of five counts related to his

actions during and shortly after the Capitol riot on January 6, 2021. Before the Court is Reffitt’s

Motion for Judgment of Acquittal, Dkt. 128, Motion for a New Trial or in the Alternative

Judgment on Count 3(a), Dkt. 129, and Motion to Arrest Judgment on Count Two, Dkt. 130. For

the reasons that follow, the Court will deny the motions.

I. BACKGROUND

After his participation in the January 6 Capitol riot, Reffitt was charged with two counts

of civil disorder, in violation of

(a)(2) and (a)(3); one count of obstruction of an

official proceeding and aiding and abetting, in violation of

(c)(2) and 2; one

count of entering and remaining in a restricted building or grounds with a deadly weapon, in

violation of

(a)(1) and (b)(1)(A); and one count of obstruction of justice, in

violation of

(a)(2)(C). See Second Superseding Indictment, Dkt. 34. On March

8, 2022, a jury found him guilty of all five counts. See Verdict Form, Dkt. 123.

At the close of the government’s case, Reffitt moved for a judgment of acquittal pursuant

to Fed. R. Crim. P. 29(a). March 7, 2022 A.M. Trial Tr. at 1397:19–20, Dkt. 143. The Court

reserved ruling until after the jury verdict.

at 1398:3–5; see Fed. R. Crim. P. 29(b). After the

1 jury convicted Reffitt on all counts, the Court denied his motion, finding that a rational jury

could find the essential elements of each crime charged beyond a reasonable doubt. March 8,

2022 Trial Tr. at 1498:23–25, 1499:1, Dkt. 145.

Reffitt now renews his motion for a judgment of acquittal on all counts under Fed. R.

Crim. P. 29(c). See Mot. for Judgment of Acquittal. He also moves for a new trial, or

alternatively, for the Court to enter a guilty finding on Count 3(a), entering and remaining in a

restricted building or grounds. See Mot. for New Trial. Finally, he moves to arrest judgment on

Count Two, obstruction of an official proceeding. See Mot. to Arrest Judgment. He argues that

the evidence is insufficient to sustain a conviction on all counts, see Mot. for Judgment of

Acquittal at 1, and that a new trial is in the interest of justice, see Mot. for New Trial at 1.

Further, he renews his arguments from his Motion to Dismiss Count Two, Dkt. 38,1 claiming that

his conduct did not fall within the scope of § 1512(c)(2), and that the statute is unconstitutionally

vague as applied. See Mot. for Judgment of Acquittal at 8–12. Finally, he contends that the

Court lacks jurisdiction over Count Two. See Mot. to Arrest Judgment. The government filed

an omnibus opposition brief to all three motions, Dkt. 132. The motions are now ripe for

resolution.

II. LEGAL STANDARDS

A defendant may move for a judgment of acquittal after the close of the evidence or after

a jury verdict on the ground that the evidence is insufficient to sustain a conviction. Fed. R.

Crim. P. 29(a), (c). The Court must affirm a guilty verdict if, considering the evidence in the

light most favorable to the government, it finds that “any rational trier of fact could have found

1 The Court denied Reffitt’s motion to dismiss, finding that his alleged conduct fell within the statute’s ambit, and that his as-applied vagueness challenge was premature. See Order on Mot. to Dismiss at 4, 7, Dkt. 81. 2 the essential elements of the crime beyond a reasonable doubt.” United States v. Wahl,

(D.C. Cir. 2002) (quoting Jackson v. Virginia,

(1979)). And it “must

presume that the jury has properly carried out its functions of evaluating the credibility of

witnesses, finding the facts, and drawing justifiable inferences.” United States v. Campbell,

(D.C. Cir. 1983). “[A] judgment of acquittal is appropriate only when there is no

evidence upon which a reasonable juror might fairly conclude guilt beyond a reasonable doubt.”

United States v. Weisz,

(D.C. Cir. 1983).

Under Rule 33, “the court may vacate any judgment and grant a new trial if the interest of

justice so requires.” Fed. R. Crim. P. 33(a). Granting a new trial “is warranted only in those

limited circumstances where a serious miscarriage of justice may have occurred.” United States

v. Wheeler,

(D.C. Cir. 2014) (internal quotation marks and citation omitted).

The Court has “broad discretion” in deciding a motion for a new trial.

The party seeking a

new trial bears the burden of proving that it is justified. United States v. Mangieri,

(D.C. Cir. 1982).

Under Rule 34, “the court must arrest judgment if [it] does not have jurisdiction of the

charged offense.” Fed. R. Crim. P. 34(a). “[D]efects in an indictment do not deprive a court” of

jurisdiction over the case. United States v. Cotton,

(2002).

III. ANALYSIS

According to Reffitt, the evidence is insufficient to support a guilty verdict on any of the

charged counts. He also argues that his conduct did not violate § 1512(c)(2) under a narrow

interpretation that the Court previously rejected. Finally, he attacks the factual sufficiency of

Count Two of the indictment.

3 As the Court explained at the close of trial, a rational jury could find Reffitt guilty on

each count. March 8, 2022 Trial Tr. at 1498:23–25, 1499:1. Further, the Court indicated that it

was not inclined to reconsider its conclusions regarding the scope of § 1512(c)(2) or the

sufficiency of the indictment. Id.; see also Order on Mot. to Dismiss at 4, 6–7 & n.5; United

States v. Sandlin, No. 21-cr-88,

, at *5–10 (D.D.C. Dec. 10, 2021). And the

Court declines to do so here.

