01-24-22 - SUPPLEMENT by USA as to JOHN EARLE SULLIVAN re 65 Response to motion.txt

 
 
 UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF COLUMBIA 
 
UNITED STATES OF AMERICA   :  
      :  v.     : Criminal No. 1:21- cr-00078- EGS  
      :  JOHN EARLE SULLIVAN,   :  
   Defendant.   :   
 
UNITED STATES’ SUPPLEMENT TO OPPOSITION TO DEFENDANT’S “MOTION 
TO ADOPT AND JOIN RELEVANT PORTIONS OF MOTION TO DISMISS COUNT 2 
OF THE INDICTMENT IN UNITED STATES V. CALDWELL, 21 -CR-28 (APM) AND 
TO DISMISS COUNT 1 OF THIS SUPERSEDING INDICTMENT”   
 
On January 10, 2022, the government ’s opposition to the defendant ’s “Motion to Adopt 
and Join Relevant Portions of Motion to Dismiss Count 2 of the Indictment in United States v. 
Caldwell , 21-cr-28 (APM) and to Dismiss Count 1 of this Superseding Indictment” attached three 
of the government ’s responsive pleadings from 21- CR-28.  On January 24, 2022, Judge Mehta 
denied reconsideration of his denial of the relevant motions to dismiss  in 21- CR-28.  The 
government hereby respectfully submits the Memorandum Opinion and Order denying  reconsideration  as a supplement to the government’ s January 10, 2022 opposition. 
      Respectfully submitted,  
 
MATTHEW M. GRAVES  
United States Attorney  
D.C. Bar No. 481052 
 
By:                                  
CANDICE C. WONG  
Assistant United States Attorney  
D.C. Bar No. 990903 555 Fourth Street, N.W., Room 4816 Washington, DC 20530 Candice.wong@usdoj.gov (202) 252-7849  
Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 1 of 8 
 
      
CERTIFICATE OF SERVICE  
 
I hereby certify that on January 24, 2022, I caused a copy of the foregoing supplement to 
be served on counsel of record via electronic filing.  
 
 
   ______________  
Candice C. Wong  
Assistant United States Attorney  
 
 
  
 
 
 
 
 
  
 
 
 
 
 
Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 2 of 8 
 
  
 
 
 
 
 
 
  
 
EXHIBIT  
  Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 3 of 8UNITED STATES DISTRICT COURT  
FOR THE DISTRICT OF COLUMBIA 
  
