UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES,

v. Case No. 1:21-cr-00037 (TNM) TIMOTHY LOUIS HALE-CUSANELLI,

Defendant.

MEMORANDUM ORDER

Earlier this year, a jury convicted Timothy Hale-Cusanelli of five counts related to his

actions on January 6. See Verdict Form, ECF No. 87. Specifically, the jury found him guilty of

obstructing an official proceeding; entering a restricted building; disorderly conduct in a

restricted building; disorderly conduct in a Capitol building; and parading, demonstrating, or

picketing in a Capitol building. See id. Before the Court now is his motion for judgment of

acquittal or for a new trial. See Mot. for Judgment of Acquittal and Mot. for New Trial, ECF No.

103 (Mot.).

The Court finds that Hale-Cusanelli has given no reason for the Court to rethink its

pretrial orders nor that his trial was deficient. The Court thus denies his motion.

I.

Federal Rule of Criminal Procedure 29 allows a defendant to move for a post-verdict

judgment of acquittal on the ground that the evidence could not sustain a conviction. See Fed. R.

Crim. P. 29(c). The Court must affirm the verdict if, considering the evidence “in the light most

favorable to the government,” it determines that “any rational trier of fact” could have reached

the same verdict. United States v. Wahl,

(D.C. Cir. 2002) (cleaned up). The

Court also “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). To succeed on a Rule 29 motion, a defendant

must clear a “very high” hurdle. United States v. Pasha,

, 1135 n.9 (D.C. Cir.

2015).

A.

Although styled as an evidentiary challenge, Hale-Cusanelli uses his Rule 29 motion to

challenge the Court’s interpretation of

(c)(2), the statute penalizing anyone who

“otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so[.]”

(c); see Mot. at 21–57. 1 Before trial, the Court rejected many of these same

arguments in detail. See Pre-Trial Conference Tr. at 2–9, ECF No. 82. And the Court’s ruling

agrees with every other judge in this district except one interpreting § 1512(c)(2). See id. at 5

(citing United States v. Miller, — F. Supp. 3d —,

, at *12 (D.D.C. Mar. 7,

2022)). The Court will not revisit its pretrial ruling. Hale-Cusanelli restates many previously-

denied arguments, and his new arguments do not persuade the Court to adopt a different

interpretation.

Hale-Cusanelli next argues that the Court misinterpreted the word “corruptly” in

§ 1512(c)(2). In its jury instructions, the Court defined corruptly as “us[ing] unlawful means or

hav[ing] a wrongful or an unlawful purpose, or both.” Jury Instructions, ECF No. 84 at 27.

Hale-Cusanelli now says that “corruptly” requires him to act “(1) with the intent to obtain an

unlawful material advantage for himself or an associate; and (2) by influencing another to violate

their legal duty[.]” Mot. at 53. He never made this argument before or during trial. Not only did

the parties jointly propose the definition of corruptly that he challenges, see Proposed Jury

1 All page citations to ECF refer to the page numbers generated by that system.

2 Instructions at 7, ECF No. 77, but Hale-Cusanelli never objected when the Court discussed the

final instructions with the parties, see Trial Tr. at 822–827, ECF No. 96 at 3–8. 2

In any event, the Court disagrees with his argument because “corruptly” sweeps in more

activity than Hale-Cusanelli admits. “[T]he desire to gain an advantage is typically the motive

for a person to act corruptly, but not always.” United States v. Reffitt, — F. Supp. 3d —, No. 21-

cr-32 (DLF),

, at *6 (D.D.C. May 4, 2022). And his contention that

§ 1512(c)(2) requires him to influence another flouts the statutory language. After all,

“[c]orruption of another is not required to violate [§] 1512(c)(1),” which prohibits corrupt acts

related to documents. United States v. Caldwell,

, 19 (D.D.C. 2021). It strains

usual statutory interpretation to find that a different sense of “corruptly” governs (c)(2), the next

subsection. Accord

Thus, “in § 1512(c)(2), ‘corruptly,’ is used in the intransitive, such that

[Hale-Cusanelli’s] own behavior must be corrupt.” Reffitt,

, at *6 (emphasis

in original). His interpretation therefore fails. 3

Beyond these interpretive arguments, Hale-Cusanelli challenges the evidence of his

obstruction conviction. He says that because the certification had adjourned before he entered

the Capitol, his individual actions never obstructed any official proceeding. See Mot. at 58. This

argument is, at best, self-refuting. Hale-Cusanelli admits that the trial evidence showed

obstruction by “the collective mob” on January 6.

As the jury observed in multiple videos,

2 When the Court cites the trial transcript, it first provides the transcript page number and then the page number from the Court’s ECF filing system. 3 Hale-Cusanelli’s reliance on United States v. Poindexter,

(D.C. Cir. 1991), changes nothing. See Mot. at 56–57. “[T]he concern that animated Poindexter”—that a transitive reading of “corruptly” under an entirely different statute did not reach false statements to Congress—“is simply not present in [a] prosecution under [§] 1512(c)(2).” Caldwell, 581 F. Supp. 3d at 19.

3 he joined that mob, a fact he glosses over in his briefing now. So under his own theory, the

collective obstruction is also his. At any rate, his presence in the building for 40 minutes at the

very least prevented Congress from reconvening the certification. 4 That qualifies as

“obstruct[ing]” or “imped[ing]” an official proceeding.

(c).

B.

Lastly for Rule 29, Hale-Cusanelli argues that the Court should have given the jury a

special unanimity instruction. See Mot. at 59. He argues that the indictment’s obstruction count

“bundled together” completed obstruction and attempted obstruction, meaning that members of

the jury potentially found him guilty of either offense without agreeing unanimously as to which.

He now says that the Court should have instructed the jury that it be unanimous on whether

he completed obstruction or attempted it. See

The Court rejected this same request when

evidence closed at trial. See Trial Transcript at 1008, ECF No. 97 at 53.

The plain text of § 1512(c)(2) shows why that decision was correct. The statute penalizes

anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so.”

(c)(2) (emphasis added). So the actus reus of a § 1512(c)(2) violation is not just

completed obstruction or influence, but also an attempt to do so. This statutory language

matters. “[T]he jury need not agree as to mere means of satisfying the actus reus element of an

offense[.]” Schad v. Arizona,

(1991) (plurality op.). Instead, the jury need

only agree that a defendant “committed the offense as defined in the statute[.]” United States v.

Kayode,

(D.C. Cir. 2001). Here, the offense includes attempts, meaning that

so long as all jurors agreed that Hale-Cusanelli had violated § 1512(c), they did not need to agree

4 Hale-Cusanelli likens his case to that of Couy Griffin. See Def.’s Reply at 26, ECF No. 106 (Reply). The two are not similar—Griffin never entered the Capitol. See 21-cr-92 (D.D.C.), ECF No. 106 at 61.

4 on whether he actually obstructed, influenced, or impeded the proceeding or merely tried to do

so. 5 Thus, the Court committed no error when it denied Hale-Cusanelli’s request for a special

unanimity instruction. 6

II.

Rule 33 allows courts, at a defendant’s request, to vacate a judgment and order a new trial

“if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Motions under Rule 33 are

disfavored, however, and “viewed with great caution.” United States v. Borda,

(D.D.C. 2011) (cleaned up). Courts “sparingly” exercise their authority to order a new

trial, reserving it for “extraordinary circumstances where the evidence preponderates heavily

against the verdict” and when any error “affects a defendant’s substantial rights.”

(cleaned up). And under Federal Criminal Rule 52(b), the Court reviews objections not raised at

trial for plain error. See United States v. Williams,

(D.D.C. 2011). To

be plain, any error “must be clear or obvious, rather than subject to reasonable dispute.” Puckett

v. United States,

(2009). And it must be prejudicial, meaning it “affect[s]

substantial rights” or the outcome of the prior proceeding. United States v. Olano,

(1993) (cleaned up).

