UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Criminal No. 22-cr-15 (APM) ) ELMER STEWART RHODES, III et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I.

Before the court are three motions seeking dismissal of the Superseding Indictment or

certain counts. The court denies each motion for the reasons explained below.

II.

First up is a motion filed by Defendants Roberto Minuta, Thomas Caldwell, Kenneth

Harrelson, Jessica Watkins, David Moerschel, and Kelly Meggs to dismiss the Superseding

Indictment. Defs.’ Mot. to Dismiss the Superseding Indictment, ECF No. 170 [hereinafter Defs.’

Mot.]. The basis of that motion is two-fold: they contend that (1) the grand jury that returned the

Superseding Indictment was not unbiased because it acted in the midst of congressional hearings

concerning the events of January 6th, id. at 2–4, and (2) securing a new indictment while

congressional hearings are ongoing constitutes prosecutorial misconduct, id. at 5–6.

As to their first argument, Defendants assume they have the right to assert a challenge

based on grand jury bias, but that is not necessarily true. “[S]everal courts have held that a

defendant cannot challenge a grand jury or individual grand jurors for bias at all,” including the

sole case in this District to address the issue. United States v. Menendez, No. 15-cr-155,

(D.N.J. Sept. 28, 2015) (citing, among other cases, United States v. Knowles,

, 20–21 (D.D.C. 1957) (“[T]he status of a member of a grand jury may not be

questioned except for lack of legal qualifications.”)). Courts that have permitted such challenges

have set a very high bar: the defendant must demonstrate though proof “actual grand juror

prejudice.” Menendez,

. 1 Here, Defendants offer no evidence, only

speculation, that the grand jury lacked unbiased jurors. See Defs.’ Mot. at 2–4. They presume that

media coverage of the January 6th congressional hearings must have prejudiced the grand jurors

against them, but “the fact alone of such publicity [does] not in itself constitute a sufficient showing

of bias and prejudice.” Estes v. United States,

(5th Cir. 1964) (citing Beck v.

Washington,

(1962)). Defendants’ first argument fails.

As for their second, Defendants cite not a single case for the proposition that the

government acts improperly when it seeks criminal charges during ongoing, highly publicized

congressional hearings. That is not surprising. Such a rule makes little sense, as it would

hamstring prosecutors in investigating wrongdoing simply because Congress acts in parallel. In

any event, as the sole evidence of misconduct, Defendants point to the government’s non-

opposition to postponing the trial of a different set of January 6th defendants, a group known as

the “Proud Boys” in United States v. Nordean, 21-cr-175 (TJK) (D.D.C.), due to the congressional

hearings. Defs.’ Mot. at 5–6. But the government’s position with respect to when a trial should

1 See United States v. Smith,

, 1003–04 (9th Cir. 2005) (holding that “[s]ubstantial proof of grand jury bias is required to overturn an indictment” and rejecting challenge where the defendant made “no factual allegation of actual bias on the part of any grand juror in his case” (internal quotation marks omitted)); United States v. Two Eagle,

(8th Cir. 2003) (“Dismissal of an indictment based on grand-jury bias is an extreme remedy, and the party seeking relief carries a heavy burden. A grand-jury indictment will only be dismissed upon a showing of actual prejudice to the accused.”(internal citations omitted)); United States v. Burke,

(2d Cir. 1983) (“The grand jury need not deliberate in a sterile chamber . . . and a criminal conviction appealed on grounds of adverse preindictment publicity will not be overturned unless the moving party can bear the heavy burden of demonstrating that he has suffered actual prejudice as a result of the publicity.” (internal citations and quotations omitted)).

2 occur sheds no light on whether it was improper to go before a grand jury and seek a superseding

indictment.

III.

Mr. Meggs, represented by new counsel, asserts various grounds for dismissal that

supplement the motions to dismiss of other Defendants he already has joined. Def. Meggs’s Mot.

to Dismiss Counts 1–3 and 5, ECF No. 188 [hereinafter Meggs’s Mot. to Dismiss]. His arguments

are directed to Counts One through Three and Five only. The court already has rejected some of

his arguments, which he simply adopts from other motions. See, e.g.,

at 13–17 (arguing that

members of Congress do not “execute” any law for purposes of the seditious conspiracy statute,

);

(asserting that

(c)(2) does not reach the alleged

conduct). 2 To the extent he makes new arguments, they are not easy to identify. The motion

largely consists of characterizing the indictment in the light most favorable to him (as opposed to

in favor of the government, as is required at this stage) and citing to cases without explaining how

they specifically apply here. Regardless, the court rejects the arguments it can discern.

First, Mr. Meggs asserts that the indictment does not allege facts to support the charge of

seditious conspiracy. Meggs’s Mot. to Dismiss at 11–12. Mr. Meggs advanced a species of this

argument previously, when represented by different counsel, but the court rejected it. See Mem.