_________________________________________                                                                                   
       ) UNITED STATES OF AMERICA,   ) 
       )   v.     ) Case No. 21- cr-28 (APM) 
       )   THOMAS E. CALDWELL, et al.,    ) 
       )  Defendants.      ) 
_________________________________________ )  
MEMORANDUM OPINION AND ORDER  
 Defendant Thomas E. Caldwell asks the court to reconsider its decision denying his and 
other Defendants’ motions to dismiss Counts 1 and Count 2 of the Sixth S uperseding Indictment 
based on a statutory construction argument that he had every opportunity to make before the court 
ruled.  See Def. Caldwell’s Req. for Recons. Regarding Court’s Ruling on Mots . to Dismiss Counts 
1 & 2 (18 U.S.C. § 1512(c) ), ECF No. 566 [hereinafter Def.’s Mot.].  Caldwell’s motion is 
procedurally deficient , and it is wrong on the merits.  It is denied.     
I. 
 The Federal Rules of Criminal Procedure do not address the legal standard applicable to 
motions to reconsider interlocutory decisions, but courts in this District have applied the “as justice requires” standard under Federal Rule of Civil Procedure 54(b).  See, e.g.,  Unite d States v. 
Hassanshahi , 145 F. Supp. 3d 75, 80 (D.D.C. 2015);  United  States v. Hemingway , 930 F. Supp. 
2d 11, 12 (D.D.C. 2013).  “[A]sking ‘what justice requires’ amounts to determining, within the Court’ s discretion, whether reconsideration is necessary under the relevant circumstances.”   Cobell 
v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005).  Reconsideration may be warranted where the 
court “patently misunderstood a party, has made a decision outside the adversarial issues presented Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 1 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 4 of 82 
 to the Court by the parties, has made an error not of reasoning but of apprehension, or where a 
controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.”  Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 ( D.D.C.  2005) (internal 
quotation marks omitted).   The moving party bears the burden of demonstrating that 
reconsideration is warranted.  See Hassanshahi , 145 F. Supp. 3d at 80.   
 Caldwell makes no genuine attempt to meet this standard.  He does not show that the court 
patently misunderstood his or other Defendants’ arguments for dismissal, made a decision outside the adversarial process, committed an error of apprehension, or that there has been an intervening change in law.  Instead , he urges reconsiderat ion because neither this court nor any other judge in 
this District—at least four have rejected similar challenges to  charges brought under 18 U.S.C. 
§ 1512(c)(2)—has “addressed the issues raised” by him.  Def.’s Reply to Gov’t Opp’n to Def.’s Mot., ECF No. 575 [hereinafter Def.’s Reply] , at 2, 4 n.4.  But a motion for reconsideration is “not 
simply an opportunity to reargue facts and theories upon which a court has already ruled,” Hassanshahi , 145 F. Supp. 3d at 80–81 (internal quotation marks omitted), and litigants who “have 
once battled for the court’s decision, should not be permitted to battle for it again,” Arias v. DynCo rp, 856 F. Supp. 2d 46, 52 (D.D.C. 2012) (cleaned up).  That is precisely what Caldwell 
attempts to do with his motion.  He asks the court to entertain a statutory construction argument that he had ample opportunity to previously raise and present and whic h he seemingly conceived  
of only after the court ruled.  That is not a proper basis on which to seek reconsideration.  For that 
reason alone, Caldwell’s motion is denied. 
II. 
 Nor would Caldwell prevail on the merits.  He advances two arguments.  First, he  asks 
“why Congress would have inserted the word ‘otherwise’ into § 1512(c)(2) for the purpose of Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 2 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 5 of 83 
 demarcating separate and independent  conduct between subsections (c)(1) and (c)(2) when it could 
have accomplished the same outcome —which it did twenty times in other areas of §  1512—by 
using the word ‘or’ alone (without ‘otherwise’).”  Def.’s Reply at 1–2; see also Def.’s Mot. at 3–
4.  Second, he contends that the word “‘otherwise’ operates as a ‘conjunctive adverb’ in § 1512(c), 
which, as a matter of basic grammatical rules, means that the adverbial clause (‘otherwise obstructs, influences or impedes’) functions exclusively  to modify the preceding clause.”  Def.’s 
Reply at 2; see also Def.’s Mot. at 5 –9.  Taken together, these arguments lead to the conclusion, 
he says, that “subsection (c)(1) addresses the ‘letter of the law,’ while (c)(2) addresses the ‘spirit of the law,’ i.e., to punish those who, with a nefarious purpose but in a way not specifically enumerated by Congress in (c)(1), prevent tangible evidence from being obtained and accurately considered by courts, Congress, and administrative agencies.”  Def.’s Reply at 9.   
 As to Caldwell’s first point, there is an obvious answer why Congress used the word 
“otherwise” in section 1512(c) in addition to the word “or” to separate subsections (c)(1) and (c)(2):  to emphasize that section 1512(c)(2) is a “catch -all” provision that reaches  conduct not 
specified in (c)(1).   See, e.g., United States v. Burge , 711 F.3d 803, 809 (7th Cir. 2013).  None of 
the other provisions within section 1512(c) contain such a catch- all.  Rather, section s 1512(a), (b), 
and (d) contain a finite list of proscribed ways in which to violate the statute.  See 18 U.S.C. § 1512.  
Section 1512(c) is structured differently.  It does not itemize multiple ways to commit an offense.  It identifies one way in which to commit obstruction with regard to “a record, document, or other 
object,” followed by a broad prohibition on obstructive acts that affect an official proceeding.  
Thus, as the court ruled, Congress meant for the word “otherwise” to “connect[] the two provisions [while]  underscor[ing] that the acts prohibited by (c)(1) are ‘different’ from those prohibited by 
(c)(2).”  United States v. Caldwell , No. 21- cr-28 (APM), 2021 WL 6062718, at *12 n.6 (D.D.C. Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 3 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 6 of 84 
 Dec. 20, 2021).  Thus, the word “otherwise” is not under the court’s interpretation, as Caldwell 
suggests, acting as surplusage.  See Def.’s Mot. at 4 , 9.       
 Nor does Caldwell’s insistence that the word “otherwise” in section 1512(c)(2) is a 
conjunctive adverb change the court’s understanding.  Caldwell asserts that, as a conjunctive adverb, “otherwise” acts as a modifier, such that subsection (c)(2) “modif ies” subsection (c)(1).  
Id. at 9.  But “otherwise ” as a modifier, or conjunctive adverb, operates differently than Caldwell 
posits.  It looks something like this:  “You need to finish your homework; otherwise, you will not make a passing grade,” or “Jaimie needs to clean her room; otherwise, she will not be allowed to have her friends come over.” How to Use Otherwise in a Sentence, Study.com, 
https://study.com/academy/lesson/how- to-use-otherwise- in-a-sentence.html  (last visited Jan. 21, 
2022).  In those examples the clause following “otherwise” modifies, or further explains, the clause 
that precedes it:  the failure to finish homework will result in a failing grade or not cleaning a room will lead to friends not coming over.  But that is not how “otherwise” operates in section 1512(c).  The verbs of (c)(2) in no sense modif y the object of  (c)(1): “obstructs, influences, influences, or 
impedes” in subsection (c)(2) does not supply additional meaning to “record, document or other 
object” in subsection (c)(1).  The far more natural reading is the one the court adopted: “otherwise” 
means “in a different way or manner.”  See Caldwell, 2021 WL 6062718, at *12.  Understood in 
that sense , section 1512(c)(2) means “that a crime will  occur in a different (‘otherwise’) manner 
compared to §  1512(c)(1) if the defendant ‘obstructs, influences, or impedes any official 
proceeding’ without regard to whether the action relates to documents or records.”  United States v. Petruk, 781 F.3d 438, 446–47 (8th Cir. 2015). 
In truth, Caldwell does not read “otherwise” as a modifier.  He reads it as a word of 
limitation  that restricts offenses under subsection (c)(2) to those “ involving the integrity and Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 4 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 7 of 85 
 
