United States v. Robertson ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Case No. 21-cr-34 (CRC)
THOMAS ROBERTSON,
Defendant.
MEMORANDUM OPINION
After hearing three days of evidence and deliberating for two, a jury convicted Thomas
Robertson on six counts related to his conduct on and shortly after January 6, 2021. Mr.
Robertson, a former police officer from Rocky Mount, Virginia, was among the rioters who
breached the United States Capitol building, while a Joint Session of Congress convened to
certify the 2020 presidential election results. At the close of the government’s case in chief,
Robertson moved for a judgment of acquittal. The Court reserved ruling on that motion until
after the jury verdict. Robertson now renews his motion for acquittal specifically as to three
counts: one for obstructing an official proceeding, and two others for trespassing and engaging in
disorderly conduct in a restricted building and grounds. See Mot. at 1, ECF No. 114. The latter
two charges involve his carrying a “deadly or dangerous weapon,” that is, a large wooden stick.
Robertson’s challenge to the verdict focuses on the sufficiency of the evidence. He also revives
legal arguments this Court rejected in a pretrial ruling on a motion to dismiss the obstruction
count. See United States v. Robertson, ––– F. Supp. 3d –––, 2022 WL 969546 (D.D.C. Feb. 25,
2022). Finding enough evidence to sustain a conviction and adhering to its prior decision, the
Court will deny Robertson’s motion.
I. Legal Standards
Federal Rule of Criminal Procedure 29(a) governs a motion for acquittal. Under Rule
29(a), “the court on the defendant’s motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.” In reviewing the sufficiency of the
evidence, the court “must accept the jury’s guilty verdict if [it] conclude[s] that ‘any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
United States v. Branham, 515 F.3d 1268, 1273 (D.C. Cir. 2008) (quoting United States v.
Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The “evidence is to be viewed in the light most favorable to the government, drawing no
distinction between direct and circumstantial evidence, and giving full play to the right of the
jury to determine credibility, weigh the evidence and draw justifiable inferences of fact.”
Branham, 515 F.3d at 1273 (citation omitted).
II. Analysis
The Court will first address Robertson’s arguments for acquittal on count one,
obstruction of an official proceeding, and then turn to the question of whether a rational jury
could find the wooden stick to constitute a dangerous or deadly weapon.
A. Obstruction of an Official Proceeding
To start, 18 U.S.C. § 1512(c) imposes criminal sanctions against anyone who
“corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so”;
the term “official proceeding” includes, as relevant here, “a proceeding before the Congress.”
18 U.S.C. § 1515(a)(1)(B). Robertson “adopts and incorporates [his] previous arguments in
support of the Motion to Dismiss” this count, Mot. at 3, which the Court has already denied. He
maintains, for instance, that there is no evidence he “acted corruptly to obstruct, influence, or
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impede the due administration of justice.” Id. at 5. But there is no “due administration of
justice” element in § 1512(c), so this argument misses the point. See Robertson, 2022 WL
969546, at *4 (noting 18 U.S.C. § 1503, which does have this element, requires “more ‘court-
like’ proceedings,” whereas § 1512(c)(2) “targets official proceedings more broadly” (citations
omitted)).
Further echoing his motion to dismiss, Robertson contends that “Subsection (c)(2) has a
serious ambiguity” and that the term “corruptly” is vague as applied to his case. Mot. at 3. But
this Court’s prior decision—and a slew of other decisions from fellow judges in this district—
have explained why that is not so. 1 By way of brief summary, “‘[t]he plain, obvious and
common sense’ meaning of” official proceeding “reaches the Certification of the Electoral
College vote.” Robertson, 2022 WL 969546, at *5 (quoting United States v. Caldwell, ––– F.
Supp. 3d ––––, 2021 WL 6062718, at *8 (D.D.C. Dec. 20, 2021)). It “has many trappings
familiar from other types of proceedings,” id. at *4 (quoting United States v. Mostofsky, ––– F.
1
See United States v. McHugh, ––– F. Supp. 3d –––, 2022 WL 296304, at *3 (D.D.C.
