Amy Berman Jackson Gets a Two-Page Footnote in for the Appeal of Carl Nichols

DOJ announced its long-awaited appeal of Carl Nichols’ ruling rejecting DOJ’s application of 18 USC 1512(c)(2) to January 6 today (he has granted three motions to dismiss the charge, and DOJ is appealing all three). (Initial ruling; Denial of reconsideration)

Just in time, Amy Berman Jackson joined fifteen of her colleagues in upholding DOJ’s application of obstruction to January 6. Here’s the footnote she included, responding to Nichols’ opinion.

13 One court in this district has come to the opposite conclusion, and it dismissed the 1512(c)(2) count in a January 6 indictment. In United States v. Miller, the court found that “there are two plausible interpretations of [18 U.S.C. § 1512(c)(2)]: either § 1512(c)(1) merely includes examples of conduct that violates § 1512(c)(2), or § 1512(c)(1) limits the scope of § 1512(c)(2).” 2022 WL 823070, at *15. The more plausible interpretation, the court reasoned, is the latter, and therefore it found that the indictment failed to allege a violation of 18 U.S.C. § 1512(c)(2). Id.; see also Fischer, 2022 WL 782413, at *4 (“The Court recently concluded [in Miller] that the word ‘otherwise’ links subsection (c)(1) with subsection (c)(2) in that subsection (c)(2) is best read as a catchall for the prohibitions delineated in subsection (c)(1).”).

The Miller court relied heavily on Begay v. United States, 553 U.S. 137 (2008), abrogated on other grounds by Johnson, 576 U.S. 591 (2015), and Yates v. United States, 574 U.S. 528 (2015) (plurality opinion). In Begay, the Supreme Court considered whether drunk driving was a “violent felony” for the purposes of the sentencing provision imposing a mandatory minimum term on an offender with three prior convictions “for a violent felony,” as that term was defined in 18 U.S.C. § 924(e)(2)(B)(ii) (“the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year . . . that– . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). The Court concluded that the examples listed before “otherwise” limited the scope of the residual clause to similar crimes, and that drunk driving fell “outside the scope” of the ACCA. Begay, 553 U.S. at 142–48.

The Miller court reasoned that, because “the Begay majority opinion rejected the government’s argument ‘that the word ‘otherwise’ is sufficient to demonstrate that the examples [preceding ‘otherwise’] do not limit the scope of the clause [following ‘otherwise’],’” Miller, 2022 WL 823070, at *9 (alterations and emphasis in original), section 1512(c)(1) most likely also limits the scope of section 1512(c)(2). Id. at *9–11.

This Court is not basing its determination on a finding that the mere appearance of the word “otherwise” is sufficient to answer the question and establish that the first clause, section 1512(c)(1), was not meant to serve as a limit on the second clause, section 1512(c)(2). Rather, the Court considered the language and structure of the statute, and it agrees with the reasoning in the other decisions in this district denying motions to dismiss section 1512(c)(2) counts and rejecting the Miller court’s application of Begay. See McHugh II, 2022 WL 1302880, at *5–6; Bingert, 2022 WL 1659163, at *8.

For one thing, the structure of section 1512(c)(2) does not parallel the structure of the ACCA, and “otherwise” in section 1512(c)(2) does not immediately follow a list of examples. And sections 1512(c)(1) and (c)(2) – which prohibit different types of conduct – do not overlap in the same way that the ACCA clauses overlapped, rendering a conclusion that what follows the term “otherwise” is an extension of the prior provision less likely. Compare 18 U.S.C. § 1512(c), with 18 U.S.C. § 924(e)(2)(B). Indeed, the Supreme Court noted in Begay that “the word ‘otherwise’ can (we do not say must . . .) refer to a crime that is similar to the listed examples in some respects but different in others . . . .” Begay, 553 U.S. at 144 (emphasis in original). As the court observed in McHugh II, the way Congress drafted the two provisions indicates that they were intended to target different conduct:

Rather than a continuous list with a general term at the end, § 1512(c) contains two separately numbered paragraphs, with a semicolon and a line break separating the “otherwise” clause in paragraph (c)(2) from the preceding terms in paragraph (c)(1). Furthermore, paragraph (c)(2) is grammatically distinct from paragraph (c)(1). Although the two provisions share a subject and adverb (“whoever corruptly”), paragraph (c)(2) contains an independent list of verbs that take a different object (“any official proceeding”) from the verbs in paragraph (c)(1) (which take the object “a document, record, or other object”). . . . In short, rather than “A, B, C, or otherwise D,” section 1512(c) follows the form “(1) A, B, C, or D; or (2) otherwise E, F, or G.”

