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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

ANTHONY GRIFFITH,

Defendant

Criminal Action No. 21-244-2 (CKK)

MEMORANDUM OPINION

(May 5, 2023)

A bench trial concluded in this criminal matter on March 17, 2023. On the same day, 

Defendant moved to dismiss Counts Two and Three of the operative [12] Indictment as defective. 

Although Defendant initially moved pursuant to Federal Rule of Criminal Procedure 12, Defendant 

purports to rely now exclusively on Rule 29. Essentially, Defendant argues that these counts must 

be dismissed because the Indictment incorrectly claims that Vice President-elect Kamala D. Harris 

was present in the Capitol at the time Defendant entered the Capitol building and grounds. 

Assuming arguendo that Vice President-elect Harris was not at the Capitol at that time, dismissal 

is nevertheless unwarranted. Accordingly, the Court DENIES Defendant’s [136] Motion to 

Dismiss Counts Two and Three of the Indictment (“Motion” or “Mot.”). 

I. BACKGROUND

Counts Two and Three of the Indictment, filed March, 24, 2021, charge Defendant with: 

(1) Entering and Remaining in a Restricted building, in violation of 18 U.S.C. § 1752(a)(1); and 

(2) Disorderly and Disruptive Conduct in a Restricted Building, in violation of 18 U.S.C. § 

1752(a)(2). Like most indictments in cases arising from the insurrection of January 6, 2021, the 

indictment here is threadbare. In Counts Two and Three, the Indictment alleges that the “United 

States Capitol and its grounds” were a “restricted building and grounds” because the area was 
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“posted [as restricted], cordoned-off, and otherwise restricted.” Additionally, the Indictment 

alleges that the then-“Vice President [Michael R. Pence] and Vice President-elect [Kamala D. 

Harris] were temporarily visiting” the United States Capitol and its grounds at the time of 

Defendant’s entry into the area. 

It appears that Indictment’s allegation as to Vice President-elect Harris may be incorrect. 

As the Government has explained in numerous cases, Vice President-elect Harris left the Capitol 

building and grounds at some point during the morning of January 6, 2021. See Trans. at 34:4-21, 

United States v. Ibrahim, Crim. A. No. 21-496 (TJK) (Oct. 27, 2022). By the time Defendant 

entered Capitol grounds in the afternoon, Vice President-elect Harris was sheltering at the 

Democratic National Headquarters blocks away from the Capitol as law enforcement worked to 

disarm a nearby pipe-bomb. H.R. Rep. 117-663 at 706 (Dec. 22, 2022). Across hundreds of cases 

arising from the insurrection of January 6, 2021, the Government began to remedy this purported

factual error, either by moving to strike the relevant language from the operative charging 

document or superseding the operative charging document. E.g., Superseding Information, ECF 

No. 39, United States v. Rivera, Crim. A. No. 21-060 (CKK) (Apr. 4, 2022). However, the 

Government did not do so here. 

A cursory review by the Court has identified four such cases in which defense counsel here 

was counsel of record in a case in which the Government remedied the purported error.

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 It is 

therefore incorrect for defense counsel to suggest that “the defense could not have known from the 

face of the indictment alone that it was defective.” Mot. at 1. Over a thousand charging documents 

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 E.g., ECF No. 55, United States v. Strand, Crim. A. No. 21-85 (CRC) (Government action 

taken to correct error on Mar. 1, 2022); ECF No. 43, United States v. Egtvedt, Crim. A. No. 21-

177 (CRC) (Nov. 10, 2021); ECF No. 24, United States v. Eckerman, Crim. A. No. 21-623 

(CRC) (Apr. 27, 2022); ECF No. 59, United States v. Nichols, Crim. A. No. 21-117 (RCL) (Nov. 

10, 2021).
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have been filed in January 6-related cases, and defense counsel was alerted to the purported defect 

in at least four such cases. Defense counsel has tried multiple January 6-related trials in the recent 

past, and evidence regarding Vice President Pence’s whereabouts on January 6, 2021 has been 

standard across such cases. Compare, e.g., United States v. Rivera, 607 F. Supp. 3d 1, 4 (D.D.C. 

2022) with United States v. Grider, --- F. Supp. 3d ---, 2022 WL 17829149, at *2 (D.D.C. Dec. 

21, 2023) and United States v. MacAndrew, Crim. A. No. 21-730 (CKK), 2023 WL 196132, at *2 

(D.D.C. Jan. 17, 2023). Defense counsel was therefore on notice of the alleged defect from the 

face of the indictment in this case and in light of defense counsel’s involvement in related cases. 

II. DISCUSSION

As a threshold matter, it is unclear whether Defendant intends to rely on Rule 12 or Rule 

29 or both. To the extent that Defendant relies on Rule 12, the motion is untimely. A motion 

challenging “a defect in the indictment or information” “must be raised by pretrial motion if the 

basis for the motion is then reasonably available and the motion can be determined without a trial 

on the merits.” Fed. R. Crim. P. 12(b)(3)(B) (emphasis added). A Court may only consider an 

untimely challenge to a defective indictment upon good cause shown. Id. (c)(3). The Motion, to 

the extent it is advanced under Rule 12, is clearly untimely. Nor can Defendant demonstrate good 

cause. 

Generally, a party can demonstrate “good cause” only if they can show some reason why 

they could not have challenged the defect in the time required by Rule 12. See, e.g., United States 

v. Doost, 3 F.4th 432, 437 (D.C. Cir. 2021) (ineffective assistance of counsel). A tactical decision 

to delay investigating an argument does not suffice. See, e.g., United States v. Lorenzana-Cordon, 

Crim. A. No. 03-311-13, 14 (CKK), 2017 WL 11493918, at *10 (D.D.C. June 2, 2017). Nor can 

any delay be excused where the defect is apparent from the face of the charging instrument. See 
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United States v. Weathers, 186 F.3d 948, 954 (D.C. Cir. 1999). 

