Two defendants in the Proud Boys seditious-conspiracy trial filed a motion in federal court to dismiss obstruction-related charges in light of a fractured U.S. Court of Appeals ruling on the law used to charge hundreds of Jan. 6 defendants.
On April 8, attorneys for defendants Zachary Rehl and Ethan Nordean filed motions with U.S. District Judge Timothy Kelly, saying that the April 7 appeals court ruling requires a narrow definition of the term “corruptly” that must apply to the Proud Boys case or the obstruction charges should be dropped.
Confusion arose after issuance of the Court of Appeals for the District of Columbia’s ruling on § 1512(c)(2), a criminal statute defining obstruction of an official proceeding—the most frequently charged felony in Jan. 6 cases.
In 2022, U.S. District Judge Carl Nichols dismissed the obstruction of an official proceeding charges lodged against Jan. 6 defendants Joseph W. Fischer, Garret A. Miller, and Edward “Jake” Lang.
Judge Nichols ruled the obstruction statute only covers evidence tampering and not interfering with Congress’ ceremonial counting of Electoral College votes. The U.S. Department of Justice appealed.
Defendants in the Proud Boys trial include Rehl, Nordean, Dominic Pezzola, Enrique Tarrio, and Joe Biggs. The men are accused of seditious conspiracy, conspiracy to obstruct official proceedings, obstruction of official proceedings, and conspiracy to prevent certain federal officers from performing their duties at the U.S. Capitol on Jan. 6, 2021.
Prosecutors say the Proud Boys conspired to attack the U.S. Capitol on Jan. 6. Tarrio, Rehl, Nordean, and Biggs face nine criminal counts related to the Capitol breach, and Pezzola is charged with 10.
‘Splintered’ Appeals Court
According to the April 8 defense motions, the Court of Appeals ruling contains three opinions: a lead opinion by Judge Florence Pan, a very narrow partial concurrence by Judge Justin Walker, and a dissenting opinion by Judge Gregory Katsas.
Judge Walker’s concurrence with Judge Pan was based on a narrow reading of the term “corruptly.” Without use of the narrow definition, Walker wrote that he would join in Katsas’ dissent.
“A careful reading of Fischer requires dismissal of the obstruction charges brought under § 1512(c)(2) and its conspiracy provision, § 1512(k),” wrote Rehl’s attorney, Carmen Hernandez.
Judge Walker said a defendant’s mental state is an important element in the obstruction charge, and Judge Pan’s opinion did not define the term “corruptly.”
“I would give ‘corruptly’ its long-standing meaning,” Walker wrote. “It requires a defendant to act ‘with an intent to procure an unlawful benefit either for himself or for some other person.’”
A defendant must further know that he is obtaining an unlawful benefit, and that must be his objective or purpose, Walker wrote.
“Because I read ‘corruptly’ as courts have read it for hundreds of years —and only because I read it that way—I concur in the court’s judgment,” he wrote.
‘Breathtaking Scope’
David B. Smith, one of Nordean’s attorneys, wrote that Judge Katsas’ dissenting opinion—that the law is meant only for evidence tampering—should carry the day.
“Again, Judge Walker stated that his vote ‘depended’ on this ‘corruptly’ definition,” Smith wrote. “To the extent Fischer is construed in a manner that does not adopt that definition, Judge Katsas’s opinion must be regarded as the opinion of the Court. In that case, Counts Two and Three would require dismissal for failure to state an offense.”
“… The Judge could not have been more explicit that, absent that definition of ‘corruptly,’ the government’s construction of § 1512(c)(2) in the January 6 cases suffered from ‘vagueness’ and an impermissible ‘breathtaking scope,’” Smith wrote.
Hernandez agreed.
“Judge Walker’s narrow reading of ‘corruptly’ was a ‘necessary’ condition to his vote ‘to join the lead opinion’s proposed holding on obstructs, influences, or impedes an official proceeding,’” Hernandez wrote.
“As that condition was not met, Judge Walker was clear that he would ‘join the dissenting opinion.’ In effect, the only opinion that garnered two votes is the dissent by Judge Katsas.”
Smith asked Judge Kelly “to include in the jury instructions Fischer’s definition of ‘corruptly:’ acting with the intent to obtain a benefit that the defendant knows is unlawful.”
Failing that, Smith wrote, the judge should dismiss the obstruction charges against Nordean.
From The Epoch Times