5 The Court also instructed the jury that an element of § 1512(c)(2) is that “the defendant attempted to or did obstruct or impede an official proceeding.” See Jury Instructions at 24 (emphasis added). The jury thus heard that § 1512(c) encompassed attempted obstruction. 6 Hale-Cusanelli cites an out-of-circuit decision that arguably undermines some of this analysis. See Reply at 25 (citing United States v. Jadue,

(E.D. Va. 2014)). Besides not binding this Court, that decision dismissed a charge of attempted obstruction under § 1512(c) on evidentiary grounds. See Jadue,

. The evidence showed actions “too remote from the actual commission of the crime whose attempt was charged.”

That decision thus never confronted a jury unanimity question.

5 A.

Of his alleged grounds for a new trial, Hale-Cusanelli’s most substantial is an objection

to the admission of his previous unsavory statements. See Mot. at 10–15. Some background is

necessary. Before trial, the parties disputed the admissibility of certain statements made by

Hale-Cusanelli. See ECF No. 63. Some of these statements expressed political opinions, like his

desire for a civil war to “provide a clean slate.” ECF No. 68 at 3. Others were overtly racist,

misogynistic, or anti-Semitic, such as an assertion that “Jews, women, and blacks were on the

bottom of the totem pole.” Id. at 4. Still other statements bridged those two categories, such as

Hale-Cusanelli telling an informant that Democrats are “part of the Jews.” Id. The Government

argued that these statements showed Hale-Cusanelli’s motive to stop the electoral certification,

either because he wanted a civil war or because he thought President Biden was a puppet of

Jewish interests. See id. at 10–12.

The Court determined that Federal Rule of Evidence 403 barred his alleged statements

about Jews, the Nazi party, minorities, or women because they were of limited probative value

and would prejudice him in the jury’s eyes. See Pre-Trial Conference Tr. at 13–14. But the

Court admitted Hale-Cusanelli’s “political and civil war-related statements” because they were

probative of his motive. Id. at 12. As the Court summarized, “if there’s talk about race, religion

or women or Nazis, I think those should be excised. If it’s talking about a political party, about

civil war, I think those come in.” Id. at 16. In response, the Government noted that some

statements might straddle both sides of the Court’s ruling. See id. at 15. Rather than review

each statement, the Court asked the parties to work out among themselves which statements, in

compliance with the Court’s ruling, would be admitted. See id. at 16. The Court then said it

would review any statement they could not agree upon. Id.

6 The Court sees no reason to revisit its pretrial ruling. As noted then, his statements show

a reason for Hale-Cusanelli to pursue decertification—he wanted a new government free of what

he viewed as pernicious interests. See Pre-Trial Conference Tr. at 12. (“Put simply, he might

have joined the riot because he saw decertification as a way to achieve his avowed hopes of a

change in government.”). And motive is a “well-established non-propensity purpose for

introducing evidence under Rule 404(b).” Id. Any prejudice from the content of these

statements therefore stemmed from their “legitimate probative force” as evidence. United States

v. Wilkins,

, 73 (D.D.C. 2021)

Ultimately, the Government admitted Hale-Cusanelli’s statements largely without

defense objection during trial. Once the Court directed the parties to work out any disputes,

defense counsel conferred with the Government. That work bore fruit—on the first trial day,

defense counsel told the Court that the parties had “resolved the majority” of his objections

through redactions to certain exhibits. Trial Tr. at 261, ECF No. 92 at 6. Indeed, at that time the

only disputed issue was whether the Court would admit some of Hale-Cusanelli’s statements,

rather than exclude them. See

at 261–268. And during trial, Hale-Cusanelli objected only

twice—one of which the Court sustained, see Trial Tr. at 485, ECF No. 93 at 94—to proposed

exhibits because they were prejudicial. 7 See

(defense counsel saying about these exhibits that

“[t]he only inference one can draw is that he has an anti-Semitic bent[]”).