Indeed, delayed challenge to a defect of which defense counsel was on notice is precisely 

the sort of dilatory conduct against which Rule 12(c) guards. As Weathers explains, 

[i]f [a] defendant[] were allowed to flout [Rule 12’s] time limitations, . . . there would be 

little incentive to comply with its terms when a successful attack might simply result in a 

new indictment prior to trial. Strong tactical considerations would militate in favor of 

delaying the raising of the claim in the hopes of an acquittal, with the thought that if those 

hopes did not materialize, the claim could be used to upset an otherwise valid conviction 

at a time when prosecution might well be difficult. 

Id. at 953. Here, defense counsel was on notice that a minor factual averment in the charging 

instrument was inaccurate. Based on defense counsel’s involvement in related cases, defense 

counsel was also on notice that identifying the error would have simply resulted in a superseding 

information. To the extent that Defendant considers the factual averment a “defect” in the 

indictment, Defendant has not shown good cause for the Motion’s consideration. 

In Defendant’s papers, Defendant now relies on Rule 29. A Rule 29 motion is generally 

predicated on insufficient evidence. Fed. R. Evid. 29(a); United States v. Weisz, 718 F.2d 413, 

438 (D.C. Cir. 1983). The question on a Rule 29 motion is whether there is any “evidence upon 

which a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” United States 

v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985). Reliance on that rule is therefore inapposite 

under present circumstances. The legal relevance of Vice President Pence’s or Vice Presidentelect Harris’ presence at the Capitol is limited exclusively to whether the area was “restricted” 

within the meaning of 18 U.S.C. § 1752. For that purpose, the Government must show in January 

6-related cases either that the Capitol building and grounds were restricted while a “person 

protected by the Secret Service is or will be temporarily visiting” or that the Capitol building and 

grounds were “restricted in conjunction with an event designated as a special event of national 

significance.” Id. § 1752(c)(1)(A), (C). At the very least, the Government proved, through the 
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parties’ stipulation, the first salient predicate: that someone under Secret Service protection was 

present at the Capitol when Defendant entered. See Stipulation, ECF No. 127 at 5 (the Capitol 

building and grounds were a “posted, cordoned off, or otherwise restricted area whether [] Vice 

President [Pence] and members of his immediate family were and would be temporarily visiting”). 

A Rule 29 challenge must, therefore, fail. 

Presumably, Defendant meant to rely on Rule 33(a) to move for a new trial, which is 

focused on a conviction’s vacatur when “the interest of justice so requires.” Granting a new trial 

“is warranted only in those limited circumstances where a serious miscarriage of justice may have 

occurred.” United States v. Wheeler, 753 F.3d 200, 208 (D.C. Cir. 2014) (cleaned up). Reading 

between the lines, it seems that Defendant advances a due-process challenge, arguing, in effect, 

that the Government constructively amended or varied from the Indictment. See ECF No. 138 at 

2 (“[A] person cannot be convicted of ‘an offense that is different from that alleged in the grand 

jury indictment.’” (quoting United States v. Quinn, 401 F. Supp. 2d 80, 91 (D.D.C. 2005)). In 

advance of trial, Quinn held an indictment legally insufficient where it failed to allege the offense’s 

requisite mens rea. 401 F. Supp. 2d at 90. In this post-trial context, such an argument is framed 

not as an argument that the indictment is legally insufficient (here, the instant indictment is legally 

sufficient), but rather as an argument that the factfinder might impermissibly convict based on 

some material divergence from the charging document at trial. See United States v. Sayan, 968 

F.2d 55, 59 (D.C. Cir. 1992). 

The law recognizes two such diversions: variances and amendments. The Government 

varies from the charging document where the evidence at trial proves facts materially different 

from those alleged in the indictment. See United States v. Lorenzana-Cordon, 949 F.3d 1, 4 

(D.C. Cir. 2020). A conviction may only be vacated where the variance had a “substantial and 
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injurious effect or influence in determining the jury’s verdict.” United States v. Baugham, 449 

F.3d 167, 174 (D.C. Cir. 2006). No such issue arises here, because the Court, as factfinder, will 

not convict on bases not alleged in the indictment or unproven beyond a reasonable doubt. 

Slightly different, an amendment occurs where “the evidence presented at trial and the 

instructions given to the jury so modified the elements of the offense charged that the defendant 

may have been convicted on a ground not alleged by the grand jury’s indictment.” United States 

v. Toms, 396 F.3d 427, 436 (D.C. Cir. 2005) (emphasis original) (internal quotation marks 

omitted). Here, the indictment advanced two factual grounds to conclude that the Capitol 

building and grounds were restricted: (1) Vice President Pence’s presence, and (2) Vice 

President-elect Harris’ presence. The evidence is sufficient as to the former. The Government 

having relied on a sufficient, but narrower, set of facts “that suffices to establish the elements of 

the crime charged,” there is, therefore, no due process issue. See United States v. Coughlin, 610 

F.3d 89, 105 (D.C. Cir. 2010).

III. CONCLUSION

In sum, both pretrial and post-trial challenge to the indictment’s evidently erroneous 

allegation regarding Vice President-elect Harris fail. The Court therefore DENIES Defendant’s 

[136] Motion to Dismiss Counts Two and Three of the Indictment. An appropriate order 

accompanies this memorandum opinion. 

Dated: May 5, 2023 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge