United States v. Griffith, Sr ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 21-244-2 (CKK)
ANTHONY GRIFFITH,
Defendant
MEMORANDUM OPINION
(May 5, 2023)
A bench trial concluded in this criminal matter on March 17, 2023. On the same day,
Defendant moved to dismiss Counts Two and Three of the operative [12] Indictment as defective.
Although Defendant initially moved pursuant to Federal Rule of Criminal Procedure 12, Defendant
purports to rely now exclusively on Rule 29. Essentially, Defendant argues that these counts must
be dismissed because the Indictment incorrectly claims that Vice President-elect Kamala D. Harris
was present in the Capitol at the time Defendant entered the Capitol building and grounds.
Assuming arguendo that Vice President-elect Harris was not at the Capitol at that time, dismissal
is nevertheless unwarranted. Accordingly, the Court DENIES Defendant’s [136] Motion to
Dismiss Counts Two and Three of the Indictment (“Motion” or “Mot.”).
I. BACKGROUND
Counts Two and Three of the Indictment, filed March, 24, 2021, charge Defendant with:
(1) Entering and Remaining in a Restricted building, in violation of 18 U.S.C. § 1752(a)(1); and
(2) Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. §
1752(a)(2). Like most indictments in cases arising from the insurrection of January 6, 2021, the
indictment here is threadbare. In Counts Two and Three, the Indictment alleges that the “United
States Capitol and its grounds” were a “restricted building and grounds” because the area was
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“posted [as restricted], cordoned-off, and otherwise restricted.” Additionally, the Indictment
alleges that the then-“Vice President [Michael R. Pence] and Vice President-elect [Kamala D.
Harris] were temporarily visiting” the United States Capitol and its grounds at the time of
Defendant’s entry into the area.
It appears that Indictment’s allegation as to Vice President-elect Harris may be incorrect.
As the Government has explained in numerous cases, Vice President-elect Harris left the Capitol
building and grounds at some point during the morning of January 6, 2021. See Trans. at 34:4-21,
United States v. Ibrahim, Crim. A. No. 21-496 (TJK) (Oct. 27, 2022). By the time Defendant
entered Capitol grounds in the afternoon, Vice President-elect Harris was sheltering at the
Democratic National Headquarters blocks away from the Capitol as law enforcement worked to
disarm a nearby pipe-bomb. H.R. Rep. 117-663 at 706 (Dec. 22, 2022). Across hundreds of cases
arising from the insurrection of January 6, 2021, the Government began to remedy this purported
factual error, either by moving to strike the relevant language from the operative charging
document or superseding the operative charging document. E.g., Superseding Information, ECF
No. 39, United States v. Rivera, Crim. A. No. 21-060 (CKK) (Apr. 4, 2022). However, the
Government did not do so here.
A cursory review by the Court has identified four such cases in which defense counsel here
was counsel of record in a case in which the Government remedied the purported error. 1 It is
therefore incorrect for defense counsel to suggest that “the defense could not have known from the
face of the indictment alone that it was defective.” Mot. at 1. Over a thousand charging documents
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E.g., ECF No. 55, United States v. Strand, Crim. A. No. 21-85 (CRC) (Government action
taken to correct error on Mar. 1, 2022); ECF No. 43, United States v. Egtvedt, Crim. A. No. 21-
177 (CRC) (Nov. 10, 2021); ECF No. 24, United States v. Eckerman, Crim. A. No. 21-623
(CRC) (Apr. 27, 2022); ECF No. 59, United States v. Nichols, Crim. A. No. 21-117 (RCL) (Nov.
10, 2021).
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have been filed in January 6-related cases, and defense counsel was alerted to the purported defect
in at least four such cases. Defense counsel has tried multiple January 6-related trials in the recent
past, and evidence regarding Vice President Pence’s whereabouts on January 6, 2021 has been
standard across such cases. Compare, e.g., United States v. Rivera, 607 F. Supp. 3d 1, 4 (D.D.C.
2022) with United States v. Grider, --- F. Supp. 3d ---, 2022 WL 17829149, at *2 (D.D.C. Dec.
21, 2023) and United States v. MacAndrew, Crim. A. No. 21-730 (CKK), 2023 WL 196132, at *2
(D.D.C. Jan. 17, 2023). Defense counsel was therefore on notice of the alleged defect from the
face of the indictment in this case and in light of defense counsel’s involvement in related cases.
II. DISCUSSION
As a threshold matter, it is unclear whether Defendant intends to rely on Rule 12 or Rule
29 or both. To the extent that Defendant relies on Rule 12, the motion is untimely. A motion
challenging “a defect in the indictment or information” “must be raised by pretrial motion if the
basis for the motion is then reasonably available and the motion can be determined without a trial
on the merits.” Fed. R. Crim. P. 12(b)(3)(B) (emphasis added). A Court may only consider an
untimely challenge to a defective indictment upon good cause shown. Id. (c)(3). The Motion, to
the extent it is advanced under Rule 12, is clearly untimely. Nor can Defendant demonstrate good
cause.
Generally, a party can demonstrate “good cause” only if they can show some reason why
they could not have challenged the defect in the time required by Rule 12. See, e.g., United States
v. Doost, 3 F.4th 432, 437 (D.C. Cir. 2021) (ineffective assistance of counsel). A tactical decision
to delay investigating an argument does not suffice. See, e.g., United States v. Lorenzana-Cordon,
Crim. A. No. 03-311-13, 14 (CKK), 2017 WL 11493918, at *10 (D.D.C. June 2, 2017). Nor can
any delay be excused where the defect is apparent from the face of the charging instrument. See
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United States v. Weathers, 186 F.3d 948, 954 (D.C. Cir. 1999).
