Proud Boys Defendants Ask Court to Dismiss Jan. 6 Obstruction Charges

April 8 motions are response to a fractured Court of Appeals ruling on obstruction law

Henry "Enrique" Tarrio, leader of The Proud Boys, attends a protest showing support for Cubans demonstrating against their government, in Miami, Florida on July 16, 2021. (EVA MARIE UZCATEGUI/AFP via Getty Images)

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 defendants in cases related to the Jan. 6, 2021, U.S. Capitol breach.

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 for the obstruction charges to remain.

Confusion arose after issuance of the Court of Appeals for the District of Columbia’s ruling on Section 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.

Members of the Proud Boys join supporters of U.S. President Donald Trump as they demonstrate in Washington, D.C., on Dec. 12, 2020. (Jose Luis Magana/AFP via Getty Images)

Nichols ruled that the obstruction statute covers only evidence tampering, not interfering with Congress’s ceremonial counting of Electoral College votes. The U.S. Department of Justice appealed.

Defendants in the Proud Boys trial are 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.

Walker’s concurrence with Pan was based on a narrow reading of the term “corruptly.” Without the use of the narrow definition, Walker wrote that he would join in Katsas’s dissent.

“A careful reading of Fischer requires dismissal of the obstruction charges brought under [Section] 1512(c)(2) and its conspiracy provision, [Section] 1512(k),” Rehl’s attorney, Carmen Hernandez, wrote.

Attorney Steven Metcalf (2nd from left), representing defendant Dominic Pezzola for his alleged role in the Jan. 6, 2021, Capitol breach, arrives at the E. Barrett Prettyman United States Courthouse on Dec. 19, 2022. (Win McNamee/Getty Images)

Walker said a defendant’s mental state is an important element in the obstruction charge and that Pan’s opinion didn’t 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 Katsas’s 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 [Section] 1512(c)(2) in the January 6 cases suffered from ‘vagueness’ and an impermissible ’breathtaking scope,'” he added.

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 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.