Although the Government says the failure to object forecloses any review now, see

Opp’n at 39, the Court has reviewed the statements that Hale-Cusanelli challenges. Each of

them expresses political opinions, be they about a particular party or candidate or about

7 This strategy from defense counsel made some sense. Hale-Cusanelli testified that he is “half Jewish and half Puerto Rican” and made these various statements as a form of “self-deprecating humor.” Trial Tr. at 987, ECF No. 97 at 32.

7 proceedings on Election Day. The Court expressly allowed admission of Hale-Cusanelli’s

“political” statements,

so the admission of these statements did not violate that ruling, despite

what Hale-Cusanelli says now, see Reply at 27.

To be sure, these statements included distasteful language and sentiments. For that

reason, the Court gave a limiting instruction proposed by Hale-Cusanelli himself. See Trial Tr.

at 959, ECF No. 97 at 4 (noting Government’s lack of objection to his proposed language). The

Court instructed the jury “not to use [its] personal opinion and disagreement of the language used

to find Mr. Hale-Cusanelli guilty.” Jury Instructions at 20. That was enough to ensure that the

language of these relevant statements did not cause “unfair prejudice” to him. Fed. R. Evid. 403;

see also United States v. Long,

(D.C. Cir. 2003) (“[L]imiting instructions

ordinarily suffice to protect the defendant’s interests.”); United States v Brown,

(D.C. Cir. 1973) (“[I]n the great majority of cases the limiting instruction is probably

sufficient to so minimize the dangers of jury misuse as to prevent most serious prejudice.”).

B.

For similar reasons, the Court rejects Hale-Cusanelli’s argument about the Government’s

opening and closing statements. In its opening, the Government noted that a witness would

testify about Hale-Cusanelli’s belief that Jewish interests control the Democratic Party. See Trial

Tr. at 300, ECF No. 92 at 45. At closing, the Government mentioned this testimony again. See

Trial Tr. at 1048, ECF No. 97 at 93 (“CHS says, ‘You’re saying they’re all part of the Jews?’

Defendant says, “Yes of course, I give them 24 hours to leave.’”). Also during closing, the

Government showed the jury one of Hale-Cusanelli’s text messages that said “Trump is leading

in all the remaining states that matter. Minus n***** rigging, which they’ll try, he wins.” Id. at

1051, ECF No. 97 at 96. Hale-Cusanelli says that the display of these statements violated his

8 substantial rights. See Mot. at 63–64. He did not object to the opening or closing at trial, so the

Court reviews this for plain error.

For a new trial based on opening or closing statements, the Court considers “the severity

of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction

absent the improper remarks.” United States v. Monaghan,

(D.C. Cir.

1984). All factors lean heavily in favor of the verdict here, particularly on plain-error review.

The Government mentioned only statements that expressed Hale-Cusanelli’s political opinions.

That complied with the Court’s pretrial ruling, rendering doubtful any “misconduct” by the

Government. But even if misconduct stemmed from these epithets, the Court gave a limiting

instruction as to how the jury should view them. See supra. It also gave the standard instruction

that “arguments of the lawyers are not evidence.” Jury Instructions at 8. Finally, the Court is

persuaded that even without reference to these stray statements, the other “overwhelming

evidence” of Hale-Cusanelli’s guilt would have led to the same verdict. United States v. Moore,

(D.C. Cir. 2011). Any error thus did not cause prejudice. See

C.

In a similar vein, Hale-Cusanelli seeks a new trial over a perceived error in the jury

instructions. Recall that one instruction defined corruptly as “us[ing] unlawful means or

hav[ing] a wrongful or an unlawful purpose, or both.” Jury Instructions at 27. Hale-Cusanelli

objects to the inclusion of “wrongful.” See Mot. at 65. He argues that the instruction was vague

because it allowed the jury to find he acted “corruptly” because of his “wrongful” remarks about

9 Jews and others. See

. He says the Court should have instructed the jury that “corruptly”

means “by unlawful means.”

