UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 22-166 (BAH) JOHN GEORGE TODD III, Judge Beryl A. Howell Defendant.
MEMORANDUM OPINION AND ORDER
Defendant John George Todd III faces trial on January 22, 2024, on a five-count
superseding indictment arising from his alleged conduct at the U.S. Capitol on January 6, 2021.
Pending before the Court are defendant’s Motion to Reveal Legal Instructions Given to Grand
Jury (“Def.’s Mot. to Reveal”), ECF No. 138, and Motion to Dismiss the Superseding Indictment
(“Def.’s Mot. to Dismiss”), ECF No. 139.1 The government opposes both motions, which are
now ripe for resolution. See Gov’t’s Opp’n to Def.’s Mot. to Reveal (“Gov’t’s MTR Opp’n”),
ECF No. 151; Gov’t’s Opp’n to Def.’s Mot. to Dismiss (“Gov’t’s MTD Opp’n”), ECF No. 147;
Def.’s Reply Supp. Mot. to Dismiss (“Def.’s MTD Reply”), ECF No. 153. For the reasons
discussed below, both motions are DENIED.
1 Ten additional pretrial motions have already been resolved, including: (1) the government’s Motion in Limine Regarding the Authentication of Publicly Available Video Evidence, ECF No. 29; (2) the government’s Motion in Limine to Admit Defendant’s Statements, ECF No. 96; (3) the government’s Motion in Limine to Preclude the Use of Improper First Amendment Defenses, ECF No. 110; (4) the government’s Motion in Limine to Preclude Improper Defense Arguments About Law Enforcement, ECF No. 111; (5) defendant’s Motion to Compel, ECF No. 117; (6) defendant’s Motion to Lift Protective Order and Motion in Limine Given Recent Public Release of Surveillance Footage, ECF No. 118; (7) defendant’s Motion to Compel, ECF No. 142; (8) defendant’s Motion in Limine to Preclude Post-Event Camera Footage, ECF No. 145; (9) defendant’s Motion to Prohibit Any Further Contrived Superseding Indictments, ECF No. 146; and (10) the government’s Motion to Modify Standing Order Relating to the Pretrial Statement, ECF No. 157. See Min. Order (Nov. 15, 2023); Min. Entry (Nov. 15, 2023); Min. Orders (Nov. 22, 2023); Min. Orders (Jan. 9, 2024); Min. Order (Jan. 10, 2024).
1 I. BACKGROUND
On May 12, 2022, a four-count information was filed, charging defendant with Entering
and Remaining in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(1); Disorderly and
Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. § 1752(a)(2); Violent
Entry and Disorderly Conduct in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(D);
and Parading, Demonstrating, or Picketing in a Capitol Building, in violation of 40 U.S.C.
§ 5104(e)(2)(G). See Information, ECF No. 6. A trial on all charges was scheduled for
November 14, 2022, see Min. Order (Aug. 12, 2022), but the trial date was vacated in light of
defendant’s “continued need for mental health assessment and treatment” and inability to assist
in his defense, Status Report, No. 31; see also Min. Order (Oct. 12, 2022); Pretrial Compliance
Report, No. 30.
Defendant received new counsel on October 26, 2022, see Notice of Att’y Appearance by
John Pierce, ECF No. 33; see also Min. Order (Oct. 27, 2022) (granting Motion to Withdraw
filed by Ronna Holloman-Hughes, ECF No. 34), and moved, on November 4, 2022, with the
government’s consent, for a trial by magistrate judge, see Def.’s Mot. for Trial by Magistrate
Judge, ECF No. 38; Gov’t’s Resp. to Def.’s Mot. for Trial by Magistrate Judge, ECF No. 40.
Upon consideration of defendant’s “express and written election to be tried before a magistrate
judge” and his “express and specific waiver of trial, judgment, and sentencing by a district
judge,” as well as the government’s consent to the same, defendant’s motion was granted. Min.
Order (Nov. 9, 2022).
A bench trial before a magistrate judge was then scheduled to begin on October 16, 2023,
see Min. Entry (Dec. 9, 2022), but due to defense counsel’s “incredibly compressed and
overlapping trial schedule,” defendant sought and obtained a continuance of the trial until
2 December 15, 2023, with a pre-trial conference scheduled for December 7, 2023, see Def.’s Mot.
to Continue Trial, ECF No. 77; see also Am. Pretrial Order, ECF No. 83.
Two weeks before the December 2023 trial date, the government informed the Court and
defendant that, upon closer review of the evidence in preparation for trial, evidence, including
police officer body worn camera footage, was uncovered that could warrant a charge under 18
U.S.C. § 111. See Def.’s Notice at 2–3, ECF No. 128 (citing government’s Nov. 30, 2023 email
to chambers). On December 6, 2023, a grand jury was empaneled, before whom defendant
voluntarily testified. See Min. Order (Dec. 5, 2023). On the same day, this grand jury returned a
superseding indictment, charging defendant with, in addition to the four misdemeanor counts in
the original information, one count of Inflicting Bodily Injury on Certain Officers, in violation of
18 U.S.C. § 111(a)(1), (b). See Superseding Indictment, ECF No. 133. The additional felony
count necessitated the return of the case to the undersigned, as the original presiding judge, and a
new trial date is now set for January 22, 2024, on defendant’s demand for a speedy trial. See
Min. Order (Dec. 15, 2023); Min. Entry (Dec. 15, 2023).
II. DISCUSSION
Among the pre-trial motions filed by defendant are the instant Motion to Reveal Legal
Instructions Given to Grand Jury and Motion to Dismiss the Superseding Indictment. See supra
note 1. Both motions make the serious accusation that the District Court for the District of
Columbia and prosecutors in this district, have adopted an “explicit policy of punishing January
6 defendants who reject guilty plea offers,” suggesting a “high likelihood that the Super[s]eding
Indictment in this case was generated for purposes of spite, vindictiveness, and retaliation.”
Def.’s Mot. to Reveal at 2–5; see also Def.’s Mot. to Dismiss at 6–11. Defendant’s allegations
3 of vindictive and retaliatory prosecution are first addressed, before turning to his arguments
specific to each motion.
A. Vindictive Prosecution
Prosecutors have “broad discretion to enforce the law, and their decisions are presumed
to be proper absent clear evidence to the contrary.” United States v. Slatten, 865 F.3d 767, 799
(D.C. Cir. 2017). To succeed on a claim of vindictive prosecution stemming from the nature of
the charges brought, a defendant must show that “the increased charge was ‘brought solely to
penalize him and could not be justified as a proper exercise of prosecutorial discretion.’” Id.
(alteration in original accepted) (quoting United States v. Goodwin, 457 U.S. 368, 380 n.12
(1982)). Such a showing may be made “through objective evidence showing actual
vindictiveness, or through evidence ‘indicating a realistic likelihood of vindictiveness,’ which
gives rise to a presumption that the government must then attempt to rebut.” Id. (alteration in
original accepted) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)).
Defendant offers no evidence of actual vindictiveness. Rather, he points to presumptive
evidence in the form of “a growing list of Jan. 6 defendants,” citing twelve such cases including
defendant, as to whom “federal prosecutors added (or threatened to add) an additional, 20-year
felony charge” when “the defendant expressed his innocence and intent to exercise his or her
right to trial” on misdemeanor charges. Def.’s Mot. to Reveal at 4; see also id. at 3–5; Def.’s
Mot. to Dismiss at 6–11.
In pre-trial presumption cases, as here, “‘the prosecutor’s assessment of the proper extent
of the prosecution may not have crystallized,’ so an increase in charges may be the result of
additional information or further consideration of known information, rather than a vindictive
motive.” Slatten, 865 F.3d at 799 (quoting Meyer, 810 F.2d at 1245). In this context, therefore,
4 “a defendant must provide additional facts sufficient to show that ‘all of the circumstances, when
taken together, support a realistic likelihood of vindictiveness.’” Id. (quoting Meyer, 810 F.2d at
1245–46).
Defendant’s reliance on the government’s filing of a superseding indictment after he
refused to plead guilty, see Def.’s Mot. to Dismiss at 6–11, is insufficient to make this showing.
“[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its
case is insufficient to warrant a presumption that subsequent charges in the charging decision are
unjustified.” Goodwin, 457 U.S. at 382–383; see also Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978) (“[O]penly present[ing] the defendant with the unpleasant alternatives of forgoing
trial or facing charges on which he was plainly subject to prosecution, d[oes] not violate the Due
Process Clause of the Fourteenth Amendment.”). Rather, what defendant describes is “nothing
more . . . than a run-of-the-mill pretrial situation.” United States v. Meadows, 867 F.3d 1305,
1320 (D.C. Cir. 2017) (Rogers, J., concurring) (internal citation omitted).