2022 WL 1302880, at *5.

As for Miller’s finding that “[r]eading § 1512(c)(2) alone is linguistically awkward,” 2022 WL 823070, at *6, this is not the case if “otherwise” is read to “‘signal[] a shift in emphasis’ . . . from actions directed at evidence to actions directed at the official proceeding itself.” Montgomery, 2021 WL 6134591, at *12, quoting Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 520 (2015). This is also not the case if “otherwise” is taken to mean “in a different way.” See McHugh II, 2022 WL 1302880, at *4. Under either interpretation, the meaning of the statute is clear: a person can violate section 1512(c)(2) through means that differ from document destruction, and the term “otherwise” does not limit the prohibition in section 1512(c)(2) to conduct described in section 1512(c)(1).

On a quick read, there’s nothing otherwise exceptional in this opinion. She did address Williams’ complaint that others haven’t been charged with obstruction.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, NordeanMay 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHughMay 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, CostianesMay 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert
  16. Amy Berman Jackson, June 22, Williams
29 replies
  1. Doctor My Eyes says:

    I’m so confused by this sentence:

    On a quick read, there’s nothing otherwise exceptional in this opinion.

    What the heck do you mean by “otherwise”?

      • Doctor My Eyes says:

        Not worth it? Oh well.

        It seems a tortured reading of the statute. But as EW has pointed out, the fake electors portion of the scam may end up trumping (so to speak) his idiotic excuse of their having been no documents involved.

  2. Doctor My Eyes says:

    Americans face a difficult choice in the coming months: who are you more afraid of–the US DOJ or rightwing thugs? As the noose tightens around the insurrectionists, the violence will escalate. Congresspeople now need security details. Tough times, indeed, brother.

      • Dmbeaster says:

        Well, in the political arena, there are plenty who describe the right wing thugs as alleged patriots, and the DOJ as the corrupt “deep state.” Seeing government officials as scary goes back to Reagan and his 9 most scary words. For me, it’s the thugs that are scary, but powerful forces are fighting for the opposite narrative.

        • Ginevra diBenci says:

          Those forces may be powerful, but what they seem to have in common is the conviction that unlike the rest of us, they should be exempt from the law.

    • bmaz says:

      Don’t worry, I could not either. I’d fall asleep with the repetitive stuff going on in front of you. My law partner used to do some judge pro-teming, and I never saw him so bored in my life.

      • Ewan says:

        On this topic, any views on automated judging: AI software providing decision, with nominal human oversight, or none? I know a group of people are working on this in Oxford (UK), at first for civil cases. The idea is that many, many decisions are straightforward, with a large amount of authoritative precedents, and it is a waste of judges / courts times. Makes it cheaper too.

        • wetzel says:

          That is very interesting. In my world there is a similar impetus and wide-ranging effort for AI algorithms to perform the functions of medical doctors in different scenarios. The doctors themselves these days, in many scenarios, follow a standard of practice algorithm where it is a pantomime of thinking, anyway, so why not have an AI performing many tasks, an AI ‘physician’s assistant’, per se. It is a waste of time for many functions for the doctor to even examine the patient. These approaches should produce greater efficiencies and better outcomes.

          What is troubling to me is that there is an ancient agreement between doctors and patients, which involves a set of customs and norms called the ‘doctor-patient relationship’. The patient agrees to allow the doctor to access their physical body beyond any boundaries of physical intimacy. There is a bond of trust to cross a bridge together. The doctor ‘represents’ the patient through the trials of medicine like the lawyer of the accused in a court. The doctor-patient relationship is the foundation of medical ethics.

          Everything is reproducible in the evidence base guiding a doctor’s scientific sense, but the patient is an individual, and so the doctor-patient relationship can’t exist without there being a human relationship. Their good name symbolizes the patient.

          The judge-accused relationship is equally ancient, I think, as the doctor-patient relationship. How this kind of thing is handled within a society, these fundamental scripts, have profound ramifications because they convey the premise of human dignity whether or not you can see this empirically in day-to-day results. That’s my own feeling from looking at the issue in medicine. Mine has the danger of being the Luddite point of view. I guess there are similar issues in legal ethics.

          • nord dakota says:

            Hmm. I have a 32-yo son with a reherniated lumbar disk who currently cannot work, does not want the surgery the in network doctors want (fusion is all they are able to do), we’ve had 3 consults so far, 2 in network 1 out of network. Half hour each and he has other medical conditions, including MS. There are several MRIs of the area spanning 8 months, and every MRI report is different. We get a tiny piece of each doctor’s view at each half hour consult and he has major decisions to make which can impact his life profoundly. There’s a sense we would love to have something that could input all the digital information, prognostic data, and let us compare the options as objectively as possible.

        • Tech Support says:

          My first problem is that the argument in favor seems like a capitulation to the under funding of the judicial system.

          My second problem is that existing decision-making software systems have already demonstrated that they perpetuate the biases of their designers.

          My third problem is that centralization of work in the name of efficiency creates “single point of failure” risks that are difficult to predict and/or are overlooked until something catastrophic occurs.

          My fourth problem is squishier, but I’d question how you can develop and maintain an experienced judiciary capable of addressing novel and complex issues if you take all the entry-level repetitions off the table.

          • Lady4Real says:

            You nailed it. I would rather be judged by a human being than a disembodied algorithm that will discriminate against me on the basis of my race.

            • vvv says:

              FWIW, I do work as an arbitrator both for the county and private parties in personal injury and contract disputes. Yes, it is often boring and repetitive altho’ as an arbitrator rather than a judge I can often request and receive quicker narrowing of the issues and testimony.

              Still, I like it.

              That said, on the issue of AI it’s easy to imagine same in a non-disputed divorce where the issues are jurisdictional and then financial. Maybe even in a bankruptcy …

              But it could not work re, say, child custody allocations where demeanor and even expert testimonial evidence is crucial.

              Or even a contract case where specific performance may have subjective components, there may be defenses involving a party’s understanding, etc.

              And re personal injury cases, the same as to nature and extent of injury, or contribution, for example.

              The thought of AI in criminal or other civil rights-implicated case is terrifying.

  3. harpie says:

    As for Miller’s finding that “[r]eading § 1512(c)(2) alone is linguistically awkward,” []

    this is not the case if “otherwise” is read to “‘signal[] a shift in emphasis’ . . . from actions directed at evidence to actions directed at the official proceeding itself.” []

    This is also not the case if “otherwise” is taken to mean “in a different way.” []

    Under either interpretation, the meaning of the statute is clear: a person can violate section 1512(c)(2) through means that differ from document destruction, and the term “otherwise” does not limit the prohibition in section 1512(c)(2) to conduct described in section 1512(c)(1).

          • Rayne says:

            Hey harpie – I yanked that too-early hearing post back to the cupboard. I’d accidentally scheduled it for 2:30 when it should have been 14:30. LOL

            I’d been planning on editing the body before 14:30 including adding the correct links to streaming and threads; that’s why it read 1:00 p.m. the originally scheduled time instead of the new time slot.

            Looking forward to chewing on that resignation draft which looks like a big fat handful of bread crumbs for a trail.

  4. Peterr says:

    A two page footnote is quite a piece of work.

    Its opening words, “One court in this district has come to the opposite conclusion.”, strike me as metaphorically sticking a shiv between Nichols’ ribs. In essence, the body of the opinion says “Court after court has held . . .” and Nichols she relegates to a footnote in which she takes apart Nichols’ shoddy legal logic.

    Reading it through, I could not help but hear it in the voice of my old 8th grade English teacher – the one who taught me how to diagram sentences. She had little patience for folks who misused the English language when they ought to know better, and could be quite direct and unsparing toward those who got sloppy with their diagrams.

    Well played, ABJ.

    • Lady4Real says:

      I read that the exact same, except my college writing professors would have a fit over Nichols pretzel logic and parsing (intentionally).

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