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`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided April 7, 2023
`
`Argued December 12, 2022
`
`
`No. 22-3038
`
`UNITED STATES OF AMERICA,
`APPELLANT
`
`v.
`
`JOSEPH W. FISCHER,
`APPELLEE
`
`
`
`Consolidated with 22-3039, 22-3041
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:21-cr-00234-1)
`(No. 1:21-cr-00119-1)
`
`
`
`James I. Pearce, Attorney, Capitol Siege Section, U.S.
`Department of Justice, argued the cause for appellant. With
`him on the brief was John Crabb, Jr., Chief, Capitol Siege
`Section.
`
`
`
`
`
`
`

`

`
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`2
`Nicholas D. Smith argued the cause for appellees. With
`him on the brief were Frederick W. Ulrich, Assistant Federal
`Public Defender, and F. Clinton Broden. A. J. Kramer, Federal
`Public Defender, and Ronald A. Krauss, Assistant Federal
`Public Defender, entered appearances.
`
`
`Before: KATSAS, WALKER and PAN, Circuit Judges.
`
`
`Opinion for the Court filed by Circuit Judge PAN, with
`
`whom Circuit Judge WALKER joins except as to Section I.C.1
`and footnote 8.
`
`Opinion concurring in part and concurring in the
`
`judgment filed by Circuit Judge WALKER.
`
`
`
`
`Dissenting opinion filed by Circuit Judge KATSAS.
`
`PAN, Circuit Judge: As Congress convened on January 6,
`2021, to certify the results of the 2020 presidential election in
`favor of Joseph R. Biden, Jr., thousands of supporters of the
`losing candidate, Donald J. Trump, converged on the United
`States Capitol to disrupt the proceedings. The Trump
`supporters
`swarmed
`the building, overwhelming
`law
`enforcement officers who attempted to stop them. The chaos
`wrought by the mob forced members of Congress to stop the
`certification and flee for safety. Congress was not able to
`resume its work for six hours. The question raised in this case
`is whether
`individuals who allegedly assaulted
`law
`enforcement officers while participating in the Capitol riot can
`be charged with corruptly obstructing,
`influencing, or
`impeding an official proceeding, in violation of 18 U.S.C.
`§ 1512(c)(2). The district court held that the statute does not
`apply to assaultive conduct, committed in furtherance of an
`attempt to stop Congress from performing a constitutionally
`required duty. We disagree and reverse.
`
`
`
`

`

`
`
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`3
`BACKGROUND
`
`Appellees Joseph Fischer, Edward Lang, and Garret Miller
`were charged by indictment in separate cases with various
`offenses arising from their alleged participation in the Capitol
`riot on January 6, 2021. Although we draw from the criminal
`complaints and pre-trial briefing to describe their alleged
`conduct, we consider only the indictments to determine the
`sufficiency of any charge.
`
`Fischer allegedly belonged to the mob that forced
`Congress to stop its certification process.1 On January 6, 2021,
`he encouraged rioters to “charge” and “hold the line,” had a
`“physical encounter” with at least one law enforcement officer,
`and participated in pushing the police. Fischer Crim. Compl.,
`Appellant’s Appendix (“App.”) 423–27. Before January 6, he
`allegedly sent text messages to acquaintances, stating: “If
`Trump don’t get in we better get to war”; “Take democratic
`[C]ongress to the gallows. . . . Can’t vote if they can’t breathe
`. . . lol”; and “I might need you to post my bail. . . . It might
`get violent. . . . They should storm the capital [sic] and drag all
`the democrates [sic] into the street and have a mob trial.” Gov’t
`Opp’n to Mot. to Clarify and Modify Conditions of Release,
`App. 433–34. Fischer’s seven-count indictment charges him
`with assaulting both Capitol Police and MPD officers. Fischer
`Indictment, App. 444.
`
`
`1 Appellees argue that Fischer could not have obstructed the
`Electoral College vote certification because he arrived at the Capitol
`after Congress recessed. Although the nature and significance of
`Fischer’s conduct are factual issues to be addressed at trial, the
`government’s allegations sufficiently support a theory that Fischer
`impeded a Congressional proceeding that did not resume for six
`hours.
`
`
`
`