A. Insufficiency of the Evidence

Reffitt’s motion for acquittal mainly questions the credibility of the government’s

witnesses and evidence. See Mot. for Judgment of Acquittal at 6–8, 13–14, 18. But it is the role

of the jury, not the Court, to weigh the evidence and assess witnesses’ credibility. United States

v. Battle,

, 264–65 (D.C. Cir. 2010). Reffitt also emphasizes that he did not assault

anyone or damage or steal any property. See Mot. for Acquittal at 12, 15–17. None of the

charges, however, required the government to prove that he took such actions.

1. Transporting a Firearm (Count One) and Entering or Remaining in a

Restricted Area with a Firearm (Count Three)

Count One charged Reffitt with transporting a firearm in furtherance of a civil disorder,

in violation of

(a)(2). To convict him of that offense, the jury had to find that he

transported a firearm in commerce while knowing, having reason to know, or intending that the

firearm would be used unlawfully in furtherance of a civil disorder. See Final Jury Instructions

at 24, Dkt. 119. There was ample evidence in the record to support the jury’s findings.

Two of the governments’ witnesses testified that Reffitt traveled to and from

Washington, D.C. with firearms. Rocky Hardie, who traveled with Reffitt from Wylie, Texas to

Washington, D.C., testified that Reffitt brought an AR-15 rifle and a handgun on the trip. March

4 4, 2022 A.M. Trial Tr. at 1119–20, Dkt. 142. Further, Reffitt’s son Jackson testified that he saw

his father bring the AR-15 rifle and handgun back into their house upon his return. March 3,

2022 P.M. Trial Tr. at 973:15–24, 974:12–25, 975:1–6, Dkt. 141.

The Court must give “full play” to the jury’s credibility determinations. Battle,

. In any event, Reffitt fails to cast sufficient doubt on either witnesses’ credibility. See

Mot. for Judgment of Acquittal at 6. The jury was aware of Hardie’s immunity agreement with

the government and witnessed his moments of confusion while testifying. March 4, 2022 A.M.

Trial Tr. at 1114:20–25, 1115–16, 1117:1–5, 1163:1–5. And Reffitt does not even address

Jackson’s testimony on this point. Thus, a reasonable jury could find that he transported

firearms in commerce. See Final Jury Instructions at 24 (commerce means travel between one

state and the District of Columbia).

Plus, there was sufficient evidence to support the jury’s finding that Reffitt knew or

intended that the firearm would be used unlawfully in furtherance of a civil disorder. Reffitt

does not dispute that the January 6 riot constituted a “civil disorder”—a public disturbance

involving acts of violence by three or more people that caused an immediate danger to persons

and property. See Final Jury Instructions at 24; Gov’t Ex. 204 (surveillance video montage of

the Capitol riot). A jury could also reasonably infer that he intended that his firearm would be

used unlawfully in furtherance of the disorder. To be sure, Hardie suggested that Reffitt

intended to use the guns for self-defense. March 4, 2022 A.M. Trial Tr. at 1113:22–25; see Mot.

for Judgment of Acquittal at 6. But the jury also could credit Reffitt’s own statements that he

was prepared to use his gun to forcibly remove members of Congress from the Capitol. See, e.g.,

Gov’t Ex. 1B20.2.2 (when asked about taking the Capitol, replying that “a hell rain of fire [will]

come[] back cause every one of my guys are here and I assure you they came in hot. So did I.”).

5 Further, Reffitt’s text messages and Hardie’s testimony demonstrate Reffitt’s awareness of and

willingness to break D.C.’s gun laws on January 6. See, e.g., Gov’t Ex. 1B4.1; March 4, 2022

A.M. Trial Tr. at 1113:1–18. Accordingly, a jury could conclude that Reffitt knew or intended to

use his guns unlawfully to further the Capitol riot.

In Count Three, Reffitt was charged with entering or remaining in a restricted area or

grounds with a firearm, in violation of

(a)(1) and (b)(2). Reffitt concedes the

first two elements of the crime: that he entered or remained on restricted grounds without lawful

authority, knowing that the grounds were restricted and that he lacked lawful authority. See Mot.

for New Trial at 1; Final Jury Instructions at 30. But he contests the final element, that he

knowingly used or carried a firearm during and in relation to the offense. See Mot. for Judgment

of Acquittal at 13–14; Final Jury Instructions at 30. In doing so, he repeats his attacks on

Hardie’s credibility and emphasizes that the Capitol police witnesses did not testify that he had a

gun. See Mot. for Judgment of Acquittal at 13–14. He also insinuates that the photo exhibit

showing a holster on his hip at the Capitol was edited or altered, though he presented no concrete

evidence of that at trial.

. Again, the Court defers to the jury’s assessment of witness

and evidence credibility. The government also presented evidence that Reffitt himself said that

he had a gun at the Capitol. See, e.g., Gov’t Exs. 1B20.2.2 (explaining at the Ellipse that he

“came in hot”), 1B20.2.2.3.1 (“I had my . . . 40 on my side.”). A reasonable jury could thus find

beyond a reasonable doubt that he knowingly carried a firearm while remaining in a restricted

area. For these reasons, the Court will not enter judgment on Count 3(a), the lesser-included

offense of remaining on restricted grounds. See Mot. for New Trial at 1. The jury’s verdict on

Count 3 stands.

6 2. Obstruction of an Official Proceeding and Aiding and Abetting (Count Two)

In Count Two, Reffitt was charged with obstructing an official proceeding and aiding and

abetting that offense, in violation of

(c)(2) and 2. Reffitt’s motion primarily

challenges the Court’s interpretation of § 1512(c)(2) and its instructions to the jury on this count.

The Court addresses and rejects that challenge in Part III.B. To the extent that Reffitt argues that

the evidence was insufficient to support a guilty verdict even under the Court’s instructions, that

claim also fails. The jury could reasonably find that he attempted to or did obstruct or impede an

official proceeding, acted with the intent to do so, and knew that the natural and probable effect

of his conduct would be to obstruct or impede the proceeding. It could also find that he did so

corruptly. See Final Jury Instructions at 25. The evidence further supports a finding that Reffitt

aided and abetted others who committed the offense.