Feb. 1, 2022) (collecting cases); United States v. Williams, Crim. A. No. 21-0618 (ABJ), 2022
WL 2237301, at *8–17 (D.D.C. June 22, 2022); United States v. Bingert, No. 21-cr-91-RCL,
2022 WL 1659163, at *3–11 (D.D.C. May 25, 2022); United States v. Reffitt, ––– F. Supp. 3d ––
––, 2022 WL 1404247, at *3–4, *6–10 (D.D.C. May 4, 2022); United States v. Puma, ––– F.
Supp. 3d –––, 2022 WL 823079, at *13 (D.D.C. Mar. 19, 2022); United States v. Andries, Crim.
A. No. 21-93 (RC), 2022 WL 768684, at *3–7, *10–13 (D.D.C. Mar. 14, 2022); Robertson, 2022
WL 969546 (Cooper, J.); United States v. Grider, ––– F. Supp. 3d –––, 2022 WL 392307, at *3–
8 (D.D.C. Feb. 9, 2022); United States v. Nordean, ––– F. Supp. 3d –––, 2021 WL 6134595, at
*4–13 (D.D.C. Dec. 28, 2021); United States v. Montgomery, ––– F. Supp. 3d –––, 2021 WL
6134591, at *4–23 (D.D.C. Dec. 28, 2021); United States v. Mostofsky, ––– F. Supp. 3d –––,
2021 WL 6049891, at *9–12 (D.D.C. Dec. 21, 2021); United States v. Caldwell, ––– F. Supp. 3d
––––, 2021 WL 6062718, at *4–21 (D.D.C. Dec. 20, 2021); United States v. Sandlin, ––– F.
Supp. 3d ––––, 2021 WL 5865006, at *3–14 (D.D.C. Dec. 10, 2021). But cf. United States v.
Miller, ––– F. Supp. 3d –––, 2022 WL 823070, at *3–15 (D.D.C. Mar. 7, 2022) (holding that
defendant’s conduct did not fit within the scope of 18 U.S.C. § 1512(c), and adopting a different
interpretation of that statute than other cases).
3
Supp. 3d –––, 2021 WL 6049891, at *10 (D.D.C. Dec. 21, 2021)), and can be quasi-adjudicative
in nature, as the Congressional Record from the day illustrates. See id. (citing 167 Cong. Rec.
H75, S13 (daily ed. Jan. 6, 2021) (House and Senate Sections)).
Nor is the term “corruptly” unconstitutionally vague. The statute is properly narrowed by
imposing this mens rea element, which requires “acting ‘with consciousness of wrongdoing.’”
Robertson, 2022 WL 969546, at *6 (citing Caldwell, 2021 WL 6062718, at *8–11); see also
United States v. Sandlin, ––– F. Supp. 3d ––––, 2021 WL 5865006, at *11–14 (D.D.C. Dec. 10,
2021) (“unlawfully, and with the intent to obstruct”). And the jury instructions here “convey[ed]
the requisite consciousness of wrongdoing,” Arthur Andersen LLP v. United States, 544 U.S.
696, 705–06 (2005); see Final Jury Instr. at 12, ECF No. 86, “thus rendering” Robertson’s
proposed insertion of “the word ‘dishonestly’ unnecessary.” See United States v. Reffitt, ––– F.
Supp. 3d ––––, 2022 WL 1404247, at *6 (D.D.C. May 4, 2022) (rejecting this same argument).
Robertson further contends that “corruptly” requires “that he influenced another to violate their
legal duty.” Mot. at 4. Not so. Courts have adopted this interpretation when “the defendant
must have ‘corrupted’ another person,” in the “transitive sense” of the word. Reffitt, 2022 WL
1404247, at *6. “[I]n § 1512(c)(2)”—the offense at issue here—“‘corruptly’ is used in the
intransitive, such that the defendant’s own behavior must be corrupt.” Id. (internal citation
omitted). As will be explained later, the evidence here showed that.
Next, Robertson gestures at a requirement that the government prove that he impaired
“the integrity and availability of non-object information to be used in the official proceeding.”
See Mot. at 4–5. Courts have rejected such a “limiting construction for § 1512(c)” because the
statute’s plain meaning “cover[s] more than just acts affecting evidence.” See Reffitt, 2022 WL
1404247, at *7; see also Sandlin, 2021 WL 5865006, at *5–10. This Court agrees. Section
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1512(c)(2) proscribes “obstruct[ing], influenc[ing], or imped[ing] any official proceeding.”
“These terms are expansive and seemingly encompass all sorts of actions that affect or interfere
with official proceedings, including blocking or altering the evidence that may be considered
during an official proceeding or, as the defendant[] attempted, halting the occurrence of the
proceeding altogether.” Sandlin, 2021 WL 5865006, at *5.
Robertson’s proposed “non-object information” requirement, Mot. at 4, also differs from
Judge Nichols’s decision in United States v. Miller, which homed in on “action with respect to a
document, record, or other object.” See ––– F. Supp. 3d –––, 2022 WL 823070, at *15 (D.D.C.
Mar. 7, 2022). But his motion partly relies on Miller, as did his proposed jury instructions, see
Joint Proposed Jury Instr. at 6–7 (Def. Proposed Instr. No. 18), ECF No. 76, so the Court will lay
out a few points rejecting it.
This Court concurs with the heavy weight of authority concluding § 1512(c)(2)—which
refers to obstructing “any official proceeding” generally—is not limited by subsection (c)(1)—
which refers to “alter[ing], destroy[ing], mutilat[ing] or conceal[ing] a record, document, or other
object” specifically. See, e.g., United States v. Puma, ––– F. Supp. 3d –––, 2022 WL 823079, at
*12–13 (D.D.C. Mar. 19, 2022); United States v. Bingert, No. 21-cr-91-RCL, 2022 WL
1659163, at *7–11 (D.D.C. May 25, 2022); Reffitt, 2022 WL 1404247, at *5–10; United States
v. McHugh, Crim. A. No. 21-453 (JDB), 2022 WL 1302880, at *4–12 (D.D.C. May 2, 2022);
United States v. Montgomery, ––– F. Supp. 3d –––, 2021 WL 6134591, at *10–18 (D.D.C. Dec.
28, 2021). Naturally read, subsection (c)(1) is about the alteration of evidence and hindering its
use in an official proceeding; subsection (c)(2) is about “otherwise,” meaning in a different way
than what’s provided in (c)(1), hindering the official proceeding itself. The word “otherwise”
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simply “signals a shift in emphasis, from actions directed at evidence to actions directed at the
official proceeding itself.” Montgomery, 2021 WL 6134591, at *12 (internal citation omitted).
That is “how an ordinary person (a reporter; a police officer; yes, even a lawyer)” would
read the text. See Wooden v. United States, 142 S. Ct. 1063, 1069 (2022). The list of verbs in
subsection (c)(1) “differ in material respects from the verbs in” (c)(2). Montgomery, 2021 WL
6134591, at *14. Same for the nouns—“record[s], document[s], or other object[s]” in subsection
(c)(1), versus “official proceeding[s]” in subsection (c)(2). Id. (“[T]he Court might ask here:
How anyone could alter, destroy, mutilate or conceal an ‘official proceeding’ or how anyone
could ‘obstruct[ ], influence[ ], or impede[ ]’ ‘a record, document, or other object’?” (alterations
in original)). Thus, almost all courts in this district have “found that a defendant otherwise
obstructs, impedes, or influences a proceeding under § 1512(c)(2) when he does so by means
different than those proscribed by the preceding § 1512(c)(1).” Reffitt, 2022 WL 1404247, at *8.
Miller sidesteps the above interpretation first by invoking the rule of lenity as a
background principle before starting its statutory interpretation, and then, with that lens,
discovering ambiguity based on a singular focus on the word “otherwise.” See 2022 WL
823070, at *4–5, *6–11. That gets the analysis backwards. Lenity is reserved “for those
situations in which a reasonable doubt persists about a statute’s intended scope even after resort
to ‘the language and structure, legislative history, and motivating policies’ of the statute.”
Moskal v. United States, 498 U.S. 103, 108 (1990) (quoting Bifulco v. United States, 447 U.S.
381, 387 (1980)). No such doubt lingers as to § 1512(c)(2)’s scope. The rule of lenity, however
venerable, cannot come to a defendant’s aid if a straightforward, even if expansive, construction
covers his conduct. See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (the
“maxim” that “penal laws are to be construed strictly . . . is not to be so applied as to narrow the
6
words of the statute to the exclusion of cases which those words, in their ordinary
acceptation, . . . would comprehend.”). Breadth is not the same thing as ambiguity.
Miller then outlines three supposed buckets for what “otherwise” could mean. See 2022
WL 823070, at *6–11 (“otherwise” could be a “clean break” between subsections (c)(1) and (2);
it could link the subsections by indicating that (c)(1) provides specific examples of conduct that
violates (c)(2); or it suggests that (c)(2) is a residual clause). Yet none of the three options
appear to cover the majority reading stated above. The majority interpretation “both recognize[s]
a link between the subsections and g[ives] meaning to the word ‘otherwise.’” Reffitt, 2022 WL
1404247, at *8. The difference, it seems, is that other courts have not read the statute by first
putting on the lens of lenity; instead, they resort to natural meaning and exhaust the tools of
statutory interpretation as to § 1512(c) as a whole. 2 Under that approach, this Court does not
find the interpretive question particularly hard.
Moving to the sufficiency of the evidence, Robertson’s motion does not mount much of a
challenge that, guided by the instructions given by the Court, a jury could have found him guilty
of a violation of § 1512(c)(2). His arguments are mostly legal, as canvassed above, and thus
challenge the jury instructions themselves. In any event, the Court concludes that the evidence
comfortably supports the jury’s verdict on each element: (1) the defendant attempted to or did
obstruct or impede an official proceeding; (2) the defendant intended to obstruct or impede the
2
The real motivating concern in Miller may well be the breadth of the prohibition in
§ 1512(c)(2). That concern, though perhaps generally fair in certain cases, is misplaced here
because the strict mens rea requirement of “corruptly” is “the key to what may or may not
lawfully be done”—that is, it “limit[s] criminality” to those “conscious of their wrongdoing.”
See Arthur Andersen, 544 U.S. at 704–06; Wooden, 142 S. Ct. at 1076 (Kavanaugh, J.,
concurring) (also suggesting that mens rea requirements “better address[]” such “concern[s] for
fair notice”).
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official proceeding; (3) the defendant acted knowingly, with awareness that the natural and
probable effect of his conduct would be to obstruct or impede the official proceeding; and (4) the
defendant acted corruptly. See Final Jury Instr. No. 19, at 11–12.
First, “Congress’s Joint Session to certify the Electoral College vote” is an “official
proceeding,” Final Jury Instr. No. 19, at 12, and the evidence showed it was obstructed by the
mob of people that breached the Capitol, including Robertson, who was among the first wave of
rioters to enter. See Gov’t Ex. 1002; Gov’t Ex. 507; Trial Tr. 4/6/2022, at 638–61 (Schwager
testimony); id. at 663–73 (Wade testimony). Second, the jury also heard evidence that
Robertson intended to obstruct or impede the certification based on his belief that the 2020
presidential election was rigged. See, e.g., Trial Tr. 4/6/2022, at 688–91 (Fracker testimony);
Gov’t Exs. 100A, 100B, 100H, 100J (Facebook posts). Robertson stated on social media, in one
example, that “[c]ivility has left me,” and that he was ready for “open armed rebellion.” Gov’t
Ex. 100H. After January 6th, too, he made statements indicative of his intent to stop the
certification. See, e.g., Gov’t Ex. 100C (“[W]e actually attacked the government who is the
problem. . . . The Right IN ONE DAY (without weapons) took the fucking US Capitol. Keep
poking us.”); Gov’t Ex. 100G (“The picture of Senators cowering on the floor . . . is the most
American thing I have seen in my life. Once….for real….you people ACTUALLY realized who
you work for.”); see also Gov’t Exs. 100D, 100E, 100F (Facebook posts). That evidence also
supports a finding that the defendant acted “with awareness that the natural and probable effect
of his conduct would be to obstruct or impede the official proceeding.” See Final Jury Instr. No.