Op. & Order, ECF No. 176 [hereinafter Mem. Op. & Order], at 23. Newly reframed, the contention

fares no better. The Superseding Indictment contains a host of factual allegations directed at

Mr. Meggs: (1) he was part of an encrypted group chat and online meeting in the days after the

2 The court rejected these arguments in various prior opinions in both the instant matter and the predecessor Caldwell indictment: (1) Mem. Op. & Order, ECF No. 176, at 13–18 (holding that members of Congress “execute” laws for purposes of

); (2) United States v. Caldwell, No. 21-cr-28 (APM),

, at *11–19 (D.D.C. Dec. 20, 2021) (construing § 1512(c)(2) to reach the conduct alleged); and (3) United States v. Caldwell,

, at *2 (D.D.C. Jan. 24, 2022) (same).

3 2020 presidential election with other Defendants in which Mr. Rhodes referenced “civil war,”

urged copying the template used in Serbia to overthrow the government, and “outlined a plan to

stop the lawful transfer of presidential power,” including with force (Superseding Indictment, ECF

No. 167 [hereinafter Superseding Indictment], ¶¶ 18–19); (2) participated in “a training on

‘unconventional warfare’” (id. ¶ 22); (3) stated in an online chat, “We need to make those senators

very uncomfortable with all of us being a few hundred feet away” (id. ¶ 34); (4) said on a chat,

when asking about the “Ammo situation,” that he had a “few thousand” (id. ¶ 56); (5) supplied and

unloaded weapons at a hotel in Ballston, Virginia, for the Quick Reaction Force (id. ¶¶ 65–69);

(6) entered the Capitol Building on January 6th in a “stack” formation with other Defendants (id.

¶ 97); (7) walked toward House Speaker Nancy Pelosi’s office but “did not find Speaker Pelosi”

(id. ¶ 106); and (8) after the events of January 6th, told another alleged co-conspirator that “FL

stays home until shots fired!” (id. ¶ 131). These allegations, viewed in the light most favorable to

the government, are sufficient to support the charge of seditious conspiracy against Mr. Meggs.

Second, without elaboration, Mr. Meggs insists that the seditious conspiracy statute is

“constitutionally vague as applied.” Meggs’s Mot. to Dismiss at 13; see also

(arguing

that “neither Mr. Meggs nor any other defendant[] were on notice that the conduct with which they

are alleged to have engaged would violate the sedition statute, as applied”). But the court already

has held that the statutory terms, understood by their ordinary meaning, reach the conduct alleged,

including that members of Congress do execute the laws for purposes of the statute. Mem. Op. &

Order at 13–18. The conduct alleged when applied to the plain statutory text therefore presents no

vagueness problem. See United States v. Barnes,

(D.C. Cir. 2002) (rejecting

vagueness challenge where the statutory text was “sufficiently clear”). Strangely, Mr. Meggs

makes much of the fact that the court stated during oral argument that “I wish we did” have

4 members of Congress from 1861 present to shed light on the seditious conspiracy statute. See Def.

Meggs’s Reply Mem. of P. & A. in Further Supp. of Meggs’s Mot. to Dismiss, ECF No. 228

[hereinafter Meggs’s MTD Reply], at 3. But a quip made during oral argument is just that, a quip;

it does not constitute the court’s holding or reasoning. Mr. Meggs also cites as proof of ambiguity

the court’s drawing from Reconstruction-Era dictionaries to interpret the words of the seditious

conspiracy statute. See

That is an odd criticism: The Supreme Court routinely relies on

dictionaries from the time of a criminal statute’s enactment to interpret undefined terms. See, e.g.,

Muscarello v. United States,

(1998); Smith v. United States,

, 228–

29 (1993). The court did the same here. 3

Third, Mr. Meggs contends that his alleged conduct is protected under the First

Amendment. Meggs’s Mot. to Dismiss at 13. The court previously rejected that same argument

with respect to the charge under § 1512(c)(2). See United States v. Caldwell, No. 21-cr-28 (APM),

, at *22 (D.D.C. Dec. 20, 2021). The same reasoning holds with respect to the

seditious conspiracy count. The seditious conspiracy statute, as relevant here, criminalizes

agreements to use “force” either to oppose the authority of the United States government or to

prevent, hinder, or delay the execution of any law.

. Thus, the statute prohibits

certain agreements to use force. It does not impinge on protected First Amendment activities.

See NAACP v. Claiborne Hardware Co.,

(1982) (“The First Amendment does

not protect violence.”); Dennis v. United States,

(1951) (Douglas, J., dissenting)

3 Mr. Meggs also faults the court for not citing to a dictionary definition of the term “Execution of the Law.” Meggs’s MTD Reply at 3. But Mr. Meggs does not identify any dictionary or other source containing a definition of that phrase from the Reconstruction Era that would convey any different meaning than the ordinary one the court found applicable. Mr. Meggs also argues that the term “the Government” “always means the Executive” and that “Congress is always Congress.”

