johnearlesullivan/capitol · Datasets at Hugging Face

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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

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