`

`
`
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`4
`Lang, as a member of the mob that forced Congress to stop
`its certification procedure, allegedly fought against police
`officers in the Capitol for more than two hours, repeatedly
`striking officers with a bat and brandishing a stolen police
`shield. His 13-count indictment alleges that he assaulted six
`Metropolitan Police Department (“MPD”) officers, caused
`bodily injury to one of them, and engaged in disorderly conduct
`and physical violence with a bat and shield in a restricted area
`of the Capitol. See Lang Indictment, App. 52–57.
`
`Miller allegedly traveled to the District of Columbia “for
`this [T]rump shit,” bringing a grappling hook, rope, bullet-
`proof vest, helmets, and a mouthguard: He believed that “crazy
`shit” was going to happen and a “civil war could start.” Am.
`Crim. Compl., App. 75. In his 12-count indictment, the
`government alleges that Miller was part of the mob that forced
`its way into the Capitol and stopped Congress’s certification
`process; and that he pushed against U.S. Capitol Police officers
`to gain entrance to the Rotunda. Shortly after the riot, Miller
`allegedly took to Twitter and Facebook to advocate the
`assassination of a U.S. Congresswoman, and to declare that a
`Capitol Police officer deserved to die, threatening to “hug his
`neck with a nice rope.” Miller Indictment, App. 86–87.
`
`The government charged all three appellees with, among
`other things, the felony offense of Assaulting, Resisting, or
`Impeding Certain Officers,
`in violation of 18 U.S.C.
`§ 111(a)(1); and the misdemeanor offenses of Disorderly
`Conduct in a Capitol Building, in violation of 18 U.S.C.
`§ 5104(e)(2)(D), and Disorderly and Disruptive Conduct in a
`Restricted Building or Grounds, in violation of 18 U.S.C.
`§ 1752(a)(2) and (b)(l)(A). The felony assault count alleges
`that each appellee “did forcibly assault, resist, oppose, impede,
`intimidate, and interfere with[] an officer and employee of the
`United States . . . and any person assisting such an officer and
`
`
`
`

`

`
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`5
`employee . . . and . . . the acts in violation of this section
`involve the intent to commit another felony.” Miller
`Indictment, App. 86; see also Fischer Indictment, App. 444
`(also alleging that “the acts in violation of this section involve
`physical contact with the victim”); Lang Indictment, App. 52
`(same). The disorderly conduct charges specify that each
`appellee “willfully and knowingly engaged in disorderly and
`disruptive conduct in any of the Capitol Buildings with the
`intent to impede, disrupt, and disturb the orderly conduct of a
`session of Congress”; and “did knowingly, and with intent to
`impede and disrupt the orderly conduct of Government
`business and official functions, engage in disorderly and
`disruptive conduct . . . within the United States Capitol . . . so
`that such conduct did in fact impede and disrupt the orderly
`conduct of Government business and official functions.”
`Miller Indictment, App. 87–88; see also Fischer Indictment,
`App. 445 (alleging similar charges); Lang Indictment, App.
`55–57 (same). Appellees do not challenge the sufficiency of
`the counts that charge them with felony assault and disorderly
`conduct.
`
`The government also charged each appellee with one
`count of Obstruction of an Official Proceeding under 18 U.S.C.
`§ 1512(c)(2), as follows:
`
`On or about January 6, 2021, within the District of
`Columbia and elsewhere, [Fischer, Lang, and Miller]
`attempted to, and did, corruptly obstruct, influence,
`and impede an official proceeding, that is, a
`proceeding before Congress, specifically Congress’s
`certification of the Electoral College vote as set out in
`the Twelfth Amendment of the Constitution of the
`United States and 3 U.S.C. §§ 15–18.
`
`
`
`
`

`

`
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`6
`Lang Indictment, App. 55; Miller Indictment, App. 85-86;
`Fischer Indictment, App. 444. Each appellee moved to dismiss
`the § 1512(c)(2) count, asserting that the statute did not
`prohibit his alleged conduct on January 6, 2021. Section
`1512(c) provides in full:
`
`(c) 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.
`
`18 U.S.C. § 1512(c).
`
`The district court granted each appellee’s motion to
`dismiss. After carefully reviewing the text and structure of the
`statute, the district court concluded that § 1512(c) is ambiguous
`with respect to how subsection (c)(2) relates to subsection
`(c)(1). Although subsection (c)(1) concerns obstructive
`conduct involving “a record, document, or other object,” and
`the words of subsection (c)(2) more generally address
`“obstruct[ing],
`influenc[ing], or
`imped[ing] any official
`proceeding, or attempt[ing] to do so,” the district court focused
`on the meaning of the word “otherwise” that connects the two
`provisions. United States v. Miller, 589 F. Supp. 3d 60, 67–69
`(D.D.C. 2022). Relying on its understanding of the Supreme
`Court’s holding in Begay v. United States, 553 U.S. 137 (2008),
`as well as canons of statutory construction, statutory and
`legislative history, and the principles of restraint and lenity, the
`district court determined that subsection (c)(2) “must be
`
`
`
`

`

`
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`7
`interpreted as limited by subsection (c)(1).” Miller, 589 F.
`Supp. 3d at 78. That led the district court to hold that
`subsection (c)(2) “requires that the defendant have taken some
`action with respect to a document, record, or other object in
`order to corruptly obstruct, impede or influence an official
`proceeding.” Id. Because appellees’ indictments do not allege
`that they violated § 1512(c)(2) by committing obstructive acts
`related to “a document, record, or other object,” the district
`court dismissed the § 1512(c)(2) counts. Id. at 79; see also
`United States v. Fischer, No. 1:21-cr-234 (D.D.C. March 15,
`2022) (order relying on Miller to dismiss § 1512(c)(2) count);
`United States v. Lang, No. 1:21-cr-53 (D.D.C. June 7, 2022)
`(minute order relying on Miller to dismiss § 1512(c)(2) count).
`The government filed a motion to reconsider in Miller’s case,
`which the district court denied. United States v. Miller, No.
`1:21-cr-119, 2022 WL 1718984 (May 27, 2022). This
`consolidated appeal followed.
`
`STANDARD OF REVIEW
`
`A defendant in a criminal case may move to dismiss an
`indictment before trial for “failure to state an offense,” Fed. R.
`Crim. P. 12(b)(3)(B)(v), including because the statute under
`which he is charged does not apply to his alleged conduct.
`Hamling v. United States, 418 U.S. 87, 117 (1974) (explaining
`that an indictment must “set forth all the elements necessary to
`constitute the offense intended to be punished” (citation and
`internal quotation omitted)); accord United States v.
`Williamson, 903 F.3d 124, 130 (D.C. Cir. 2018). At the
`motion-to-dismiss stage, the question is whether the indictment
`states “essential facts constituting the offense charged . . . .”
`Fed. R. Crim. P. 7(c)(1); see also United States v. Ballestas,
`795 F.3d 138, 149 (D.C. Cir. 2015). “Because a court’s ‘use
`of its supervisory power to dismiss an indictment . . . directly
`encroaches upon the fundamental role of the grand jury,’
`
`
`
`

`

`
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`8
`dismissal is granted only in unusual circumstances.” Ballestas,
`795 F.3d at 148 (cleaned up) (quoting Whitehouse v. U.S. Dist.
`Ct., 53 F.3d 1349, 1360 (1st Cir. 1995)). We review the district
`court’s interpretation of § 1512(c)(2) — a question of law —
`de novo. See United States v. Verrusio, 762 F.3d 1, 13 (D.C.
`Cir. 2014).
`
`ANALYSIS
`
`The government asserts that the words “corruptly . . .
`obstructs, influences, and impedes any official proceeding” in
`18 U.S.C. § 1512(c)(2) have a broad meaning that encompasses
`all forms of obstructive conduct, including appellees’ allegedly
`violent efforts to stop Congress from certifying the results of
`the 2020 presidential election. Thus, the government contends,
`the district court erred when it adopted an unduly narrow
`interpretation of § 1512(c)(2)
`that
`limits
`the statute’s
`application to obstructive conduct “with respect to a document,
`record, or other object.” Gov’t’s Br. 13 (quoting Miller, 589 F.
`Supp. 3d at 78). For their part, appellees halfheartedly defend
`the trial court’s interpretation, but more vigorously advance a
`different argument: that § 1512(c)(2) prohibits obstructive acts
`related not just to “a record, document, or other object,” but
`also to all acts of general “evidence impairment.” Appellees’
`Br. 2, 15. Appellees argue that under either the district court’s
`document-focused reading of the statute or their own evidence-
`impairment theory, appellees’ conduct on January 6, 2021, is
`beyond the reach of § 1512(c)(2). Faced with these three
`competing interpretations of the statute, we conclude that the
`government has the best of this argument.
`
`I. Interpretation of § 1512(c)(2)
`
` When interpreting a statute, “we begin by analyzing the
`statutory language, ‘assuming that the ordinary meaning of that
`language accurately expresses the legislative purpose.’” Hardt
`
`
`
`

`

`
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`9
`v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010)
`(cleaned up) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S.
`167, 175 (2009)). If a statute’s language is clear, then that
`language controls. The Supreme Court has explained:
`
`[C]anons of construction are no more than rules of
`thumb that help courts determine the meaning of
`legislation, and in interpreting a statute a court should
`always turn first to one, cardinal canon before all
`others. We have stated time and again that courts
`must presume that a legislature says in a statute what
`it means and means in a statute what it says there.
`When the words of a statute are unambiguous, then,
`this first canon is also the last: judicial inquiry is
`complete.
`
`Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)
`(citations and internal quotation marks omitted); accord
`Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (“If the words
`of a statute are unambiguous, this first step of the interpretive
`inquiry is our last.”). Therefore, “[w]e must enforce plain and
`unambiguous statutory language according to its terms.”
`Hardt, 560 U.S. at 251.
`
`A. Text and Structure
`
`We start by reiterating and examining the text of
`§ 1512(c):
`
`(c) 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
`
`
`
`

`

`
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`10
`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.
`
`18 U.S.C. § 1512.
`
`In our view, the meaning of the statute is unambiguous.
`Subsection (c)(1) contains a specific prohibition against
`“corruptly” tampering with “a record, document, or other
`object” to impair or prevent its use in an official proceeding,
`while subsection (c)(2) proscribes “corrupt[]” conduct that
`“otherwise obstructs, influences, or impedes any official
`proceeding, or attempts to do so . . . .” Under the most natural
`reading of the statute, § 1512(c)(2) applies to all forms of
`corrupt obstruction of an official proceeding, other than the
`conduct that is already covered by § 1512(c)(1). This reading
`incorporates the commonplace, dictionary meaning of the word
`“otherwise”: “in a different manner.” See Otherwise, Oxford
`English Dictionary (3d ed. 2004) (defining “otherwise” as “[i]n
`another way or ways; in a different manner; by other means; in
`other words; differently”); Otherwise, Black’s Law Dictionary
`(6th ed. 1990) (defining “otherwise” as “[i]n a different
`manner; in another way, or in other ways”); see also Sandifer
`v. U.S. Steel Corp., 571 U.S. 220, 227–28 (2014) (using
`contemporary dictionaries to ascertain ordinary, contemporary,
`common meaning). Giving the text “its ordinary or natural
`meaning,” FDIC v. Meyer, 510 U.S. 471, 476 (1994), the
`statute essentially says, “Whoever corruptly (1) tampers with a
`document, record, or object to interfere with its use in an
`official proceeding; or (2) in a different manner obstructs,
`influences, or impedes any official proceeding, shall be fined
`or imprisoned.” See also Wis. Cent. Ltd. v. United States, 138
`
`
`
`

`

`
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`11
`S. Ct. 2067, 2074 (2018) (“[I]t’s a fundamental canon of
`statutory construction
`that words generally should be
`interpreted as taking their ordinary, contemporary, common
`meaning at the time Congress enacted the statute.” (cleaned up)
`(quoting Perrin v. United States, 444 U.S. 37, 42 (1979))).
`
`That natural, broad reading of the statute is consistent with
`prior interpretations of the words it uses and the structure it
`employs. The terms “obstruct,” “influence,” and “impede” can
`be found in several statutes pertaining to criminal obstruction
`of justice, such as 18 U.S.C. § 1503, which targets “corruptly
`. . .
`influenc[ing], obstruct[ing], or
`imped[ing]
`the due
`administration of justice”; and § 1505, which addresses
`“corruptly . . . influenc[ing], obstruct[ing], or imped[ing]” the
`due and proper administration of law” in certain proceedings
`or investigations. The parties do not dispute the meaning of
`those words or their typically expansive scope. See United
`States v. Aguilar, 515 U.S. 593, 598 (1995) (“[T]he ‘Omnibus
`Clause’ [of § 1503] serves as a catchall, prohibiting persons
`from endeavoring to influence, obstruct, or impede the due
`administration of justice. The latter clause, it can be seen, is
`far more general in scope than the earlier clauses of the
`statute.”); United States v. Griffin, 589 F.2d 200, 206–07 (5th
`Cir. 1979) (“The omnibus clause of [§ 1503] clearly states that
`it punishes all endeavors to obstruct the due administration of
`justice.”); United States v. Alo, 439 F.2d 751, 754 (2d Cir.
`1971) (rejecting litigant’s attempt “to escape the plain meaning
`of the broad language of § 1505”).
`
`Moreover, the word “otherwise” has been given its
`common meaning of “in a different manner” when used in
`similarly structured statutes. Section 1512(c) contains an
`initial subsection announcing a particular requirement,
`followed by a separately numbered subsection that begins with
`the word “otherwise” and introduces a broader requirement.
`
`
`
`