19, at 12.
Robertson’s main sufficiency-of-the-evidence challenge seems to be directed at the
“corruptly” mens rea element, but it too fails. The Court instructed the jury that “corruptly”
8
meant “the defendant must use unlawful means or act with an unlawful purpose, or both. The
defendant must also act with ‘consciousness of wrongdoing,’” meaning “with an understanding
or awareness that what the person is doing is wrong.” Final Jury Instr. No. 19, at 12.
Again, the evidence comfortably supports such a finding. In addition to Robertson’s
statements noted above, other evidence further showed that he intended to use violence on
January 6th, which in turn is indicative of using unlawful means or acting with an unlawful
purpose. He packed gas masks for himself (which he wore), his co-defendant Jacob Fracker, and
a third individual who accompanied them, as well as military-style food rations. See Trial Tr.
4/6/2022, at 693–94, 702–03 (Fracker testimony); Gov’t Exs. 201B, 201C, & 201D (body-worn-
camera footage screenshots). As the Court will address next, Robertson also brought a large
wooden stick, which the jury found to be a dangerous weapon, and he carried it throughout the
day. And his counsel has essentially conceded that he “engag[ed] in other independently
unlawful conduct,” Final Jury Instr. No. 19, at 12–13, by entering and remaining in a restricted
area without lawful authority and by engaging in disruptive and disorderly conduct in a restricted
area. See Trial Tr. 4/8/2022, at 1040–41 (defense counsel’s closing, conceding guilt on certain
lesser-included offenses); see also Mot. at 6 (“Mr. Robertson does not dispute that” based on the
evidence “a rational jury could infer that he resisted or impeded [law enforcement] officers when
they were coming through the crowd.”); Trial Tr. 4/6/2022, at 600–01 (Officer Duckett testifying
that he was trying to move Robertson out of the way).
Evidence of corrupt intent is further illustrated in Mr. Fracker’s testimony that, when he
and Robertson arrived, he recognized that the situation was not safe, officers were in trouble, and
that the crowd was obviously “out of hand” and overwhelming the officers. Trial Tr. 4/6/2022,
at 699–702. Yet Robertson remained among the crowd with his gas mask on, id. at 702–03, 713;
9
again, he stood in the path of officers making their way through the crowd, concededly impeding
their progress; and he eventually joined the first wave of people who made their way to the
Upper West Terrace to enter the Capitol building. Trial Tr. 4/7/2022, at 892–93 (Camiliere
testimony); Gov’t Ex. 801. Once inside, Robertson advanced to the Crypt area, where he
reconvened with Fracker. Trial Tr. 4/6/2022, at 728 (Fracker testimony). There, they were part
of another crowd that well outnumbered police. As that crowd chanted, Robertson banged his
stick in time against the ground and Fracker clapped along. See id. at 730–32, 735–36; Gov’t
Exs. 406 & 407. The evidence permitted the jury to infer that they left only after police finally
outnumbered the rioters and ordered them to leave. Trial Tr. 4/6/2022, at 736–42 (Fracker
testimony); Gov’t Exs. 408 & 403A. In short, a jury could rationally conclude that Robertson
knowingly entered a dangerous, volatile situation, and, rather than leave, he joined in and
supported the chaos.
* * *
Looking at the entire events of the day, Robertson’s preparation for and participation in
them, and his statements revealing how he viewed his own actions that day, the evidence
supports the jury’s verdict on count one.
B. Deadly or Dangerous Weapon
Robertson also takes aim at the jury’s verdict on counts three and four involving
violations of 18 U.S.C. § 1752(a)(1) and (a)(2), which respectively prohibit trespassing and
engaging in disorderly or disruptive conduct “in any restricted building or grounds.” The law
increases these violations from misdemeanors to felonies if “the person, during and in relation to
the offense, uses or carries a deadly or dangerous weapon.” See 18 § 1752(b)(1)(A). Robertson
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asserts that no evidence supports a finding that the large wooden stick he carried that day was a
deadly or dangerous weapon. The Court disagrees.
The indictment charged Robertson with “carry[ing]”—but not “using”—“a large wooden
stick.” See Second Superseding Indictment at 2–3, ECF No. 74. The Court instructed the jury
that the term “deadly or dangerous weapon” meant that the stick had to be “capable of causing
serious bodily injury or death to another person and the defendant intends that it be used . . . in
that manner.” Final Jury Instr. No. 21, at 21. Then, in response to a jury question about the
meaning of “in that manner,” Jury Note No. 2, ECF No. 91, the Court elaborated:
In order for you to find that the stick is a deadly or dangerous weapon, you must
find that (1) it is capable of causing serious bodily injury, and (2) the defendant
carried it with the intent to use it in a manner capable of causing serious injury.
The defendant need not have actually used the stick in that manner.
See Court’s Resp. to Jury Note No. 2, ECF No. 93. This response followed briefing from the
parties and incorporated parts of each side’s proposed response to the jury note. No objections
were raised to this response. See Trial Tr. 4/11/2022, at 1104; cf. Trial Tr. 4/8/2022, at 1096
(defense counsel not objecting to a similar proposed response, including a requirement that “the
defendant intended to use the object in a manner capable of causing serious bodily injury”).
To begin, Robertson’s motion seems to accept the jury instruction, see Mot. at 6 (arguing
the government must show “the defendant intended to use [the stick] in that manner” (emphasis
added)); however, elsewhere the motion suggests that there is no evidence he “in fact[] used it in
such a manner” or that he “purposely used his walking stick as a dangerous or deadly weapon.”
Id. at 6–7 (emphasis added). Again, Robertson was charged only with carrying—not using—a
dangerous weapon, so the implication that the evidence must show he actually used the stick as a
weapon is wrong. Interpreting a D.C. law with an analogous prohibition on “carry[ing] . . . any
deadly or dangerous weapon,” the D.C. Circuit has explained that it is sufficient if a defendant
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“intended to use [an object] as a dangerous weapon.” See United States v. Vinton, 594 F.3d 14,
22 (D.C. Cir. 2010) (interpreting D.C. Code § 22-4504(a)); United States v. Broadie, 452 F.3d
875, 881–83 (D.C. Cir. 2006) (addressing argument that police lacked probable cause for arrest,
and reasoning that “the relevant inquiry is whether the surrounding circumstances provide
probable cause to believe [defendant] intended to use [a] baton to cause great bodily injury,
whether in self-defense or otherwise.”). That tracks this Court’s instruction and response to the
jury note, which likewise focused on the defendant’s “intent to use it in a manner capable of
causing serious injury.” See Court’s Resp. to Jury Note No. 2; see also Final Jury Instr. No. 21,
at 21 (the defendant must have “intend[ed] that it be used . . . in that manner.”). 3
The focus on a defendant’s intent to use an object as a dangerous weapon makes sense in
the context of a prohibition on “carrying,” as opposed to using, an object that is not an
“inherently dangerous” weapon. See Vinton, 594 F.3d at 22 (explaining that “inherently
dangerous” weapons are those where “the design of the object is such that in its ordinary use it is
likely to cause great bodily injury” (citation omitted)); cf. Arrington, 309 F.3d at 45 (noting, in a
case about “using” an object as a weapon, that “a distinction between” inherently and non-
inherently dangerous weapons is “appropriate”). Consider a pen, for example. It cannot be
criminal to simply carry a pen. But a fact finder’s assessment may change if there were evidence
that a defendant tightly gripped a pen in his hand, raised to his chest, with its tip facing out
toward an approaching officer. Even if the defendant never used the pen to jab at the officer, a
3
Although United States v. Arrington, 309 F.3d 40 (D.C. Cir. 2002) is partly instructive
and was one focus of discussion during the Court’s consultations with the parties on this issue, it
arises in a different context. That case dealt with a different statute (18 U.S.C. § 111) that
criminalizes “forcibly assault[ing]” an officer and enhances the penalty for anyone who “uses a
deadly or dangerous weapon.” 18 U.S.C. § 111(a), (b) (emphasis added). It does not address
“carrying” a dangerous weapon.
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jury may find that he carried the pen with the intent to use it in a manner capable of causing
serious injury.
With that table setting, sufficient evidence supported the jury finding that Robertson
carried the stick with an intent to use it in a manner capable of causing serious injury. He does
not dispute the first prong—that the large wooden stick was capable of causing serious bodily
injury—and instead focuses his challenge to the second “intent” prong. The government’s best
evidence is the body-worn-camera footage showing Robertson raising the stick in front of his
chest and clutching it in a military-trained “port arms” position as officers approached him, while
working their way through the crowd just outside the Capitol building. See Trial Tr. 4/6/22, at
523 (Hackerman testimony); Gov’t Exs. 200, 201, & 202 (body-worn-camera footage); Gov’t
Exs. 201B, 201C, & 201D (video screenshots). Notably, he is also wearing a gas mask at this
time. Gov’t Exs. 201B, 201C, & 201D. Law enforcement witnesses and Fracker (a former
police officer himself) further testified that port arms is a position where an officer holds an
object, usually a baton, in front of the chest as a means to block or push people back. See, e.g.,
Trial Tr. 4/6/22, at 589–90 (Duckett testimony) (describing it as “a means of force to push
[people] back”); id. at 705 (Fracker testimony) (describing it as “a blocking tool initially” when
using a baton).
The government also relies on Robertson’s background experience in the military and as
a law enforcement officer, arguing that in his “trained hands[] the stick constituted a dangerous
weapon.” Gov’t Opp’n at 19, ECF No. 116. That evidence strikes the Court as less compelling
on the question of intent, however, because it mostly goes to whether the stick was capable of
causing a serious injury. Nonetheless, in the light most favorable to the verdict, a jury could
reasonably conclude that, given Robertson’s training as a police officer, he held the stick in port
13
arms with an intent to use the stick as “a means of force” or as “a blocking tool.” See Trial Tr.
4/6/22, at 589–90, 602 (Duckett testimony); id. at 705 (Fracker testimony). And the officers on
the scene testified that Robertson indeed blocked their path. Trial Tr. 4/6/2022, at 534
(Hackerman testimony); id. at 600–02 (Duckett testimony).
On the other hand, the defense offered a theory that Robertson used the stick only as a
walking stick. See Trial Tr. 4/7/2022, at 940–41 (Bobbouine testimony) (testifying that
Robertson used a walking stick after an injury he sustained in 2010 or 2011, while serving in
Afghanistan); id. at 944–45 (Lavado testimony). While most of the video captured of him that
days does show him merely using the stick for walking, a few witnesses who knew Robertson
testified that they had never been aware of him using or needing a walking stick. Trial Tr.
4/5/2022, at 451–52 (Ervin testimony); Trial Tr. 4/6/2022, at 550–51 (Witt testimony); Trial Tr.
4/6/2022, at 688, 694 (Fracker testimony); cf. Trial Tr. 4/5/2022, at 441–42 (Ortega testimony)
(explaining that if someone were trying to enter the Capitol with “something like a walking
stick,” officers would ask the individual “what are they utilizing it for, what is the purpose they
have it for,” and a walking cane would also “go through the x-ray machine” for screening). The
jury was thus entitled to discredit the defense’s explanation.
A jury perhaps could have found that Robertson raising the stick into a port-arms position
was merely reflexive and not actually indicative of his intent. Or it could find—as this jury
rationally did—that his holding the stick in port arms while officers approached, and while he
wore a gas mask amid a violent crowd, evinced his intent to use the large wooden stick as a
means of force if he came into a confrontation with the officers or others in the crowd, even
though he ultimately did not use the stick that way. In sum, the Court concludes that the
evidence, including the surrounding circumstances of what was happening at the Capitol, is
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sufficient to support the jury verdict on counts three and four with respect to the defendant
carrying a deadly or dangerous weapon.
III. Conclusion
For these reasons, the Court will deny [114] Thomas Robertson’s Motion for Acquittal.
A separate Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: July 5, 2022
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