.

Federal Criminal Rule 30(d) requires a party to object to jury instructions “before the jury

retires to deliberate.” Fed. R. Crim. P. 30(d). Hale-Cusanelli never objected to this instruction.

In fact, he joined the Government in proposing it. See Proposed Jury Instructions at 7. And

when the Court asked for any final objections to the instructions, defense counsel had none. See

Trial Tr. at 995, ECF No. 97 at 40. Thus, the Court reviews for plain error. Accord Fed. R.

Crim. P. 30(d) (precluding review when party fails to object, “except as permitted under Rule

52(b)”).

Hale-Cusanelli fails that standard of review. The instruction he now suggests bears little

difference from what the jury received. A jury faced with an instruction mentioning only

“unlawful means” still would need to decide whether he acted with an intent to obstruct the

official proceeding. The same inquiry occurred under the Court’s instruction because, as the

Government points out, “[a]cting wrongfully includes acting contrary to law or unlawfully.”

Opp’n at 44 (citing dictionaries). More, the Government raises multiple ways in which the

inclusion of “wrongful” helps defendants by ensuring not all unlawful conduct equates to a

corrupt intention. See

at 44–45. It is therefore unsurprising that courts in this district have

used exactly the same instruction as the Court did here, at Hale-Cusanelli’s invitation. See, e.g.,

United States v. Robertson, No. 21-cr-34, ECF No. 86 at 12.

For these reasons, even if the Court erred, that error was neither “obvious” nor beyond

“reasonable dispute.” Puckett,

. And in any event, the jury would have reached

the same verdict anyway. Hale-Cusanelli not only entered the Capitol after seeing fights

between police and rioters, see Trial Tr. at 868, ECF No. 96 at 49, but, once inside, told other

10 rioters to “advance,” id. at 934, ECF No. 96 at 115. He knew that he was trespassing, yet he

pressed ahead anyway. Any error in the use of “wrongful” thus did not affect the outcome of the

proceeding. See Olano,

.

D.

Finally, Hale-Cusanelli challenges testimony from Daniel Schwager, the former general

counsel to the Secretary of the Senate. See Trial Tr. at 401, ECF No. 93 at 10. Hale-Cusanelli

made no similar objection at trial, so again plain-error review applies.

Schwager testified about the procedures Congress follows during certification of election

results and which authorities set forth those procedures: the Twelfth Amendment and the

Electoral Count Act (ECA),

. See

at 408–416, ECF No. 93 at 17–25. Schwager

called the ECA a “law.” See

, ECF No. 93 at 20, 22, 23, 28. Hale-

Cusanelli argues that the ECA is not a “law[,] but a precatory House rule in statutory form[.]”

Mot. at 66. Despite his contention that the ECA is not a law, Hale-Cusanelli then contends

(presumably in the alternative) that Schwager gave a legal interpretation not permitted by a lay

witness. See Reply at 32.

This argument is borderline frivolous. As part of the United States Code, the ECA met

the constitutional requirements of bicameralism and presentment and is therefore a law. Accord

INS v. Chadha,

, 945–46 (1983). Hale-Cusanelli’s citation to two law review

articles suggesting otherwise is not persuasive. See Mot. at 66–67. More, he overstates

Schwager’s testimony—he read the ECA and the Twelfth Amendment into the record and

explained in layman’s terms what the ECA says, no small feat given the statute’s minute details.

The Court has reviewed his testimony and finds that he rendered no impermissible legal

conclusions.

11 III.

For these reasons, it is ORDERED that Defendant’s [105] Motion for Judgment of

Acquittal and Motion for a New Trial is DENIED.

SO ORDERED. 2022.09.19 15:10:52 -04'00' Dated: September 19, 2022 TREVOR N. McFADDEN, U.S.D.J.

12