`

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`12
`The latter subsection is a “catch-all”2 that “cover[s] otherwise
`obstructive behavior that might not constitute a more specific
`offense” involving documents, records, or objects under
`§ 1512(c)(1). United States v. Petruk, 781 F.3d 438, 447 (8th
`Cir. 2015) (internal quotation marks omitted) (quoting United
`States v. Volpendesto, 746 F.3d 273, 286 (7th Cir. 2014)). Such
`“catch-all” structures are not uncommon. See, e.g., 18 U.S.C.
`§ 1952(a)(3); 28 U.S.C. § 2466(a)(1)(C). In such statutes, “the
`use of the introductory word ‘otherwise’ indicates that the
`evasion referred to in the [catch-all provision] reaches beyond
`the[] specific examples [in the preceding sections] to myriad
`means that human ingenuity might devise . . . .” Collazos v.
`United States, 368 F.3d 190, 200 (2d Cir. 2004) (discussing 28
`U.S.C. § 2466(a)(1)(C)); see also United States v. O’Hara, 143
`F. Supp. 2d 1039, 1042 (E.D. Wis. 2001) (“The use of
`‘otherwise’ in [18 U.S.C.] § [1952](a)(3) indicates that in
`Congress’s view, intending to commit a crime of violence
`under § (a)(2) is simply one way in which an offender can
`intend to promote or facilitate unlawful activity. What
`distinguishes violations of §§ (a)(2) and (a)(3) is . . . whether
`the offender intends to promote or facilitate unlawful activity
`by committing a crime of violence (which would violate
`§ (a)(2)) or by some other means (which would violate
`§ (a)(3)).”).
`
`the statute —
`interpretation of
`the broad
`Thus,
`encompassing all forms of obstructive acts — is unambiguous
`and natural, as confirmed by the “ordinary, contemporary,
`
`2 Courts also have described § 1512(c)(2) as a “residual” or
`“omnibus” clause. See, e.g., United States v. Gillespie, No. 1:22-cr-
`60, 2022 WL 17262218, at *4 (D.D.C. Nov. 29, 2022) (describing
`§ 1512(c)(2) as a “residual clause”); United States v. Hutcherson,
`No. 6:05-cr-39, 2006 WL 1875955, at *3 (W.D. Va. July 5, 2006)
`(describing § 1512(c)(2) as an “omnibus clause”). These terms are
`functionally similar.
`
`
`
`

`

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`13
`common meaning” of the provision’s text and structure.
`Perrin, 444 U.S. at 42.
`
`B. Precedents
`
`Not surprisingly, the vast majority of courts interpreting
`the statute have adopted the natural, broad reading of
`§ 1512(c)(2), applying the statute to all forms of obstructive
`conduct that are not covered by subsection (c)(1).
`
`The Seventh and Eighth Circuits have both acknowledged
`the expansive ambit of subsection (c)(2). See Petruk, 781 F.3d
`at 447 (“[Section] 1512(c)(2) operates as a catch-all to cover
`otherwise obstructive behavior that might not constitute a more
`specific offense like document destruction, which is listed in
`(c)(1).” (citation omitted)); United States v. Burge, 711 F.3d
`803, 809 (7th Cir. 2013) (“The expansive language in this
`provision operates as a catch-all to cover ‘otherwise’
`obstructive behavior that might not fall within the definition of
`document destruction.”).
`
`Furthermore, our peer circuits have applied the statute to
`reach a wide range of obstructive acts, not just those limited to
`tampering with documents or objects. Those courts have found
`“otherwise” obstructive conduct under subsection (c)(2) to
`include: (1) lying in written responses to civil interrogatory
`questions, Burge, 711 F.3d at 808–09; (2) soliciting
`information about a grand jury investigation to evade
`surveillance, Volpendesto, 746 F.3d at 286; (3) seeking a false
`alibi witness, Petruk, 781 F.3d at 444, 447; (4) tipping off the
`targets of criminal investigations, United States v. Ahrensfield,
`698 F.3d 1310, 1324–25 (10th Cir. 2012); (5) asking third
`parties to create fraudulent physical evidence, United States v.
`Desposito, 704 F.3d 221, 230–33 (2d Cir. 2013); (6) giving
`misleading testimony in a preliminary injunction hearing,
`United States v. Jefferson, 751 F.3d 314, 321 (5th Cir. 2014);
`
`
`
`