Congress’s Joint Session to certify the Electoral College results qualifies as an “official

proceeding.” See id. at 25–26; Sandlin,

, at *4. And the riot and ensuing

breach of the Capitol forced Congress to halt the session. See, e.g., March 4, 2022 A.M. Trial

Tr. at 1071–73 (testimony of Dan Schwager, counsel to the Secretary of the Senate). True,

Reffitt never entered the Capitol building, and his interactions with the Capitol police took place

before members of Congress evacuated the chamber. See Mot. for Judgment of Acquittal at 10–

11. But video evidence showed that Reffitt ascended the west stairs and led the throng of people

who first breached the Capitol. See, e.g., Gov’t Ex. 205. The police officers he confronted said

the same. The officers testified that Reffitt appeared to lead the crowd because every time he

took a step, the people behind him followed. See, e.g., March 2, 2022 P.M. Trial Tr. at 646:23,

709:23–24, Dkt. 138. After Reffitt was pepper sprayed, he gestured to the crowd to continue

moving forward. See, e.g., Gov’t Ex. 205. As he wrote, he was “the lead up the Capitol stairs”

7 and “the insurrection began immediately after.” Gov’t Ex. 1B4.1. And his “job was done” when

the crowd “broke through the doors.” Gov’t Ex. 1B4.6. According to a police witness, the

officers “were the only thing standing between thousands of these people and the Congress” that

was “confirming the electoral vote.” March 2, 2022 P.M. Trial Tr. at 632:16–19. Thus, a jury

could reasonably find that Reffitt, by leading a crowd to breach the police line, helped to halt,

and thus obstruct, Congress’s Joint Session. At the very least, he attempted to obstruct, or aided

and abetted those who obstructed, the proceeding. He also acknowledged that Congress was

“there when we went in” and could not finish the Joint Session until later because “we

disrupted.” Gov’t Ex. 1B20.2.3.5. Accordingly, a jury could find that he knew and intended that

his disruptive actions would obstruct or impede the proceeding.

Ample evidence supports the charge that Reffitt acted corruptly. To act “corruptly,” the

defendant must use unlawful means or act with an unlawful purpose, and act with consciousness

of wrongdoing. See Final Jury Instructions at 26. The evidence shows that Reffitt did all three.

By clearing the way, gesturing, and leading the violent mob behind him, Reffitt assisted and

encouraged others to use unlawful means to breach the Capitol. As Sergeant DesCamps—one of

the officers who faced off with Reffitt—testified, rioters who followed Reffitt up the stairs

“directly assaulted [the officer] with a carbon choke cleaner or WD-40” and “bear spray.” See,

e.g., March 7 A.M. Trial Tr. at 1298:8–15. A rational trier of fact could reasonably find that

Reffitt aided and abetted those who forcibly assaulted and overcame officers to enter the Capitol

building. Moreover, Reffitt acted with an unlawful purpose to physically overthrow Congress, a

sentiment he expressed numerous times before, during, and after January 6. For instance, he said

that he was going to D.C. to “drag the traitors out,” see Gov’t Ex. 1B4.1. He wanted to drag

lawmakers out of the Capitol by their heels, with their heads hitting every step, see Gov’t Ex.

8 1B20.2.1. A rational jury could infer from these statements that he acted with an unlawful

purpose. Finally, Reffitt acted with consciousness of wrongdoing. He acknowledged that he

knew that the police officers were faithfully doing their jobs when they ordered him to retreat,

yet he continually refused. See Gov’t Ex. 218. A jury thus could reasonably interpret these

statements as demonstrating that Reffitt knew that his actions were wrong.

It is immaterial that the government did not prove that Reffitt assaulted anyone. Cf. Mot.

for Judgment of Acquittal at 12. Contrary to his contention, the Court never said that the

government could only prove that Reffitt acted corruptly only if it showed that he committed an

assault. See Reply in Support of Post-Trial Motions at 1, Dkt. 146. In fact, the Court explained

that “aiding and abetting the assaults” would qualify as unlawful means. Feb. 18, 2022 Tr. at

10:19–21, Dkt. 112. When the Court suggested during a pretrial conference that the government

would have difficulty proving Reffitt’s “corrupt” mens rea unless it proved unlawful means, it

was in the context of discussing the government’s “unlawful purpose” theory. In the Court’s

view, the government had implied that Reffitt’s unlawful purpose was simply his intent to

obstruct the official proceeding. See

at 9:2–11. The Court explained that this would not be a

viable theory of a corrupt—that is, an unlawful—purpose, as it simply recast “corruptly” as

“intentionally.” See

at 8:24–9:1. In that scenario, the Court stressed to the government that it

would need to be prepared to prove that Reffitt used unlawful means, such as assaulting officers

or aiding and abetting those assaults. See

at 10:14–21. At trial, however, the government did

present sufficient evidence of Reffitt’s unlawful purpose, and it went far beyond an intent merely

to obstruct the proceeding. See supra at 8. Therefore, the jury could find that Reffitt acted

corruptly under multiple theories.

9 Before trial, Reffitt argued that the term “corruptly” rendered § 1512(c)(2)

unconstitutionally vague as applied to him. See Mot. to Dismiss at 12–17, Dkt. 38. But from the

face of the indictment alone, the Court could not determine whether he acted “corruptly” within

the term’s core meaning such that he was sufficiently on notice of the criminality of his conduct.