If by this argument Mr. Meggs means that Congress falls outside of “the Government of the United States” for purposes of the seditious conspiracy statute, he provides no support for that proposition other than his own understanding of those words. He also misreads the indictment. The object of the seditious conspiracy is not an attack on Congress but opposing the lawful transfer of presidential power.

5 (“Seditious conduct can always be punished.”). Mr. Meggs seems to suggest that the seditious

conspiracy statute must “be justified by the substantial showing of need that the First Amendment

requires.” Meggs’s MTD Reply at 5 (quoting Texas v. Johnson,

, 406–07 (1989)).

These defendants are not, however, indicted purely for their speech or assembly. Compare

Edwards v. South Carolina,

, 237–38 (1963) (reversing conviction for breach of the

peace where the defendants did no more than march peacefully on a sidewalk). 4 They are charged

with a seditious conspiracy, which is not protected by the First Amendment.

Fourth, Mr. Meggs suggests that the rule of lenity must be applied when interpreting the

seditious conspiracy statute because “the statute at a minimum is unclear in its application to

congress.” Meggs’s Mot. to Dismiss at 22. Not so. “The rule of lenity . . . applies only when,

after consulting traditional canons of statutory construction, [a court is] left with an ambiguous

statute.” United States v. Shabani,

(1994). The court already has held that the

ordinary meaning of the terms used in the seditious conspiracy statute reaches the actions of the

Vice President and members of Congress with respect to the laws governing the transfer of power,

namely, the Twelfth Amendment and the Electoral Count Act of 1887. Mem. Op. & Order at 13–

18. Therefore, resort to the rule of lenity is not needed.

Fifth, according to Mr. Meggs, the indictment violates the Double Jeopardy Clause because

it charges him with both seditious conspiracy and conspiracy to obstruct an official proceeding.

Meggs’s Mot. to Dismiss at 24–28. He claims that, because the two offenses “do not require proof

4 Mr. Meggs quotes Edwards as saying that “[a] three step analysis is required for resolving free speech claims on public property.” Meggs’s MTD Reply at 5. But Edwards says nothing of the sort; the quotation does not even appear in the case. Edwards is a criminal case in which the court held that “[t]hese petitioners were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, ‘not susceptible of exact definition.’ And they were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.”

. That is not this case. And, Mr. Meggs’s reference to a “three step analysis” concerns restrictions on speech in public versus nonpublic fora, a legal construct that plainly does not apply here. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

(1985).

6 of a unique fact as to each other,” the Clause is violated. Id. at 25. But he is wrong.

“[T]he [Blockburger] test focuses on the statutory elements of the offense, not on the proof offered

in a given case.” United States v. McLaughlin,

(D.C. Cir. 1998). “Hence if each

provision requires proof of an element that the other does not, the Blockburger test is satisfied.”

Here, the two conspiracy charges contain elements unique to each. Seditious conspiracy

requires an agreement to use “force”; conspiracy to obstruct an official proceeding does not.

Conspiracy to obstruct an official proceeding requires that its object be an official proceeding;

seditious conspiracy has no such requirement. Accordingly, there is no double jeopardy bar to

proceeding against Mr. Meggs on both conspiracy charges. 5

Finally, Mr. Meggs maintains that Count Five, charging him with aiding and abetting in

the destruction of government property, fails to state an offense. The court rejected that argument

previously, and it does so again for the same reasons. See Omnibus Order, United States v.

Caldwell, 21-cr-28 (APM) (D.D.C.), ECF No. 415, at 5–6.

IV.

Mr. Meggs has filed a separate motion seeking dismissal of the Superseding Indictment on

the grounds of selective prosecution. Def. Meggs’s Mot. to Dismiss on the Basis of Selective

Prosecution, ECF No. 189 [hereinafter Meggs’s Selective Prosecution Mot.]. It, too, is without

merit.

The standard applicable to a claim of selective prosecution “is a demanding one.” United

States v. Armstrong,

(1996). A presumption of regularity supports prosecutorial

decisions, and only when presented with “clear evidence to the contrary” can that presumption be

5 In his reply brief, to advance his Double Jeopardy argument, Mr. Meggs emphasizes that the government likely will use certain evidence (e.g., the Quick Reaction Force) to prosecute both conspiracy charges. Meggs’s MTD Reply at 6. That argument, however, confuses the Double Jeopardy inquiry: the focus is on the elements of the offenses, not the proof offered by the prosecution. See McLaughlin,

.

7 overcome. Id. at 465 (internal quotation marks omitted). A defendant must show that the decision

to prosecute “had a discriminatory effect and that it was motivated by a discriminatory purpose.”