`

`
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`14
`(7) attempting to orchestrate a grand jury witness’s testimony,
`United States v. Mintmire, 507 F.3d 1273, 1290 (11th Cir.
`2007); (8) making false statements to a grand jury, United
`States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); and (9)
`burning an apartment to conceal the bodies of two murder
`victims, United States v. Cervantes, No. 16-10508, 2021 WL
`2666684, at *6 (9th Cir. June 29, 2021).
`
`To defend a narrower reading of the statute, appellees note
`that the above-cited cases involve “evidence impairment,”
`Appellees’ Br. 25–26, and insist that “the extension of Section
`1512(c)(2) to acts not intended to affect the availability or
`integrity of evidence is unprecedented,” id. 16. While the cited
`cases happen to address behavior that impaired evidence, none
`of them suggests that subsection (c)(2) is limited to such
`conduct. Indeed, as discussed above, several of the opinions
`affirmatively describe § 1512(c)(2) in capacious terms. See,
`e.g., Petruk, 781 F.3d at 446–47; Volpendesto, 746 F.3d at 286.
`Moreover, contrary to appellees’ claim, case law does not
`uniformly apply the statute to circumstances involving
`evidence impairment: The Second Circuit upheld a conviction
`under § 1512(c)(2) where the defendant created a forged court
`order, which did not impair evidence but deceived the recipient
`into withdrawing an application for a writ of mandamus. See
`United States v. Reich, 479 F.3d 179, 185–87 (2d Cir. 2007)
`(Sotomayor, J.).
`
`Notably, no fewer than fourteen district judges in this
`jurisdiction have adopted the broad reading of the statute urged
`by the government to uphold the prosecution of defendants
`who allegedly participated in the Capitol riot.3 Although the
`
`3
`See Gillespie, 2022 WL 17262218, at *4–5 (Howell, J.); United
`States v. Hale-Cusanelli, No. 21-cr-37, 2022 WL 4300000, at *1
`(D.D.C. Sept. 19, 2022) (McFadden, J.); United States v. Robertson,
`
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`15
`opinions of those district judges are not binding on us, the near
`unanimity of the rulings is striking, as well as the thorough and
`persuasive reasoning in the decisions. See, e.g., McHugh, 2022
`WL 1302880; Montgomery, 578 F. Supp. 3d 54; Sandlin, 575
`F. Supp. 3d 16. The district judge in the instant case stands
`alone in ruling that § 1512(c)(2) cannot reach the conduct of
`January 6 defendants.4
`
`
`
`610 F. Supp. 3d 229, 233–35 (D.D.C. 2022) (Cooper, J.); United
`States v. Williams, No. 21-cr-618, 2022 WL 2237301, at *17 n.13
`(D.D.C. June 22, 2022) (Berman Jackson, J.); United States v.
`Fitzsimons, 605 F. Supp. 3d 132, 137, 142–150 (D.D.C. 2022)
`(Contreras, J.); United States v. Bingert, 605 F. Supp. 3d 111, 123–
`28 (D.D.C. 2022) (Lamberth, J.); United States v. McHugh, No. 21-
`cr-453, 2022 WL 1302880, at *2–12 (D.D.C. May 2, 2022) (Bates,
`J.); United States v. Puma, 596 F. Supp. 3d 90, 107–08, 107 n.4
`(D.D.C. 2022) (Friedman, J.); United States v. Grider, 585 F. Supp.
`3d 21, 29–31 (D.D.C. 2022) (Kollar-Kotelly, J.); United States v.
`Nordean, 579 F. Supp. 3d 28, 43–46 (D.D.C. 2021) (Kelly, J.);
`United States v. Montgomery, 578 F. Supp. 3d 54, 69–79 (D.D.C.
`2021) (Moss, J.); United States v. Mostofsky, 579 F. Supp. 3d 9, 24–
`26 (D.D.C. 2021) (Boasberg, J.); United States v. Caldwell, 581 F.
`Supp. 3d 1, 20–33 (D.D.C. 2021) (Mehta, J.); United States v.
`Sandlin, 575 F. Supp. 3d 16, 24–28 (D.D.C. 2021) (Friedrich, J.).
`
` The only cases we are aware of that align with the district