Even if the timing in the procedural chronology triggered the presumption—which it does
not—no finding of vindictiveness is supportable. Given the terabytes of data in multiple formats
collected from many sources about the attack on the U.S. Capitol on January 6, 2021, ferreting
out who did what, when and where that day is a significant and time-consuming challenge in the
face of limited investigative and prosecutorial resources. This is important context in
understanding the timing of charges brought in this and other January 6 cases. The government,
when preparing for trial on the misdemeanor charges against this defendant, reasonably reviewed
the discovery related to defendant in more depth and thereby uncovered evidence of an alleged
assault of a law enforcement officer by defendant. Gov’t’s MTR Opp’n at 3. The government
then sought a superseding indictment from a grand jury. Id. This scenario of expending
5 investigative and prosecutorial resources to drill down deeper into the terabytes of data in
preparation for trial likely plays out in similar fashion in other cases charging offense conduct at
the U.S. Capitol on January 6, 2021. Defendant points to nothing else and nothing unusual about
this case that would give rise to a presumption of vindictive prosecution. See, e.g., Order, United
States v. Speed, No. 22-cr-244, ECF No. 54 (denying defendant’s motion to dismiss for
vindictive prosecution); Transcript of Bench Trial (Day 1) at 5–9, Speed, No. 22-cr-244, ECF
No. 75 (explaining that defendant established presumption of vindictiveness because the felony
charge was added only after a mistrial was declared in defendant’s trial in Virginia district court
and prosecutors in the case were aware of the mistrial, but concluding nonetheless that the
government overcame the presumption by, inter alia, pointing to “additional video evidence”
supporting the alleged charge, which the government recovered several months later because
they “started reviewing the evidence and preparing in earnest only once the trial date
approached”).
On this record, the return of the Superseding Indictment presents no indication of
prosecutorial vindictiveness, let alone any irregularity in grand jury process. See United States v.
Gunby, No. 21-cr-626, 2023 WL 5672746, at *1 (D.D.C. Sept. 1, 2023) (denying defendant’s
motion to dismiss a new indictment on grounds of prosecutorial vindictiveness where “[t]he
government has explained that, as it prepared for trial and reviewed the evidence in detail, it
sought an additional charge commensurate with the conduct, and consistent with its approach in
January 6 prosecutions” (internal citation omitted)).
B. Motion to Reveal Legal Instructions to Grand Jury
“[L]ong-established policy . . . maintains the secrecy of the grand jury proceedings in the
federal courts,” United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958), and grand
jury proceedings are entitled to “a presumption of regularity, which generally may be dispelled 6 only upon particularized proof of irregularities in the grand jury process,” United States v.
Mechanik, 475 U.S. 66, 75 (1986) (O’Connor, J., concurring). Specifically, grand jury materials
are subject to disclosure only when the defendant succeeds in carrying the heavy burden of
showing that “a particularized need exists” that “outweighs the policy of secrecy.” Pittsburg
Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959). “Only in exceedingly rare cases are
defendants able to make a factually based showing of particularized need for the production and
inspection of grand jury materials.” United States v. Apodaca, 287 F. Supp. 3d 21, 47–48
(D.D.C. 2017) (cataloguing cases).
Recognizing this heavy burden, defendant nonetheless argues that he has established a
particularized need for the legal instructions given to the grand jury for three reasons that shift—
somewhat illogically—to substantive attacks on the validity of the Superseding Indictment.2
None of the reasons are persuasive. First, defendant argues that the Superseding Indictment was
not signed by the grand jury foreperson, does not name witnesses, and is thus invalid. Def.’s
Mot. to Reveal at 1. The Superseding Indictment was, in fact, signed by the foreperson, see
Superseding Indictment (Sealed), ECF No. 134, but even if not, such irregularity would not be
fatal, see Frisbie v. United States, 157 U.S. 160, 163–64 (1895). Furthermore, defendant offers
no support for the proposition that names of witnesses who testified before the grand jury must
be listed in the superseding indictment, and the Court is aware of none. Indeed, defendant’s
proposition runs directly counter to the secrecy required under Federal Rule of Criminal
Procedure 6(e). See Fed. R. Crim. P. 6(e)(6) (requiring “[r]ecords, orders, and subpoenas
relating to grand jury proceedings” to “be kept under seal to the extent and as long as necessary
to prevent the unauthorized disclosure of a matter occurring before a grand jury”).
2 The limited nature of this request must be highlighted since the government has already produced to defendant part of the grand jury presentation, namely, a transcript of defendant’s own voluntary testimony, on December 6, 2023, before the grand jury. See Gov’t’s MTR Opp’n at 5.
7 Second, defendant argues that “[n]either the [l]aw nor application of law to the evidence”
supported the new assault count, and thus the government “must have deceived the grand jury.”
Def.’s Mot. to Reveal at 1–2. Defendant acknowledges, however, that body camera footage
shows that defendant’s fiberglass flagpole broke and that the officer “punctured his own hand”
on the flagpole. Id. at 2. Just because defendant vigorously asserts that he would not have found
himself guilty on this evidence is insufficient to meet his high burden of establishing irregularity
or a particular need for the grand jury materials. In any event, in making this argument,
defendant minimizes his own conduct by ignoring the remainder of the government’s proffer
about the overall circumstances of his interaction with law enforcement officers underlying the
new assault charge. As the government alleges, in response to U.S. Capitol police officers’
efforts and directions to clear unauthorized rioters, including defendant, from the U.S. Capitol
Rotunda area, defendant “repeatedly pushed against [the] officers when being told to leave,” and
shouted at the officers and threatened them with physical violence, yelling “I swear to God, I’ll
hip toss your ass into the fuckin’ crowd, mother fucker!” Gov’t’s MTR Opp’n at 1–2. The
government further alleges that Officer N.R., believing that “defendant was about to strike
someone with his fiberglass tent pole,” “attempted to take the pole from the defendant.” Id. at 2.
Defendant then wrestled with Officer N.R. for control of the pole, splintering the pole, and
defendant, who saw the “splintered fiberglass,” nonetheless “ripped the splintered pole out of
[the officer’s] hands,” resulting in a “deep cut” through the officer’s knuckle that exposed a
tendon in the officer’s finger and required further medical attention. Id.
Finally, in a last gasp attack on the new felony assault charge against him, defendant
makes the serious accusation of prosecutorial retaliation. See Def.’s Mot. to Reveal at 3–4.
Normally, vindictive prosecution claims are made to obtain relief in the form of dismissal of the
8 indictment, but here is apparently thrown into the mix merely to show “irregularities in the grand
jury process” to obtain inspection of the instructions to the grand jury. Id. at 5. For the reasons
explained above, defendant’s claims of vindictive prosecution fail.
In sum, defendant offers no reason—let alone a particularized need—to overcome the
presumption against disclosure of grand jury materials and his request for disclosure of the legal
instructions provided to the grand jury is therefore denied.
C. Motion to Dismiss
Defendant raises two arguments, in addition to his contentions of vindictive prosecution,
to support his motion to dismiss the Superseding Indictment’s new charge in Count One for
Inflicting Bodily Injury on Certain Officers, in violation of 18 U.S.C. § 111(a)(1), (b). Neither
argument is persuasive.
First, defendant posits, in a conclusory fashion, that “no plausible legal theory” supports
the new Count One charge for forcibly assaulting, resisting, opposing, impeding, intimidating,
interfering, and inflicting bodily injury on “N.R., an officer with the Metropolitan Police
Department while such officer . . . was engaged in or on account of the performance of official
duties or where the acts in violation of this section involve physical contact with the victim and
the intent to commit another felony.” Superseding Indictment; see also Def.’s Mot. to Dismiss at
1. This argument simply ignores the dispositive weight of contrary law.
“An indictment returned by a legally constituted and unbiased grand jury, like an
information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge
on the merits.” Costello v. United States, 350 U.S. 359, 363 (1956). Courts have repeatedly
rejected the notion that “defendants [can] challenge indictments on the ground that they are not
supported by adequate or competent evidence,” criticizing the position as “run[ning] counter to
9 the whole history of the grand jury institution.” Id. at 364; see also United States v. Williams,
504 U.S. 36, 54 (1992). Rather, pretrial dismissal of an indictment is unwarranted on sufficiency
of evidence grounds unless “the material facts are undisputed and only an issue of law is
presented.” United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (cataloguing cases and
noting, as an exception, the Eleventh Circuit, which has held that “even where there are
undisputed facts a district court may not engage in a pretrial determination of the sufficiency of
the evidence”).
Here, no facts have been stipulated to by the parties and thus, as the government
concisely states, “[e]very material fact of the case remains in dispute.” Gov’t’s MTD Opp’n at 4.
Defendant argues that no factual disputes exist because “[t]here is no hint of evidence to show
that Todd manipulated the flagpole in any manner towards the direction of the officer,” and
“[r]ather, the injury and contact was self-inflicted and initiated by the officer himself.” Def.’s
MTD Reply at 2–3. In so arguing, defendant acknowledges that evidence of defendant and the
officer interacting exists, that defendant’s flagpole was instrumental in the officer’s injury, and
that the officer was, in fact, injured. That upon his view of the evidence, “the injury and contact”
was self-inflicted by the officer—not defendant—or that the officer’s injury was not sufficiently
severe to constitute a “bodily injury,” id. at 3–4, reflect quintessential disputes of material fact
best left for a jury. In any event, as explained above, defendant minimizes his own conduct by
ignoring the government’s proffer about the full context and circumstances of his interaction
with law enforcement officers underlying the new charge, including allegations that he
“repeatedly pushed,” yelled at, and threatened officers, and wrestled with Officer N.R. for
control over a fiberglass pole—an altercation that resulted in a laceration that exposed a tendon
in the officer’s finger. Gov’t’s MTD Opp’n at 1–2.
10 Second, defendant relies on law-of-the case doctrine as support for dismissal of Count
One. This doctrine, which is not a “binding rule,” provides that “a court involved in later phases
of a lawsuit should not re-open questions decided by that court or a higher one in earlier phases.”
Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 697 (D.C. Cir. 2022) (alteration in
original accepted and citation omitted). “Colloquially speaking, the doctrine ensures that the
same issue presented a second time in the same case in the same court should lead to the same
result.” Id. Defendant suggests that the Court’s statement at a status conference on November 4,
2022, that the government was “running out of time” to file a superseding indictment amounted
to a court order that the government violated by subsequently filing the Superseding Indictment.
Def.’s Mot. to Dismiss at 3; see also Transcript of Nov. 4, 2022 Status Conference (“Nov. 4
Conf. Tr.”) at 4, ECF No. 88. Read in context, however, this statement simply reflected the
Court’s expectation that a trial, which had already been rescheduled once, would be soon. See
Nov. 4 Conf. Tr. at 7 (the Court stating: “This case has been pending now for some time. I just
had a trial date free up on December 5th. This case was supposed to be tried November 14th.
What’s wrong with the December 5th date?”). In fact, when defendant urged for a trial date in
2023, the Court warned: “I have no idea how far into 2023 you’re contemplating, but that’s just
going to give [the government] plenty of more time to be investigating Mr. Todd and potentially
bring superseding charges.” Id. at 11. No reasonable person could read the Court’s passing
statement that the government was “running out of time” to file a superseding indictment to
represent a court order that the government was prohibited from filing one.
Defendant then argues that by transferring the case to a magistrate judge, the Court ruled
that the government could not bring a Superseding Indictment. Def.’s Mot. to Dismiss at 6. This
contention also has no merit. The Court granted defendant’s Motion for Trial by Magistrate
11 Judge, ECF No. 38, pursuant to 18 U.S.C. § 3401(b), which provides that a defendant may
“expressly consent[] to be tried before [a] magistrate judge and expressly and specifically
waive[] trial, judgment, and sentencing by a district judge.” See Min. Order (Nov. 9, 2022). The
minute order granting defendant’s motion makes no mention of any potential superseding
indictment. In sum, the law-of-the-case doctrine is not implicated because the issue of whether
the government was precluded from filing a superseding indictment was simply never decided.
III. CONCLUSION
For the foregoing reasons, it is:
ORDERED that defendant’s Motion to Reveal Legal Instructions Given to Grand Jury,
ECF No. 138, is DENIED, and it is further
ORDERED that defendant’s Motion to Dismiss the Superseding Indictment, ECF No.
139, is DENIED.
SO ORDERED.
Date: January 10, 2024
__________________________ BERYL A. HOWELL United States District Judge