See Order on Mot. to Dismiss at 5–6. Given the facts that emerged at trial, the Court can now

address Reffitt’s as-applied vagueness challenge. In Sandlin, the Court held that “corruptly”

covered at least those defendants who engaged in “independently criminal” and “inherently

malign” conduct with the intent to obstruct an official proceeding.

, at *13. It

also acknowledged that difficult vagueness questions could arise where a defendant used lawful

means, albeit with an improper purpose.

at *13 n.14. Here, Reffitt led and encouraged others

who used “obvious criminal means,”

, and his purpose—to physically remove members

of Congress—was obviously unlawful. Therefore, he had “fair notice” that his conduct was

punishable under the statute, and the Court will deny his vagueness challenge. See Mot. for

Judgment of Acquittal at 8.

3. Obstructing Officers During a Civil Disorder (Count 4)

In Count Four, Reffitt was charged with obstructing officers during a civil disorder, in

violation of

(a)(3). To convict Reffitt of this offense, the government had to

prove that he committed, or attempted to commit, an act with the intent to obstruct, impede, or

interfere with law enforcement officers who were lawfully carrying out their official duties

incident to a civil disorder. See Final Jury Instructions at 32. The January 6 riot was a “civil

disorder,” as explained above. And Reffitt does not contest that the officers were lawfully

performing their official duties during the disorder, nor does he refute that the civil disorder

adversely affected commerce or the performance of a federally protected function. See Mot. for

10 Judgment of Acquittal at 15–17. He challenges only that he acted with the intent to obstruct,

impede, or interfere with the officers, again by insisting that he did not assault or attempt to

assault them. See

The Court disagrees.

The police witnesses testified that Reffitt climbed up the stairs toward them, refused their

commands to stop, and encouraged the crowd behind him to continue moving forward to breach

the police line. See, e.g., March 2, 2022 P.M. Trial Tr. at 642–50. Reffitt himself confirmed his

intent to interfere with the officers as they carried out their duties—he acknowledged that they

were simply doing their jobs, yet still he did not heed their warning to retreat. See Gov’t Ex.

218. That he was “incapacitated” for a brief time after he was pepper sprayed is irrelevant. Cf.

Mot. for Judgment of Acquittal at 16. As Reffitt later explained to Hardie, he “couldn’t continue

on, but [he] made it possible for other people to continue.” March 4, 2022 A.M. Trial Tr. at

1147:9–10. Thus, a jury could find that Reffitt committed, or at least attempted, to commit an

act with the intent to interfere with or obstruct law enforcement officers.

4. Obstruction of Justice (Count 5)

In Count Five, Reffitt is charged with obstructing justice by hindering communication

through threat of physical force, in violation of

(a)(2)(C). For this offense, the

jury had to find that Reffitt knowingly used or attempted to use physical force or the threat of

physical force against his children, Jackson or Peyton Reffitt, with the intent to hinder or prevent

them from communicating to law enforcement about the commission of an offense. See Final

Jury Instructions at 34. The jury also had to find that it was reasonably likely that the

communication would have been made to a federal officer about a federal offense.

Jackson Reffitt testified that after the January 6 riot, his father told him and his sister

Peyton, “[i]f you turn me in, you are [a] traitor. Traitors get shot.” March 3, 2022 P.M. Trial Tr.

11 at 1003:6–8. Jackson explained that he understood the remark as a “threat” and felt “scared” for

him and his sister.

, 7–9. He further testified that his father told Peyton, “You better

not be recording this or I will put a bullet in your phone.”

at 1004:19–23. According to

Jackson, Reffitt was “clearly very, very, very upset.”

. Jackson later told the FBI

about these threats and Reffitt’s activities before and on January 6.

at 1007–08; see also

March 4, 2022 P.M. Trial Tr. at 1229:13–19, Dkt. 140 (Agent Hightower’s testimony about

Jackson’s report of the threat). Considering this testimony, the jury could reasonably conclude

that Reffitt threatened his children with physical force to prevent them from telling law

enforcement, such as the FBI, about his activities on January 6 (which were federal offenses).

Reffitt’s insufficient evidence challenge rests solely on his attacks on Jackson’s credibility. See

Mot. for Judgment of Acquittal at 18. But as explained above, it is for the jury to decide witness

credibility, and the Court will respect those conclusions. Reffitt’s motion for acquittal on this

count thus fails.

B. Obstruction of an Official Proceeding

Reffitt continues to challenge the Court’s interpretation of § 1512(c)(2), regarding both

the scope of the statute’s actus reus terms and the requirements of its mens rea term, “corruptly.”

Section 1512(c), in full, states:

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.

(c).

12 The Court previously addressed most of Reffitt’s arguments at length, and therefore, will

briefly reiterate its conclusions here. Reffitt also now points to a recent decision that departs

from this Court’s ruling in Sandlin.2 See United States v. Miller, No. 21-cr-119,

(D.D.C. Mar. 7, 2022) (Nichols, J.). For the reasons explained below, the Court does not

find Miller persuasive.

1. Definition of “corruptly”

According to Reffitt, a defendant acts “corruptly” under § 1512(c)(2) where he “act[s]

corruptly to obstruct, influence, or impede the due administration of justice, that is, [that he]

act[s] knowingly and dishonestly with the intent to obtain an unlawful advantage for himself or

an associate, and that he influence[s] another to violate their legal duty.” Mot. for Judgment of

Acquittal at 9. As it has explained on multiple occasions, see Feb. 3, 2022 Tr. at 10–11, Dkt.

111; Feb. 18, 2022 Tr. at 12–13, the Court disagrees.

First, the defendant need not have intended to obstruct, impede, or influence the “due

administration of justice.” While some courts have included that element in their § 1512(c)(2)

instruction, they have simply borrowed from pattern instructions for § 1503. See United States v.