Id. (internal quotation marks omitted). The former element requires the defendant to show that

others were similarly situated but not prosecuted. See id. at 469. “When a person’s circumstances

‘present no distinguishable legitimate prosecutorial factors that might justify’ different

prosecutorial decisions between him and the defendant, that person is similarly situated to the

defendant.” United States v. Judd, No. 21-cr-00040 (TNM),

, at *2 (D.D.C.

Dec. 28, 2021) (quoting Branch Ministries v. Rossotti,

(D.C. Cir. 2000)).

According to Mr. Meggs, he has been prosecuted for the “content of [his] message.”

Meggs’s Selective Prosecution Mot. at 4. He compares his prosecution primarily to persons who,

in the summer of 2020, attacked both the federal courthouse in Portland, Oregon, and the law

enforcement officers protecting it. See

Mr. Meggs does not identify any particular person that

he claims is similarly situated but instead points out that none of those persons were charged with

either seditious conspiracy or obstruction of an official proceeding, and to the extent they were

charged, the charges against nearly all were dropped. See

at 8–9. He also cites as comparators

persons who protested outside the White House in the summer of 2020 and demonstrators arrested

during the hearings of now-Justices Brett Kavanaugh and Amy Coney Barrett. See

at 10–11.

They, too, were not charged with seditious conspiracy or obstruction of an official proceeding.

Mr. Meggs fails to show that his comparators’ “circumstances present no distinguishable

legitimate prosecutorial factors that might justify different prosecutorial decisions.” Starting with

those charged in the Portland courthouse attacks, Judge McFadden has rejected a similar selective

prosecution challenge on the grounds that the Portland attacks occurred primarily at night and

therefore put fewer people in danger. Judd,

, at *5. By contrast, he reasoned:

8 “[T]he January 6 rioters attacked the Capitol in broad daylight. And many entered it. . . . [T]heir

actions endangered hundreds of federal officials in the Capitol complex. . . . The action in

Portland, though destructive and ominous, caused no similar threat to civilians.”

That is a key

difference, and in this case there are even more. The government’s charges against Mr. Meggs

and other Defendants here are based upon their involvement in a concerted plan to use force to

oppose the authority of the United States government and to obstruct an official proceeding

through, among other measures: (1) extensive planning and preparation through encrypted

communications; (2) training for unconventional warfare; (3) traveling to Washington, D.C., with

weapons, ammunition, and tactical gear; (4) storing weapons and ammunition across the Potomac

River as part of a Quick Reaction Force; (5) entering the U.S. Capitol in a military-style formation

wearing tactical gear; (6) attempting to force their way past law enforcement to move deeper into

the Capitol Building; (7) targeting an official proceeding; and (8) in the particular case of

Mr. Meggs, walking towards the Speaker of the House’s offices but not finding her. Mr. Meggs

identifies no one, either individually or collectively, who engaged in comparable conduct in

Portland, and he identifies no official proceeding at all.

For these same reasons, any comparison to those who protested outside the White House

in the summer of 2002 fails. And, although those who interfered with recent Supreme Court

confirmation hearings could be viewed as having sought to obstruct, influence, or impede an

official proceeding, their actions far more closely resemble genuine protest than the actions of

which Mr. Meggs stands accused. Mr. Meggs’s selective prosecution claim fails.

Mr. Meggs also points to the chronology of events leading up to the seditious conspiracy

charges, suggesting that public statements by the President and the Attorney General about the

events of January 6th show that viewpoint bias was what motivated the new charge. Def. Meggs’s

9 Reply Mem. of P. & A. in Supp. of Meggs’s Selective Prosecution Mot., ECF No. 229 [hereinafter

Meggs’s Selective Prosecution Reply], at 6–9, 11 (asserting that the political pressure to bring a

seditious conspiracy charge was “palpable”). This assertion, however, is mere conjecture. The

fact that the President and the Attorney General have made general public statements—not

statements specifically about these Defendants—is not evidence of a discriminatory motive. 6

IV.

For the foregoing reasons, the court denies: (1) Defendants’ Motion to Dismiss the Second

Superseding Indictment, (2) Mr. Meggs’s Motion to Dismiss Counts 1-3 and 5, and

(3) Mr. Meggs’s Motion to Dismiss on the Basis of Selective Prosecution.

Dated: August 2, 2022 Amit P. Mehta United States District Court Judge

6 Mr. Meggs’s reply brief makes various arguments about the weakness of the government’s evidence. See Meggs’s Selective Prosecution Reply at 9 (arguing that the absence of Signal chats making preparations to storm the Capitol “is a significant deficiency for the predicate of the government’s case”),

(noting that Mr. Meggs is not accused of possessing firearms or other weapons). Such arguments are better made to the jury.

10