`court’s narrowed interpretation are United States v. Singleton, No.
`H-06-80, 2006 WL 1984467, at *3 (S.D. Tex. July 14, 2006) (“[T]o
`violate § 1512(c)(2), the charged conduct must have some reasonable
`nexus to a record, document or tangible object.”); and United States
`v. Hutcherson, No. 605-cr-39, 2006 WL 270019, at *2 (W.D. Va.
`Feb. 3, 2006) (“Section 1512(c)(1) lists specific conduct that is
`prohibited under this subsection; while § 1512(c)(2) is intended to
`account for unenumerated conduct that violates the subsection. If an
`individual corruptly obstructs an official proceeding[] through his
`conduct in relation to a tangible object, such person violates this
`
`
` 4
`
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`16
`To be sure, outside of the January 6 cases brought in this
`jurisdiction, there is no precedent for using § 1512(c)(2) to
`prosecute the type of conduct at issue in this case. But “the
`whole value of a generally phrased residual clause . . . is that it
`serves as a catchall for matters not specifically contemplated
`. . . .” Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009); see
`also Griffin, 589 F.2d at 206–07 (“The obstruction of justice
`statute [§ 1503] was drafted with an eye to the variety of
`corrupt methods by which the proper administration of justice
`may be impeded or thwarted, a variety limited only by the
`imagination of the criminally inclined.” (citation and internal
`quotation marks omitted)). As the Supreme Court has noted:
`“[T]he fact that a statute can be applied in situations not
`expressly anticipated by Congress does not demonstrate
`ambiguity. It demonstrates breadth.” PGA Tour, Inc. v.
`Martin, 532 U.S. 661, 689 (2001) (quoting Pa. Dep’t of Corr.
`v. Yeskey, 524 U.S. 206, 212 (1998)).
`
`C. Other Elements
`
`Although the text of § 1512(c)(2) plainly extends to a wide
`range of conduct, the statute contains some important
`limitations: The act of “obstruct[ing], influenc[ing], and
`imped[ing]” described
`in subsection
`(c)(2) must be
`accompanied by “corrupt” intent; and the behavior must target
`an “official proceeding.”
` Those other elements of a
`§ 1512(c)(2) offense are not the focus of this appeal, but we
`nevertheless note that they provide significant guardrails for
`prosecutions brought under the statute.
`
`
`
`
`subsection.”). We have reviewed those cases and find them
`unpersuasive.
`
`
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`17
`
`1. “Corrupt” Intent
`
`interpret
`to
`The district court expressly declined
`“corruptly” as used in § 1512(c), concluding only that “the
`common meanings of ‘corruptly’ are sufficiently capacious so
`as not to limit or clarify the actus reus charged in the
`Indictment.” Miller, 2022 WL 1718984, at *5 n.3 (denying
`government’s motion for reconsideration). I do not agree that
`the meaning of “corruptly” is necessarily “capacious,” and note
`that a narrow construction of “corruptly” would indeed limit
`the actus reus of a § 1512(c)(2) violation. The requirement of
`“corrupt” intent prevents subsection (c)(2) from sweeping up a
`great deal of conduct
`that has nothing
`to do with
`obstruction — for instance, lobbyists who know they advocate
`for morally wrongful causes. See Appellees’ Br. 47. Notably,
`the other crimes enumerated in § 1512 — such as killing,
`threatening, or dissuading witnesses — are classic examples of
`obstruction of justice. See Obstruction of Justice, Black’s Law
`Dictionary (9th ed. 2009) (defining “obstruction of justice” as
`“willful act[s]