Matthews,

, 706 n.2 (7th Cir. 2007). But § 1503 prohibits corruptly influencing,

obstructing, or impeding “the due administration of justice,” whereas § 1512(c)(2) prohibits

corruptly obstructing, influencing, or impeding “an official proceeding.” Thus, the latter statute

2 Other judges in this District have followed Sandlin. See United States v. Caldwell, No. 21-cr- 28,

(D.D.C. Dec. 20, 2021) (Mehta, J.); United States v. Mostofsky, No. 21- cr-138,

(D.D.C. Dec. 21, 2021) (Boasberg, J.); United States v. Montgomery, No. 21-cr-46, Dkt. 87 (D.D.C. Dec. 28, 2021) (Moss, J.); United States v. Nordean, No. 21-cr- 175, Dkt. 263 (D.D.C. Dec. 28, 2021) (Kelly, J.); United States v. Grider, 21-cr-22,

(D.D.C. Feb. 9, 2022) (Kollar-Kotelly, J.); United States v. Bozell, 21-cr-216,

(D.D.C. Feb. 16, 2022) (Bates, J.); United States v. Puma, 21-cr-454,

(D.D.C. Mar. 19, 2022) (Friedman, J.); United States v. McHugh, No. 21-cr-453,

(D.D.C. May 2, 2022) (Bates, J.). 13 requires an intent to obstruct an official proceeding, as opposed the due administration of justice.

See Montgomery,

, at *21. After all, official proceedings include proceedings

before Congress, which need not relate to the administration of justice. See id.; Sandlin,

, at *4.

Nor is the defendant required to act “dishonestly” to violate § 1512(c)(2). In Arthur

Andersen LLP v. United States, the Supreme Court reviewed jury instructions for

(b) that omitted the word “dishonestly.”

(2005). The Court found that

the instructions were flawed because they “failed to convey the requisite consciousness of

wrongdoing,” as the jury was told that “even if [petitioner] honestly and sincerely believed that

its conduct was lawful, you may find [petitioner] guilty.”

Here, the Court instructed the jury

that Reffitt must have acted with “consciousness of wrongdoing” to be guilty of the offense, thus

rendering the word “dishonestly” unnecessary. See Final Jury Instructions at 26.

Courts have interpreted “corruptly” to require the defendant to have influenced another to

violate his legal duty when they read “corruptly” in its transitive sense—meaning that the

defendant must have “corrupted” another person. See United States v. Poindexter,

(D.C. Cir. 1991). But in § 1512(c)(2), “corruptly” is used in the intransitive, such that

the defendant’s own behavior must be corrupt, see Caldwell,

, at *10, as it was

here.

It is true that some courts have explained that a defendant acts corruptly when he seeks to

obtain an improper advantage for himself or another. See, e.g., United States v. Ogle,

(10th Cir. 1979). But others have clarified that “‘corruptly’ is ordinarily understood as

referring to ‘act[s] done voluntarily and intentionally and with the bad purpose of accomplishing

either an unlawful end or result, or a lawful end or result by some unlawful method or means”—

14 and “[t]he motive to act corruptly is ordinarily a hope or expectation of either financial gain or

other benefit to oneself or some profit or benefit to another.” United States v. McElroy,

(2d Cir. 1990) (quoting United States v. Brunson,

, 154 n.2 (5th Cir.

1989) (emphasis added)). Thus, the desire to gain an advantage is typically the motive for a

person to act corruptly, but not always. Reffitt points to United States v. Reeves, which noted

that the “unlawful advantage or benefit” definition of “corruptly” guards against potential

overbreadth, vagueness, and First Amendment concerns. Mot. for Judgment of Acquittal at 10

(citing United States v. Reeves,

(5th Cir. 1995) (interpreting the corrupt tax

obstruction statute)). But that court explained that those problems arise when interpreting

“corruptly” to mean “with an improper motive or bad or evil purpose.” Reeves,

(emphasis added). The Court’s jury instructions did not define corruptly in that way.

To avoid these vagueness concerns, see Poindexter, 951 F.2d at 379–80, the Court

rejected the government’s proposal to define “corruptly” as requiring either unlawful means or

an improper, or wrongful, purpose. See Gov’t Proposed Jury Instructions at 4, Dkt. 86; Gov’t

Proposed Jury Instructions at 6, Dkt. 109. Instead, the Court instructed the jury that a defendant

acts corruptly when he uses unlawful means or acts with an unlawful purpose, see Final Jury

Instructions at 26, echoing the McElroy court’s definition, see

. See also United

States v. Aguilar,

, 616–17 (1995) (Scalia, J., concurring in part and dissenting in

part) (approvingly citing similar jury instructions for § 1503); United States v. Norris, 419 Fed.

App’x 190, 194 (3d Cir. 2011) (affirming a similar instruction for § 1512(b)); United States v.

Fumo, No. 06-cr-319,

, at *54 (E.D. Pa. June 17, 2009) (using a similar

15 instruction for § 1512(c)(1)).3 Thus, the Court’s instruction regarding the “corruptly” prong of §

1512(c)(2) was proper.

2. Section 1512(c)(2)’s scope

Reffitt continues to challenge the Court’s finding that his conduct constitutes

“obstruction” within the meaning of § 1512(c)(2). He maintains that a defendant obstructs,

impedes, or influences an official proceeding only if he “impairs the integrity and availability of

non-object information to be used in the official proceeding.” Mot. for Judgment of Acquittal at

9. In Sandlin, and again when denying Reffitt’s motion to dismiss, the Court rejected this type of

limiting construction for § 1512(c)(2), concluding that the plain meaning of the statute’s broad

terms cover more than just acts affecting evidence. See Order on Mot. to Dismiss at 4 (citing

Sandlin,

, at *5–10). The Court found nothing in the statute’s structure,

context, or history that alters or overcomes its plain meaning. Sandlin,

, at

*5–10. The Court has carefully considered Judge Nichols’ recent decision in United States v.

Miller,

, upon which Reffitt relies, see Mot. for Judgment of Acquittal at 8–9,

and will not change its original conclusion.

Miller holds that § 1512(c)(2) requires the defendant to have “taken some action with

respect to a document, record, or other object in order to corruptly obstruct, impede or influence

3 Applying this definition also ensures that innocent conduct is not deemed “corrupt” under § 1512(c)(2)’s adjacent provision, § 1512(c)(1). Merely “altering” a document with the intent to impair its integrity or availability for use in an official proceeding is not necessarily “inherently malign.” Arthur Andersen, 544 U.S. at 703–04. For example, a lawyer’s decision to redact a document pursuant to a valid claim of privilege would not be “corrupt.” But where a lawyer uses unlawful means (e.g.: steals and alters a document) or pursues an unlawful purpose (e.g.: alters a document to cover up his own legal liability), he does act corruptly. See United States v. North,

(D.C. Cir. 1990) (Silberman, J., concurring in part and dissenting in part) (considering an analogous hypothetical about a lawyer who persuades his client not to testify).

16 an official proceeding.”

, at *15.4 Judge Nichols identified a key interpretive

question: “whether or how the word ‘otherwise’ ties § 1512(c)(2) to the prior subsection—

§1512(c)(1).” Id. at *6. He then presented three options: First, “otherwise” could serve as a

“clean break” such that there is no relationship between the subsections. Id. This option, he

explained, is possible, but problematic, as it would ignore that “otherwise” “implies a

relationship to something else,” and it would render the word surplusage. Id. Plus, this reading

would conflict with the Supreme Court’s decision in Begay v. United States,

(2008).

at *6–8. Next, “otherwise” could link the subsections by indicating that § 1512(c)(1)

provides examples of conduct that violates § 1512(c)(2). Id. at *8. While Judge Nichols found

this option more plausible than the first, he still identified other issues. The second subsection

would be far broader than the first; indeed, it would swallow it. Id. at *8–9. Finally, “otherwise”

could mean that § 1512(c)(2) is a residual clause or catchall for § 1512(c)(1), ensuring that all

corrupt acts on records, documents, or other objects are covered by the statute. Id. at *9. Judge

Nichols found this option to be most consistent with Begay. Id. at *9–10. Considering structure,

context, history, he deemed the catchall option as the most plausible. Id. at *11–14. Finding

remaining ambiguity in the statute, the court applied the rule of lenity to adopt that narrow

interpretation. Id. at *15.

This Court continues to focus first and foremost on the plain meaning of § 1512(c)(2)’s

key terms. See Sandlin,

, at *5 (defining “obstruct,” “impede,” and

“influence” and recognizing their “expansive[ness]”). As the Court explained in Sandlin,

“otherwise” means “in a different manner” or “by other means.”

(quoting Otherwise, def.

4 Reffitt’s proposal differs from Miller’s construction, as it is limited to acts impairing “non- object information,” Mot. for Judgment of Acquittal at 9, as opposed to acts affecting documents, records, or other objects, see Miller,

, at *15. 17 B(1)(a), Oxford English Dictionary (3d ed. 2004)).5 The Court cannot discern anything from

these definitions that plausibly limits the breadth of § 1512(c)(2)’s verbs, so it struggles to accept

Miller’s third, narrow bucket. Its interpretation of the statute, however, is not reflected by the

Miller court’s first two broad buckets either. It 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)—for instance, by destroying or altering

documents with the intent to impair them for use in an official proceeding. Id. Thus, the Court

both recognized a link between the subsections and gave meaning to the word “otherwise,”

contra Miller’s first bucket. And it underscored that § 1512(c)(2) covers actions that are

different than those covered by § 1512(c)(1), contra Miller’s second bucket.6

Nor can the Court place so much weight on Begay. Interpreting the Armed Career

Criminal Act, the Supreme Court held that a “violent felony” that “otherwise involves conduct

that presents a serious physical risk of injury to another” must be similar in kind to the example

crimes listed before that catchall clause. Begay,

. But the Court also indicated

that its interpretation of the word “otherwise” was not the only permissible one. Instead, it

recognized that, in other contexts, it could instead be interpreted as a link to what follows the

word as opposed to the examples preceding it.

.

5 The definitions provided by the Miller court are similar: “in a different way or manner: differently”; “in different circumstances: under other conditions”; and “in other respects.”

, at *6 (quoting Otherwise, Webster’s Third New Int’l Dictionary of the English Language Unabridged (2002)). 6 The Court agrees with Judge Moss that “otherwise” also serves to “signal[s] a shift in emphasis from actions directed at evidence to actions directed at the official proceeding itself.” Montgomery,

, at *12 (internal quotation omitted). 18 Section 1512(c) presents a very different context. In Begay, the Supreme Court found

that the four example crimes in the ACCA statute did not pose a similar degree of “serious

physical risk of injury” (the catchall following “otherwise”); thus, it concluded that the other

“violent felonies” must be similar to those examples beyond their degree of risk.

at 142–43.

In contrast, § 1512(c)(2) does not contain language, like “serious,” that demands a quantitative

analysis of the degree to which certain conduct obstructs a proceeding. The acts prohibited by §

1512(c)(1) have the capacity to obstruct, influence, or impede a proceeding, and § 1512(c)(2)

simply covers any different manner of obstructing, impeding, or influencing. That is,

interpreting “otherwise” in relation to the terms that follow does not pose the same problem

presented by the ACCA. Further, Begay relied on the particular statutory history of the ACCA,

which is not replicated here. Id. at 143–44.