Indeed, delayed challenge to a defect of which defense counsel was on notice is precisely
the sort of dilatory conduct against which Rule 12(c) guards. As Weathers explains,
[i]f [a] defendant[] were allowed to flout [Rule 12’s] time limitations, . . . there would be
little incentive to comply with its terms when a successful attack might simply result in a
new indictment prior to trial. Strong tactical considerations would militate in favor of
delaying the raising of the claim in the hopes of an acquittal, with the thought that if those
hopes did not materialize, the claim could be used to upset an otherwise valid conviction
at a time when prosecution might well be difficult.
Id. at 953. Here, defense counsel was on notice that a minor factual averment in the charging
instrument was inaccurate. Based on defense counsel’s involvement in related cases, defense
counsel was also on notice that identifying the error would have simply resulted in a superseding
information. To the extent that Defendant considers the factual averment a “defect” in the
indictment, Defendant has not shown good cause for the Motion’s consideration.
In Defendant’s papers, Defendant now relies on Rule 29. A Rule 29 motion is generally
predicated on insufficient evidence. Fed. R. Evid. 29(a); United States v. Weisz, 718 F.2d 413,
438 (D.C. Cir. 1983). The question on a Rule 29 motion is whether there is any “evidence upon
which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” United States
v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985). Reliance on that rule is therefore inapposite
under present circumstances. The legal relevance of Vice President Pence’s or Vice President-
elect Harris’ presence at the Capitol is limited exclusively to whether the area was “restricted”
within the meaning of 18 U.S.C. § 1752. For that purpose, the Government must show in January
6-related cases either that the Capitol building and grounds were restricted while a “person
protected by the Secret Service is or will be temporarily visiting” or that the Capitol building and
grounds were “restricted in conjunction with an event designated as a special event of national
significance.” Id. § 1752(c)(1)(A), (C). At the very least, the Government proved, through the
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parties’ stipulation, the first salient predicate: that someone under Secret Service protection was
present at the Capitol when Defendant entered. See Stipulation, ECF No. 127 at 5 (the Capitol
building and grounds were a “posted, cordoned off, or otherwise restricted area whether [] Vice
President [Pence] and members of his immediate family were and would be temporarily visiting”).
A Rule 29 challenge must, therefore, fail.
Presumably, Defendant meant to rely on Rule 33(a) to move for a new trial, which is
focused on a conviction’s vacatur when “the interest of justice so requires.” Granting a new trial
“is warranted only in those limited circumstances where a serious miscarriage of justice may have
occurred.” United States v. Wheeler, 753 F.3d 200, 208 (D.C. Cir. 2014) (cleaned up). Reading
between the lines, it seems that Defendant advances a due-process challenge, arguing, in effect,
that the Government constructively amended or varied from the Indictment. See ECF No. 138 at
2 (“[A] person cannot be convicted of ‘an offense that is different from that alleged in the grand
jury indictment.’” (quoting United States v. Quinn, 401 F. Supp. 2d 80, 91 (D.D.C. 2005)). In
advance of trial, Quinn held an indictment legally insufficient where it failed to allege the offense’s
requisite mens rea. 401 F. Supp. 2d at 90. In this post-trial context, such an argument is framed
not as an argument that the indictment is legally insufficient (here, the instant indictment is legally
sufficient), but rather as an argument that the factfinder might impermissibly convict based on
some material divergence from the charging document at trial. See United States v. Sayan, 968
F.2d 55, 59 (D.C. Cir. 1992).
The law recognizes two such diversions: variances and amendments. The Government
varies from the charging document where the evidence at trial proves facts materially different
from those alleged in the indictment. See United States v. Lorenzana-Cordon, 949 F.3d 1, 4
(D.C. Cir. 2020). A conviction may only be vacated where the variance had a “substantial and
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injurious effect or influence in determining the jury’s verdict.” United States v. Baugham, 449
F.3d 167, 174 (D.C. Cir. 2006). No such issue arises here, because the Court, as factfinder, will
not convict on bases not alleged in the indictment or unproven beyond a reasonable doubt.
Slightly different, an amendment occurs where “the evidence presented at trial and the
instructions given to the jury so modified the elements of the offense charged that the defendant
may have been convicted on a ground not alleged by the grand jury’s indictment.” United States
v. Toms, 396 F.3d 427, 436 (D.C. Cir. 2005) (emphasis original) (internal quotation marks
omitted). Here, the indictment advanced two factual grounds to conclude that the Capitol
building and grounds were restricted: (1) Vice President Pence’s presence, and (2) Vice
President-elect Harris’ presence. The evidence is sufficient as to the former. The Government
having relied on a sufficient, but narrower, set of facts “that suffices to establish the elements of
the crime charged,” there is, therefore, no due process issue. See United States v. Coughlin, 610
F.3d 89, 105 (D.C. Cir. 2010).
III. CONCLUSION
In sum, both pretrial and post-trial challenge to the indictment’s evidently erroneous
allegation regarding Vice President-elect Harris fail. The Court therefore DENIES Defendant’s
[136] Motion to Dismiss Counts Two and Three of the Indictment. An appropriate order
accompanies this memorandum opinion.
Dated: May 5, 2023 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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