production of documentary evidence ,” Def.’s  Mot. at 10, or “tangible evidence,” Def.’s Reply at  9.  
But Caldwell points to no court that has read section 1512(c)(2) so narrowly  and, in fact , courts 
have rejected that reading .  See, e.g., Petruk, 781 F.3d at  446 (8th Cir. 2015) (rejecting argument 
that section 1512(c)(2) “is limited to obstruction involving documents or physical evidence ”); 
United States v. Ring, 628 F. Supp. 2d 195, 224 (D.D.C. 2009) ( rejecting assertion  that “18 U.S.C. 
§ 1512(c)(2) applies only to acts involving ‘tampering with documents or physical evidence ’”).  
 The court leaves it to grammarians to say whether “otherwise” as it appears in section 
1512(c)(2) is properly classified a s a conjunctive adverb.  Whether it is or not does not alter this 
court’s reading of the statute.   
III. 
 For the foregoing reasons, the court denies Defendant Caldwell’s motion for 
reconsideration.  
 
 
                                                   
Dated:  January 24, 2022     Amit P. Mehta  
       United States District Court Judge  
 Case 1:21-cr-00028-APM   Document 596   Filed 01/24/22   Page 5 of 5Case 1:21-cr-00078-EGS   Document 66   Filed 01/24/22   Page 8 of 8