And, as Miller acknowledged, the two statutes are structured differently. Section

1512(c)(2) is housed in a separate subsection, as opposed to the same sentence. Miller,

, at *10; Sandlin,

, at *6. And “a key feature of [the ACCA]—namely,

the four example crimes intended to illustrate what kind of ‘violent felony’ the statute covers,”

Begay,

, is missing here. Section 1512(c)(1) “is not a list of example crimes from

which some common feature can be gleaned.” Caldwell,

, at *14.

As the Court noted in Sandlin, the more apt structural comparison is to § 1503.

, at *7. The specific provisions in that statute cover actions relating to jurors and court

officers, while the omnibus clause at the end covers the obstruction of the due administration of

justice in general. See United States v. Aguilar,

(1995). Miller claims that the

Supreme Court in Aguilar rejected a “broad reading” of the omnibus clause and instead placed

“metes and bounds” on its expansive language.

, at *8 (quoting Aguilar, 515

19 U.S. at 599–600). That is true, but irrelevant to the interpretive question at hand. The Court held

that a defendant’s act must have “a relationship in time, causation, or logic with the judicial

proceedings,” as opposed to “some ancillary proceeding.” Aguilar,

. This Court

adopted a similar nexus requirement for § 1512(c)(2). Sandlin,

, at *12; Final

Jury Instructions at 25. The Aguilar majority did not, however, consider whether the omnibus

clause is limited to acts directed at jurors and court officers (like Miller’s limit of § 1512(c)(2) to

acts affecting records, documents, or objects). Concurring, Justice Scalia reached that

proposition and rejected it because the omnibus clause is not a general item following a list, but

instead is “one of several distinct and independent prohibitions” in the statute. Aguilar,

(Scalia, J., concurring in part and dissenting in part); see also United States v. Howard,

(5th Cir. 1978) (same); Sandlin,

, at *7 (explaining the

similarities between §§ 1503 and 1512(c)). Thus, the scope of § 1503’s omnibus clause has not

been artificially restricted to mimic that of the statute’s specific clauses, and the same result

should hold for § 1512(c).

Turning to statutory context, the Court agrees with Miller that a capacious interpretation

of § 1512(c)(2) creates “substantial overlap” with the rest of § 1512(c). Sandlin,

, at *7–8. But the Court disagrees that the superfluities “suggest[] that Congress did not

mean [the subsection] to have so broad a scope,” Miller,

, at *12. Rather, as

Judge Bates recently explained, “that is simply how catch-alls work.” McHugh,

, at *7. And as previously noted, numerous provisions within the statute would not be

subsumed under the broad reading of § 1512(c)(2). Sandlin,

, at *8.

Moreover, Miller’s construction itself renders § 1512(c)(1) superfluous. After all, altering,

destroying, mutilating, or concealing an object with the intent to impair its use in an official

20 proceeding certainly qualifies as an action with respect to an object taken in order to obstruct,

impede, or influence that proceeding. The surplusage canon should not invoked to “substitut[e]

one instance of superfluous language for another.” United States v. Ali,

(D.C.

Cir. 2013).7 Besides, this canon is just a “rule[] of thumb that help[s] courts determine the

meaning of legislation.” Conn. Nat’l Bank v. Germain,

, 253–54 (1992). It does

not override “the cardinal canon” to which “a court should always turn first”: “that a legislature

says in a statute what it means and means in a statute what it says there.”

The Court will thus

not impose “an extra-textual limit on [§ 1512(c)(2)’s] compass” to avoid superfluity. See

Loughrin v. United States,

, 357 & n.4 (2014).

To be sure, it is somewhat odd that § 1512(c)(2) is the only provision in the section that

lacks “a narrow focus.” Cf. Miller,

, at *11. But it would also be unnatural to

read a phrase as expansive as “otherwise obstructs, influences, or impedes any official

proceeding” as restricted just to acts affecting records, documents, or objects—especially

because a whole host of such acts are already proscribed in § 1512(c)(1). And “[h]ad Congress

intended to restrict [§ 1512(c)(2)] to [acts affecting records, documents, or objects], it

presumably would have done so expressly as it did in the immediately [preceding] subsection.”

Russello v. United States,

(1983) (explaining that a broad construction of one

provision is not “undermined” by surrounding narrow provisions). While “a reader would not

expect to find in a statute that is otherwise narrowly (and consistently) tailored a criminal

prohibition of exceptionally broad scope,” Miller,

, at *12, nor would that

reader expect a provision’s expansive terms to in fact carry an extremely limited meaning.

7 Reffitt’s interpretation of § 1512(c)(2) as limited to acts impairing non-object information also yields superfluities. See Sandlin,

, at *8. 21 Miller discusses statutory and legislative history, see

at *12–14, but the Court finds

that neither sheds much light. True, the history might support the notion that § 1512(c) was

enacted just to close the loophole that allowed a defendant to escape liability for individual

evidence spoliation. See id.; Order on Mot. to Dismiss at 4. But it also suggests that Congress

intended to plug the gap to ensure that all forms of direct obstructive conduct would be covered.

See McHugh,

, at *7–12; Montgomery,

, at *15–16;

Caldwell,

, at *16. Indeed, that explanation helps explain why § 1512(c)(2)

covers conduct that violates other provisions in § 1512. “[B]ecause indirect obstruction is only

one form of direct obstruction, any attempt to close the direct obstruction loophole while

working within § 1512’s pre-existing structure would have created substantial overlap.”

McHugh,

, at *9. Thus, the history does not cast doubt on the interpretation

best supported by § 1512(c)(2)’s text: that the subsection creates direct liability for an

individual’s obstructive acts beyond those relating to physical evidence.8

8 The Court also agrees with Judge Bates’s conclusion that the source of § 1512(c)’s language does not indicate that it has a limited scope. Compare McHugh,

, at *10 with Miller,

, at *13. It appears that § 1512(c)(2)’s actus reus terms were borrowed from those in §§ 1503(a) and 1505. And those statutes are “expansive prohibitions on obstruction” that have not been interpreted to include “any limitation on the nature of the obstructive act.” McHugh,

, at *10. Nor does § 1512’s evolution prove that § 1512(c)(2) should be construed narrowly. That § 1512(a)(2)(B) was enacted three months after § 1512(c) yet prohibits conduct that could be charged under a broad § 1512(c)(2) is not dispositive. See Miller,

, at *13. “It is not unusual for a particular act to violate more than one criminal statute, and in such situations the Government may proceed under any statute that applies.” Aguilar,

(Scalia, J., concurring in part and dissenting in part) (internal citations omitted). Plus, as Judge Bates notes, § 1512(a)(2) was written and approved nearly a year before it was enacted, thus predating § 1512(c). McHugh,

, at *9 n.17. 22 Finally, contrary to Miller’s conclusion, the rule of lenity does not apply here.9 This rule

comes into play only when a statute is ambiguous “after seizing everything from which aid can

be derived.” Ocasio v. United States,

, 295 n.8 (2016) (quoting Muscarello v.

United States,

, 138–139 (1998)). The Supreme Court has “underscore[d] that

point” through its “repeated use of the term ‘grievous ambiguity.’” Wooden v. United States,

, 1075 (Kavanaugh, J., concurring) (citing Shaw v. United States,

(2016); Salman v. United States,

(2016); Abramski v. United States,

, 188 n.10 (2014)). And a statute is not ambiguous “merely because it [is] possible to

articulate a construction more narrow than that urged by the Government.” Moskal v. United

States,

(1990). After “exhaust[ing] all the tools of statutory interpretation”

and “determin[ing] the best reading of the statute,” the Court has not identified a grievous

ambiguity, and therefore will not apply the rule of lenity. Wooden, 142 S. Ct. at 1075

(Kavanaugh, J., concurring).

The Court recognizes that “the rule of lenity is venerable.” United States v. Nasir,

(3d Cir. 2021) (Bibas, J., concurring). It ensures that defendants are on notice of

the criminality of their conduct, and that legislatures, rather than courts, define crimes and

punishments. Wooden, 142 S. Ct. at 1082–83 (Gorsuch, J., concurring). But it is important to

remember that “[t]he touchstone is the text: the ‘ordinary,’ evidently intended meaning of ‘the

words of the statute.’” Nasir,

(Bibas, J., concurring) (quoting United States v.

Wiltberger,

(1820)). That is, “though penal laws are to be construed

strictly,” this “maxim is not to be so applied as to narrow the words of the statute to the exclusion

9 Miller invokes lenity as a background principle before it embarks on its statutory interpretation,

, at *4–5, though the rule “comes into operation at the end of the process of construing what Congress has expressed,” Callanan v. United States,

(1961). 23 of cases which those words, in their ordinary acceptation . . . would comprehend.” Wiltberger,

. When the plain text covers the defendant’s conduct in terms that he

can understand, the Court must apply the law as written. Wooden, 142 S. Ct. at 1082 (Gorsuch,

J., concurring).

Such is the case here. Reffitt helped lead a mob of rioters up the steps of the Capitol to

overwhelm the police officers guarding Congress during its Joint Session. As the jury found,

those actions hindered or placed obstacles in the way of the official proceeding. See also

Sandlin,

, at *5. Because these acts fall under the “ordinary acceptation” of §

1512(c)(2)’s terms, the Court finds no reason to narrowly construe the statute to exclude them.

3. Motion to Arrest Judgment

The Court has jurisdiction over the § 1512(c)(2) offense—a federal crime that Reffitt

committed in Washington, D.C.—and thus will not arrest judgment on Count Two under Rule

34. Reffitt’s only argument in support of his jurisdictional challenge is that the indictment does

not set forth “the essential facts constituting the offense charged.” Mot. to Arrest Judgment at 2

(quoting Fed. R. Civ. P. 7(c)(1)).10 First, defects in an indictment do not defeat a court’s

jurisdiction. Cotton, 535 U.S. at 630–31. Second, as the Court has already explained, the

indictment is not in fact factually infirm: it tracks the statutory language and identifies the

proceeding that Reffitt obstructed. See Order on Mot. to Dismiss at 6–7.11 Thus, his motion to

arrest judgment will be denied.

10 Reffitt challenges the indictment on the ground that it fails to allege that he took action with respect to a document or impaired non-object information. See Mot. to Arrest Judgment at 1. Even if such allegations are required for the indictment to be factually sufficient, these are not elements that the government must prove under § 1512(c)(2), as explained in Part III.B.2. 11 Reffitt did not move to dismiss the indictment on this basis, nor did he ever move for a Bill of Particulars. See Order on Mot. to Dismiss at 7 n.5. 24 C. Motion for New Trial

Reffitt makes little attempt to show that “the interest of justice” requires a new trial, see

Fed. R. Crim. P. 33(a), reiterating only that the evidence is insufficient to sustain guilty verdicts,

except on count 3(a), see Mot. for New Trial at 1. In fact, the evidence amply supports his

conviction on all counts. See supra Part III.B.1. And he points to no errors affecting his

substantial rights. See United States v. Williamson,

(D.D.C. 2015).

Accordingly, the Court will deny his motion for a new trial.

CONCLUSION

For the foregoing reasons, Reffitt’s post-trial motions are denied. A separate order

consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge May 4, 2022

25